LawCare Nigeria

Nigeria Legal Information & Law Reports

YAKUBU OSENI v. NATASHA HADIZA AKPOTI & ORS (2019)

YAKUBU OSENI v. NATASHA HADIZA AKPOTI & ORS

(2019)LCN/13714(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of July, 2019

CA/A/EPT/527/2019

 

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

YAKUBU OSENI Appellant(s)

AND

1. NATASHA HADIZA AKPOTI
2. SOCIAL DEMOCRATIC PARTY (SDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. ALL PROGRESSIVES CONGRESS (APC) Respondent(s)

RATIO

WHETHER OR NOT WHERE A PARTY PLEADING OMITS OR NEGLECTS TO GIVE FURTHER PARTICULARS WHICH OUGHT TO BE GIVEN, THE OTHER PARTY HAS THE RIGHT AND DUTY TO APPLY FOR SUCH PARTICULARS AS HE DEEMS NECESSARY

The Supreme Court in Ayeni & Ors v. Sowemimo (1982) 5 SC 60 at 76 followed the West African Court of Appeal decision in Oguntokun v. Rufai (1945) 11 WACA 55 at 66 & 67 that ?where a party omits to set out details which he ought to have given and his opponent does not apply for particulars, he is entitled to give evidence at the trial of any fact which supports the allegation in the pleading.” In A-G of Bendel State & Ors v Aideyan (1989) 9 SC 127, the Supreme Court held that ?if a party pleading omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right and the duty to apply for such particulars as he deems necessary. If he fails to apply and takes no objection to such particulars as are given in evidence, he cannot latter complain on appeal. PER AGIM, J.C.A.

WHETHER OR NOT A JUDGE CAN SIT DOWN OUT OF COURT ON HIS OWN AND EXAMINE DOCUMENTS TO SORT OUT THE CASE OF A PARTY

A Judge is to descend from his heavenly abode, no lower than the treetops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.
In OBASI BROTHERS LTD. V. MBA SECURITIES (2005) 2 SC (1) 51 at 68 the Supreme Court held thus:- ?The admission of Exhibits F ? Q in evidence at the trial is not a cure to this either because it is well settled that a judge cannot sit down out of Court on his own and examine documents to sort out the case of a party. It is the duty of the party to elicit such evidence in Court through its witnesses especially as in this case where various documents are involved.? In ALAO V. AKANO (2005) 4 SC 25 at 36 it again held that:- ?It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be, would not be of much assistance to the Court in the absence of oral evidence by persons who can explain their purport.? See also Adewale & Anor v. Olaifa & Ors (2012) LPELR ? 7861 (CA). PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/EPT/527/2019 was commenced on 6-6-2019 when the appellant herein filed a notice of appeal against the ruling of the Kogi State National and State Houses of Assembly Election Tribunal at Lokoja delivered in EPT/KG/SEN/02/2019 on 1-6-2019. The notice of appeal contains 4 grounds of appeal.

Appellant and 1st respondent filed, exchanged and adopted their respective briefs as follows- appellant?s brief, 1st respondent?s brief and appellant?s reply brief.

The appellant?s brief raised the following issues for determination.
1. Whether the learned trial Tribunal erred in law when it granted the Petitioners Application to file two additional witness statements on oath of 530 paragraphs each out of time and in supplement to the 44 paragraph Petition filed on or about the 14th of March 2019 and by so doing enabled the Petitioners to surreptitiously amend their petition outside the statutory period for the filing of Petitions which is restricted by the provisions of Section 285-(5) of the 1999 CFRN (as amended) to 21 days thereby

1

denying the Appellant of the right to fair hearing? Ground 1 and 4 of the Notice of Appeal).
2. Whether the lower Tribunal erred in law when it granted the application aforedescribed without properly considering and reviewing the submissions made to it in part or in whole and properly evaluating the affidavit evidence placed before it and by so doing occasioned a miscarriage of justice on the Appellant? (Ground 2 and 3 of the Notice of Appeal)

The 1st respondent?s brief raised one issue for determination as follows-
1. Whether the learned trial Tribunal was right to have granted the petitioners leave to file 2 additional witnesses? statements in view of the order of inspection it earlier granted.

