Onwuka F. Nkeiruka (Mrs) V. Dimobi Joseph & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal against the ruling of the Election Petition Tribunal Anambra State (Panel 1) sitting at Awka, presided over by Hon. Justice J. S. Abiriyi delivered on 23rd of October 2007.
By the petition dated and filed 10th May 2007 the Appellant challenged the return of the 1st Respondent as the winner of the election held on the 14th day of April 2007 for the position of member representing Anaocha II Constituency in the Anambra State House of Assembly.
The petition was predicated on two grounds namely:
(1) “That the 1st Respondent was not duly elected by a majority of Lawful Votes cast at the election as voting was frustrated.
(II) The return of the 1st respondent at the election (for Anambra State House of Assembly Anaocha II Constituency was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act 2006”.
Learned Counsel to the 1st respondent filed a motion on notice dated 28th of September 2007. The motion prayed for the following:-
(a) “An Order striking out all the purported written statements on Oath of the petitioners purported witnesses attached to the petition, not being sworn on oath in accordance with the Oath Act.
(b) “Upon A above an Order of the Honourable Tribunal striking out the petition for non compliance with paragraph I of the Election Tribunal and Court Practice Direction 2007”.
The Counsel stated the grounds for the application and supported the motion with affidavit and written submission.
The Appellant reacted to the said motion by filing a Counter-affidavit and written submission. The Appellant also filed an application seeking leave of the tribunal to amend the questioned statement on Oath by filing fresh statements on oath that would contain the allegedly missing paragraph to Wit:
“I solemnly make this statement on Oath in good faith believing the contents to be true and correct and in accordance with Oaths Act”.
The Appellant also sought a second prayer for an Order deeming the re-sworn statements on Oath of all the petitioners witnesses as duly filed and served appropriate fees having been paid. The proposed amended statements on oath were duly attached.
The Respondent opposed the motion on the grounds that it was filed outside the statutory period for amendment allowed by Electoral Act 2006 and that it would prejudice the respondents.
The Tribunal consolidated both motions for striking out and amendment, heard them simultaneously and 23rd October 2007 delivered a ruling granting the application to strick out the written statements on Oath, striking out the petition and refusing to allow the Appellants to re-file the re-sworn statements on Oath.
In striking out the petition and refusing to grant the application for amendment, the tribunal at page 810 of the Records held:-
“We have looked at the statements of the witnesses attached to the petition. In our views none of them is statement on oath. They should therefore be struck out as they were wrongly attached to the petition. By paragraph 1(1)(b) of the Electoral Tribunal and Court Practice Directions what is required to accompany the petition are written statements on Oath. The statements are accordingly struck out.
The statement having all been struck out the petition cannot stand. There is therefore nothing on which the amendment sought will stand. As Learned Counsel for the 1st Respondent rightly pointed out, one cannot amend or add something to nothing. It will not stand. As there is no basis for the application for amendment same should be dismissed. It is accordingly dismissed.
All the statements of the petitioners having been struck out the prayer for an Order striking out the petition for non compliance with paragraph 1 of the Practice Direction 2007 should be granted”.
It is against this ruling that the appellant appealed to this Court. The appellants counsel on the 19th of March 2008 filed the appellants brief of argument, proposed for the determination of this appeal which are reproduced below:
(1) Whether the tribunal was right in striking out Appellants statements of witnesses on Oath because there was no statement of Oath and was wrongly attached to the petition Ground 1.
(2) Whether the tribunal was right in refusing to grant the application for amendment, because there is nothing on which the amendment sought will be standing Ground 2.
The 1st Respondents counsel filed his undated 1st Respondents brief of argument, formulated two issues for determination, which read thus:-
(1) Whether the trial Tribunal was right in holding that the petition in this proceeding was not accompanied by a Written Statement on oath of the witnesses as mandatorily required by paragraphs 1(1) (b) and 2 of the Election Tribunal and Court Practice Directions, 2007.
(II) Whether the statement of witnesses accompanying the petition which were not on oath can be amended.
The 2nd to 176th Respondents Learned Counsel who on 1st of April 2008 filed The 2nd – 176th Respondents brief dated 1st of April 2008 formulated two issues for determination, which read thus:-
(I) Whether the Court below was right in striking out the written statement of the Appellants witnesses for not substantially complying with the provisions of the Oaths Act 1990 and the 151 Schedule thereto.
