WADA & ANOR v. INEC & ORS
(2020)LCN/15919(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, April 30, 2020
CA/A/EPT/263/2020
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. MUSA ATAYI WADA 2. PEOPLES DEMOCRATIC PARTY (PDP) APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. BELLO YAHAYA 3. ALL PROGRESSIVE CONGRESS (APC) RESPONDENT(S)
RATIO:
PARTICULARS OF GROUND OF APPEAL
The law is settled that, particulars of a ground of appeal are supposed to highlight briefly the misdirection or error in law complained of. Per MOHAMMED BABA IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This appeal is against the decisions of the Kogi State Governorship Election Petition Tribunal, sitting in Abuja delivered on the 8th day of April 2020, by Hon. Justice Ohimai Ovbiagele and Hon. Justice Baraka I. Wali, in which their lordships, marked the Smart Card Reader’s Report tendered in evidence by the Appellants and subsequently refusing the Appellant’s oral application to the trial Tribunal to set aside its said rejection in evidence, the said Card Reader tendered in evidence by the Appellant.
The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Tribunal are to the effect that the Petitioners who were aggrieved by the 1st Respondent declaration and return of the 2nd Respondent as the winner of the Kogi State Governorship Election filed a 323 paragraph petition on the 7th of December, 2019. After the close of prehearing the trial Tribunal gave its report and trial commenced with the petitioners calling witnesses. However, in the course of hearing on the 8th day of April 2020 PW24 a subpoenaed witness from INEC sought to tender in evidence a smart card reader report which was not listed on the subpoena as part of the documents tendered, the 2nd Respondents’ Senior Counsel objected to it on ground that the document sought to be tendered was not part of the list of documents on the subpoena. The Trial Tribunal being persuaded and rightly so, rejected the Smart Card Reader Report as same was not listed.
The Appellant, being dissatisfied with the decision of the Tribunal Court appealed against the decision. In accordance to the rules of Court parties filed and adopted their respective briefs of argument at the hearing of the appeal. In the Appellant’s brief two (2) issues were distilled for the determination of this appeal:
1. Whether the trial Tribunal breached the right to fair hearing of the Appellants when it rejected the Smart Card Readers report tendered through PW24 on the ground that the Smart Card Reader Report was not “a card Reader Machine within the documents listed in Exhibit P192” and to have refused to set aside that decision on the ground that it has become functus officio. (Distilled from ground 1, 3 and 4)
2) Whether the trial Tribunal was wrong to have ordered the smart Card Readers Report tendered through PW 24 as tendered but rejected and to be marked accordingly, when the Smart Card Readers report is pleaded, list and relevant to the facts pleaded in the petition. (Distilled from ground 2)
In relation to issue one the Appellants argued that the trial Tribunal breached the right to fair hearing of the Appellants when it rejected the Smart Card Readers’ Report tendered through PW24 on the ground that the Smart Card Reader Report was not “a card Reader Machine within the documents listed in Exhibit P192” and to have refused to set aside that decision on the ground that it has become functus officio. Additionally, the Appellant submitted that the trial Tribunal in making the order on the 8th day of April that “the smart Card Reader Report not being a card Reader Machine within the documents listed in Exhibit P192 hereby tendered but rejected and to be marked accordingly” when appellants were not given opportunity to address on the question of admissibility breached the right to fair hearing of the Appellants.
Furthermore, the Appellants argued that the right to address the trial Tribunal on the objections which parties and the trial Tribunal had agreed be exercised at the final address stage was denied and that this right is a constitutional right under Section 294(1) and 36(1). Counsel for the Appellants therefore argued that by rejecting the smart card readers report tendered before it, when it did not afford the appellants an opportunity to address it on the points raised by the defence, the trial Tribunal denied the Appellants the opportunity of presenting its case and proving its allegation specific to the report it had painstakingly obtained.
