Sylverster Chuma Chukwuma V. Anthony Ezechi Nwoye & Ors (2009)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

This is an appeal against the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal sitting at Awka (Panel 1) delivered on 18th day of October, 2007.

Sometime on 14th day of May, 2007, the Appellant had filed a Petition dated 11th day of May, 2007 to challenge the return of the 1st Respondent who was declared the winner of the election held on the 14th day of April, 2007 for the position of member of the Anambra State House of Assembly representing Idemili North State Constituency.

The petition was based on the following grounds:

(a) That the election was invalid by reason of corrupt practices and or substantial non-compliance with the provisions of the Electoral Act.

(b) That the electorates of Idemili North Local Government Area did not duly elect the 1st Respondent.

The Petitioner prayed the tribunal for the following reliefs:-

1. A declaration that the purported return of the 1st Respondent by the 2nd and 3rd Respondents as the winner of Idemili North House of Assembly Election is null and void.
2. An order for a fresh election in Idemili North Local Government Area for State House of Assembly, Idemili North Constituency.

The 1st Respondent filed his Reply to the petition, dated 5th July, 2007 on 26th July, 2007 while the 2nd – 15th Respondents filed their Reply dated 15th July, 2007 on 18th July, 2007. The Petitioner/Appellant later, on 7/8/2007 filed a reply to the 1st Respondent’s reply, dated 6/8/2007 in response to the alleged fresh Issues raised in the said 1st Respondent’s Reply to the Petition.

Sometime on 6th September, 2007 the 1st Respondent brought an application and prayed for the following Orders:-

“(a) An order of the Honourable Tribunal striking out the petition for want of competence OR

(b) An order striking out the purported written Statements on Oath of the Petitioner’s purported witnesses attached to the petition not being sworn on Oath in accordance with the Oaths Act.

(b) Upon (b) above, an order of the Honourable Tribunal striking out this petition for non compliance with paragraph 1 of the Election Tribunal and Courts Practice Directions, 2007.”

The 1st Respondent’s application was heard and vigorously opposed by the Petitioner/Appellant on 10/10/2007. By a Ruling of his majority delivered on 18/10/07, the tribunal struck out the petition, leading to the instant appeal.

Dissatisfied with the Ruling of the Tribunal which struck out the Appellant’s petition, he filed a Notice and Grounds of Appeal dated 8/11/07 on the same date.

The said Notice of Appeal contained the following three (3) Grounds of Appeal.

1. Ground One: Error in Law

Members of the Honourable Tribunal in their majority decision (Hon. Justice B.A. Georgewill dissenting) erred in law by failing to properly interpret Section 13 of the Oaths Act, Laws of the Federation, 1990 and thereby came to a wrong conclusion.

Particulars:

(i) Section 13 of the Oaths Act provides as follows:

“It shall be lawful for any Commissioner for Oaths, notary public or any other person authorized by this Act to administer an Oath, to take and deliver the declaration of any person voluntarily making the same before him as set out in the first schedule to this Act.”

(ii) The sort of Oath to be administered on the person voluntarily making the oath before the Commissioner for Oaths or notary public is captioned Statutory Declaration as contained in the first Schedule to the Oaths Act.

(iii) Section 4(2) of the said Oaths Act provides “No irregularity in the form in which an oath affirmation is administered or taken shall

(a) invalidate the performance of official duties or

(b) invalidate proceedings in any court, or

(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.’

2. Ground Two: Error in Law

Members of the Honourable Tribunal in the majority ruling erred in law when they held that the written statements on Oath attached to the petition are not in substantial compliance and in breach of paragraph 1(i) (b) of the Election Tribunal and Court Practice Directions 2007 and thereby struck out the Petitioners petitions.

Particulars:

(i) Written Statement on Oath of the witnesses as provided by paragraph 1(1) (b) of the Practice Direction 2007 was meant to hasten the hearing of a competent petition. At the hearing of the petition the witnesses will also be sworn on Oath before adopting his or her written statement on oath before being cross examined.

(ii) The Practice Direction 2007 does not obviate need for with (sic) the relevant sections of the Evidence Act at the hearing of the Petition.

Ground Three: Error in Law

Members of the Honourable Tribunal in their majority erred in law when they failed to consider and pronounce on the effect of S.4 (2) of the Oaths Act and the case of Ibrahim v. INEC (1999) 8 NWLR (pt 614) 334 cited and relied upon by the fair hearing.

Particulars:

(i) Apart from other authorities cited, the Petitioner’s Counsel in his argument before the tribunal cited and relied on Section 4(2) of the Oaths Acts to show that irregularity in form should not affect the substance of the proceedings.

(Ii) In oral submissions before the tribunal, the Counsel cited the case of Ibrahim v. INEC (1999) NWLR (Pt 614) 334 where the Court of Appeal in interpreting the effect of non compliance with Section 13 of the Oaths Act held that the declaration does not need to be in the body of the affidavit to make it valid.