(II) Whether the lower court was right in refusing to grant the Appellants application for amendment of the appellants witnesses statement on Oath.
A close and dispassionate look at the three sets of issues for determination proposed by the learned counsel of the parties, it is quite easy to say that they are all the same in content; the difference may be a matter of semantics. I am inclined to be guided by those issues formulated by the Appellants counsel in the treatment of this appeal, not only because of their being all compassing but also because they have indeed encapsulated or captured all the issues at stake in this appeal.
It is the contention of the learned counsel of the appellant, that the lower tribunal was in error in its ruling contained in page 810, of the Record, that the statements on Oath of appellants witnesses attached to the petition did not comply with section 13 of the Oaths act, and therefore in breach of paragraph 1(1)(b) of the Election Tribunal and Court Practice Direction 2007.
The Learned Appellants Counsel submitted that the provision of the Practice Direction used simple ordinary and plain words and the words shall be given their simple grammatical meaning See:- Orji v. F.R.N. (200&) 13 NWLR (pt.1050) 55 ratio 14.
The Learned Appellants Counsel maintained that what the applicable Practice Direction requires of the Appellant is to file written “Statements on Oath of the witnesses”. The law does not say that the Written Statements shall be in the form of an Oath Neither the Electoral Act, the Practice Direction nor the Oaths Act prescribed the form, format or contents of the statement on Oath. The essence of the requirement to make the statement on Oath is to elevate a mere averment in a statement in support of petition to the status of a sworn solemn assertion.
The Learned Appellants Counsel maintained that the statements on oath in support of the petition were duly sworn before Commissioner for Oaths in the Registry of the Tribunal and there was no challenge about this. The Practice Direction did not say the written statement should be deposed to in the form, format contents and formal requirements for deposing to affidavit regulated by the Evidence Act.
Learned Appellants Counsel maintained further that a distinguishing feature of statement on Oath provided for by paragraph 1(1)(b) of the Practice Direction is that the maker of the statement appears in the Tribunal to adopt same and be Cross examined as provided for by paragraph 4(3) of the Practice Direction.
Learned Counsel to appellant continued that the Tribunal Misconstrued the provision of Section 13 and 1st Schedule to the Oaths Act to mean that the particular words of the 1st schedule must be contained in the statement on oath or an affidavit as a deposition to make it an oath. The Oath Act having provided that oaths are to be taken has also gone further to state the forms on manner in which the oaths are to be taken. This is provided in Section 5 of the Oaths Act.
Learned Appellants Counsel submitted further that by virtue of Section 82 of the Evidence Act, once the Commissioner for Oath signs his signature and puts an official stamp that the Oath was sworn before him, it is a prima facie evidence that the oath was sworn in the manner prescribed by Section 5 of the Oaths Act. All the statements on oath of the appellants witnesses were signed by the Tribunals designated Commissioner for Oaths (The Secretary of the Tribunal) stating that the Oath were made before her and she diligently put official stamp on each of the statements on oath (See pages 27 – 61 of the Records of Appeal).
Learned Counsel to the appellant submitted further that, the Tribunal failed to adopt the proper interpretation to Section 13 of the Oaths Act, as given by this court in the case of Ibrahim Vs. INEC (1999) 8 NWLR (pt. 614) 334 Assuming but not conceding that statement on oath means the same thing as affidavit and that the format in 1st schedule to the Oaths Act is applicable to this case, the defect will be as to form, and will not invalidate any affidavit in so far as the court is satisfied that the affidavit has been sworn before a person authorized. The allege defect in the statements on oath is immaterial and not calculated to deceive. None of the respondents gave a modicum of evidence as to how the defect adversely affected him or it. It is therefore wrong for the Tribunal to have struck out the statements on oath and consequently, the petition. See: Ajadi v. Ajibola (2004) 16 NWLR (pt. 898) 91 at 107 ratio 12.
Learned Counsel to the appellant further submitted that the Tribunal sacrificed the interest and course of justice on the infancied alter of technicalities. The hey days of technicalities are over and the Tribunals and Courts now strive towards substantial justice even handedly between the parties. See:- Buhari v. Obasanjo (2003) 17 NWLR (pt. 850) 423 ratio 33 at 466.
Learned Counsel to the appellant urge the court to resolve issue No. 1 in favour of the appellant.