Counsel for the Appellant also argued that the trial Tribunal was in grave error when it refused to set aside the order rejecting the smart card readers report and to mark it same accordingly. Further, that the decision to mark the document rejected was done in breach of the right to fair hearing of the Appellant. Finally, the counsel argued that the trial Tribunal in rejecting the smart card Readers Report was with due respect, such as to deprive the decision or ruling of the character of a legitimate adjudication and that the tribunal was not functus officio as it erroneously held.
In arguing its issue two, counsel for the Appellants submitted that the Tribunal was wrong to have recorded the smart card Reader Report tendered through PW24 as tendered but rejected and to be marked accordingly, when the smart card Readers report is pleaded, listed and relevant to the facts pleaded in the petition. Counsel further submitted that, what governs admissibility under our law is relevancy and if the facts which the documents sought to be tendered in support thereof is pleaded. Additionally, that admissibility in election petition is further determined by whether the documents sought to be tendered are listed in the petition and not whether the documents were listed in a subpoena.
Additionally, counsel for the Appellants argued that it is trite law that a Court or Tribunal is bound to admit for admissible oral and documentary evidence and that the pre-requisite for admissibility of documentary evidence in civil proceedings is that it must not only be pleaded but it must be relevant to render such documents admissible by a Court or Tribunal. Counsel then submitted that there is no doubt that the Smart Card Reader Report tendered through PW24 was pleaded and it was produced by an official of INEC. In conclusion, Counsel for the Appellants urged the Court to allow the appeal on this issue also because, it was clear that it was an error for the trial Tribunal to have ordered the document the smart card reader report tendered through PW24 to be marked tendered but rejected when it was pleaded and listed in the petition.
The 1st Respondent formulated two (2) issues for the determination of this appeal thus:
1. Whether in view of the peculiar facts and circumstances before it, the trial Tribunal was not right in law when it marked the Smart Card Reader Report tendered through Appellants’ PW24 as rejected. (Distilled from grounds 1, 2 and 3)
2. Whether the decision of the trial Tribunal refusing to set aside its Order rejected the admissibility of the Smart Card Reader Report tendered through Appellants PW24 is not right in law. (Distilled from ground 4)
In relation to issue one, the 1st Respondent argued that the facts and circumstances before the trial Tribunal clearly shows that the Appellants were heard before the trial Tribunal took the decision marking the said Smart Card Reader Report tendered through Appellants’ PW24 as rejected, contrary to the complaint of the Appellants in this appeal that their right to fair hearing were breached.
Counsel for the 1st Respondent also argued that, immediately after the Appellant’s witness PW23 gave evidence and Senior Counsel for the Appellant introduced PW24, Senior Counsel for the Respondent instantaneously objected vehemently to rendering of the aforesaid forms EC8D, EC8E and Smart Card Reader Report through the subpoenaed witness because these Exhibits were not contained in the said subpoena. Counsel continued and submitted that learned Senior Counsel for the Appellant’s without any hesitation quickly responded to the objection to by tendering the said forms EC8D, EC8E and Smart Card Reader Report. The 1st Respondent then submitted that the trial Tribunal based their earlier submission by the Appellants and Respondents which the Respondent reinforced when the Appellants applied to tender the said Card Reader Report in evidence and rejected it.
Furthermore, the 1st Respondent argued that the trial Tribunal in its decision did not breach Section 294(1) and 36(1) of the 1999 Constitution. Additionally, counsel for the 1st Respondent argued that the objections reserved by its Senior Counsel were for reasons of payment receipts, press release and certificate of compliance as the Counsel could not have reserved objection on the issue of Card Reader Report when they had already canvassed argument on it and ruling was reserved. Finally, it was argued that the submission of the Appellants on failure of the tribunal to set aside its decision was misconceived.
As it relates to the second issue the 1st Respondent argued that the decision by the trial Court to reject the Smart Card Reader Report tendered through the Appellants PW24, its right in law. It was argued that the Appellants failed to meet the grounds or criteria under which a Court can set aside its judgment or order. Additionally, the 1st Respondent submitted that PW24 never identified the Card Reader Report as claimed by the Appellants. Furthermore, it was argued that contrary to the wrong impression created by the Appellant, the INEC Receipt and certificate of compliance were not among the items opposed by the Respondents as such the Tribunal was right in law to have provisionally admitted them in evidence.