(iii) The case of the Petitioner was not fairly considered by the tribunal before striking out the petition. Unlike in dissenting judgment which considered all the submissions and arrived at a different conclusion.

The Appellant is seeking the following reliefs:-

(a) To allow this appeal and set aside the decision of the Tribunal striking out the Petition.

(b) An order directing that the Petitioner’s petition be heard on its merits by another panel of the Governorship/Legislative Houses Election Tribunal.

Upon receipt of record of appeal, briefs were filed and duly exchanged. The Appellant’s brief of argument dated 01/05/2008 was filed on 02/05/2008. The 1st Respondent’s brief of argument was dated and filed 16/05/2008. The brief of argument of 2nd – 15th Respondents dated 16/05/2008 was filed on the same day. The Appellant later filed a Reply brief of argument dated 5/6/2008 on 09/06/2008.

When this appeal came up for hearing on the 17th March, 2009, learned Counsel to the 1st Respondent drew the attention of the Court to the Notice of Preliminary objection he had to the Grounds of the appeal. He sought leave of Court to withdraw an earlier Preliminary Objection filed on 16/5/2008 and when there was no objection by either counsel on the other sides, the said Notice of Preliminary Objection was struck out having been withdrawn.

Thereafter the learned Counsel, Mr. Okafor moved the Preliminary Objection dated 30/01/09 but filed on 02/02/09. He referred to pages 2 and 3 of the 1st Respondent’s brief of argument where the preliminary objection had been argued. He adopted and relied on the said argument and urged the Court to uphold the objection.

The objection relates to the second Issue formulated by the Appellant and the argument proffered thereon. According to the learned Counsel, the ground of the objection is that the second Issue and the argument proffered thereon are incompetent for the following reasons:-

(a) They do not relate to any of the grounds of Appeal filed by the Appellant;

(b) They were not canvassed by any of the parties at the Court below; and

(c) They do not arise directly from the ruling of the Court Appealed against.

Learned Counsel submitted that any issue formulated and argument canvassed not related to the grounds of appeal are incompetent. He contended that the second issue does not relate to the grounds of appeal filed and the point was not taken at the Court below. He contended further that the said issue had articulated complaints that were not decided upon in the ruling under appeal.

He submitted that grounds of appeal must of necessity arise from the judgment or ruling or any pronouncement made by the lower court but that is not the situation in this case. He cited; MBN v. Nwobodo (2005) 14 NWLR (Pt. 945) 379 at 387 – 388, Owena Bank Plc v. Olatunji (2002) 12 NWLR (Pt 781) 259 at 359. Learned Counsel submitted that the second issue did not flow from the ruling of the tribunal hence it is incompetent. Relying on the case of Obi-Odu v. Duke (2006) 1 NWLR (Pt 761) 375 learned Counsel urged the Court to strike out the said second Issue and the argument articulated thereupon.

Responding to the Preliminary Objection learned Counsel to the Appellant referred to the Appellant’s Reply brief of argument on the said preliminary objection. In particular, pages 2, 3 and 4 of the Reply brief of argument. Learned Counsel referred to the last paragraph of the Ruling of the tribunal at page 706 of the record of appeal to show that the Issue arose out of the Ruling and therefore submitted that the Issue is competent. He urged the Court to discountenance the Preliminary Objection and treat Issue No.2 and the arguments canvassed thereon as valid.

As provided by the Rules of this Court, 2007, after arguing the preliminary objection, the learned Counsel to the Appellant proceeded with his appeal. He adopted and relied on the brief of argument and the Reply brief of argument to the 1st Respondent’s brief of argument and urged the Court to allow the appeal.

Mr. Okafor, learned Counsel to the 1st Respondent in response referred to the 1st Respondent’s brief of argument dated and filed on 16/05/200B. He adopted and relied on the said brief of argument.

He referred to an unreported judgment of this Court in Appeal No.CA/E/EPT/37/2008 between Obed Orlando-Ibe & Anor v. Nkiru Ugochukwu & 4 Ors. delivered on 17/11/2008, the lead judgment of S.D. Sage, JCA. Also Appeal No. CA/E/EPT/23/2008 between Ifeanyichukwu Anthony Ibezi & Anor. v. Anthoney Ezechi Nwoye & 18 Ors. delivered on 10/7/2008. He finally urged the Court to discountenance the Appellant’s argument and dismiss the appeal.

Miss Nwankiti of Counsel to the 2nd – 15th Respondents referred to the brief of argument of her clients dated and filed on 16/5/08.

She adopted and relied on the said brief of argument and urged the Court to dismiss the appeal.