On Issue No 2 Learned counsel to the appellant submitted that the Tribunal erred when it refused to grant the appellants application for amendment of the statement on Oath by re-swearing the witness’s statements on oath by adding the concluding and format paragraph contained in 1st schedule of the Oaths Act. The Law permits amendment in pursuance of paragraph 14(2) of the Electoral Act. A party is entitled to amend his petition provided he is not introducing any of the requirements of paragraph (1) of the schedule not contained in the original petition, the party is not effecting a substantial alteration of the grounds for or the prayer in the petition and the party is not effecting a substantial alteration of or addition to the statements of facts relied on to support the ground for or sustain the prayer in the petition See: Ngige v. Obi (2006) 14 NWLR (pt.999) 1 ratio 6 at page 43.
Learned Counsel to the Appellant submits that, in the instant case the appellant’s application for amendment did not relate to the body of the petition. No new facts, party’s grounds, or reliefs were sought to be amended. The Appellants application was merely to add a formal paragraph in the statement on oath in support of the petition. Learned Appellants Counsel submitted further that the appellant brought the application timeously and immediately the 1st Respondent raised the issue of the alleged defect of the written statements on oath. The respondents did not raise any prejudice, inconvenience or injury the allege defect in the written statements on Oath caused them.
Learned Counsel to the Appellant further submits that, it is a trite principle of law that application for amendment and indeed amendment can come at any stage in the proceeding, at any time the applicant became aware of the defect which is being sought to be corrected by the amendment. Paragraph 49(4) First Schedule to the Electoral Act 2006, See also the case of Francis Shanu Vs. AfriBank Nig. Plc. (2000) 13 NWLR (pt.684) 392 at 404 paragraphs F – G, F.G.N. & Anor Vs. A/C Ltd. (2005) 49 WRN 102 at 122 123 lines 40 – 15. Agusiobo v. Onyekwelu (2003) 14 NWLR (pt.839) 34 of 50 – 51 paragraphs G-D.
Learned Counsel to the appellant further submitted that the amendment sought by the appellant is not substantial and that Tribunal has the power to grant same for the purpose of determining the real question or issue raised by or in the proceedings. See: Order 27 Rule 1 Federal High Court (Civil Procedure) Rules.
Learned appellants Counsel submitted finally that in the circumstance of this appeal, this court has the power to interfere and set aside the ruling of the Tribunal See: Kasumu v. NNPC (2008) 3 NWLR (pt. 1075) 569 ratio 4 at 575. Also this court has the powers to grant the amendment sought by the appellants. See: Order 4(1) Court of Appeal Rules 2008. This court is so urge to allow the appeal, and grant the reliefs sought by the appellant.
In his response to all the submissions of the Learned Appellants Counsel, Learned Counsel to the 1sl Respondent in answer to Issue No 1 of the appellants brief of argument, submitted that it is not in dispute that (the Appellant having not denied) that the petitioners witnesses written statements failed to comply, even substantially with the provisions of Section 13 of the Oaths Act and the 1sl Schedule thereto as there was no solemn declaration contained in the said Oath. See:- NNB Plc. Vs. IBW Enterprices Ltd. (1998) 6 NWLR (pt. 558) 446 at 454.
See also the following cases:-
LawaI Osula v. UBA Plc (2003) 5 NWLR (pt.813) 376 at 388
Ogwuegbu v. Agomuo (1999) 7 NWLR (pt. 609) 144 at 168.
Dr. Adekanye and 25 Ors v. Comptroller of Prisons and (2000) 12 NWLR (pt.682) 563.
Learned Counsel to the 1st Respondent submitted that the witnesses statements neither complied with the format prescribed in the 1st Schedule nor substantially complied with the provisions of the Act. Whichever way the statements is looked at, they are incompetent…As none of the statement complied with the format prescribed in the Oaths Act Nor did they comply substantially with the provisions of the Oaths Act.
Learned Counsel to the 1sl Respondent submitted further that, the Election Tribunal and Courts Practice Directions 2007, unequivocally provided in paragraph 1 (2) that a petition which fails to comply with subparagraph (1), shall not be accepted for filing by the secretary. The provision of Election Tribunal and Courts Practice Direction, 2007 has received judicial approval in the recent case of Okereke v. Umaru Musa Yar’Adua SC.246/2007.
Learned Counsel to the 1st Respondent submitted that, the issue of the mandatoriness of compliance in the statutory provisions where a statute provides for a particular method of performing a duty imposed by statute has been settled by a long line of authorities.