I will determine this appeal on the basis of the issues raised for determination in the appellant?s brief.
I will determine the issues together.
I have carefully read and considered the arguments in the respective briefs on these issues.
?
The central question thrown up by these arguments is whether the additional witness statement on oath of the 1st respondent and the witness statement on oath of B.O filed on

2

20-5-2019 and deemed filed by order of the trial Court 1-6-2019 contain facts not contained in or at variance with the Petition and amount to an amendment of the grounds for the petition or the statement of fact relied on in support of the said grounds.

Learned Counsel for the appellant argued that the Trial Tribunal by granting the application for leave to file an additional witness statement on oath of the 1st respondent and to file the witness statement of B.O after inspection of the electoral materials, ordered by the Trial Tribunal, enabled the petitioners to furtively amend their petition by adducing new facts which the appellant had no avenue to respond to as pleadings had closed.
?
Learned Counsel for the 1st respondent argued in reply that the essence of the order of inspection made by the Tribunal on March 29, 2019 is to enable the Petitioners maintain the petition by leading evidence in support of the grounds of the petition and that the grant of the order of inspection was aimed at allowing evidence gotten from the inspection to come before the Tribunal as shutting the evidence out, would render the order for inspection futile. For the

3

above submission, he relied on the decision of this Court in Aregbesola v Oyinlola (2009) 14 NWLR (Pt. 1162) 429 at 477 ? 478 and the Supreme Court decision in Abubakar v. Yaradua (2008) 4 NWLR (Pt. 1078) 465 at 512.
Let me now determine the merits of the above arguments of both sides.
?
I agree with the submission of Learned Counsel for the 1st respondent that the inspection of the election materials was ordered for the purpose of maintaining or defending the petition. This order is in keeping with S.151 of the Electoral Act 2010. For the evidence obtained from the inspection to support the petition, it must support the facts pleaded in the petition and should not contain facts not pleaded in the petition and should not introduce a case different or additional to the one in the petition. So it is not every fact discovered or obtained in the Tribunal or Court ordered inspection of election materials that can be relied on to prove or defend the petition. It will be contrary even to S.151 of the Electoral Act  to allow the petitioners to file statement of facts not contained in the petition or that introduces a case not contained in the petition

4

merely because they were obtained in the Tribunal or Court ordered inspection of the election materials.
Learned SAN for the appellant argued that from a careful perusal of the proposed additional statements on oath of the witnesses that were admitted by the trial Tribunal, it can be observed that there are fresh and different set of allegations/complaints that were made in respect of various units which were not specifically referred to in the petitioners? petition, particularly, we refer to paragraphs 11 to 510 of the said proposed statement on oath of B.O at pages 892 ? 1060 of volume 2 of the printed record, that the petitioners have introduced complaints of non- accreditation and over-voting in respect of specific polling units across Adavi, Okene and Ajaokuta Local Governments not captured in their petition filed on the 14th of March 2019, that the same applies to Exhibit B where the 1st respondent has attempted the same exercise at pages 5 to 509 of her said additional witness statement on oath, that there is also a new allegation concerning the voters registers used in the said election which is to the effect that in a lot of polling

5

units there was a failure of the Presiding officers to tick the top most box therein to indicate what elections were being conducted and by implication that there was no accreditation in said polling units where this omission occurred, that another pertinent observation is that Petitioners claim in paragraph 35 of their petition that after deducting the purported invalid votes from Adavi, Okene and Ajaokuta Local Government Areas from the scores declared in Form EC8E (1), the Petitioners scored 19,499 being majority of lawful votes cast in the election while the 3rd Respondent scored 14,327 votes, that this fact is also contained in paragraph 37 of the 1st Petitioner?s witness statement on oath in support of their petition, that however, the Petitioners are now attempting to adduce contrary evidence at variance with this position adopted in their pleadings and the 1st petitioners initial witness statement on oath via the instant application, in particular, in paragraphs 508 and 509 of the proposed witness statement of B.O it is stated that after deducting the purported invalid votes from Adavi, Okene and Ajaokuta Local Government Areas from the scores

