All Nigeria Peoples Party (ANPP) & Anor. V. Independent National Electoral Commission (INEC) & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A
This is an appeal against the ruling of the Justice Amina Wambai led National Assembly/Governorship and State House of Assembly Election Petition Tribunal, Calabar, Cross River State.
In their petition dated, and filed on the 14th May, 2007 the appellants challenged the return of the 2nd Respondent in the election held on 14th April, 2007 as the Member, Yala I Constituency in the Cross River State House of Assembly. The appellants’ case is that the 2nd appellant was validly nominated by his Party, the 1st appellant as the Party’s candidate in the April 14th election but was unlawfully excluded from the election by the Respondents.
Upon service of the Petition on them, the 1st, 3rd, 4th and 5th Respondents entered a conditional appearance, followed by a motion on notice for enlargement of time to file their reply. There was also the notice of preliminary objection raised by the 2nd and 6th Respondents. The tribunal took the arguments of learned Counsel for the parties in the preliminary objection.
There is seemingly no proper sequence in the record but the Tribunal in its ruling on 31/1/07 did indicated that
“Upon the perusal of the contents of this file, the Tribunal suo motu deemed it necessary to fix the petition for call over.”
See page 100 of the records. The Petition was adjourned to 19/07/07. On page 108 of the records the Tribunal stated;
“After the submission of both Counsel, the Tribunal sought to know from the Petitioners’ Counsel, the documents that were filed along with the Petition, the purpose for which the Petition was fixed for call over.”
The above question had to do with the competence vel non of the Petition and after hearing Counsel on the issue it raised suo motu as it appears the Tribunal struck out the Petition for failure to comply with paragraph 1(1)(b) of the Practice Directions, 2007, as amended. See page 108 of the records.
Aggrieved by the ruling striking out their Petition the appellants appealed on six grounds from which they distilled the following three issues for determination by the Court in their brief of argument:
“1. Whether the procedure adopted by their Lordships of the Election Petition Tribunal in suo motu calling-over the Petition for the purpose of pointing out errors detected by them in the Petition and thereby peremptorily terminating the petition is not alien to our adversary system of adjudication and the Rule of practice and procedure applicable to the Tribunal?
- Whether the learned Judge of the Election Tribunal did not place undue reliance on technicalities against the dictates of justice in their interpretation and application of the provisions of paragraph 1(1)(b) and (2) of the Election Tribunal and Court Practice Directions (2007) as (amended)?
- Were their Lordships, the learned Judges of the Election Tribunal right in their construction and application of the provisions of Sections 80 and 81 of the Evidence Act and the cases of OLANIYANU vs. PROF. EME AWA (1989) 2 NWLR (PT. 122) 493 and BUHARI vs. YUSUF (2003) 14 NWLR (PT. 841) AT 536 PARAGRAPHS E- G?”
In their joint brief of argument the 2nd and 6th Respondents presented the following three issues for the Court to resolve:
” 1. Whether the procedure adopted by the Tribunal in suo motu calling for the petition for clarifying issues by Counsel was not proper in Law.
- Whether there was substantial compliance with the Election Tribunal and Court Practice Directions, 2007, when the Petitioner failed to file his written statement on oath.
- Whether written statement deposed to at the Registry of the High Court can be said to have the same legal status as those before the Tribunal.”
Upon their application dated 14/7/08 and filed on 22/7/08 the appellants were granted an order setting down the appeal for hearing on the Appellants brief of argument alone for failure of the Respondents to file their respective briefs of argument.
The order was made on 29/10/08. However in a motion dated 18/11/08 and filed on 19/11/08 the 2nd and 6th Respondents were granted enlargement of time to file their joint respondents’ brief of argument and the brief was deemed filed on 13/1/09. No brief was filed by the 1st, 3rd, 4th or 5th Respondents, and the appeal will be heard on the appellants’ and the 2nd and 6th Respondents’ briefs of argument.
In substance the 2nd and 6th Respondents, in their joint brief of argument adopted the three issues raised by the appellants in their brief unduly wordy as they are. The three issues will appropriately determine the appeal.
