National Electoral Commission & Ors. V. Sunday Ogonda Wodi (1989)
LawGlobal-Hub Lead Judgment Report
OWOLABI KOLAWOLE, J.C.A.
This appeal came up for hearing on Wednesday, February 15, 1989. Mr. T. A. Koroye, State Counsel, who appeared for the 1st, 2nd and 3rd appellants sought to tender Rivers State of Nigeria Official Gazette No. 17 Volume 7 of 1st May, 1975 which shows at page 144 that the Petitioner/Respondent was dismissed from the Teaching Service Commission of the Rivers State Government as Technical Instructor on 1st April, 1974. Mr. C. O. Akpamgbo, S.A.N. who appeared for the 4th appellant also supported the tendering of the Gazette.
Learned Counsel for the Petitioner/Respondent, Mr. E. C. Ukala, opposed the application.
The appeal in question concerns the election to the Port Harcourt City Local Government Council in the Port Harcourt Local Government Area (PHALGA) for the Chairmanship of the Council at the Local Government Elections conducted in Nigeria on the 12th December, 1987 wherein the Petitioner/Respondent’s name was excluded from the list of nominated candidates because of an allegation that the petitioner had been dismissed from Government service while in the employment of the Rivers State Teaching Service Commission. The trial Judge declared the election of the 4th appellant, Dr. Emenike Wami, void on the ground that the petitioner/respondent, Sunday Wodi, was deemed to be eligible to be voted for under section 4 of the Local Government Elections Decree No. 37 of 1987 and was wrongly excluded from the election.
On the 1st of March, 1988, at the lower court, learned counsel for the petitioner/respondent, Mr. E. C. Ukala, called as first plaintiffs witness Anthony Iwo Okpan-Omo, a Higher Registrar Records of the High Court, Port Harcourt to produce and tender a sworn counter-affidavit by one Adolphus Enyinda Nwosu the third appellant herein dated 9th December, 1987 in respect of suit No. PHC/546/87 between Sunday O. Wodi as plaintiff and Adolphus Nwosu, the Electoral Officer Port Harcourt Local Government Area and two others. Learned counsel for the 4th appellant in the present appeal in the lower court, Mr. L. A. Mitee’s objection to the admissibility of the document was overruled and the document with its attachments was admitted as Exhibit 1. Exhibit 1 has attached with it a petition, Exhibit 18 by one Azunda Adele dated 26th November, 1987 in which he deposed that Sunday Wodi was dismissed from the service of the Rivers State Teaching Service Commission and with that petition he attached photo copy of Rivers State of Nigeria Official Gazette No.17 Volume 7 of 1st May, 1975, Exhibit 1D. At page 144 of the Gazette the following Notice appeared:
“Department- Teaching Service Commission
Name-Wodi, S. O.
Appointment- Technical Instructor
Date of leaving service – 1-4-74
Reasons for leaving service- Dismissed”
Mr. Koroye, in support of his submission to tender the original of the Gazette, cited Ogbunyiya & Ors. v. Okudo & Ors. (1979) 3 LRN 318, South Eastern State Newspaper Corporation & Anor. v. Edet Asuquo Anwara (1975) 1 All N.L.R. (Part II) page 38 at pages 43 – 45 and Order 9 rule 9 of the High Court (Civil Procedure) Rules 1987 of the Rivers State of Nigeria.
Mr. C. O. Akpamgbo, S.A.N. in support of the tendering of the Rivers State of Nigeria Official Gazette referred to page 324 of Ogbunyiya & Ors. v. Okuda & Ors. (supra) and contended that the photocopy of the Gazette had already been tendered by Mr. Ukala, learned Counsel for the respondent in the court below at page 83 lines 17 to 26 of the record of appeal. The original can therefore not be said to take the respondent by surprise.