6

declared in Form EC8E(1), the Petitioners scored 20,608 being majority of lawful votes cast in the election while the Appellant scored 18,897 votes. The 1st respondent?s brief did respond to this argument. This Court will consider its merit.
The complains of non-accreditation of voters and over voting in Adavi, Okene and Ajaokuta Local Government Areas were made in paragraphs 15 ? 20 of the petition thusly-
?15. The Petitioners aver that there was no accreditation or proper accreditation of voters in the polling units in Okene L.G.A, Adavi L.G.A, and Ajaokuta L.G.A.s respectively. In particular, the Petitioners aver as follows:
i. The total votes recorded or entered for all the Political parties in the polling units in Okene, Adavi and Ajaokuta Local Government Areas were, not preceded with the mandatory requirements in the INEC Guidelines for authentication of voters using the Smart Card Readers.
ii. There was no accreditation or proper accreditation of voters at the Polling Units before the various results recorded in Forms EC8A1 series.
iii. The total number of votes as entered in the Polling Units result sheet (Form

7

EC8A1 series) exceeded the numbers of Permanent Voter Cards distributed and/or collected by the registered voters in Okene, Adavi and Ajaokuta Local Government Areas respectively.
iv. The total number of votes recorded or entered for all the Political Parties at the various Polling Units in Okene, Adavi and Ajaokuta Local Government Areas respectively, exceeded the numbers of voters properly accredited to vote as reflected in the Voters? Registers.
v. The votes recorded on the Polling Unit result sheets in Okene, Adavi and Ajaokuta Local Government Area are not the votes of registered voters authenticated by the Smart Card readers and accredited to vote in accordance with the Guidelines.
16. Further to the above, your Petitioners aver that valid votes under the Guidelines were required to be reckoned from polling units where election duly held. The following steps are to be followed according to the provisions of the Electoral Act and Regulations and Guidelines for the Conduct of Elections, 2019 namely:
a. Ascertain number of registered voters in the poling units;
b. Ascertain number of accredited voters in the polling units for the

8

election
c. Using the Smart Card readers device, confirm the identity and subsequently accredit the voters;
d. Using the voters register, tick on the left box to confirm accreditation of the voters which accreditation takes place simultaneously with voting;
e. Ascertain number of ballot papers issued to the presiding officer for the polling unit
f. Ascertain number of ballot papers used in the election at the polling units (if any);
g. Ascertain number of ballot papers spoilt out of the number issued
h. Ascertain number of rejected ballot papers;
i. Ascertain number of valid votes cast;
j. Ascertain number of unused ballot papers, out of the total issued to the polling units for the election;
k. Ascertain sum total of the spoilt, used and unused ballot papers which must be equal to the total number of issued ballot papers; and
l. The said result must thereafter be subscribed with the name of the presiding officers, sign, dated and authenticated with INEC Official Stamp.
17. Your Petitioners aver that votes allotted to the 3rd Respondent in the polling units making up Okene, Adavi and Ajaokuta Local Government Areas

9

did not comply with the above named procedures for the conduct of valid elections.
i. The number of the votes allocated to the parties in all the polling units in Okene, Adavi and Ajaokuta Local Government Areas were more than the number of the registered voters and/or accredited voters in the polling units/local governments.
ii. The Petitioners aver that the election conducted by the 1st Respondent in Okene, Adavi and Ajaokuta Local Government Areas, was characterised by various forms of infractions, such as; over voting, vote cast more than the Permanent Voters Cards (PVCs) collected by voters, votes cast more than the voters accredited on the Register of Voters and card Readers, Alteration on Certified True Copies of Result Sheets not reflected on duplicate copies given to party agents, Alteration on Certified True Copies of Result Sheets not initialled by the makers, Polling units without corresponding voting points result Sheets, and over and/or under balloting.
iii. Your Petitioners in this regard shall in addition to the register of voters used in the entire election, also rely on the smart card reader report of the entire Polling Units in

10

Okene, Adavi and Ajaokuta Local Government Areas.
18. The Petitioners aver further that the votes purportedly called from the three (3) Local Government Areas of Okene, Adavi and Ajaokuta were plagued with over voting, in that the amount of used ballot and/or votes ascribed to the candidates were more than the accredited voters as per the Register of Voters. In this regards, the Petitioners plead and shall rely on the entire Register of Voters in all the Units making up the three (3) Local Government Areas.
19. The Petitioners aver further that the votes ascribed to the candidates, especially the 3rd Respondent, for the entire poling units in Adavi, Okene and Ajaokuta Local Government Areas, were at variance with the figure of accredited voters from the Card Reader report and the Voters Register. The Petitioners plead and shall rely on the Smart Card Reader Report for the entire polling units in Adavi, Okene and Ajaokuta Local Government Areas.
20. The Petitioners aver that the final scores as entered by the 1st Respondent in Form EC8E(1) is a mere allocation of results, as the scores do not emanate from the entries in the Form EC8C(1) series which