In issue one in his brief of argument learned Counsel for the appellant drew the attention of the Court to the ruling of the Tribunal at page 100 lines 28 – 31 and page 104 lines 23 – 1 of the records and argued that the trial Tribunal derogated from its status as an umpire in an adversary system to make a case for one of the parties to the proceedings. Impugning the action of the trial Tribunal learned Counsel relied on TRADE BANK PLC vs. DELE MORENIKEJI (NIG.) LTD (2005) 6 NWLR (PT.921) 309 AT 328 PARAGRAPH B; N. A. C. B. LTD v. OZOEMELAM (2005) 7 NWLR (PT.925) 552 AT 569 PARAGRAPH A – B and UNOKAN ENT. LTD vs. OMUVWEI (2005) 1 NWLR (PT.907) 293 AT 317 PARAGRAPHS D – E. According to learned Counsel under our system of adjudication no Court is ‘entitled to peruse the contents of a case for the purpose of detecting faults in the case before it and then proceed on its own motion to set down the case for the hearing of the errors already detected by it.’
In his perceived effort to “show how their Lordships took over the case as if they were the Respondents in the matter, dictated the pace by tailoring the petition into the pit dug by them” learned Counsel pointed out that the 1st, 2nd, 4th and 5th Respondents entered a conditional appearance, that the 2nd and 6th Respondents filed a notice of preliminary objection to the hearing of the Petition and that the motion filed by the 1st, 3rd, 4th and 5th for extension of time to file their reply out of time was still pending at the time the Tribunal suo motu called over the Petition to point out what it had found wrong with the Petition.
Counsel argued that even if the Tribunal felt that the objections to the Petition might not succeed they were not entitled to go out of their way to raise an objection on their own motion and fix the case for the determination of the objection raised by them. Counsel lamented that in its having to terminate the Petition the Tribunal lost sight of the procedure laid down for election Petitions. He said his research on the “Rules of Procedure for Election Petitions and the Election Tribunal and Court Practice Directions 2007 as Amended” did not show that the Tribunal, where it detects error in the Petition, could call-over the Petition even before the pre-hearing session and scheduling for the purpose of deciding the error it found, adding that there is no provision for a call-over in an election Petition under the Rules. Learned Counsel referred to paragraph 3 of the Election Tribunal and Court Practice Directions 2007 (as amended) and Paragraph 49 of the First Schedule to the Electoral Act 2006 and contended that the objection considered by the Tribunal should have been taken at the pre-hearing session and not during a call-over session, adding that there is no provision for a call-over of an election petition under the Rules. Learned Counsel would concede that the Tribunal can raise issues suo motu but said that the timing is inappropriate. Counsel contended that it is unfair “for a Court to use its powers to raise issues suo motu and use such issues to entrap one of the parties to the advantage of the other party (his opponent) which is exactly what happened in the instant case: and this he said “leaves the fairness of the proceedings open to question.” He relied on NEPA vs ANOBIEKE (2007) 7 NWLR (PT.797) 245 and ANOCHIE vs OBIECHERE (2004) ALL FWLR (PT.208) 873 AT 894 – 895 PARAGRAPHS H- A.
He said the appropriate procedure is for the Respondents to file their replies, raise their objection and invoke Order 25 Rule 2 of the Federal High Court (Civil Procedure) Rules 2000. He relied on ACHABA vs ILONA (2007) 6 NWLR (Pt.1030) AT 297-298 PARAGRAPHS G – B and IMOKE v ODU NUMBER CA/C/112/07 unreported decided on 27/6/07. He urged the Court to resolve the issue in favour of the appellant.