First and foremost is the Preliminary Objection raised before the appeal was heard, by the 1st Respondent. There is provision in the Rules of this Court on how to raise preliminary objection to the hearing of an appeal. Order 10 rule 1 of the Court of Appeal Rules, 2007 provides thus:

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”

It has been held that Notice of Preliminary Objection can also be given in the Respondent’s brief of argument, but a party filing the notice of objection in the brief must seek and obtain the leave of Court to move the objection before the oral hearing of the appeal commences. See; Nsirim v. Nsirim (1990) 3 NWLR (Pt 138) 285, Okolo v. U.B.N. Ltd. (1998) 2 NWLR (Pt 539) 618, Arewa Textile Plc. v. Abdullahi &. Bros Owsawa Ltd. (1998) 6 NWLR (pt 554) 508, Mkpen Tiza &. 1 Or. v. I. Begha (2005) 33 WRN 158 at 171, (2005) 6 SCM 164 at 173.

The object of the rule of Court on the notice is to give the appellant before the hearing of his appeal, notice of any preliminary objection to the hearing of his appeal, and the grounds thereof. This is to enable the appellant prepare to meet the objection at the hearing of the appeal.

However, to warrant giving of Notice of Preliminary Objection, the objection should be such that goes to the root of the appeal.

The objection must be such that is capable of preventing the hearing of the appeal. Not when the objection affects only one of grounds of appeal, which event if sustained may not affect the hearing of the appeal. See; Effiong v. Ironbar (1998) 13 NWLR (Pt 582) 367, James v. I.G.P. (2005) 41 WRN 78 at 93.

As earlier shown, the preliminary objection being raised by the 1st Respondent relates to the 2nd Issue formulated by the Appellant for determination of this appeal. The Issue is said to be incompetent for the following reasons:-

(i) It does not relate to any of the grounds of Appeal filed by the Appellant.

(ii) It was not canvassed by any of the parties at the Court below; and

(iii) It does not arise directly from the ruling of the Court appealed against.

It is note worthy that the preliminary objection here is neither directed at the hearing of the appeal nor against any of the grounds of appeal filed by the appellant. Interestingly, it is against an Issue formulated for determination of the appeal. The point must be made right away, that objection to Issues formulated is not taken at preliminary stage but at the hearing of the appeal proper. In other words, the preliminary objection at this stage is not only premature but rather very unnecessary. Although it is very necessary and desirable that the Appellant relates or ties the issues formulated for determination in the brief of argument to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result or lead to the issue(s) being struck out for being incompetent, in particular, where in the opinion of the Court such issues(s) can validly be distilled from the grounds of appeal.

See; Dada v. Dosunmu (2006) 12 SCM (Pt 2) 108, (2006) 50 WRN 1. In other words, generally, it is the law that an issue for determination in an appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with the argument advanced in the consideration of the appeal. See; Management Entr. v. Oluanya (1987) 2 NWLR (Pt 55) 179, Alli v. Alesinloye (2000) 6 NWLR (Pt 660) 177, Adelusola & Ors. v. Akinola & Ors. (2004) 12 NWLR (Pt 887) 295, (2004) 5 SCM 1, (2004) 5 SCNJ 235, Chukwuma v. Ifeloye (2008) 12 SCM (Pt 2) 425.

However, amazingly, in the instant case, the issue No.2 being attacked relates to and is clearly distillable from ground No.2 of the three grounds of appeal filled by the Appellant.

In the circumstance therefore and without any further ado on the Issue, the objection is accordingly overruled.

Now to the main appeal. From the Grounds of Appeal filed, the Appellant formulated two Issues for determination of this appeal as follows:-

(i) Whether the Tribunal was right in striking out the Appellant’s statements of witnesses on Oath for substantial non-compliance. (Grounds 1 and 3).

(ii) Whether the Tribunal was right in striking out the Appellant’s petition for being “bereft of any Statement on Oath thus in breach of paragraph 1(1) (b) of the Practice Directions.

In arguing the appeal the learned Counsel to the Appellant took the Issues seriatim.

On Issue No.1, learned Council referred to the Ruling of the Tribunal, in particular, at page 706 of the record of appeal, where the tribunal struck out the written statements attached to the petition on the ground that none of the statements show any substantial compliance. He however contended that the tribunal failed to indicate the specific law the said written statements on Oath did not comply with. The appellant referred to Section 13 of the Oaths Act and paragraph 1(1) (b) of the Election Tribunal and Court Practice Directions, 2007. He submitted that the provision of the Practice Direction on this Issue is simple and plain in language and should be so interpreted. He cited, Oni v. FRN (2007) 13 NWLR (Pt.1050) 55.

The appellant further contended that all the Practice Directions require of a petitioner is to file “written statements on oath of the witnesses.” The Appellant submitted that the law does not require that the said written statements shall be in the form of an Oath. He contended further that neither the Electoral Act, the Practice Directions, nor the Oaths Act prescribe the form, format or contents of a statement on oath. He submitted that 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 appellant contended that the statements of witnesses on oath in this case in support of the petition were duly sworn before the commissioner for Oaths in the Registry of the Tribunal and there was no challenge about it. He therefore submitted that the tribunal erred in holding that the Appellant’s witnesses statements on oath were not so because they failed to comply with Section 13 of the Oaths Act.