11

ought to precede the entries in Form EC8E(1). Whilst Form EC8C(1) for Ajaokuta Local Government Area was issued and dated 24/2/2019, Form EC8E (1) was issued and dated 23/2/2019.?
The petition in the above reproduced paragraphs alleged non accreditation of voters and over voting in all the polling units in the Adavi, Okene and Ajaokuta Local Government Area without furnishing the particulars of the incidents of such non-accreditation and over voting in each or specific poling unit in the said three Local Governments.
In the additional witness statement on oath of 1st respondent and the witness statement on oath of B.O the detailed particulars of the incidents of over voting and non accreditation in each polling unit of the three Local Government Areas were stated. These details of the incidents of over voting and non accreditation of voters in each polling unit in the said three Local Government Areas are clearly particulars of the facts generally alleged in paragraphs 15 ? 20 of the petition. They have not introduced any case different from the one presented in the petition. Those particulars support and prove the averments in

12

paragraphs 15 to 20 of the petition that the non accreditation and over-voting occurred in all polling units of the three Local Government Areas of Adavi, Okene and Ajaokuta. Having averred in the petition that the incidents of non accreditation of voters and over voting occurred in all polling units, evidence of the particulars of the incidents in each of all the said poling units is not at variance with the averments in the petition. The evidence in the said witness statement on oath and additional statement on oath support and prove the said averments in the petition.
Learned SAN for the appellant argued that the petitioners by virtue of paragraph 4(1)(d) of the First Schedule to the Electoral Act 2010 as amended were bound to state clearly in the petition the facts constituting the irregularities and non compliance and relate them to the specific polling units they occurred and that general pleadings are not acceptable in election petitions. This argument deals with how the facts were pleaded in the petition and is completely different from the issue of whether the facts deposed to in the witness statements on oath are at variance with the facts

13

pleaded in paragraphs 15 to 20 of the petition. The said argument would have been appropriate in an application to strike out the said paragraphs of the petition for being general. The application in the trial Tribunal that has led to this appeal is for leave to file an additional witness statement of 1st respondent and the witness statement of one B.O, which the appellant contends should not have been granted by the trial Court because the said witness statements contain facts at variance with paragraphs 15 to 20 of the petition. So, the relevant issue here is whether the witness statements introduced facts that are at variance with the facts in paragraphs 15 to 20 of the petition. So the said argument and the judicial authorities of Belgore v Ahmed (2013) 8 NWLR (Pt. 1355) 60 at 95, Amosun v INEC (unreported ? CA/1/EPT/GOV/01/2009) relied on in support of the argument are not relevant here as they deal with a different issue namely, whether the general or summary pleading of an irregularity or non compliance with the Electoral Act in an election without detailed facts of the irregularity in each polling unit is a proper or valid pleading.

14

Be that as it is, it is in the interest of substantial justice to bear in mind that paragraphs 5 and 17 of the First Schedule to the Electoral Act 2010 as amended provides that- (5) Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary-
(a) To prevent surprise and unnecessary expense;
(b) To ensure fair and proper hearing in the same way as in a civil action in the Federal High Court; and
(c) On such terms as to costs or otherwise as may be ordered by the Tribunal or Court.
(17)(1) If a party in an election petition wishes to have further particulars or other directions of the Tribunal or Court, he may, at any time after entry of appearance, but not later than ten days after the filling of the reply, apply to the Tribunal or Court specifying in his notice of motion the direction for which he prays and the motion shall, unless the Tribunal or Court otherwise orders, be set down for hearing on the first available day.
(2) If a party does not apply as provided in Subparagraph (1) of this paragraph, he shall be taken to require no further particulars or other

15

directions and the party shall be barred from so applying after the period laid down in subparagraph (1) of this paragraph has lapsed.
(3) Supply of further particulars under this paragraph shall not entitle the party to go beyond the ambit of the supplying such further particulars as have been demanded by the other party, and embark on undue amendment of, or additions to, his petition or reply, contrary to paragraph 14 of this Schedule.
Upon receipt of the petition, the respondents were entitled to ask the Trial Tribunal to order the petitioners to file further and better particulars of the facts alleged in or the case set up in paragraphs 15 to 20 of the Petition. The appellant herein, is the 3rd respondent to the petition. He like other respondents did not ask the Tribunal to order the petitioners (1st and 2nd respondents herein) to file further particulars of the facts alleged in paragraphs 15 to 20 of the petition. The respondents having failed to do so, the petitioners are entitled to give evidence at the trial of any fact that support the case set up in paragraphs 15 to 20 of the petition. The Supreme Court in Ayeni & Ors v. Sowemimo