Learned Senior Advocate referred to the cases of (1) Nwabuoku v. Ottih (1961) 1 All N.L.R. 487 at 490; NICON v. Power and Industrial Engineering Co. Ltd. (1986) 1 S.C. 2 at pages 46 and 47; (1986) 1 N.W.L.R. (Part 14) 1. Mr. Ukala, learned Counsel for the respondent, submitted that in objecting to the tendering of the Rivers State Official Gazette, it is his view that the interest of justice is the interest of the plaintiff, the defendant and the society in general. He submitted that it is not in the interest of justice that the Court should assist in advancing the cause of one of the parties before it. He submitted that the onus is on the party who asserts to prove his assertion.
What is pleaded per se does not constitute evidence in proof of the assertion.
It is the contention of Mr. Ukala that to allow the appellants to tender the Rivers State Official Gazette at this stage would mean to allow one of the contestants to prove by evidence facts which he pleaded but could not prove in the lower court. That, in Mr. Ukala’s view, automatically changes the role of this Court. He contended that the circumstances under which additional evidence are admissible in the Court of Appeal can only apply when the additional evidence was not available at the trial.
Learned Counsel finally submitted that if it is the case of the appellants that Exhibit 1D, the photocopy of the Rivers State of Nigeria Official Gazette attached to the affidavit, is legal evidence, then there is no need to tender the Gazette. If, however, the tendering of the counter-affidavit with its attachments is not sufficient, then there is evidential deficiency.
The point in controversy in this objection appears to be straightforward but because of the provisions of section 36(2) of Decree No. 37 which enacts that the decision of the Court of Appeal shall be final, we thought it expedient that we should give a considered ruling. This ruling therefore will not attempt to go into the merits of the appeal, it will be confined strictly to the question of whether the Rivers State Government Official Gazette is admissible at the Court of Appeal or not.
In paragraphs 5 and 6 of the petition, the petitioner/respondent averred as follows:
“5 The petitioner then instituted an action against the 1st and 2nd respondents in suit No.PHC/546/87, Sunday O. Wodi v. The Electoral Officer, Port Harcourt Local Government Area (Mr. Adolphus Nwosu) and 2 others.
“6. That in the said suit the 2nd and 3rd Respondents admitted in their affidavit of 9th December, 1987, that they excluded the Petitioner’s name from the list of nominated candidates because of an alleged petition they received informing them that the Petitioner had been dismissed from Government Service while in the employment of the Rivers State Teaching Service Commission. The Petitioner will at the trial found on the said affidavit”
(italics for emphasis.)
The 1st to 3rd Respondents (now appellants) in their Reply averred in paragraph 6 as follows:-
“6 Further to paragraph 2 above, the 1st – 3rd Respondents state as follows:-
(a) The Petitioner was purportedly nominated as a “Candidate” for the post of Chairman for the Port Harcourt City Local Government Elections held on the 12th December, 1987.
(b) When the 3rd Respondent received the nomination paper of the petitioner, it appeared to be valid on the face of it. He therefore accepted the nomination papers and notified the petitioner vide Form EC.5 dated 18/11/87 that his nomination papers had been accepted because they appear to be valid. The said Form EC.5 will be relied upon.
(c) Thereafter, the 2nd and 3rd Respondents received a letter dated 26/11/87 from one Azunda Adele in which an objection was raised against the nomination of the petitioner as a candidate for the aforesaid election.
(d) The objection was based on the fact that the petitioner was dismissed from the Teaching Service Commission of Rivers State with effect from 1/4/74.
(e) Attached to the said letter were an affidavit sworn to by (the) Azunda Adele in which the facts stated in the letter were verified and a copy of the Rivers State of Nigeria Official Gazette Vol. 7 No. 17 of 1/5/75 in which the said dismissal was published. The letter, Affidavit and the gazette referred herein will be relied upon.