Co-operative and Commerce Bank Nig. Ltd Vs. A-G Anambra State (1992) 8 NWLR (pt.361) 526 at 528
Ibrahim v. INEC (1999) 8 NWLR (pt. 614) 334 at 352.
Buhari v. Dikko Yesuf (2003) 14 NWLR (pt. 841) 449 at 498.
Learned Counsel to the 1sl Respondent argued further that, the urge to do substantial justice does not include illegality or encouragement of the attitude of any thing goes as being contended by the appellant. When the application for striking out was served on her, she filed a Counter Affidavit in opposition. A few days later, apparently seeing the hand writing on the wall she filed another application to amend the statement of witnesses thereby admitting that there was no statement on Oath. See: Okafor Vs. Nweke (2007) NWLR (pt.1043) 521.
Learned Counsel on behalf of the 1sl Respondent urge this court to resolve Issue No. 1 against the Appellant.
Learned Counsel to the 1sl Respondent in response to the Appellants Issue No. 2 submitted that an application to amend the statement accompanying the petition presupposes the existence of a valid and competent petition. That application by the petitioner was to amend the statement of witnesses accompanying an incompetent petition in Order to make the petition which is incompetent to be competent, the amendment seek to resurrect a dead and incompetent petition.
Learned Counsel to the 151 Respondent submitted that Section 141 of the Electoral Act, 2006 provides that an election petition shall be presented within 30 days from the date the result of the election is declared. The petition in this proceedings having not been presented with accompanying statements of witnesses on oath was at the time of presentation incompetent and in the eyes of the law not a petition. In seeking an amendment, the petitioner was in fact presenting a fresh petition and having not done so within 30 days allowed by law, the fresh petition was incompetent, and the trial Tribunal refused the application.
Learned Counsel to the 1st Respondent further submitted that contrary to the contention of the Appellant in her brief, what she sought to amend was not a statement on Oath but mere statements made by her and her witnesses which were not on Oaths. Section 84 of the Evidence Act 1990 provides for a defective or erroneous affidavit to be amended and re-sworn. The statement of the petitioner and her witnesses are not Affidavit defective or erroneous that can be amended.
Learned Counsel to the 1st Respondent finally submitted that the trial Tribunal was right when they held that the statement of witnesses did not comply with the requirements of the law, and were mere worthless pieces of papers, as it is trite law that one cannot amend or add something to nothing just as one cannot make something out of nothing for Ex-Nihilo Nihil fit. See: Enitan vs. State (1986) 3 NWLR (pt. 30) 604 at 609.
Chagoury vs. Yakubu (2005) 35 WRN 63 at 80. This Court is urging to resolve Issue NO.2 against the appellant.
Learned Counsel to the 2nd to 176th Respondents in his response to the appellants Issue NO.1 stated that the word “Shall” used in paragraph 1 of the Election Tribunal and Court Practice Directions 2007 connotes a command and it is not discretionary which restrained the Tribunal to no other option than to demand compliance. See: Kaliel vs. Aliezo (1990) 4 NWLR (pt.597) 139 at 154 Amokedo vs. I.G.P. (2001) FWLR (pt.33) 344 at 359 Yusuf V. Obasanjo (2005) 18 NWLR (pt.956)96 at 220, Abubakar v. INEC (2004) 1 NWLR (pt. 854) 207 at 227.
Learned Counsel to 2nd – 176 Respondents submitted that where a written statement is not ratified as the truth of the matter therein, it is not a written witness statement envisage by he Election Tribunal and Court Practice Direction, 2007, provided the written statements of witnesses shall be on Oath. The statements of the Appellants witnesses are not on Oath. The significance and legal effect of subscribing to an Oath could be appreciated in the case of Action Congress Vs. INEC (2007) 12 NWLR (pt.l048) 222 at 306.
Learned Counsel to the 2nd – 176th Respondents further submitted that on close examination of the written statements of the Appellant witnesses in this matter reveals the following:
(1) There is no form of attestation by the makers of the statements in the purported written statements.
(2) There is no form of attestation by the makers of the statements in the purported written statements by the makers indicating the serious and relevant state of their minds in making the statements.
(3) There was no indication that even the written statements were ever sworn to before a lawful authority on any specific day.