16

(1982) 5 SC 60 at 76 followed the West African Court of Appeal decision in Oguntokun v. Rufai (1945) 11 WACA 55 at 66 & 67 that ?where a party omits to set out details which he ought to have given and his opponent does not apply for particulars, he is entitled to give evidence at the trial of any fact which supports the allegation in the pleading.” In A-G of Bendel State & Ors v Aideyan (1989) 9 SC 127, the Supreme Court held that ?if a party pleading omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right and the duty to apply for such particulars as he deems necessary. If he fails to apply and takes no objection to such particulars as are given in evidence, he cannot latter complain on appeal.?
By virtue of Paragraphs 5 and 17 of the First Schedule to the Electoral Act 2010, the law on further particulars of pleadings applies in election petitions in the same way as in a civil action in the Federal High Court, which is the same with civil proceedings in High Courts generally.
Learned SAN for the appellant also argued that ?since

17

pleadings have closed and Appellant does not have the opportunity to respond to the far reaching averments and allegations contained in the evidence sought to be adduced by the Petitioners, granting this application will prejudice the Appellant as he will not have the opportunity to defend those allegations at this stage of the proceeding thereby infringing upon his fundamental right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).?
This argument would have been correct if the said witness statements introduced new facts or facts at variance with the case set up in paragraphs 15 to 20 of the petition. That is not the case here. The said witness statements contain detailed particulars of the facts alleged in the petition and are consistent with the case set up in the petition. So the above argument is not valid.
?The appellant who has said in his brief that the pleading of non accreditation of voters and over voting in all polling units in Adavi, Okene and Ojaokuta Local Government Areas require particulars of the incidents in each of all the said polling units, did not ask the Trial

18

Tribunal to order the petitioners to file such further particulars. Paragraph 5 of the First Schedule to the Electoral Act made adequate safeguards for the protection of his right to fair hearing by availing him the opportunity of asking for an order that the petitioner provide further particulars of incidents of over voting and non accreditation of voters in each of all of the polling units in the said three Local Government Areas. Having refused to invoke his right to ask for further particulars, he cannot complain that the evidence in the witness statements would infringe on his fundamental right to fair hearing. The decisions of the Supreme Court inOke v. Mimiko (No 1) (2014) 1 NWLR (Pt. 1388) 225, and this Court in Nwoye v. Madubueze & Ors (2015) LPELR ? 40710 (CA) and Orji v Ugochukwu (2009) 14 NWLR (Pt 1161) 207 at 296 cannot apply here, because in those cases the witness statements introduced facts not contained in the pleadings and therefore at variance with facts in the pleadings. In this case the witness statements contain particulars of the facts alleged in the petition.
?Learned SAN for the appellant also argued that the Petitioners

19

did not list B.O. as a witness or frontload his statements on oath and that of the 1st Petitioner in Exhibit B along with the petition contrary to the mandatory provisions of Paragraph 4 (5) (i) (a) & (b) of the First Schedule to the Electoral Act, 2010 (supra). That the said additional witness B.O sought to be called by the Petitioners is not an expert within the meaning of the word and he has not pretended to be one as can be gleaned from his proposed statement on oath aforesaid, that the averments contained in the said proposed statement on oath of B.O are results of witnesses? observation after going through the alleged electoral materials, which this Honourable Tribunal can also do on its own, that the same applies to Exhibit B which is merely the 1st Petitioners? observation regarding the said electoral materials that a person who merely testifies by observing documents given to him without any special mode of observation as will make it impossible for the Tribunal to make the same observation without the witness, such witness is not an expert.
There is nothing in Paragraph 4(5)(1)(a) & (b) of the First Schedule to the Electoral Act