Arguing issues 2 and 3 together he reproduced paragraph 1(1)(b) and (2) of the Election Tribunal and Court Practice Directions 2007 as amended Counsel impugned the view of the Tribunal that an election petition being sui generis the statement on oath of a witness is not an ordinary affidavit that can be sworn to at the High Court. He referred to the definition of Affidavit in the Blacks Law Dictionary, Sixth Edition Page 58. He argued that a written statement on oath are affidavits within the definition of affidavit. He referred to Sections 6, 10 and 13 of the Oaths Act Cap 61 Laws of the Federation of Nigeria 2004 and the last item in the Second Schedule to the Oaths Act. He relied on Section 16 of the Oaths Act in his argument that the Act applies to the Tribunal. Counsel argued “If the complaint of the Tribunal is based on the procedural steps taking in not filing the written statements on oath at the Registry of the Tribunal, then their Lordships should not have used it to invalidate the petition”, as according to him procedural non-compliance should not invalidate the proceedings. He relied on UNIPRESS LTD vs. AKINLUJI (1992) 8 NWLR (PT.260) 737, WILLIAMS v HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 2 SC 145 AT 152 and IBODO & ORS vs. ENAROFIA & ORS. (1980) 5 – 7 SC 42 AT 52. He said that the Tribunal placed undue reliance on technicalities rather than the need to do substantial justice for which he placed reliance on the dictum of Oputa, JSC in UNIVERSITY OF LAGOS vs AIGORO (1984) 11 SC 152 AT 242 and MODIBO v HARUNA (2004) ALL FWLR (PT.238) 740. Relying on ODDIRI v. OYEFIA (2006) 3 WRN 39 AT 64, UKAEGBU v. UZOR (2004) ALL FWLR (PT. 205) 336 AT 343 in support of his contention that technical approach to the interpretation of the provisions of the Electoral Act and the First Schedule thereto is no longer appropriate. He relied on UTC vs PAMOTEI (1989) 2 NWLR (PT. 103) 244, INEC vs MUSA (2003) FWLR (PT. 145) 729, COP vs AYI (2004) 4 WRN 123 in his condemnation of the trial Tribunal as dogmatic and slavish to the Practice Directions. He said that the cases of OLANIYANU v. PROF. EME AWA (supra) and BUHARI v. YUSUF (supra) have no relationship in fact and in law with the case at hand and urged the Court to reverse the decision arrived at by the Tribunal. He relied on ODUGBO v. ABU (2001) 7 SC (PT.1) 168, ODUA INVESTMENT LTD v. TALABI (1997) 10 NWLR (PT.523) P. 1.
Counsel complained that the trial Tribunal was too strict in its interpretation and application of the provisions of the Practice Directions, 2007 as if the Practice Directions were provisions of substantive Law. He relied on UNIVERSITY OF LAGOS vs. AIGORO (supra) and INEC & ORS v. JAMES INIAMA & ORS. CA/C/128/2007 decided on 21/11/07. He urged the Court to resolve issues 2 and 3 in favour of the appellants. He urged the Court to allow the appeal, set aside the ruling of the Tribunal delivered on 31/7/07 in Petition No. EPT/HA/C/7/2007 and to restore same in the Cause List and remit same to a differently constituted Tribunal for hearing and determination on the merit.
In issue one in his brief, learned Counsel for the 2nd and 6th Respondents said that the Tribunal heard Counsel on the failure of the Petitioners to apply for pre-hearing notice and the subsequent call for a dismissal of the Petition pursuant to paragraph 3(4) of the Practice Directions. Counsel said that after the said address the Tribunal discovered that the witnesses’ statement on oath which were not there earlier had been placed in the case file and this prompted the Tribunal to adjourn the Petition for call-over. He said learned Counsel fully utilized the opportunity given them to address the issue of competence vel non of the Petition, thus complying with the acid test of fairness in the adversary system – the Audi Alterem Partem principle. He referred to AKANIWON v NSIRIM (1997) 9 NWLR (PT.520) 255 AT 281 PARAGRAPHS A – C; AMASIKE v. REGISTRAR GEN. CAL 9 (2006) 3 NWLR (PT.968) 462 AT 489 PARAGRAPHS E- G. Based on the above, learned Counsel submitted that, the appellants having fully participated in the proceedings without complaint cannot be heard to turn around to repudiate the proceedings.
Learned Counsel argued it was proper for the Tribunal to determine whether or not the Petition was presented for filing in compliance with “paragraph 2 of paragraph 1 of the Practice Directions”. He said in dismissing the Petition the Tribunal complied with the Law.
In issue 2 learned Counsel said that it is trite that election Petition is regarded as proceedings sui generis and is neither civil nor criminal in the ordinary sense. He relied on AJADI v. AJIBOLA (2004) 16 NWLR (Pt. 898) 91 AT 174 PARAGRAPH A – D, BUHARI v. YUSUF (2003) 14 NWLR (PT.841) 446 AT 498 – 499 PARAGRAPHS F- B. He said the issue to be addressed is paragraph 1(1)(b) of the Election Tribunal and Court Practice Direction 2007 (as amended.) Placing reliance on a plethora of cases including PDP v TAIWO (2004) 8, NWLR (PT.976) 656 AT 674 PARAGRAPHS D – E, AFFOMAH v. AJEGBO (2000) 1 NWLR (PT.641) 498 at 505 paragraphs A – B, F- H, CHUKWUOGOR v CHUKWUOGOR (2006) 7 NWLR (PT.979) 302 AT 319 PARAGRAPHS E- G, he argued that the Petition was incompetent for failure to comply with the procedure stipulated by Law. He said the appellant could not rely on the First Schedule to the Electoral Act to water-down the provisions of the Act and if there is any conflict between the Act and the Schedule thereto the provisions of the Act will prevail. He relied on BUHARI v. YUSUF (2003) 14 NWLR (PT.841) 446 AT 545 PARAGRAPHS C – D. He urged the Court to resolve issue 2 against the appellants.