(1) Upon receipt of the aforesaid letter and its supporting evidence, the 2nd and 3rd Respondents became aware that the petitioner is a person who is banned for life from holding any elective office or post or public office in the Port Harcourt City Local Government Councilor any other Government office or post in Nigeria by virtue of the following statutory provisions:-
(i) PARTICIPATION IN POLITICS AND ELECTIONS DECREE, 1987 (hereinafter referred to simply as “Decree No. 25 of 1987”)
(ii) TRANSITION TO CIVIL RULE (GUIDELINES FOR LOCAL GOVERNMENT ELECTIONS) ORDER, 1987 (hereinafter referred to as “S. I. 19 of 1987)
(iii) LOCAL GOVERNMENT ELECTIONS DECREE 1987. (hereinafter referred to as “Decree No. 37 of 1987”).
(g) Consequently, the 2nd and 3rd Respondents realised that the petitioner is a person who cannot be lawfully nominated as a “Candidate” for the said elections.
(h) Acting under and pursuant to the provisions of Decree No. 25 of 1987 particularly; and Decree No.37 of 1987) and S. I. 19 of 1987 generally, the 2nd and 3rd Respondents dropped the name of the petitioner from the list of lawfully nominated candidates for the said elections.”
At the close of pleadings it was quite clear that parties joined issue only as to whether the petitioner/respondent resigned his appointment from the Teaching Service Commission of the Rivers State Government as contended by him or whether the Petitioner/Respondent was dismissed from the Teaching Service Commission as contended by the Appellants.
The petitioner/respondent himself produced Exhibit 1D the photocopy of the Rivers State of Nigeria Official Gazette pursuant to paragraph 6 of the petition which showed that he was dismissed from the Teaching Service Commission of the Rivers State Government of Nigeria. That document which is an admission of paragraph 6(c), (d), (e), (f) of the Reply is secondary evidence by virtue of section 94(b) of the Evidence Act Cap. 62 Laws of the Federation in that the copy was made from the original by mechanical process which in itself ensures the accuracy of the copy. This document, the official gazette, was produced and tendered by the person against whom it is to be proved. That gazette, Exhibit 1D was therefore legally in evidence. Ordinarily, secondary evidence of the existence, condition, contents of a document may not be given in evidence except under the conditions stipulated in section 96 of the Evidence Act, but when the person against whom the contents of the document are to be proved, has himself produced and tendered the secondary evidence, that document is elevated to the status of primary evidence and the court is entitled to make use of the evidence and the document is legally admissible in evidence.
Now, once I hold that Exhibit 1D is admissible and legally in evidence, I think it is appropriate to approach the issue raised by examining sections 112 and 115 of the Evidence Act Cap. 62 Laws of the Federation. I shall set the sections down hereunder:
“S.115 The Court shall presume the genuineness of every document purporting to be the London Gazette or the Official Gazette of Nigeria or of a Region (State) or the Gazette of any British possession or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by the Queen’s Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.”
“S.112 The following public documents may be proved as follows:-
(a) all proclamations, Acts of State, Orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or the Government of Nigeria in any Region (State) thereof or of any Local or Native authority… (i) which appear in the official Gazette of Nigeria or of a Region, by production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.”
It has been held that under section 115 of the Evidence Act, official Gazette of the Federation and of a State do not have to be produced from proper custody before they can be presumed genuine.
Again, under section 112 of the Evidence Act, all notifications, appointments and other official communications of the Government of the Federation and of a State which appear in the Official Gazette of the Federation and of a State may be proved by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to convey.
It seems clear to me that the Rivers State Government Notice No.155 contained at page 144 of Exhibit 1D, the Rivers State of Nigeria Official Gazette No.17 Volume 7 of 1st May 1975, is a statement of fact of the notification of the dismissal of S. O. Wodi as Technical Instructor from the Teaching Service Commission of the Government of Rivers State of Nigeria intended to be conveyed by the Government Notice No.155 aforesaid as a statement of fact “of a public nature”, and of which it was the intention of the Rivers State Government to notify the public.
For the purpose of complying with section 112(1)(a) of the Evidence Act, it is enough for the Gazette to be brought forth simply without a witness producing the Gazette and testifying under the sanctity of an oath.