Learned Counsel to the 2nd to 176th Respondents submitted that a statement on Oath is not necessarily an affidavit. For a definition of an Affidavit See the Blacks Law Dictionary 6th Edition at Page 555 Also the case of Josein Holdings Ltd. Vs. Lemamead Ltd (1995) 1 NWLR (pt. 317) 254 at 265. Abiodun Vs. C. J. Kwara State & Ors. (2007) 18 NWLR (pt. 1065) 109 at 145. Okafor Vs. Nweke (2007) 10 NWLR (pt.l043) 521.
Learned Counsel to 2nd – 176th Respondent submitted further that the written statements made by the Appellant’s witnesses fell short of the basic standard envisaged in Ibrahim Vs. INEC (1990) 8 NWLR (pt.614) 334 at 346-347 Ogwuegbu v. Agomuo (Supra) Lonestar Nig. Ltd. V. Trievni Eng. & Industry Ltd (1999) 1 NWLR (pt. 558) at 622. NNB Plc V. IBWA Enterprises Ltd. (1998) 6 NWLR (pt. 558) 622.
Learned Counsel to 2nd – 176th Respondents finally submits on Issue No, 1 that, Election petition matters being Sui generic, slightest default in compliance with a procedural step which could be cured or waived in Ordinary Civil Proceedings could result in fatal consequences to the petition.
See: Buhari v. Obasanjo (2003) 14 NWLR (pt. 841) 446 at 498.
Chief Emmanuel Osita Okereke v. Alhji Umaru Musa Yar’Adua & Ors Sc. 246/2007.
On Issue No. 2 as contained in the Appellants brief of argument, Learned Counsel to 2nd – 176th Respondent, submitted that no one can add to amend something that is not existing. There is no valid written statement on oath on which as amendment could be found upon. Paragraph l(I)(b) of the Election Tribunal and Court Practice Directions, 2007. See: Abubakar v. INEC (Supra).
Learned Counsel to the 2nd – 176th Respondents further submits that the provision of paragraph 49(4) of the 1st Schedule to the Electoral Act 2006 cannot avail the. appellant in the instant case. The time of filing a petition has expired and written statement on Oath ought to have been filed and accompanied the appellant’s petition. Contrary to paragraph 4-24 of the Appellants brief, amendment sought by the appellant is substantial and affects the substance of the Appellants case. Basically written statement on Oath cannot be amended.
Learned Counsel to 2nd – 176th Respondents submitted further that written statements on Oath were not filed with the Appellants petition within the statutory 30 days of filing such petition. Consequently, the lower tribunal rightly examined its discretion judiciously in refusing to grant the appellants application for amendment of his witnesses statement on Oath. The general principle of amendment in normal Civil matters are not applicable in Election petitions. See: Okafor v. Ikeanyi & Ors (1979) 34 SC 99; Obi Odu v. Duke (No.2) (2005) 10 NWLR (pt.932) 81.
In considering the issues raised in this appeal, I deem it apt to set out the provision of paragraph 1 of the Practice Direction 2007, which is the fulcrum of this appeal, it reads thus:-
“Mode of filing a petition”
(1)(1) All petitions to be presented before tribunal or courts shall be accompanied by:
(a) Statement indicating the number of witnesses the petitioner intends to call in proof of the petition.
(b) Written statements on Oath of witnesses whose identity may be represented by an alphabet or a combination thereof; and
(c) Copies of list of every document to be relied on at the hearing.
(2) “A petition which fails to comply with such-paragraph (l) of this petition paragraph shall not be accepted for filing by the secretary”
The main crux of this appeal no doubt is the meaning of the word “Shall” in the con of paragraph 1(1) (b) of the Practice Direction 2007.
There is no doubt that both in law and in the English language, the expression “Shall” connotes a command, a directory. For example the compact Edition of the Oxford English Dictionary Vol. II (OUP) (1988) pp.2764 – 2766 devoted 29 paragraphs to the different usages of the word “Shall” paragraph 1 and II which are of greater relevance for our purpose defines “Shall” as
(I) “An utterance of the word “Shall” a command promise or determination.
(II) In clauses expression the purported result of some action or object of a desire, intention, command or request.
It seems to me that the general intention of the draftsman in paragraph 1 of the Practice Direction 2007 is to encourage and enforce “front-loading” as a principle of our modern Civil Procedure System so that a (Defendant) would have full knowledge and adequate notice of the case of the (Plaintiff) so as to avoid delay in trials and fulfill the objective of speedy administration of justice.