The Appellant contended and rightly too, that a Statement on Oath is not necessarily an affidavit. A statement on oath is one of the procedural innovations introduced by the Practice Directions for Election Petition. And unlike an affidavit which must be in first person, divided into paragraphs and numbered consecutively, a Statement on Oath could be in a narrative form and need not be divided into consecutive paragraphs.

The Appellant submitted that Section 13 of the Oaths Act did not provide any format or the formal requisites of a Statement of Oath as envisaged by the Practice Directions, 2007.

Learned Appellant’s Counsel contended that the tribunal misconstrued the provisions of Section 13 of and the 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. He referred to the 1st Schedule, Sections 1 and 5 of the Oaths Act and submitted that the words as contained in the 1st Schedule of the Oaths Act are to be spoken or repeated after the person who is administering the Oath. On the interpretation of Section 13 of the Oaths Act, he cited, Ibrahim v. INEC (1999) 8 NWLR (Pt 614) 334 at 346-347.

Learned Counsel submitted that a person making a Statement on Oath as required in Paragraph l(l)(b) of the Practice Directions, 2007 is not giving evidence as it were, since the maker of the statement shall appear before the Tribunal to adopt his or her written depositions and tender in evidence all disputed documents or other exhibits referred to in the deposition during his evidence-in-chief in compliance with paragraph 4(3) of the Practice Directions, 2007.

However, assuming but not conceding that statement on oath means the same thing as affidavit and that the format in the 1st Schedule to the Oaths Act is applicable to the instant case, learned Counsel submitted that defects as to form do not invalidate an affidavit in so far as the Court is satisfied that the affidavit has been sworn before a person duly authorized. Similarly, learned Counsel contended that the fact that the Statement on Oath are not in the form allegedly prescribed by the 1st Schedule to the Electoral Act does not invalidate the Statement on Oath. He referred to Section 84 of the Evidence Act, and Section 4(2) of the Oaths Act. He submitted that the alleged defect in the Statements on Oath is immaterial and not calculated to deceive, hence it was wrong for the Tribunal to have, for that reason struck out the said Statements on Oath and consequently, the petition. He cited, Ajadi v. Ajibola (2004) 16 NWLR (Pt 898) 91 at 107.

The learned Counsel further submitted that the Statements on Oath of the Appellant’s witnesses duly complied with the law and he urged the Court to hold that by striking out the said Statements and petition, a miscarriage of justice has been occasioned. He urged the Court to resolve Issue NO.1 in favour of the Appellant.

On Issue NO.2, learned Counsel referred to the following processes: the petition filed on 14/05/07, the 2nd – 16th Respondents’ joint Reply filed on 18/07/07, the 1st Respondent’s Reply filed on 28/07/07, the Appellant’s Reply to the 1st Respondent’s Reply filed on 07/08/07 and the Appellant’s Reply to the 2nd – 16th Respondents’ Reply filed on 07/09/07. He contended that the 1st Respondent filed a Motion for an Order striking out the Petition on 06/09/07 and the Motion was heard on 10/10/07 while Ruling was delivered on 8/10/07. He submitted that before the 1st Respondent’s application was filed on 06/09/07, the Appellant’s Reply to the 1st Respondent’s Reply had been duly filed and therefore regularly formed part of the Record of the Tribunal. Similarly, learned Counsel submitted that the Appellant’s Reply to the 2nd – 16th Respondents’ reply had been filed before the 1st Respondent’s application was heard by the Tribunal.

Furthermore, learned Counsel submitted that Election Petitions are substantially governed by the general rules of pleadings. He contended that pleadings being a generic term representing the respective statements, in election petitions, such statements as, petition, the Respondent’s Reply and Petitioner’s Reply where necessary, in cases where the Petitioner desires to respond to new Issues raised in the Respondent’s reply. He cited; Ngige v. Obi (2006) 14 NWLR (Pt 999) 1. He submitted that in construing the Petitioner’s case all of the pleadings shall be read holistically, citing Ngige v. Obi (supra) at page 31.

Learned Counsel referred to the Written Statements on Oath of the Appellant’s witnesses and submitted that the statements contained what the Respondent contended was lacking in the Written Statement on Oath attached to the Petition.

He finally urged the Court to resolve the 2nd Issue in favour of the Appellant and allow the appeal by granting the reliefs sought in the appeal.

In his brief of argument dated and filed on 16/05/2008, the 1st Respondent formulated the following two Issues from the Grounds of Appeal filed by the Appellant.

1. Whether the court below was right in striking out the written statement of the Appellant’s witness which were not made on Oath.
2. Whether the Tribunal was right to have struck out the petition for non-compliance with the provisions of the Election Tribunal and Courts Practice Direction, 2007.