Counsel for the 1st Respondent also argued that the submission of the Appellant in paragraph 5.08 of their brief amounts to a conversion of a subpoena ad testicandum to a subpoena duces tecum by means of submission of Counsel which they submitted is not allowed in law. So also counsel argued that the issue of admissibility of illegally obtained evidence raised by the Appellant is not relevant in law.
The 2nd Respondent on their own part filed a preliminary objection challenging the competence of the entire appeal and the competence of ground 2 of the Notice of Appeal along with the issues distilled therefrom and the supporting argument and that in respect of the competence of the Notice of Appeal they submitted that it was fundamentally defective and an abuse of Court process.
In arguing the preliminary objection, the 2nd Respondent submitted that the Appellants cannot appeal against the two decisions of the trial Tribunal delivered on the 8th of April, 2020 at the same time. Counsel argued that the Appellants should have only elected to appeal against one of the decisions and not both at the same time as either way, both appeals would lead to the same result meaning that the appeal against both decisions is an abuse of Court process. The 2nd Respondent then urged the Court to strike out the Notice of Appeal filed on 9th of April 2020.
The 2nd Respondent then argued that in the unlikely event that this Court is of the view that the Notice of Appeal is competent, then they submitted that ground is grossly incompetent. Counsel for the 2nd Respondent then argued that the issue that was considered and determined by the trial Tribunal was limited to the issue of whether the document sought to be tendered was specified in the subpoena (Exhibit P126) or not, which explains why the Trial Tribunal held thus: The Card Reader Report not being a Card Reader Machine within the documents listed in Exhibit P126 is hereby tendered but rejected. Additionally, that at no point did the issue of pleadings or relevancy of the document considered or argued by the parties, as the trial Tribunal limited themselves to the issue of the document not been specified in the subpoena. Finally, counsel submitted that the particulars of error purportedly in support of Ground 2 of the Notice of Appeal are largely the contentions of the Appellants and not issues that arose from the ruling of the Trial Tribunal. It was then concluded that the effect of the incompetence of ground 2 that the issues distilled from it are also incompetent and should be struck out.
The 2nd Respondent then distilled two issues for the determination of this appeal thus:
1. Whether or not the trial Tribunal was right when it rejected the Smart Card Reader Report sought to be tendered by the Appellants through PW24 on the ground that the said document was not listed in Exhibit P192 as part of documents to be produced by PW24? (Ground 1, 2 and 3)
2. Whether or not the trial tribunal was right to have refused to set aside its ruling rejecting the tendering of the Smart card reader report on the ground that the Appellants failed to demonstrate clear ad factual reasons why the said ruling should be set aside? (Ground 4)
The 2nd Respondent argued the two issues together and submitted that by issuing a subpoena duces tecum a witness is ordered to tender in evidence a specific document and not a random document as suggested by the Appellants. The 2nd Respondent the argued that a witness on subpoena cannot tender in evidence any other document other than the one specified in subpoena. Additionally, the 2nd Respondent argued that the reason for the objection reserved were not in respect of the Smart Card Reader Report but in respect of other documents sought to be tendered such as the Press Release from INEC which was listed in the subpoena. Further that the trial Tribunal created an atmosphere and environment for hearing as such the breach of fair hearing did not arise.
Additionally, the 2nd Respondent the circumstance and manner of the rejection of the smart card reader report is totally different from the other documents earlier tendered and objection reserved and the Tribunal was within its judicial powers having issued the subpoena and rejected same. Counsel also argued that a prehearing report does not preclude the Respondent if the need arises from raising an objection as to the tendering of documents not listed in the subpoena.
Counsel for the 2nd Respondent also argued that the trial Court was not in grave error in rejecting the said document having not been listed as part of the documents in the subpoena. So also, the 2nd Respondent argued that the specific holding of the Trial Tribunal that it was functus officio was never made a ground of appeal by the Appellant. Finally, the 2nd Respondent argued that before a ruling or judgment can be set aside by the same Court or Court of co-ordinate jurisdiction there are certain requirements which must be established before such an application can be granted and the Appellant failed to meet those requirements.
