ABUBAKAR SARKI DAHIRU v. HON.DR.JOSEPH HARUNA KIGBU & ORS
(2019)LCN/13845(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/MK/EP/HR/41/2019
RATIO
PLEADINGS: THE EFFECT OF FAILURE TO LEAD EVIDENCE IN SUPPORT OF A PLEADING
The law is trite that where there is failure to lead evidence in support of a pleading, the pleading is deemed abandoned. See Ojukutu V Fellah 14 WACA 629 and Ahmed v Registered Trustees of Archdiocese of Kaduna of the Roman Catholic Church (2019) 5 NWLR (Pt. 1665) 300, 313. It will serve no practical purpose to determine if a pleading that has been abandoned was filed within time. PER JOSEPH EYO EKANEM, J.C.A.
THE WORD “SHALL”: MEANING AND IN WHICH CONTEXT CAN IT BE USED
The word shall generally speaking imports a mandatory meaning. However, the word can also import a directory meaning that is may depending on the circumstances of a given case and the con in which it is used. See Nyesom v Peterside (2016) 1 NWLR (Pt. 1492) 71, 112 and BPS Construction and Engineering Company Ltd v FCDA (2017) 10 NWLR (Pt. 1572) 1, 35. PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
ABUBAKAR SARKI DAHIRU Appellant(s)
AND
1.HON. DR. JOSEPH HARUNA KIGBU
2.PEOPLES DEMOCRATIC PARTY (PDP)
3.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4.ALL PROGRESSIVES CONGRESS (APC) Respondent(s)
JOSEPH EYO EKANEM, J.C.A.(Delivering the Leading Judgment): On the 23rd day of February, 2019, the INEC conducted elections throughout Nigeria for seats in the National Assembly. In Nasarawa State, the 1st respondent/cross ? appellant contested for the seat of Lafia/Obi Federal Constituency on the platform of the 2nd cross ? appellant. He contested against 12 other candidates sponsored by their parties including the cross ? respondent who was sponsored by his party, the All Progressives Congress (APC) described as 4th respondent in the notice of cross ? appeal.
At the end of the election, the INEC declared and returned the cross ? respondent as elected, having polled 61, 992 votes as against the 1st cross ? appellant who was the runner ? up with 52, 392 votes.
?Aggrieved by the return, the cross ? appellants filed a petition at the National and State Houses of Assembly Election Tribunal, sitting in Lafia, Nasarawa State, questioning the same. They claimed several reliefs as the principal reliefs as well as alternative reliefs. After hearing the petition and taking addresses from counsel, the tribunal found in favour of the cross ? appellants and granted the principal reliefs of the cross ? appellants including a declaration that the cross ? respondent was not duly elected or returned. It also declared the 1st cross ? appellant as duly elected or returned. The tribunal proceeded, in the alternative to grant the alternative reliefs sought by the cross ? appellants.
Aggrieved by the decision, the cross ? respondent filed an appeal to this Court against the same. I take judicial notice of the fact that the appeal is numbered CA/MK/EP/HR/34/2019. Upon receipt of the notice of appeal, the cross ? appellants filed a notice of cross ? appeal against certain aspects of the judgment of the tribunal, to wit;
(i) dismissal of the two motions by the cross ? appellants filed on 16/5/2019 which sought to strike out the respective replies of the cross ? respondent and the APC; and
(ii) the granting of alternative reliefs.
The cross ? appellants filed their cross ? appellants? brief of argument on 5/10/2019 and reply briefs. They were settled by P.A. Akubo (SAN).
The appellant/cross?respondent filed his brief of argument on 18/10/2019. It was settled by Matthew G. Burkaa, Esq.
3rd cross – respondent filed its brief of argument on 19/10/2019. It was settled by I.M. Dikko (SAN). The 4th cross – respondent filed its brief of argument on 20/10/2019. It was settled Y.B. Dangana, Esq.