In arguing Issue No.1, learned Counsel to the 1st Respondent referred to paragraph 1 of the Election Tribunal and Court Practice (Amendment) Direction, 2007 and contended that by the provisions, a Petitioner is required to file written statements on oath of his witnesses which will accompany the Petition at the time of filing. He submitted that the Practice Direction as a rule of Court must be complied with but not circumvented. He cited Jimoh Ojugbele v. Lamidi & Ors. (1999) 10 NWLR (pt 621) 167 at 177, Buhari v. INEC & Ors. (2008) 4 NWLR (pt. 1078) 546.

Learned Counsel contended that the written statement on oath which is contemplated under the Practice Direction, 2007 must be a deposition in a statement on oath. He conceded that though a statement on oath in the strict sense may not be an affidavit, it must at least contain the act of swearing by the deponent. On the form of a witness statement he cited Halsbury’s Laws of England, 4th Edition, reissue (Butterworth’s) Vol.37 page 301, paragraph 955. He submitted that where a written statement is not verified as the truth of the matter stated therein, then it is not a written deposition or a witness statement and cannot be adopted at the trial as required, in view of paragraph 4(3) of the Practice Direction. He submitted that the statements of the Petitioner’s witnesses were not on oath as required.

Learned counsel referred to Black’s Law Dictionary, 6th Edition on different pages on the definition of “Oath”, “swear” and “verify”.

He contended that when the said statements filed by the Petitioner/Appellant are examined the following are discernible:

(a) There is no form of attestation by the makers of the statements in the purported written statements.

(b) There is no verification of the statements by the makers indicating the serious and reverent state of their mind in making the statements.

He submitted that the lower tribunal was therefore right to have come to the conclusion that the written statements the Petitioner attached to his petition failed to comply substantially with the requirements of not only the Oaths Act but also the Practice Direction, 2007.

He submitted further that it is the swearing that makes a written statement one on oath and cited in support Maraya Plastics Ltd. v. Inland Bank (2002) 7 NWLR (pt 765) 109 at 120.

Learned counsel contended that the non inclusion of the words of swearing in the statements of the witnesses is not merely a defect in form. He submitted that it is a fundamental defect which goes to the root of the statements itself, rendering the said statements invalid and unfit to be used as a written deposition.

Learned counsel contended that the fact that the written statements of the witnesses were signed by the Secretary to the Tribunal did not confer the attributes of oaths on the said statements. He submitted that the statements themselves are not oath, not having contained any act of swearing. He cited, Lawai

Osula v. USA Plc. (2003) 5 NWLR (Pt. 813) 376 at 388. He submitted further that it was wrong for the Secretary to the Tribunal to have attested to the written statements of the Petitioner’s witnesses as having been sworn before him when indeed there was no act of swearing in any of the written statements.

Learned counsel conceded that pursuant to Sections 84 and 85 of the Evidence Act the Court has the discretion to permit the use of an affidavit that is defective in form. He contended that, such discretion will be exercised by the Court only upon the condition that it has been sworn and that the defect is only as to form but not substance. He submitted that the statements in the instant case are not only defective inform, but they are not statements on oath. He urged the Court to hold that the written statements of the Petitioner’s witnesses were not made on oath and therefore resolve Issue No.1 against the appellant.

On Issue No.2, learned counsel to the 1st Respondent referred to the argument of the Appellant and submitted that the Appellant missed the point. He contended that what the Tribunal considered before arriving at the conclusion they did was the competence of the Petition vis-a-vis paragraph 1 of the Practice Direction that provides the mode of filing of an election petition. He contended further that in considering the competence of the petition within the contemplation of paragraph 1 of the Practice Direction, the Tribunal had no business to consider the Petitioner’s Reply. He submitted that the Petition did not comply with the mandatory provisions of the Practice Direction as relates to the filing of a Petition. He urged the Court to so hold and resolve the second Issue against the Appellant and finally dismiss the appeal.

In the joint brief of argument of the 2nd – 15th Respondents dated and filed on 16/5/2008 they formulated the following two Issues for determination from the Grounds of Appeal filed by the Appellant.

1. Whether the Court below was right in striking out the written statement of the Appellant’s witnesses which were not made on oath.
2. Whether the Tribunal was right to have struck out the petition for non compliance with the provisions of the Election Tribunal and Courts Practice Direction, 2007.

Learned Counsel to the 2nd – 15th Respondents in argument took the issues seriatim. On Issue NO.1 he referred to the provisions of Paragraph 1 of the Practice Direction, 2007 (as amended) and contended that the Petitioner was required to file written statement on oath of his witnesses and that the said statement must accompany the Petition at the time of filing. On the status of the Practice Direction, learned Counsel cited a few cases decided by this Court such as Jimoh Ojugbele v. Lamidi & Ors. (1999) 10 NWLR (Pt 621) 167 at 177, Buhari v. INEC & Ors. (2008) 4 NWLR (Pt. 1078) 546. He submitted that it is beyond dispute that by the provisions of the Practice Direction, the Petitioner was bound to file written statements on oath as opposed to just written statements, to accompany the petition at the time of filing. He referred to Paragraph 4(3) of the Practice Direction.