20

that the precludes the petitioner from filing with leave of Court or Tribunal witness statements additional to the ones that accompanied the petition when it was filed or from introducing a witness additional to those on the list of witnesses that accompanied the petition when it was filed. There is nothing in the said paragraph precluding the Tribunal from granting leave to the petitioner to do so.
The said Paragraph 4(5)(1)(a) and (b) of the First Schedule reads thusly-
?(5) (i) The election petition shall be accompanied by-
(a) A list of the witnesses that the petitioner intends to call in proof of the petition;
(b) Written statements on oath of the witnesses.?
This argument runs contrary to the rule against dumping of a bundle or bundles of documentary evidence on the Court. Even though the Court can observe the election documents and materials and form its opinion, it can only do so after a witness of the party that tendered the documents in evidence has sorted them out and tied each of them to the specific aspect of the case the document is meant to prove.
?A person who saw and observed the documents during

21

Tribunal ordered inspection of the election materials can testify about what he saw and observed during the inspection and can carry out the sorting out of the bundle of documents and relating them to the parts of the case they seek to prove. If such bundles of documents are tendered and not sorted out by a witness or witnesses and merely left for the Court to do the sorting out of the bundle of documents, observe same and form its opinion, the documents would be treated as dumped on the Court and would have no probative value. In Daudu v. halliru (1999) 5 NWLR Part 601 94 at 99 this Court held- ?The only way a petitioner can question the lawfulness of the votes cast at an election is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by individuals?. For example, if a petitioner wants to prove over-voting, he needs a witness to state where the over-voting took place. The documentary evidence of over-voting will be the voter?s register showing accreditation and the Form EC8A. Those pieces of documentary evidence can be tendered from the bar during pretrial or during the course of

22

trial. The witness giving oral evidences would refer to the specific exhibit already tendered to cement the case. The petitioner has a duty to tie the documentary evidence to the facts pleaded through a witness-particularly a lead witness or during cross-examination of a Respondent?s witness. Anything short of that would be taken as ?dumping? the evidence on the Tribunal in which case the Tribunal is not obliged to sift through the documents to get the facts of precisely which documentary evidence proved which allegation. The Appellant has to relate each document with his complaints.?
As held in Alao v. Akano (2005) 22 NSCQR (pt. 11) 867 at 884 and Rimdan v. Lar (1999) 3 NWLR (pt. 620) 538, the entries in the electoral forms alone do not constitute proof of disputed scores, unless there is evidence from a person privy to or conversant with the entries to shed light on them before such allegation may be proved.
In PDP V INEC & Ors (CA/A/EPT/139/2019) this Court held that ? ?The electoral documents being a huge mass of documents, needs to be sorted out and each related to particular aspects of the case

23

of a party to the petition. The party relying on them has a duty to call witnesses to do this. It is not for the Court to burrow into the mass of documents, sorting them out and relating each to the case of the party that relies on them. This would make the Court appear to be helping that party to make its case and thereby destroy its toga of impartiality and violate the fair trial of the case. In NWOLE V. IWUAGWU (supra) at page 341, it was held that ?A party is under obligation to tie his document to facts or evidence or admitted facts in the open Court and not through counsel?s address ? written or oral. This is because it is not the duty of a Court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the Court, not even by examination of documents which were in evidence when the documents have not been examined in open Court, nor brought out and exposed to test in Court or were not things that at least must have been noticed in the open Court.” In Aliucha & Anor v. Elechi & Ors (2012) LPELR ? 7823 (SC) the Supreme Court held that ?When a party decides to rely on documents to prove

24

his case there must be a link between the document and the specific area/s of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific areas of a party?s case. See: ANPP v. INEC 2010 13 NWLR Pt. 1212 p.549.
A Judge is to descend from his heavenly abode, no lower than the treetops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.
In OBASI BROTHERS LTD. V. MBA SECURITIES (2005) 2 SC (1) 51 at 68 the Supreme Court held thus:- ?The admission of Exhibits F ? Q in evidence at the trial is not a cure to this either because it is well settled that a judge cannot sit down out of Court on

25

his own and examine documents to sort out the case of a party. It is the duty of the party to elicit such evidence in Court through its witnesses especially as in this case where various documents are involved.? In ALAO V. AKANO (2005) 4 SC 25 at 36 it again held that:- ?It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be, would not be of much assistance to the Court in the absence of oral evidence by persons who can explain their purport.? See also Adewale & Anor v. Olaifa & Ors (2012) LPELR ? 7861 (CA).
Learned SAN for the appellant argued that the petitioners by their said proposed statement on oath were merely seeking to amend their petition through the back door in disguise of leading evidence on ?facts already pleaded? obtained by an inspection order, that since it has been shown that the allegations now being alluded to in the proposed statement on oath of the witness sought to be called by the petitioners were not pleaded in the petitioners? petition as alleged by them, granting the said