The Supreme Court has laid it down that –
“It is perhaps just as well to point out here that since Notice 1258 in the October Gazette dealt with facts of a public nature and of which it was the intention of the Government to notify the public, once the document (i.e. the October Gazette containing the notice) was produced before a court – whether of first instance or appellate grade – then unless the contents of that notice are irrelevant to the matter in issue that court, having the document before it, ought to take account of it and, if need be, admit it in evidence under sections 115 (limb A) and 112(1)(a) of the Evidence Act.”
The Supreme Court further observed as follows:-
“Following the above principles of the law of evidence we think that their Lordships of the Court of Appeal ought to have admitted the document (the October Gazette) in evidence or, at least, looked at and regarded it as evidence and, in refusing to do so, we consider that they erred in law. In exercise of our general powers under section 22 of the Supreme Court Act and in keeping with the above principles of the law of evidence we not only looked at but also admitted in evidence (neither counsel at the hearing of the appeal objecting) the document (the October Gazette) as exhibit SC (1)”. (See Ogbunyiya and others v. Okudo and others (1979) 3 L.R.N. 318, 322, 324, 325.)
With regard to the Rivers State Official Gazette No.17 Volume 7 of 1st May, 1975 the contents of the document are not irrelevant because Notice No.155 in the Gazette dealt with facts of a public nature of which it was the intention of the Rivers State Government to notify the public. Further, the main contest in the case upon which all the parties joined issue was whether the petitioner/respondent resigned his appointment from the Teaching Service Commission or whether he was dismissed from service.
Having stated the principles of the law of evidence, and the binding authority of the Supreme Court, I am clearly of the view that the Rivers State of Nigeria Official Gazette No. 17 Volume 7 of 1st May, 1975 ought to be admitted in evidence. In exercise of the general powers of the Court under section 16 of the Court of Appeal Act, 1976, the objection of Mr. Ukala is overruled and the Rivers State of Nigeria Official Gazette Number 17 Volume 7 of 1st May, 1975 is admitted in evidence as Exhibit CA1. From the way Mr. Ukala himself has put in evidence Exhibit 1D, he cannot be heard to say that this Court is helping to advance the case of either of the contestants.
I now turn to Order 9 rules 9 and 10 of the Rivers State of Nigeria High Court (Civil Procedure) Rules 1987.
It provides as follows:-
“9 Accounts, extracts from registers, particularly of creditors’ debts, and other documents referred to by affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed but shall be referred to as exhibits”
“10 Every certificate on an exhibit referred to in an affidavit signed by the commissioner or officer before whom the affidavit is sworn shall be marked with the short title of the cause or matter.”
Order 9 rules 9 and 10 are lifted from Order 38 rules 28 and 29 of the Rules of the Supreme Court of England which have been replaced in England by rule 11(1) of Order 4.
The affidavit of Adolphus Enyinda Nwosu tendered by Mr. E. C. Ukala referred to all other documents annexed as exhibits 1A, 1B, 1C and 1D. These rules have been construed in In re Hinchliffe (1895) 1 Ch. 117 at 120 where Lord Herschell said –
“They form as much part of the affidavit as if they had actually (been) annexed to and filed with it.”
The Supreme Court also observed that such annexed exhibits are part of the affidavit, and any person who is entitled to inspect the affidavit has a right to demand inspection of the exhibits referred to in it. (See South Eastern State Newspaper Corporation and Anor. v. Edet Asuquo Anwara (1975) 1 All N.L.R. (Part II) page 38 at page 44.)
Exhibit 1D stands on a stronger footing. As I have said earlier on, although exhibit 1D is secondary evidence in accordance with section 94(b) of the Evidence Act, it was tendered by the party against whom it is to be proved, this court and the lower court are entitled to make use of the evidence and the document is legally in evidence.
The situation now is that Exhibit ID and Exhibit CA1 are admissible as legal evidence and the contents of the documents are relevant to the matter in issue, this court having the documents before it ought to take account of them.
The objection of Mr. Ukala is overruled with cost of N50.00 in favour of each set of appellants.
Other Citations: (1989) LCN/0066(CA)
