Emmanuel Jime & Anor V. Independent National Electoral Commission & Ors (2009)
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ONYEKACHI AJA OTISI, J.C.A.
The Appellants, who were the Governorship candidate and the political party that sponsored him respectively at the Governorship Election held in Benue State on March 9 and 23, 2019 filed a petition before the Benue State Governorship Election Petition Tribunal, Coram H.A Olusiyi. J., A.A. Ajeigbe, J. and G.F Ette, J., to challenge the conduct of the said Governorship Election by the 1st Respondent wherein the 2nd and 3rd Respondents were returned as the winners thereof.
The Appellants? petition was accompanied with a list of documents, including the Card Reader Report, which was tendered before the said Tribunal. The 1st, 2nd and 3rd Respondents filed their respective replies. The Appellants also filed separate replies, upon the receipt of the respective replies of the Respondents. Pre-hearing session was held after which the case proceeded to hearing. At the proceedings of 16/7/2019, the Appellants tendered the Certified True Copies of a number of documents including the Smart Card Reader Report of the election being challenged through PW15, one Joe Abaagu, Esq, who as
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called by the Appellants. Although objections were taken by the Respondents to the admissibility of some of the documents tendered, there was no objection to the Smart Card Reader Report on any grounds. In a considered ruling, the Tribunal overruled the objections and held that the documents were admissible. However, while numbering the exhibits and without any prompting from any of the parties or Counsel, the Tribunal ruled concerning the Card Reader Report as follows, page 527 of Volume 6 of the Record of Appeal:
“What P.W.15 identified was certified true copies of Documentary Data From Card Reader Machines. We do not have any such document so headed in those terms before us. What is before us is captioned Certification By The Independent National Electoral Commission (INEC) ICT DEPARTMENT, etc they are not the same the said document is rejected and marked Rejected No. 1”
The Appellants, being dissatisfied with the said ruling lodged the instant Appeal by Notice of Appeal filed on 26/7/2019, on a sole ground of appeal; pages 555 to 559 of Volume 6 of the Record of Appeal.
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In line with the Rules of this Court, parties filed Briefs of
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Argument, which were adopted by learned Counsel of the respective parties. The 1st Respondent, the 2nd Respondent and the 3rd Respondent all respectively filed Preliminary Objections to the competence of the appeal. The Appellants filed Reply Briefs to the Briefs of the 1st, 2nd, and 3rd Respondents. As is customary, the Preliminary Objections raised by the Respondents shall first be considered.
Preliminary Objections of the 1st, 2nd and 3rd Respondents to Appeal No CA/MKD/EP/GOV/12/2019
The Preliminary Objection of the 1st Respondent was on the following grounds:
i. The Smart Card Reader Report (the subject matter of this Appeal) has now been admitted in evidence by the Election Tribunal on the 31st July, 2019 when it was tendered again by the Appellants, hence;
ii. The Appeal is merely academic, theoretical, hypothetical and redundant; and
iii. The Appeal has been overtaken by events.
For the 2nd Respondent, the Court was urged to dismiss the appeal in limine or strike it out, on the following grounds:
1. That the appeal is premature and
2. That the appeal is an academic exercise
?For the 3rd
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Respondent, the Court was urged to strike out the appeal for the following reasons:-
The appeal is academic, hypothetical, theoretical and an abuse of Court process and a waste of precious judicial time.
The common thread running through the objections raised by the 1st, 2nd and 3rd Respondents respectively is that this appeal has been rendered an academic exercise in that the subject matter of the appeal, the Smart Card Reader Report, was subsequently admitted in evidence on 31/7/2019, when it was tendered again by the Appellants through another witness.
Respective parties through their Counsel advanced arguments and cited pertinent decisions in support of their objections. The Appellants relied on their Reply Briefs in response to the arguments of the respective Respondents.
Resolution of Preliminary Objections
The main issue raised by this appeal which was filed on 26/7/2019 is whether the Tribunal had acted in line with the law in raising the issue of mis-description or improper description of the document tendered as the Smart Card Reader Report suo motu and deciding thereon on 26/7/2019, without hearing from the parties,
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particularly from the Appellants. While a further pronouncement to now admit the said document in evidence, as was also sought by the Appellants in this appeal, may be academic, the Court is certainly not precluded from making a pronouncement on the main issue presented before it. Therefore, in the light of the main issue raised by this appeal, an objection that the appeal is premature or that it has been overtaken cannot stand.
The Preliminary Objections respectively raised by the 1st, 2nd and 3rd Respondents are without merit and are hereby dismissed.
Substantive Appeal
Appeal No: CA/MKD/EP/GOV/12/2019
The Appellants formulated the following sole issue for the determination of this appeal:
Whether the Trial Tribunal acted within its jurisdiction in unilaterally raising the issue of improper description of the Smart Card Reader Report and in marking same rejected after having overruled the 2nd and 3rd Respondents’ objections to all the documents tendered by the Petitioners/Appellants inclusive of the said Card Reader Report.