At the hearing of the appeal on 28/10/2019, P.A. Akubo (SAN) for the cross ? appellants adopted and relied on cross ? appellants? brief of argument and the 3 reply briefs in urging the Court to allow the cross ? appeal.
Matthew G. Burkaa, Esq. for the appellant/cross ? respondent adopted the appellant/cross ? respondent?s brief of argument in urging the Court to dismiss the cross ? appeal.
I.M. Dikko (SAN) for 3rd cross ? respondent adopted and relied on the 3rd cross ? respondent?s brief of argument in urging the Court to dismiss the cross ? appeal.
Dr Hassan M. Liman (SAN) for the 4th cross ? respondent adopted his brief of argument in urging the Court to dismiss the appeal.
In the cross ? appellants? brief of argument, the following issues have been distilled from the eight grounds of appeal in the notice of appeal:
?1. Whether having granted the main reliefs of the Cross ? Appellants, the trial Tribunal was right in granting the alternative reliefs as well. (Grounds 1, 2 and 3).
2. Whether trial Tribunal was right in holding that the pre?hearing session commenced on 08/05/2019 and ended on 21/05/2019. (Grounds 4 and 5).
3. Whether trial Tribunal was right in dismissing the two separate motions of the cross ? Appellants both of 16/05/2019 which sought to strike out the respective Replies of the Cross ? Respondent and the 4th Respondent and in utilizing the Reply of the 4th Respondent filed out of time. (Grounds 6, 7 and 8).
The appellant/cross ? respondent formulated three issues for the determination of the cross ? appeal, viz;
?1. Whether the Trial Tribunal was right when it granted the Principal and alternative reliefs of the Cross ? Appellants. (Distilled from grounds 1, 2 and 3 of the Notice of Cross ? Appeal).
2. Whether the Trial Tribunal was not right in holding that the pre-hearing session commenced on 08/05/2019 and ended on 21/05/2019. (Distilled from grounds 4 and 5 of the Notice of Cross ? Appeal).
3. Whether the trial Tribunal was not right when it dismissed the Motion of the Cross ? Appellants filed on 16/05/2019 which sought to strike out the Appellants? Reply to the Petition on the basis that it was not accompanied with documents intended to be relied upon. (Distilled from ground 6 of the Notice of Cross ? Appeal).?
The 3rd cross – respondent in its brief of argument formulated two issues for determination of the appeal, with issue one slightly different from cross-appellant?s issue one. It adopted issue 2 of the cross-appellants. Its issue 1 is as follows:
1. Whether the Tribunal was right to have granted both the main and alternative reliefs sought by cross-appellants when the cross appellants have not established any of the allegations in the Petition.?
The 4th cross – respondent adopted the issues formulated by the cross-appellants with slight modification. I do not see the need to set them out. The issues formulated by counsel are essentially the same. I shall therefore adopt the issues formulated by cross-appellants? counsel for the determination of this appeal.
In arguing his issue 1, cross-appellant?s senior counsel submitted that the tribunal was wrong to have proceeded to grant the alternative reliefs after granting the principal reliefs.
In respect of issue 2, senior counsel contended that contrary to the decision of the tribunal, the pre-hearing session did not commence on 8/5/2019 but on 17/5/2019 when counsel adopted their pre-hearing information sheets.
In regard to issue 3, senior counsel stated that a careful examination of the respective replies of the 2nd and 3rd respondents (sic: appellant/cross-respondent and 4th respondent) shows that they were not accompanied by copies of documentary evidence in compliance with Paragraph 12 (3) of the 1st Schedule to the Electoral Act, 2010 (as amended). He added that the case of the APC was particularly unique in that its reply was filed out of time. He cited several authorities including Omisore v Aregbesola (2015) 15 NWLR (Pt.1482) 205 in urging the Court to resolve the issue in cross-appellants? favour.