The 3rd Respondent formulated two issues for the determination of this appeal as follows:
1. Whether the Tribunal breached and violated the right to fair hearing of the appellants when it rejected he smart card reader report tendered by PW24 on the ground that the said Report was not listed in the order of subpoena, exhibit P.192 granted by the Tribunal at the request of appellant, even though the said report is pleaded.
2. Whether the Tribunal was wrong when it refused the application of the Appellants to set aside its ruling on rejection of smart card report.
On the first issue, it was argued that the parties were not mandatorily bound and or required to only note their objections and defer their respective arguments on the objections till final written address. That this was supported by the use of “may” as against “shall”, which are copiously used in many parts of the same Report.
It was argued that the Appellants did not oppose the objection of the Respondents and were therefore not denied fair hearing, and that assuming without conceding that the appellants were not heard, the non-hearing of the Appellants did not lead to any miscarriage of justice and that none had been shown. That the rejection of the smart card reader report which was not listed in the order of subpoena issued by the Tribunal was in order and consistent with the justice of the case.
On the second issue, learned counsel for the 3rd Respondent argued that the setting aside of the tribunal’s ruling was not covered or specifically provided for by the 1st schedule to the Electoral Act, 2010 (as amended), and that Appellants did not meet the conditions laid out in Order 14 Rule 10 and Order 51 Rule 2 of the Federal High Court (Civil Procedure) Rules 2019. That the trial Tribunal upon delivery of its ruling became functus officio, and the Appellants could only have recourse to an appeal.
The Court was urged to dismiss the appeal and uphold the decision of the Tribunal.
The Appellants filed reply briefs to the 1st and 2nd Respondents’ briefs. The reply to the brief of the 1st Respondent is merely a re-argument of the Appellants’ brief. However, in response to the 2nd Respondent’s brief especially the preliminary objection, learned counsel argued that the law did not prohibit the Appellants from filing a single notice of appeal against two or more decisions of the trial Tribunal delivered even on different dates having due regards to the prescribe time for filing appeals in election petition cases. The cases of AFRIBANK NIG. LTD VS. OWOSENI (1994) LPELR – 14200 (CA); KADEMI VS. ISAH & ORS (2019) LPELR – 48215 (CA); PDP VS. INEC (2015) LPELR – 25669 (CA) were relied on.
It was also argued that grounds 1, 2, 3 and 4 of the notice of appeal dealt with question of the jurisdictional point and nullity of the decision of the trial Tribunal, and that the jurisdictional point cannot be defeated by the manner in which the notice of appeal is raised or how the grounds are couched as the issue of jurisdiction could be raised at any time and anyhow even before the Supreme Court for the first time.
It was submitted that the notice of appeal was competent and that ground 2 and issue 2 distilled therefrom where competent, and the Court was urged to dismiss the objection.