However the consequence of the word “Shall” in the con of paragraph 1(1)(b) clearly provides for the filing of written statements on Oath of witnesses ” The negative consequence of the disobedience of the petitions to the expression of command “Shall” in paragraph 1(1)(b) is the failure to file the written statements of his witnesses on Oath before the hearing of his petition. Sub-paragraph 2 of paragraph I of the Practice Direction gave the Secretary to the tribunal, a statutory and ministerial duty not to accept a petition which fails to comply with sub-paragraph I of the Practice Direction where as in the instant case, the written statement of the witnesses to the petitioner, now appellant were not only duly filed as required by the Practice Direction, they were in fact deposed to before the secretary to the tribunal. The main contention of the 1st Respondent and the 2nd – 176th Respondents at the lower tribunal was that the secretary accepted “defective written statement” of Appellants witnesses, which had not complied with the provisions of the Oaths Act. The consequence is still as contemplated by the wordings of paragraph 1(1) (b) itself, that is the petitioner would be taken not to have filed witnesses’ statements in the first instance.
Indeed the arguments of the Respondents in this appeal is not whether the statement of the witnesses to the appellant were not filed as provided for under the Practice Direction, they were filed. The defect with those written statements of the appellant witnesses is as to form. The Learned Counsel to Respondent argued, although all the written statements are in place, but they fail short of the requirement of the Oath Act. The consequence of that failure the learned counsel to the Respondents has argued renders the petition incompetent and deprives the tribunal of jurisdiction to determine it. However the courts have been admonished by Lord Campbell L.C. in Liverpool Borough Bank V. Turner (1861) 30 L.J. Ch. 379 at p. 380 that as “No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with implied nullification for disobedience. It is the duty of courts of justice to try and get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered”.
In order to attend to the whole scope of paragraph 1(I)(b) of the Practice Direction 2007 which provides for:”
“Written statements on Oath of witnesses whose identity may be represented by an alphabet or a combination thereof’.
It becomes imperative to reproduce Section 13 of the Oath Act which the respondents hinged non-compliance with, to the satisfaction of the lower tribunal.
Section 13 of the Oaths Act provides as follows:-
“It shall be lawful for any Commissioner for Oaths, Notary public of any other person authorized by the Act to administer Oaths, take and receive the declaration of any person voluntarily making the same before him in the form set out in the first Schedule”
While the form of Oath for affidavits in the 1st Schedule to the Oaths Act reads as follows:-
‘I …. Do solemnly and sincerely declare that I make the solemn declaration conscientiously believing same to be true and by virtue of the provision of the Oaths Act”
The words of the Oath Act as to the form are to be found in the 1st Schedule, “I ….. Do solemnly and sincerely declare that I make the solemn declaration conscientiously believing same to be true and by virtue of the provision of the Oath Acts” No Oath can therefore have a different form. Where the words of an enactment are clear, construing a statute, the Court should give them their literal or ordinary meanings not in respect of our view of what the law ought or should be. In Goodrich V. Poisair (1957) AC 65 per Lord Reid that, “No court is entitled to substitute its words for the words of the Act. See Also Mobil Oil Nigeria Ltd V. Federal Board of Inland Revenue (1977) 3 SC 53 at 74. Nabham V. Nabham (1967) 1 All NLR 47.
The provision of paragraph 1(1)(b) of the Practice Direction 2007, provides for written statements on Oath of witnesses. The word Oath (underline mine) is what gives the written statements their validity. Any written statements without Oath will not satisfy the mandatory requirement of the practice Direction. A valid Oath must be in the form of the Oath Act. The form Section 13 of the Oath Act must take is to be found in the 1st Schedule “I do solemnly and sincerely declare…..” Any written statement which does not bear the 1st Schedule to Section 13 of he Oath Act, cannot be said to be a written statement on Oath. It is only when the declaration of the Oath is made that the identity of the maker of the statement can be ascertained. It also serves as to the verification as truth of the statement made therein. It is this vital aspect of the Oath that is missing in all the written statements of the witnesses to the appellant in the present appeal. All written statements without Oath cannot be effective in the Practice Direction. The Provisions of the Practice Direction are as valid and effective as the express provisions of the Electoral Act 2006, and they also form the rule of procedure as they are made by the President of the Court of Appeal under Section 289 of the constitution of the Federal Republic of Nigeria 1999. None compliance with this mandatory provision is a valid ground to nullify the Election. The entire petition is left bare without any proof of the grounds of the petition. The rules of Court are not made for fun, they are made to be obeyed See:- Hart v. Hart (1990) 1 NWLR (pt.126) 276. Tom Ikimi v. Godwin Omamuli (1995) 3 NWLR (pt.383) 356. Ibrahim v. Col. Cletus Emein & Ors (1996) 2 NWLR (pt. 430) 322. Tehat A.O. Sule V. Nigerian Cotton Board (1985) All NLR 257. Odu v. Jolaoso (2002) 37 WRN 115.