The submission of counsel for the appellant/cross-respondent, 3rd and 4th cross – respondents are substantially the same. They may be summarised as follows:
1. that the tribunal was wrong in granting the alternative reliefs and should have dismissed both the principal and alternative reliefs;
2. that the pre-hearing session commenced on 8/5/2019 and not 17/5/2019;
3. that, according to appellant/cross-respondent?s counsel, since there is no appeal against the tribunal?s ruling dismissing the preliminary objections of the cross-appellants, the cross-appellants argument on issue 3 is liable to be struck out as arguments thereon have been mixed up with arguments in respect of the dismissal of the preliminary objection;
4. that Paragraph 12(3) of the 1st Schedule to the Electoral Act, 2010 (as amended) is directory.
This cross-appeal is a sister appeal in relation to appeals No. CA/MK/EP/HR/34/2019 and CA/MK/EP/HR/40/2019. Judgments have just been delivered in respect of the said appeals. The parties in those appeals are the same with the parties in this cross-appeal. The records of appeal and the exhibits are the same. The judgment of the tribunal, a part of which is under review in this cross-appeal, is the same as in those appeals. The issues raised in this cross-appeal are part of the issues raised and settled in those appeals. The only new issue is issue No. 3.
Having addressed the issues in appeals CA/MK/EP/HR/34/2019 and CA/MK/EP/HR/40/2019, it will serve no useful purpose to embark on the exercise of repeating the reasoning in this cross-appeal. I adopt my reasoning in appeal No. CA/MK/EP/HR/34/2019 in the cross-appeal.
Before concluding, I shall address issue 3. Senior counsel for the cross-appellants argued that failure of the 4th cross ? respondent to file its reply to the petition within 21 days from receipt of the petition was fatal. At page 4 par. 2. 11 of the cross-appellants? brief of argument, it is stated:
?The 4th Respondent did not call any witness neither did it tender any document in evidence. Rather it opted to rely on evidence led by the cross-appellant.?
The law is trite that where there is failure to lead evidence in support of a pleading, the pleading is deemed abandoned. See Ojukutu V Fellah 14 WACA 629 and Ahmed v Registered Trustees of Archdiocese of Kaduna of the Roman Catholic Church (2019) 5 NWLR (Pt. 1665) 300, 313. It will serve no practical purpose to determine if a pleading that has been abandoned was filed within time.
The argument by appellant/cross-respondent?s counsel summarized as number 3 above is difficult to digest or comprehend. The decisions of the tribunal on the preliminary objections of the cross-respondents are different from the decisions on the motions. This cross-appeal is against the decision of the tribunal on the motions for the replies to be struck out. There is not one word said by the cross-appellants? senior counsel against the ruling on the preliminary objections and so the point of mixing up arguments thereon with arguments on issue 3 does not arise. Cross ? respondent?s argument is a redherring and I will not be distracted by it.
It is clear from the record of appeal that cross-respondent?s reply was not accompanied by copies of documentary evidence. Paragraph 12(3) of the 1st Schedule to the Electoral Act, 2010 (as amended) provides:
The reply may be signed by the respondent or the Solicitor representing him, if any and shall state the name and address of the solicitor at which subsequent processes shall be served; and shall be accompanied by copies of documentary evidence, list of witnesses and the written statements on oath.? (Underlining mine).
The word ?shall? generally speaking imports a mandatory meaning. However, the word can also import a directory meaning that is ?may? depending on the circumstances of a given case and the con in which it is used. See Nyesom v Peterside (2016) 1 NWLR (Pt. 1492) 71, 112 and BPS Construction and Engineering Company Ltd v FCDA (2017) 10 NWLR (Pt. 1572) 1, 35. In the con of Paragraph 12 (3) of the 1st Schedule, particularly as regards copies of documentary evidence, it is used in the directory sense. If by Paragraph 4(5) (1)(c) of the 1st Schedule a petition need not mandatorily be accompanied by copies of documents to be relied on by the petitioner, I do not see how failure of the appellant/cross ? respondent to attach copies of documents to his reply will render his reply incompetent and liable to be struck out. The essence of the provision of Paragraph 12 (3) of the 1st Schedule is to put the opposite side on notice of what they will meet at the hearing. To my mind, failure to attach copies of documentary evidence to a reply will not defeat that purpose so long as a list of witnesses and written statements on oath of the witnesses accompany the reply.