In resolving this appeal, we shall first determine the preliminary objection filed by the 2nd Respondent, and if need be, proceed to the determination of the issues as raised by the Appellants herein as follows:
1) Whether the trial Tribunal breached the right to fair hearing of the Appellants when it rejected the Smart Card Readers report tendered through PW24 on the ground that the Smart Card Reader Report was not “a card Reader Machine within the documents listed in Exhibit P192” and to have refused to set aside that decision on the ground that it has become functus officio. (Distilled from ground 1, 3 and 4)
2) Whether the trial Tribunal was wrong to have ordered the smart Card Readers Report tendered through PW24 as tendered but rejected and to be marked accordingly, when the Smart Card Readers report is pleaded, list and relevant to the facts pleaded in the petition. (Distilled from Ground 2)
RESOLUTION OF THE PRELIMINARY OBJECTION
We have listened to the submissions of learned counsel. The preliminary objection has no merit on the ground that no rule prohibits the filing of a single notice of appeal in a civil appeal against 2 decisions of the lower Tribunal delivered on the same date. Ground 2 and issue 2 distilled therefrom are competent and this Court hereby dismisses the preliminary objection of the 2nd Respondent on this issue. In this regard, I refer to the decision of my learned brother Georgewill, JCA in DAVID O. UCHIV & ANOR VS. PIUS SABO & ORS (2016) 16 NWLR (PT. 1538) 264 AT PAGES 295 – 297 wherein he observed thus:
“I must be quick to point out at once that the filing of a single notice of appeal challenging two different decisions of a Court delivered on two distinct dates is subject to the rules on time within which an appeal can be validly filed against the decisions of the court. It follows therefore that both decisions to be appealed against by a single notice of appeal must be within the time allowed to file an appeal for it to be competent. In other words, in law two notices of appeal on the same decision as well as a single notice of appeal on two decisions in the same case, once filed within time is competent. In Ogigie v. Obiyan (1997) 10 NWLR (PT. 524), 179 at 195 paras. F – H, the erudite Chief Justice of Nigeria, Uwais, CJN, had pronounced with finality thus:
Now no reference was made throughout the judgment of the trial judge to the issue of applicability of Land Use Act or Bendel State Legal Notice No. 22 of 1978. Such reference were made only in the ruling delivered on 31/5/1984. Can the appellants, therefore, raise such an interlocutory issue in the appeal against the judgment? I respectfully think not. Although, a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to be encouraged in order to avoid unnecessary delay by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved …. In order to marry two appeals together, one has to obtain leave to appeal out of time against the interlocutory ruling.
See also Ned Nwoko v. Jude Azekwo & Ors (Supra) at Pp. 169 – 170; FRN v. Dairo (Supra) at pp. 161 – 168; Tukur v. Government of Gongola State (1988) 1 NWLR (PT. 68) 39; Akeredolu v. Akinremi (1986) 2 NWLR (PT. 25) 710; Harriman v. Harriman(1987) 3 NWLR (PT. 60) 244; Diamond Bank Ltd v. P. I. C. Ltd (2009) 18 NWLR (PT. 1172) 67; Savannah Bank of Nig. Plc v. CBN (2009) 6 NWLR (PT. 1137) 237.
My Lords, in the application of the above position of the law, a caveat or note of warning would not be out of place here as it is very apposite to state that although, a party is at liberty to file a single notice of appeal against two decisions of a Court delivered on two distinct dates in the same case or file two notices of appeal against the same decision, all within time, yet a party cannot in law file a single notice of appeal on two cases, even if they were consolidated and are having the same record of appeal without the express leave of the Court to that effect. See Alhaji Abba Asheik v. Borno State Government & Ors (2012) 9 NWLR (PT. 1304) 1 at Pp. 17 – 18, paras. G – A, where Dongban-Mensem, JCA, had so clearly pointed out thus:
No process has been placed before this Court to show any order consolidating two or more appeals into one. Although, an appellant is at liberty to file more than one notice of appeal in one case, he cannot, without the express leave of the Court file one notice of appeal on two cases even if the record are the same. The implication here is that, no appeal was filed on one of the cases consolidated.
In the light of the above clear position of the law, the single notice of appeal filed by the appellants in the instant appeal against two different decisions of the lower Tribunal delivered on distinct dates of 27/7/2015 and 11/8/2015 respectively, within the 21 days allowed by paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 is, in my finding, competent to be heard and determined on the merit. See Ogigie v. Obiyan (Supra) at p. 195. See also Nwoko v. Jude Azekwo& Ors (Supra) at pp. 169 – 170; Royal Exchange Assurance (Nig.) Plc v. Michael Anumnu (2003) 6 NWLR (PT. 815) 52; Ezeadukwa v. Maduka & Anor (1997) 8 NWLR (PT. 518) 635; Chief Bakare v. ACB Ltd (1986) 3 NWLR (PT. 26) 47; Kakih v. PDP & Ors (2014) LPELR 23277 (SC), (2014) 15 NWLR (PT. 1430) 374.”