Learned Counsel contended that the written statement on oath contemplated by the Practice Direction must be a deposition in a statement on oath. In otherword, any written statement which is not on oath is neither a deposition nor written statement on oaths.

He submitted that even though statement on oath may not in the strict sense be the same as an affidavit but it must at least contain the act of swearing by the deponent.

In the same way the 1st Respondent had made references to the Halsbury’s Laws of England, (supra) on the “form of witness statement” – Black’s Law Dictionary, (supra) on what is meant by oath”, “swear”, “verify” and “sworn”, the 2nd – 15th Respondents also referred to the Laws and contended that the Petitioner cannot be serious in his contention that he had written statements on oath accompanying his petition. He submitted that the tribunal was therefore right to have struck out the said written statements relied upon by the Petitioner. He urged the Court to hold that the written statements of the Petitioner’s witnesses were not made on oath as required and resolve the Issue No.1 against the Appellant.

The argument of the 2nd – 15th Respondents on issue No.2 is exactly the same as argued by the 1st Respondent, and the brief was virtually word for word and letter for letter. Same conclusion was also reached in urging the Court to resolve the second Issue against the Appellant and dismiss the appeal.

As clearly shown earlier, the Issues formulated by both the 1st and 2nd sets of Respondents respectively are the same with the two Issues distilled by the Appellant from his Grounds of Appeal. The appeal will therefore be considered and determined based on the issues as formulated by the Appellant as follows:-

Issues for Determination:-

1. Whether the Tribunal was right in striking out Appellant’s statements of witnesses on Oath for substantial non compliance.
2. Whether the Tribunal was right in striking out the Appellant’s petition for being bereft of any Statement on Oath thus in breach of paragraph 1(1) (b) of the Practice Directions.

There is no doubt that the two Issues formulated for determination of the instant appeal are interrelated, both Issues being based on the provisions of Paragraph 1 of the Election Tribunal and Court Practice(Amendment) Directions, 2007.

There is a specific provision to be complied with by any person desirous of challenging an election result or declaration of the Election Tribunal. A Petitioner is expected to present his/her petition as required by the Electoral Act, 2006 and Practice Direction.

Paragraph 1 of the said Practice Direction provides thus:-

“1(1) All petitions to be presented before the

Tribunal or Court 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 the witnesses whose identity may be represented by an alphabet or a combination thereof and;

(c) copies or list of every document to be relied on at the hearing of the petition.

2. A petition which fails to comply with subparagraph (1) of this paragraph shall not be accepted for filing by the Secretary.”

In the instant case, the Appellant’s Petition dated 11/05/2007 was presented on 14/05/2007. Attached to the said petition as required is a list of witnesses the Petitioner proposed to call during the trial of the petition before the Election Petition Tribunal. Next to the list of persons to be called as witnesses is the list of documents relied upon by the Petitioner for the petition. (See pages 10-13 of the Record of Proceedings). Pages 28-47 of the same record contain what is headed “Statement on Oath” of all the listed witnesses of the Petitioner. However, as earlier stated in this judgment, the 1st respondent had through an application sought an order of the tribunal to strike out “all the purported written statements on oath of the Petitioner’s purported witnesses attached to the Petition” not having been sworn on Oath in accordance with the Oaths Act.

Upon consideration of the submissions of both Counsels, the Election Tribunal at page 706 of the record had held as follows:-

“We have carefully examined all the written statement attached to the petition in this case and are satisfied that none of them show any substantial compliance.

They are accordingly struck out.

Having struck out all the purported statements on oaths, the petition of the Petitioner is bereft of any statement on Oath and thus in breach of Paragraph 1(1) (b) of the Election Tribunal and Court Practice Directions, 2007. We fail to see how this Petition can be proved without statements of witnesses at the trial. The petition is struck out.”

As stated earlier, what the Petitioner was expected to file along with his petition was “written statements on Oath of the witnesses.”

What in law does the word “statement” mean? It simply means evidence, that is, “a verbal assertion or non verbal conduct intended as an assertion”. In other words, it is a formal and exact presentation of facts. Therefore a sworn statement is a statement given under oath, such as an affidavit. A witness is one who sees, knows, or vouches for something. One who gives testimony under oath or affirmation either in person or by oral or written deposition, or by affidavit. See; Black’s Law Dictionary, 8th Edition, pages, 1444- 1445 and 1633 respectively. As to what form a witness statement must take, the learned authors of Halsbury’s Laws of England, 4th Edition, Vol.37 page 301 paragraph 955 state that,

“A written statement must be in the prescribed format and must be verified by a statement of truth,”

From the above, it is clear that the written statement of witnesses envisaged and expected to accompany a petition is one to be in a prescribed format and must be verified by a statement of truth. To verify a written statement is to confirm or substantiate by oath or swear to the truth of the statement. Oath is defined as “a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise.” The implication or legal effect therefore of an oath is to subject the person who took an oath to penalties for perjury in the event that the testimony turns out to be false.