Arguing issue three learned Counsel placed reliance on OLANIYONU v. PROF. EME AWA (1989) NWLR (PT.122) 493. He said the core issue of statute bar and enlargement of time to comply with the rules as canvassed by the appellants do not derogate from the issue that processes (statement on oath) were filed in the wrong Registry and so filing the statement is fatal to the Petition.
With profound respect, learned Counsel for the appellant is less than candid in his issue one. He played up the fact that the Tribunal suo motu fixed the case for call-over for the purpose of pointing out errors it detected in the Petition and peremptorily terminated same. Learned Counsel conveniently omitted the fact that the Tribunal gave Counsel for the parties opportunity to address it on the issue it raised and this opportunity was used to the maximum by learned counsel.
A Tribunal and indeed a Court is not a rubber-stamp of any party before it. It is the duty of the Tribunal or Court to read its case file not “for the purpose of detecting faults” as learned Counsel for the appellant claimed but for the purpose of ensuring that it has jurisdiction in the matter, that the proper parties are before it, that the matter was brought in compliance with its rules of practice and procedure.
The Tribunal is entitled to raise issue suo motu as long as the tribunal does not make a pronouncement on the issue so raised without giving the parties opportunity to address it on the issue. In so doing the Tribunal did not derogate from its exalted status as an umpire. Learned Counsel for the appellant placed reliance on paragraph 3 of the Election Tribunal and Court Practice Directions 2007 as Amended and Paragraph 49 of the First Schedule to the Electoral Act, 2006 for procedure to be adopted at the Pre-hearing session and scheduling. However, the Practice Directions, the Schedule to the Electoral Act and Pre-hearing and Scheduling assumed that the petition is competent and ipso facto the Tribunal has jurisdiction to entertain it. The Tribunal is duty bound to call on the parties to address it on any issue it considers as rendering the Petition incompetent.
It is a threshold matter that must be disposed of before any other step is taken in the matter. There may be no provision for a call-over of an election petition but in the same vein there is no provision for the Tribunal to read its file. It must read the file to ensure it is not engaged in exercise in futility in hearing the Petition. Learned Counsel relied on ANOCHIE vs OBICHERE (supra) for the Court’s warning against hasty and abrupt termination of the life span of election petitions. This pre-supposes that the election petition has a life span. If the petition is incurably defective it is dead on arrival and the corpse ought to be dispose of with dispatch. None of the authorities cited by Counsel for the appellant is relevant to detection and treatment of incurable defects in an election petition. It has to be borne in mind that the jurisdiction of a tribunal to deal with an election petition is of special nature and rests on the strict compliance with the relevant court rules, the slightest departure from which renders the petition incompetent and liable to be struck out in limine. See AJADI v AJIBOLA (supra) relied on by learned Counsel for the 2nd and 6th Respondents.
In line with the argument of learned Counsel for the 2nd and 6th Respondents taking further steps on the petition without settling its competence vel non is tantamount to postponing the evil day and of no actual benefit to the parties. Above all, did the Tribunal raise any issue in the petition suo motu? The Court or Tribunal is entitled to adjourn a matter pending before it for any reason in the proper administration of justice even when no party has asked for adjournment. The Court or Tribunal controls its own proceedings and a party cannot complain of adjournment at the instance of the Court or Tribunal where such adjournment has not damnified the party in any way or manner.
The issue of witnesses’ statement on oath was not raised by the Tribunal suo motu. The issue complained of existed in the petition and the fact that the issue was not raised by the respondent does not derogate from its existence. The same goes for an issue inferred by the Tribunal from stated facts in the Petition. See IKENTA BEST (NIG) LTD v A-G RIVERS STATE (2008) 6 NWLR (PT.1084) 612 AT 622 (S/C).
I resolve issue one in favour of the Respondents and against the appellant.
Issue 2 and 3 deal with the interpretation and application of paragraph 1(1)(b) and (2) of the Practice Directions 2007 as Amended and Sections 80 and 81 of the Evidence Act.