The law is settled that, particulars of a ground of appeal are supposed to highlight briefly the misdirection or error in law complained of. They are the specifications of errors or misdirections which show what the complaint against the decision is all about. It provides specific details to fill in the yearning gaps in an inexplicit ground. It demonstrates how the complaint will be canvassed in an attempt to reveal the flaw in a particular portion of the judgment. See OLEK SANDR & ORS VS. LONESTAR DRILLING CO. LTD & ANOR (2015) 62 PT1 NSCQR 273; NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY & ANOR (2016) 68 PT. 11 NSCQR 478; OGBORU & ANOR VS. OKOWA & ORS (2016) 11 NWLR (PT. 1522) 84; ISAH VS. INEC & ORS (2016) 18 NWLR (PT. 1544) 175.
Having perused Ground 2 of the Notice of Appeal and its particulars, it is clear that the particulars are not independent of the ground, but ancillary to it. The particulars clearly flow from the ground logically. For this reason, we are of the opinion that the ground is competent. On this issue, we hold that the preliminary objection must also be dismissed. See also ANADI VS. OKOLI (1977) 7 SC 57; AMUDA VS. ADELODUN (1994) 8 NWLR (PT. 360) 23.
Finally, we hold that the preliminary objection filed by the 2nd Respondent lacks merit and it is hereby dismissed.
RESOLUTION OF THE MAIN ISSUES
The practice is that an objection to the admissibility of a document is taken at the time it is being tendered in evidence. See FATUNBI VS. OLANLOYE (2004) 12 NWLR (PT. 887) 229 SC. In the present case, it is clear from the Pre-hearing Report at pages 295 – 297 of the record of appeal, especially paragraph 7 thereof, that all objections to documents may be made and noted at the point of tendering the documents, but grounds of objection and submissions thereon may be made at the stage of final written addresses.
It appears from the record of appeal, that proceedings before the lower Tribunal were conducted in accordance with paragraph 7 of the Pre-Hearing Report. Part of the proceeding of 8th April, 2020 that led to the institution of this appeal was carried out in breach of the said Report.
This breach occurred when PW24 who was a witness on subpoena was called in to give his evidence. The proceeding that led to the decision appealed against is reproduced hereunder for ease of reference:-
“PW24 (continued): I am here in Court on subpoena. I have a copy.
Okutepa SAN: I apply to tender in evidence, a copy of the subpoena he produced from his pocket.
Dr. Izinyon SAN: We object to the admissibility of the document. We shall give our reasons.
Daudu SAN: We also object. We reserve our reasons.
Balogun: We are equally objecting. We shall give our reasons.
Tribunal: The photocopy of a subpoena issued in the name of the Chairman, INEC dated 18/02/2020 is hereby admitted as Exhibit P192.
SGD
Hon. Justice G. K. KAIGAMA
CHAIRMAN
18/04/2020
SGD
Hon. Justice BARAKA I. WALI
MEMBER 2
08/04/2020
SGD
Hon. Justice O. OVBIAGELE
MEMBER 1
08/04/2020
PW24 (Continued): Forms EC8D & E are relevant documents. I have a CTC of Forms EC8D and EC8E which we have earlier on given to you.
Okutepa SAN: I apply to tender in evidence the CTC of Form EC8D and EC8E in evidence.
Dr. Izinyon SAN: No objection Daudu SAN: No objection
Balogun Esq: No Objection
Tribunal: The CTC of Forms EC8D and EC8E are hereby admitted in evidence as Exhibits 193 A & B
SGD
Hon. Justice G. K. KAIGAMA
CHAIRMAN
18/04/2020
SGD
Hon. Justice BARAKA I. WALI
MEMBER 2
08/04/2020
SGD
Hon. Justice O. OVBIAGELE
MEMBER 1
08/04/2020
PW24 (Continued): Items C, D, E, G, H, (I), J, K & I believe have been given to you. The documents are not with me. I believe all the documents the Petitioners applied for have been released to them. Card Reader Reports is one of those items listed in Exhibit P192.