The 1st Respondent, which had not objected to the admissibility of the Smart Card Reader Report,
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notified the Court that it did not intend to join issues with the Appellants on the issue distilled for determination of this appeal. The Smart Card Reader Report in issue had been produced and certified by the 1st Respondent.
For the 2nd Respondent, the following issue for determination was framed:
Whether or not the lower Tribunal had erred in marking the document captioned “Certification By The Independent National Electoral Commission (INEC) ICT DEPARTMENT, etc” as rejected when the document sought to be tendered and identified before the Tribunal was Documentary Data from Card Reader Machines.
For the 3rd Respondent, the following issue was distilled:
Whether or not the Tribunal has the power and duty to exclude a document that was not shown to be relevant and admissible to the proceedings before it.
The issues framed by the parties seek similar resolutions. I shall however adopt the issue as framed by the Appellants.
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The Appellants contended that the Tribunal had raised the issue of mis-description or improper description of the document tendered as the Smart Card Reader Report suo motu and had ruled thereon to reject and
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mark the said document without hearing any party on it. None of the parties had raised an objection to the said document. The Appellants had no opportunity to be heard as to the propriety or otherwise of admitting the document tendered as the Smart Card Reader Report before the Tribunal rejected it suo motu. It was submitted that a Court of law is not permitted to raise an issue and proceed to determine same without calling on the parties to address it on the issue, particularly the party that would be most affected by its decision thereon. Where a Court of law acts in this manner, it is said to have failed on the principle of the rules of fair hearing and the decision is liable to be set aside. Reliance was placed on the decisions in Ezeugo v. State (2013) 9 NWLR (Pt. 1360) 589 at 549; Adedayo & Ors v. PDP & Ors (2013) LPELR – 20342 (SC). It was further submitted that the decision of the Tribunal to reject the document in issue was predicated on the heading of the document; which was merely a statement in compliance with the provisions of Section 84 of the Evidence Act on computer generated evidence. The card reader report itself was the whole
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document. It was argued that the action of the Tribunal in rejecting the document was unsupported in law. In arguing that a document ought to be analyzed not necessarily by its heading but rather by its contents, authorities relied on included Nwachukwu v. Boji-Boji Microfinance Bank Nigeria Limited (2013) LPELR-20309 (CA) 24-25; Ogbonna v. A.G. Imo State (1992) 2 SCNJ 26 at 45; Edeh v. Adah (2016) ALL FWLR (PT. 864) 1848 at 1861-1862; Ogbebo V. Ogbebo (2018) ALL FWLR (PT. 956) 28 at 46 ? 47.
It was further submitted that having earlier admitted the document in issue as well as other documents tendered, the Tribunal was without vires and jurisdiction to turn round to mark the said document as rejected. The document had been validly admitted and was not shown to be a nullity. Reliance was placed on Iyagba v. Sekibo & Ors (2008) LPELR-4346(CA) 24; Alhassan & Ors v. Makama (2018) LPELR-46567(CA) 7-8. It was further submitted that in this circumstance, the decision of the Tribunal in rejecting the already admitted document was akin to sitting on appeal over its own decision. All the documents sought to be tendered through PW15 had been admitted
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by the order of the Court. Upon admitting the document, the Tribunal became functus officio regarding the admissibility of documents tendered before it. Any challenge to the admissibility of any of the documents could only be done on appeal, citing and relying on Akinboyede v. Adebiyi (2015) 3 NWLR (PT.1447) 615 at 627; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 210. The decision of the Tribunal led to a denial of fair trial to the Appellants. The Court was finally urged to resolve the sole issue in favour of the Appellants and to admit the document in evidence by virtue of Section 15 of the Court of Appeal Act.
The 2nd Respondent argued that the Tribunal had not raised the matter of the identity of the document in issue suo motu. A Court is entitled to draw inferences and conclusions from facts already in evidence. In doing so, it cannot be said that the Tribunal raised the issue suo motu. PW15 had referred to Documentary Data from Card Reader Machines and not “Certification by 1st Respondent” both in his deposition and oral testimony before the Tribunal. Where PW15 had identified and made reference to one document but tendered another document, the
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Tribunal could not have closed its eyes and admitted same. It was not the duty of the Tribunal to suo motu resolve any discrepancy or irregularity in the captioning of the documents presented before it.
For the 3rd Respondent, it was argued that the document identified by PW15 had no nexus with the petition before the trial Tribunal, which rightly rejected it.
The Respondents urged the Court to resolve the issue against the Appellants and to dismiss the appeal.
Resolution
PW 15 identified certified true copies of Documentary Data from the card reader machines. The Respondents did not object to these documents. But while numbering the documents as exhibits, the trial Tribunal ruled:
“What P.W.15 identified was certified true copies of Documentary Data From Card Reader Machines. We do not have any such document so headed in those terms before us. What is before us is captioned Certification By The Independent National Electoral Commission (INEC) ICT DEPARTMENT, etc they are not the same the said document is rejected and marked Rejected No. 1.”?
In other words, the document identified in evidence by the PW15 had a different heading
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from what was tendered. Note, that the trial Tribunal made no reference to the contents of the document.