26

application amounted to allowing the petitioners to substantially alter and amend their petition at a time they no longer have the right to do so by virtue of Section 285 (5) of the Constitution of Nigeria, 1999 and Paragraphs 14 (2) (a) (i) & (ii); 16 (1) (a) & (b) of the First Schedule to the Electoral Act (supra).
This argument is not valid. The said witness statements on oath cannot by any stretch of imagination amount to an amendment of the petition. This is because witness statements on oath are not pleadings and so cannot amend the existing pleadings. Secondly they do not contain any facts at variance with the facts in the petition or do not present a case different from case presented in the petition. They contain particulars of the facts pleaded in paragraphs 15 ? 20 of the petition.
?Learned SAN argued repeatedly that amendment of a filed petition after the 21 days prescribed by S.285(5) of the 1999 Constitution for filing a petition violates that provision of the 1999 Constitution. I do not think it is as simple as that. There is nothing in S.285(5) of the 1999 Constitution that prohibits or precludes an amendment of the

27

petition. That provision simply prescribes the time within which a petition should be filed without more.
There is no doubt that established legal principle prohibits an amendment that changes the case initially filed by a plaintiff or claimant or petitioner. This legal principle applies to an election petition as it applies to all civil actions. A change from the case in the petition or an introduction of a case different from the one in the petition is clearly seek to filing a new election petition. This cannot be done after the expiry of the 21 days period prescribed by S.285(5) of the 1999 Constitution for filing an election petition.
Apart from an amendment that introduces a case different from the one contained in the petition, non substantial amendment of a petition can be done at any stage of the proceedings in the interest of justice. There is nothing in S.285(5) of the 1999 Constitution or the Electoral Act 2010 and the First Schedule thereto that prohibits such an amendment. Paragraph 14(1) of the said First Schedule gives the Tribunal the power to so amend. It states thusly-
?14. (1) Subject to subparagraph (2) of this

28

paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words ?any proceedings? in those provisions there were substituted the words ?the election petition or reply.?
The restriction placed on this power by Subsection (2) of paragraph 14 have been rendered meaningless and ineffective by the deletion of S.134 of the Electoral Act 2010 as amended without a corresponding amendment of Paragraph 14(2)(a) of the said First Schedule to make it enforceable.
The said subparagraph 2(a) reads thusly- ?(2) After the expiration of the time limited by-
(a) Section 134 (1) of this Act for presenting the election petition, no amendment shall be made:
(i) Introducing any of the requirements of Subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election petition filed, or
(ii) Effecting a substantial alteration of the ground for, or the prayer in, the election petition, or
(iii) Except anything which may be done under the provisions of subparagraph (3) of this

29

paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition; and.?
S.134(1) of the Electoral Act no longer exists having been deleted. So the restriction on the power to amend after the time prescribed therein for filing a petition cannot be effective as it has ceased to exist. Obviously that time is now prescribed in S.285(5) of the 1999 Constitution. There is need to amend Paragraph 14(2)(a)to replace S.134(1) therein with S.285(5) of the 1999 Constitution. Until that is done the Court cannot read that provision as if S.134(1) of the Electoral Act stated therein is S.285(5) of the 1999 Constitution so as to give it effect. This clearly amounts to legislation, which a Court has no power to engage in, that power is vested in the National Assembly by S.4(1) of the 1999 Constitution and the House of Assembly of a State by S.4(6) of the same Constitution.
?Learned SAN for the appellant argued under issue No. 2 that the Trial Tribunal did not properly consider and review the submissions made to it and did not properly evaluate the affidavit