As I stated earlier, the Appellant’s petition when it was filed on 14th day of May 2007 was accompanied, inter alia, with what was described as “Statements on Oath of witnesses”, but the said documents were rejected by the tribunal and struck out for not being “statements on oath” as required by the Practice Directions, 2007.

Now My Lords, having seen what a witness statement on oath is expected to look like, let us consider one or two of the statements of the Petitioner’s witnesses attached to the petition.

First is the written statement of Mr. Ernest Nwangwu at pages 26-27 of the record. It goes thus:-

“.. “My name is Mr. Ernest Nwangwu. I live at No.3 Frank Moore Street, Nkpor. I am a Graphic Artist by profession. I am the Presiding Officer of Ububa Square Polling Unit, Nkpor Ward II. I am a registered voter.

On 14th of April, 2007, I arrived at Ifeadigo Hall Nkpor Ward II collation Centre by 8.00am as an ad-hoc Staff of INEC. The electoral materials were not distributed to us because according to the Supervisor there was no result Sheets amongst the Electoral materials brought to the ward Collation Centre. We waited from morning till 4.30 and election did not hold and materials were not distributed for the House of Assembly and Governorship elections of 14/04/2007. Later all the electoral materials brought to Nkpor Ward II were taken back to INEC Office at Ogidi intact and accompanied by parties agents and policemen detailed to the ward.

SIGNED

DEPONENT

Sworn to at the Election Petition Registry, Awka this _ day of May 2007.

BEFORE ME

Commissioner for Oaths”

Another example of the witness written statement that accompanied the Appellant’s petition when it was filed is that of Mr. Emeka Egwu at pages 32-33 of the record. It reads thus:

“My name is Emeka Egwu. I live at Umusiome Village, Nkpor Uno. I am a Builder by profession.

I am the Chairman of APGA in Nkpor Ward I. I am a registered voter. The 14th day of April, 2007 was supposed to be the election of Governorship/House of Assembly nation wide.

On 14th of April, 2007, I arrived at Nkpor Town Hall, ward collation centre with my party agents. On arrival, we met other political parties’ agents before the electoral materials arrived in the afternoon. On inspection we discovered that the result sheet were missing and we asked the Supervising Officer about the missing result sheets, but she told us that the result sheets were coming on the way. After 3.25pm the result sheets still did not come then the parties agents decided that the supervisory officer should sign that there was no election and she signed and they asked them to go back with their materials.

Then all the parties Chairmen and their agents with the police monitoring team accompanied the Supervising Officer with the unused electoral materials back to INEC Officer at Ogidi at about 4.55pm and met other people from other wards coming back with their unused electoral materials with the same story of missing result sheets.

SIGNED

DEPONENT

Sworn to a the Election Petition Registry, Awka this _ day of May, 2007

BEFORE ME

Commissioner for Oaths”.

On the Form an Oath shall take, the Oaths Act, states as follows:-

5.13. “It shall be lawful for any commissioner for oaths, notary public or any other person authorized by this act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”

From the First Schedule to the Oaths Act, the appropriate sample or format to the issue at stake is “Evidence Oath.” It goes thus:

“I…… do hereby swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.”

It is interesting to note that the learned Counsel to the Appellant had contended that the law does not say that the written statements of witnesses shall be in the form of an oath. He went further to state that neither the Electoral Act, the Practice Direction nor the Oaths Act prescribed the form, format or contents of the statement on oath. This, to say the least, is not only a misconception of the law but embarrassingly misleading. However, the misleading submissions of Counsel may be pardonable when the further submission of Counsel on the same issue is taken into consideration.

Learned Counsel submitted that, “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.” It follows therefore that the learned Appellant’s Counsel himself appreciates that to make a statement on oath it must contain swearing properly, and if the statement is in writing the wordings of swearing, in the name of whoever or whatever the deponent believes in, must be clearly stated before the deponent appends his or her signature or thumb impression on the written statement before the Commissioner for Oaths or notary public.

There is no doubt that the swearing or taking oath on a written statement by a witness does not have to be in the exact wordings of the Oaths Act. But it clearly must contain swearing to God or a revered person or thing or an affirmation.

Can it then be said that the written statements of witnesses that accompanied the petition filed by the appellant complied with the requirements of the Rules? My Lords, my answer is certainly in the negative. The purported statements of all the thirteen (13) witnesses listed by the petitioner were mere assertions but far from being statement on oath as required. In otherwords, none of the statements was on oath hence all were rejected and struck out by the Tribunal. As a result there was no written statement on oath of any of the thirteen (13) witnesses listed to testify for the Petitioner, thereby it rendered the Petition incompetent. Indeed, if only a few of the statements had been struck out leaving other competent and valid statements upon which the deponents whose statements remain valid would have testified, the petition may have been sustained.