The legal effect of such a conflict was well stated by this Court in Nimanteks Association Ltd & Anor v. Marco Construction Co Ltd & Ors (1991) 2 NWLR (PT. 174) 411 at 428, per Tobi, JCA (as he then was) in this manner:
where there appears to be a conflict between the heading of the letter and its body, the latter should prevail. A heading of letter is a subjective precis or paraphrase by the writer of the subject matter of the letter. It could be an apt summary. It could be inapt. But in the construction of terms of a contract, a Court of law must deal with the real wordings of the letter rather than the bare heading, which at times, could be misleading.?
In Nwachukwu v. Boji-Boji Microfinance Bank Nigeria Limited (supra) at page 22 of the E-Report, this Court, per Bage, JCA (as he then was) restated the position of the law thus:
The law has always been that, the heading of a document or even a letter head as in the instant case, is of no significance, or importance. What matters is the content of
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such document.?
Thus, by the clear position of the law, what is crucial is the content of the document and not necessarily its heading. One must observe that the contents in the document in issue herein were not at all considered.
The Tribunal having, suo motu, spotted the difference between the heading of the document as identified and as tendered, proceeded without hearing from the parties, to reject the document and so mark it. The question is could the Tribunal have rightly done so? I believe it is well settled that a Court ought not to suo motu raise an issue without giving the parties an opportunity to be heard thereon, particularly the party that may be adversely affected as a result of the point so raised, before it takes a decision. The reason for this was given in Stirling Civil Engineering (Nig) Ltd v. Yahaya (2005) LPELR-3118(SC) per Tobi, JSC,
?In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu it has
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removed itself from its exalted position to flirt with the parties and in the course get itself soiled in the litigation.
This does not mean that a Court of law is totally inhibited from raising issues suo motu. It can and in relevant circumstances. For instance, a Court of law can raise issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a Court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case.
Though Court has the jurisdiction to raise an issue suo motu, it has not the jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to react to the issue by way of address. On no account should a Court of law raise an issue suo motu and resolve it suo motu. That is unjust and a party aggrieved has the right to complain in the way the appellant has complained in this Court. The case law is in great proliferation. Let us take a few cases.
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In Chief Oje v. Chief Babalola (1991) 4 NWLR (Pt. 185) 267, this Court held that on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties.?
Concurring judicial pronouncements on this issue are legion. I will only mention a few: Sani v. Kogi State House of Assembly & Ors (2019) LPELR-46404(SC); Akeredolu v. Abraham & Ors (2018) LPELR-44067(SC); Araka v. Ejeagwu (2000) LPELR-533(SC).
The demands of fair hearing are not met when a Court of law raises a point suo motu, no matter how clear it may appear to be, and proceeds to resolve it one way or the other without hearing the parties, particularly the party that may be adversely affected as a result of the point so raised. Once the Court embarks on such a course, it will be in breach of the parties’ right to fair hearing; Araka v. Ejeagwu (supra). And the decision reached thereby is liable to be set aside.
?I agree with the Appellants that the trial Tribunal ought not to have suo motu raised the issue of improper description of the Smart Card Reader Report and proceeded to mark the
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same rejected without hearing from the parties on either the description of the document or its contents. In this circumstance, the sole issue arising for determination is resolved in favour of the Appellants.
The appeal is meritorious and is hereby allowed. The decision of the trial Tribunal made on 16/7/2019 in which the Smart Card Reader Report was rejected and so marked is hereby set aside.
Parties are to bear their costs.
Appeal No: CA/MKD/EP/GOV/13/2019
In line with the Rules of Court, the parties in this appeal filed Briefs of Argument, except for the 1st Respondent. The 1st Respondent, though represented by Counsel, filed no Brief. The 2nd Respondent and 3rd Respondent raised Preliminary Objections in their Briefs, arguing in the main, that the appeal was now academic and overtaken. The trial Tribunal had concluded hearing in the petition on 19/8/2019 and a determination of the appeal at this stage would not settle any live controversy.
?The main issue raised by this appeal is whether the Tribunal had rightly struck out the witness statement of PW15 in the circumstance. The record reveals that although the Chairman of
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the Tribunal acknowledged that copies of the witness statement of PW15 in the files of other members of the Panel were properly authenticated, he found that his own copy was not so authenticated. On the basis of that sole reason, the trial Tribunal struck out the witness statement of PW15, who had already been cross examined in part.
The Court has given careful thought to arguments from Learned Senior Counsel of the respective parties. It is our considered view that this appeal is meritorious. In so far as any of the processes filed by the parties before the trial Tribunal indicated that it had been received by the Secretary of the Tribunal as required by the Practice Directions, the Tribunal ought to have accepted and acted thereon. The responsibility for failing to have one sole copy properly authenticated, even if it was the Chairman’s copy, cannot be a burden borne by a party. The trial Tribunal was therefore in grave error to have discountenanced and struck out the witness statement of PW15.
This appeal therefore succeeds and is hereby allowed. It is also ordered that parties shall bear their costs.
Other Citations: (2009)LCN/3437(CA)