(Witness shown INEC Receipt for payment of Certified Press Release by Festus Okoye, Smart Card Reader Report and Certificate of Compliance and witness identified the receipt and the stamp.)
I do not know anything about the other documents because I was not in the ICT.
Okutepa SAN: I apply to tender the receipt of payment, Press Release and Certificate of Compliance in evidence.
Dr. Izinyon SAN: We object to the documents. If I may go further to say that Exhibit P192 is on Card Reader Machines and not on Card Reader Report. We reserve our reasons.
Daudu SAN: We associate ourselves with the learned Silk. We object to the application and we reserve our reasons.
Balogun Esq: We object. We add that the Card Reader Report is not among document in Exhibit P192 and to remind the Tribunal of previous ruling in EPT/KG.GOV/07/2019. We shall reserve our reasons.
Tribunal: the INEC Receipt dated 06/12/2019 in the name of S. M. John Mark Co., the Certificate of Compliance dated 17/12/2019, the CTC of INEC Press Release dated Nov. 16, 2019 are hereby admitted as Exhibit P194 A, B & C respectively. The Card Reader Report not being a Card Reader Machine within the documents listed in Exhibit P192 is hereby tendered but rejected and to be marked accordingly.
SGD
Hon. Justice G. K. KAIGAMA
CHAIRMAN
18/04/2020
SGD
Hon. Justice BARAKA I. WALI
MEMBER 2
08/04/2020
SGD
Hon. Justice O. OVBIAGELE
MEMBER 1
08/04/2020”
It is clear that in line with paragraph 7, learned counsel for the Respondents herein each objected to the admissibility of Card Reader Report tendered by the Appellants herein, but reserved their reasons for the said objection, apparently till final address. However, the learned trial Tribunal, instead of reserving its opinion on the admissibility of the said document rejected same out rightly. The learned trial Tribunal did this without taking the response of the learned counsel for the Appellants, in breach of their right to fair hearing, and contrary to the Tribunal’s own pre-hearing report issued pursuant to paragraph 18 of the 1st Schedule to the Electoral Act (2010) as amended.
The principle of fair hearing entrenched in the Constitution is so fundamental to the judicial process or administration of justice such that a breach of it in any proceeding nullifies the whole proceedings. A proceeding conducted in breach of fair hearing, no matter how well conducted is null and void. The breach of fair hearing is such a fatal virus that irredeemably vitiates any proceedings or decision that imputes right to fair hearing as such it must be set aside. See MIDEN SYSTEM LTD VS. EFFIONG (2011) 2 NWLR (PT. 1231) 354; OKUNGBOWA VS.GOV. EDO STATE (2015) 10 NWLR (PT. 1467) 257; OSHIOMHOLE VS. CHARLES E. AIRHIAVBERE & ORS (2013) 53 PT. 3 NSCQR 1200.
The trial Tribunal acted prematurely in rejecting the Card Reader Report. At this juncture, there is no point addressing any other issue(s). The ruling of the trial Tribunal in rejecting the Card Reader Report is hereby set aside and an order is hereby made directing that the trial Tribunal be addressed on the objection to the said document at the stage of final written addresses as enshrined in the Pre-Hearing Report, and a decision be made in the final judgment.
No order as to cost.
JIMI OLUKAYODE BADA, J.C.A.: I agree.
HARUNA SIMON TSAMMANI, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I agree
Appearances:
J. S. Okutepa (SAN), M. M. Nurudeen (SAN), with them, J. J. Usman Esq., E. E. Eko Esq. and S. E. Okopi Esq. For Appellant(s)
B. K. Abu Esq., with him, C. S. Ekeocha Esq., K. O. Omoman Esq. and E. Oghojafor Esq. – For the 1st Respondent
A. Adedeji Esq., with him, M. Adjeh Esq., E. A. Oni Esq., A. Audu Esq. and I. S. Ojiah Esq. – For the 2nd Respondent
W. Balogun Esq., with him, V. Okudiri Esq., Z. Garuba Esq., O. Olojo Esq. and W. A. Adeniran Esq. – For the 3rd Respondent. For Respondent(s)