30

evidence before it in granting the application for leave to file additional witness statements and that this has occasioned a miscarriage of justice.
The ruling of the trial Tribunal complained against reads thus-
?RULING
The Petitioners/Applicants are seeking for leave of the Tribunal to file additional evidence of witnesses in support of their case pursuant to inspection of electoral materials as ordered by the Tribunal on 29/3/2019. They are also seeking for an order deeming the additional written statement on oath of the 1st Petitioner and that of a witnesses identified as B.O already filed as haven been properly filed in pursuance of the order for inspection.
We have read the affidavits for and against the Application. We have also read the various addresses in support or in opposition to the motion. Opposition to the motion ranged from complaint to the competence of some of the paragraphs of the affidavit in support of the motion to other issues like whether additional statement on oath of a witness can be filed without the amendment of the petition. There also argument questioning the provisions of the law under which the

31

Application was made. We have considered the above issue and more the substance of the application is that the petitioners are seeking to bring in evidence consequent upon inspection of electoral materials ordered by this honourable Tribunal. It will not make any sense if petitioners will not be allowed to give evidence of report of inspection ordered by the Court. The only way they can do this is by filing additional statement on oath of witnesses whose written statement on oath had already been filed or filing written statements on oath of new witnesses or both. For the Tribunal to deny the Petitioners the right to file written statement on oath of witnesses? consequent upon the inspection ordered by the Tribunal will amount to denial of fair hearing. See the cases of AMERE GAFARU AKINTAYO V. GEORGE JALAOYE & ORS (2010) LPELR 3688 (C.A) and ABUBAKAR V. YARADUA (2008) 1 SC (PT.11) 77 and ONI V. FAYEMI(2008) 8 NWLR (PT.1089) 409.
The oppositions to the motion lack substance. We shall therefore grant the application.
Consequently, leave is granted to the petitioners to file additional written statement on oath of witnesses. Consequent upon

32

the inspection of electoral material ordered by this honourable Tribunal on 29/3/2019.
Furthermore, the additional written statement on oath of the 1st petitioner Natasha Hadiza Akpoti and the written statement of the witnesses referred to as B.O file by the petitioners on 20/5/2019 consequent upon the inspection are deemed to have been properly filed and shall be used in course of the hearing.?
It is obvious that the trial Tribunal was not detailed in its consideration of the respective affidavits and the submissions made to it. But the ruling indicates that it considered them. There is nothing in the ruling that show that the Tribunal was not dispassionate in its determination of the application or that it was partial and entered into the arena of conflict. The appellant has not shown the miscarriage of justice, the approach of the Tribunal has caused it. It must be remembered that the Tribunal has just 180 days to try the petition. This appears to have influenced its summary determination of the application.

In the light of the foregoing, issues Nos. 1 & 2 are resolved in favour of the 1st and 2nd respondents.
?

33

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The Ruling of the Kogi State National and State Houses of Assembly Election Tribunal at Lokoja delivered in EPT/KG/SEN/02/2019 on 1-6-2019 is hereby affirmed and upheld.

The appellant shall pay costs of N200,000.00 to the 1st and 2nd respondents.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment just delivered by my learned brother, EMMANUEL AKOMAYE, JCA

?I am in agreement with his reasoning and conclusion reached in dismissing the appeal.

?MOHAMMED BABA IDRIS, J.C.A.: My learned brother EMMANUEL AKOMAYE AGIM, JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

 

34

Appearances:

J.B Daudu, SAN with him, P.B. Daudu, Esq., H.M Ibega, Esq., Arome Abu, Esq.For Appellant(s)

Ekeme Ohwovoriole, SAN with him, P.D. Abalaka, Esq., M.O. Omoregie, Esq., S.M. Demaki, Esq., G.O. Ogeji, Esq., Isaac Ibuoye, Esq. for 1st and 2nd Respondents.

Sulaiman Haliru, Esq. with him, Y. J. Adams, Esq. for 3rd Respondent.

Abdulwahab Muhammed, Esq. with him, Ruth C. Keneboh, Esq., for the 4th RespondentFor Respondent(s)

 

Appearances

J.B Daudu, SAN with him, P.B. Daudu, Esq., H.M Ibega, Esq., Arome Abu, Esq.For Appellant

 

AND

Ekeme Ohwovoriole, SAN with him, P.D. Abalaka, Esq., M.O. Omoregie, Esq., S.M. Demaki, Esq., G.O. Ogeji, Esq., Isaac Ibuoye, Esq. for 1st and 2nd Respondents.

Sulaiman Haliru, Esq. with him, Y. J. Adams, Esq. for 3rd Respondent.

Abdulwahab Muhammed, Esq. with him, Ruth C. Keneboh, Esq., for the 4th RespondentFor Respondent