In the case of Chime v Onyia (2009) 2 NWLR (Pt. 1124) 1, 51 cited by appellant/cross-respondent?s counsel, Bada, JCA, in interpreting Paragraph 2 of Practice Direction 2007 which provided that,
?The respondent?s reply shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath? stated:
?Also the said paragraph 2 of the Practice Directions does not provide any sanction for failure of a respondent to frontload his pleaded documents. The mere use of the word ?shall? without any specific consequential sanction, does not of itself import compulsion or sanction and clearly not such a serious and severe sanction as rendering the reply incompetent.?
I respectfully agree with my lord.
The case of Omisore V Aregbesola (2015) 15 NWLR (Pt. 1482) 205 cited by senior counsel for cross ? appellants is inapplicable to the cross ? appeal as it was decided on the mandatoriness of timeline fixed for applying for issuance of pre ? hearing notice.
Before winding up, I note that in his argument, cross ? appellants? senior counsel did not state or set out where the tribunal utilized the reply of the APC. I take his contention in that regard with all due respect to be hot air.
I therefore resolve issue 3 against the cross ? appellants.
In the light of my reasoning and conclusion in appeal No. CA/MK/HR/34/2019 and resolution of issue 3 supra, I find that the cross ? appeal has no merit. I accordingly dismiss it with costs of against the cross ? appellants and in favour of the appellant/cross ? respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I had the opportunity to read in advance a draft copy of the lead Judgment of my learned brother, Ekanem, JCA allowing the Appeal.
The instant Appeal is a Cross-Appeal to Appeal No. CA/MK/EP/HR/34/2019, which was earlier today allowed.
I agree with and adopt as mine the comprehensive resolution of the issues raised therein.
I also dismiss the Appeal. I abide by the orders made in the lead Judgment, including the order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: I read in advance a draft copy of the lead Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA. dismissing this cross appeal. I agree with and adopt as mine the reasoning and conclusions therein.
I also dismiss the cross appeal and abide by the orders in the lead judgment.
Appearances:
P.A Akubo (SAN) (with him, Messrs S.Y. Tsok, Owe John, A.B. Ayiwulu, S.J. Attah and 1.0. Haruna) for Cross ? appellants.For Appellant(s)
Matthew G. Burkaa, Esq. (with him, Ayotunde Ogunlewe, Ahmed Bage and I.B. Ahmed) for cross ? respondent.
I.M. Dikko (SAN) (with him, Messrs David Meshe, A.S.. Gayam and E.C. Agoh) for 3rd respondent.
Dr. Hassan M. Liman (SAN) (with him, Messrs M.E. Usman, A.F. Amanzi, 1.1. Aseku and AA Lyiasu) for 4th respondentFor Respondent(s)
Appearances
P.A Akubo (SAN) (with him, Messrs S.Y. Tsok, Owe John, A.B. Ayiwulu, S.J. Attah and 1.0. Haruna) for Cross appellants.For Appellant
AND
Matthew G. Burkaa, Esq. (with him, Ayotunde Ogunlewe, Ahmed Bage and I.B. Ahmed) for cross respondent.
I.M. Dikko (SAN) (with him, Messrs David Meshe, A.S.. Gayam and E.C. Agoh) for 3rd respondent.
Dr. Hassan M. Liman (SAN) (with him, Messrs M.E. Usman, A.F. Amanzi, 1.1. Aseku and AA Lyiasu) for 4th respondentFor Respondent