On the whole therefore those written statements of witnesses of the appellant having not complied with the provision of Section 13 of the Oaths Act, are not written statements on Oath as envisage by paragraph 1(l )(b) of the Practice Direction 2007. Issue No. 1 is therefore resolved against the Appellant.
On Issue 2, whether the statement of witnesses accompanying the petition which were not on Oath can be amended. From the record before this court, the Appellant on the 8/102007 filed an application dated same day praying for:-
“Leave of this Honourable Trial Court to amend the petitions witnesses written statements on Oath by adding as the last paragraph of each witness statement a declaration to read thus:
‘I solemnly make this statement on Oath in good faith believing the content to be true and correct and in accordance with Oath Act”.
See page 729 – 730 of the record.
The 1st Respondent and 2nd – 175th Respondents filed Counter- Affidavits.
See pages 776 – 777 of the record.
The import of this belated application of the appellant seeking leave of the tribunal to amend his witnesses written statements on Oath, to include the last paragraph of the Oath, is a clear admission on the part of the appellant that those written statements of witnesses earlier filed by him, had not conformed to the provisions of the Oath Act. In consequence therefore, not in conformity with paragraph 1 (1)(b) of the Practice Direction 2007. Oath (unlined mine) is a condition precedent for filing the written statement of witnesses in an Election petition. I have earlier stated in this Judgment, that sub-paragraph 2 of paragraph 1 of the Practice Direction 2007 gave the Secretary to the tribunal a statutory and Ministerial duty not to accept a petition which fails to comply with Sub-paragraph 1 of the Practice Direction. Even where the Secretary does accept those written statements, with the defects stated above, he did so in error, and failure to carry out the clear directive given to him under the Practice Direction.
As to whether the Lower Tribunal was competent to allow the appellant to amend those defective written statements as he sought to do before it, by his motion, The case of Gabriel Madukolu & Ors v. Johnson Nkedilim (1962) 1 All NLR 587 at 589 Holden No. (b) provides:
Court is competent when:
(1) It is properly with respect to the number and qualification of its member;
(2) The subject matter of the action is within its jurisdiction;
(3) The action is initiated by due process of law; and
(4) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
Under the Practice Direction 2007, Paragraph 1(1)(b) the condition Precedent to exercise of jurisdiction by the lower tribunal, to entertain any application for amendment of the written statements of witnesses filed in a petition before it, is for such written statements to be on oath, It is already settled even by the admission of the appellant by her motion to amend those statements of witnesses (sic) have not conform to the requirement of the Oath Act, which she sought to include by the subsequent application. The lower tribunal was therefore right in its ruling when it refused to allow the amendment sought. The Lower tribunal was right when it declined jurisdiction to allow the amendment sought, as the condition precedent to making such statement to be on Oath had not been fulfilled by the appellant. I agree fully with the lower tribunal at page 810 of the records where it held:
“We have looked at the statements of the witnesses attached to the petition. In our view none of them is statement on Oath. They should therefore be struck out as they were wrongly attached to the petition. By paragraph 1(1)(b) of the Electoral Tribunal and Court Practice Direction what is required to accompany the petition are written statements are accordingly struck out”.
As to whether the petition can survive after all the petitioner/appellants witnesses statements on Oath have been struck out, here again I agree with the ruling of the Lower tribunal at page 810 of the record where it held:
“The Statement having all been struck out the petition cannot stand. There is therefore nothing on which the amendment sought will stand. As Learned Counsel for the 1st Respondent rightly pointed out, one cannot amend or add something to nothing. It will not stand. As there is no basis for the application for amendment same should be dismissed. It is accordingly dismissed. All the statements of the Petitioners having been struck out the prayer for an order striking out the petition for non compliance with paragraph 1 of the Practice Direction 2007 should be granted” .
I have no reason to set aside the ruling of the Lower tribunal. The appeal fails, it is dismissed.
There will be no Order for costs.
Other Citations: (2008)LCN/2872(CA)