Paragraph 1(1)(b) of the Practice Directions provides
“(1) All Petitions to be presented before the Tribunal or Court shall be accompanied by:
(b) Written statements on oath of the witnesses whose identity may be represented by an alphabet or a combination thereof.”
Sub-paragraph (2) provides:
“(2) A petition which fails to comply with sub-paragraph (1) of this paragraph shall not be accepted for filing by the Secretary.”
The consequence of breach of paragraph 1(1)(b) of the Practice Directions is spelt out in sub-paragraph (2) thereof.
The Petition shall not be accepted for filing. In other words the Petition is incurably incompetent, and if it is accepted for filing it will be struck out. The dereliction of duty by the Secretary in accepting the Petition for filing cannot convert a defective petition into a valid one. See CHIEF EMMANUEL OSITA OKEKE v ALHAJI UMARU MUSA YARDUA (2008) 34 NSCQR 1369. I agree with learned Counsel for the 2nd and 6th Respondents that the failure to comply with paragraph 1(1)(b) of the Practice Directions 2006 deprived the Tribunal of jurisdiction to hear the petition accepted for filing by the Secretary in violation of sub-paragraph 2 thereof.
The written statements on oath of the witnesses must be filed along with the petition not before or after the filing of the petition. The Petition filed not accompanied witnesses is incompetent and the Tribunal was right to have so held. It is immaterial that the statements on oath were brought in later. The Petition has to be filed as one process, not piece-meal.
In essence issue 3 is on the assertion by the appellant, denied by the 2nd and 6th Respondents, that the written statement on oath of witnesses in paragraph 1 of the Practice Directions is merely an affidavit within Sections 80 and 81 of the Evidence Act and the Oath Act Cap 01 Laws of the Federation 2004.
Affidavit is defined as
“A statement of fact which the maker or deponent swears to be true to the best of his knowledge, information and belief.”
See JOSIEN HOLDINGS LTD v LORDMEAD LTD (1995) 1 NWLR (PT.371) 754, EDU v COMM. FOR AGRIC. (2000) 12 NWLR (PT.673) 318.
On the other hand affidavit evidence is a statement in writing made and signed by a person and declared by him on oath to be true.
In my own view, the written statement on oath of witnesses for the purpose of election petition is not affidavit within the meaning of the Evidence Act or the Oaths Act. It is affidavit evidence. In any case the said statement is a process before the Tribunal or Court. Like any other processes it has to be filed in the registry of the Court seized of the matter.
Ordinarily, one cannot file process for use in one Court in another Court and bring it back to the Court seized of the case. Even the affidavit properly so called such as affidavit in support of an application must ordinarily be deposed to and filed in the Court where the motion is pending. Even if the Tribunal had accepted the statement deposed to in the Registry of the High Court and not filed along with the Petition the Tribunal would still be right to hold that the Petition did not comply with the Practice Directions.
I resolve issue 2 and 3 against the appellant.
I am constrained to comment on the language employed by learned counsel for the appellant and the accusation of improper conduct against the Tribunal. One instance will suffice. At page 6 paragraph 4.1 of his brief, learned Counsel lamented that
“For a Court to use its powers to raise issues suo motu and use such issues to entrap one of the parties to the advantage of the other party (his opponent) which is exactly what happened in the instant case, leaves the fairness of the proceedings open to question.”
Even more disturbing is the allegation that the Tribunal “dictated the pace by tailoring the petition into the pit dug by them”
Above are accusations of impropriety against judicial officers, sworn to dispense justice without fear or favour, affection or ill-will to all manner of men. Learned Counsel who took part in the proceedings without objection, made his serious charges in the cool recesses of his Chambers and in the relative safety of the appellate Court room where the Tribunal has no right of audience.
Be that as it may the cold prints of the records speak well of the Tribunal’s conduct in the Petition. From the records the Tribunal did not espouse the case of one party against the other party as alleged.
Learned Counsel owes a duty to the party he represents in Court or Tribunal, but he owes a higher duty to a higher cause – the cause of justice. An allegation of impartiality in the judicial process should not be made without concrete proof. It’s an allegation that lowers the integrity of the Court or Tribunal and raised moral issue on the verdict rendered.
The three issues in the appeal are resolved against the appellant. The appeal is devoid of merit and it is hereby dismissed. I affirm the decision of the Tribunal.
Appellant is to pay as costs the sum of N50,000.00 to the 2nd and 6th Respondents.
Other Citations: (2009)LCN/3175(CA)