My Lords, I am not unmindful of the decision of this Court, Calabar Division in INEC v. James Iniama & Ors. (2008) 8 WLR (Pt 1088) 182 where the Appellants asked that the Respondents’ petition be struck out in its entirety for being irregular and incompetent in that the petitioners failed to comply with the mandatory provisions of paragraph 1, (1)(a) and (2) of the Practice Direction, 2007 as amended. The Appellants had taken objection on the non listing of the unstamped Voters card and register of Voters mentioned in paragraph 7(xiii) of the Respondent’s petition which made the petition incompetent. The tribunal dismissed the objection and held that the failure to list or attach copies of every document to be relied on at the hearing was not fatal to the petition. This Court dismissed the appeal against the ruling of the tribunal after considering the provisions of paragraph 1 of the Practice Directions, 2007. However, it is note worthy that in that case this Court actually considered only sub paragraphs 1(1)(a) and (c) of the Practice Direction, 2007. In that case, this Court opine as follows:-

“The meaning of the word “shall” in paragraph 1(1) (c) of the Practice Direction is clearly provided for in the expression” to be relied on at the hearing of the petition”. The negative consequence of the disobedience of the Petitioner to the expression of command “shall” in paragraph 1(1)(c) is that he would not be able to rely on any such documents not so listed at the hearing. Sub paragraph 2 of paragraph 1 of the Practice Direction gave the Secretary to the tribunal, a statutory and material duty not to accept a petition which fails to comply with sub paragraph (1) of paragraph 1 of the Practice Direction. Where as in the instant case, the Secretary accepted a “defective” petition that is, one which did not list every documents to be relied on at the hearing, the consequence is still as contemplated by the wordings of paragraph 1(1)(c) itself, that is, that the petitioner would be taken not to have intended to rely on such a document not so listed.”

This court in the above case did not consider in particular the consequences of failure to comply with sub paragraph 1(1)(b) of the Practice Direction, 2007. Indeed, the fact that the Secretary to the Tribunal is empowered to reject and refuse to accept any petition which fails to comply with paragraph 1 of the Practice Direction clearly shows the importance of the requirements of paragraph 1, in particular sub paragraph (1)(b) of the Practice Direction.

In the instant case, the Appellant should not be expected to be taken serious when he stated that the statements of his witnesses filed along with his petition, samples of which are given above were statements on oath. None of the purported statements on oath of Petitioner’s witnesses complied substantially with the requirements.

In the result, the tribunal was therefore right in striking out all the Appellant’s statements of witnesses for non compliance. Accordingly Issue No.1 is resolved against the Appellant.

The second issue for determination, as I stated earlier, is interrelated. It is whether the Tribunal was right in striking out the Appellant’s petition for being “bereft of any Statement on Oath and thus in breach of paragraph 1(1)(b) of the Practice Directions.

Ordinarily, as stated earlier, a petition that fails to comply with sub-paragraph (1) of paragraph 1 of Practice Direction shall be incompetent and liable to be rejected or not accepted by the Secretary to whom it is presented for filing.

However, as correctly held by this Court in the case referred earlier, where a “defective petition” was accepted for filing in error by the Secretary, if the non compliance affect in part the provisions of sub paragraphs (1)(a) and (c) only, the consequence may not affect the petition completely as to render it incompetent or invalid. For instance, as regards sub paragraph (1)(a), any person who was not listed as a witness intended to be called in proof of the petition would not be allowed to testify. But if no list of witnesses is filed along with a petition then the validity of the petition will be in question.

Similarly, as it affects sub paragraph (1)(a) of the Practice Direction, where only a few documents meant to relied on at the hearing of the petition are not attached to the petition, it is only those document that may not be allowed to be used during the trial. See sub paragraph 1(c).

On the contrary, where a petition does not have written statements on oath of the witnesses and the said petition was accepted, in error by the Secretary, it means the petition has totally failed to comply with major condition precedent to the hearing of the petition and this will rob the tribunal of its competence to entertain the petition. It will be liable to be struck out.

In the instant case, there is statement indicating the number of witnesses the petitioner/appellant desired to call in poof of the petition. There is also copies of documents the petitioner intended to rely on, at the hearing of the petition. But most importantly, there was not a single written statement of witnesses on oath as required by the Rules and the Law. This cannot be waived. Practice Direction as Rules of Court are meant to be obeyed not window dressing.

Generally, Rules of Court which include Practice Directions are made and meant to be obeyed and no favour should be shown for not obeying them. In the instant case, the Practice Direction, issued by the President of the Court of Appeal which constitutes the Rules of the Court in election matters including appeals must be complied with and cannot be circumvented. See; Jimoh O. Ojugbele v. Musefin O. Lamidi & Ors. (1999) 10 NWLR (pt 621) 167 at 171, Williams v. Hope rising Funds Society (1982) 2 SC 145, Ikeni v. Efamo (1997) 4 NWLR (pt 499) 318, Tejuosho v. Omojowogbe (1998) 7 NWLR (Pt 559) 625.

After the witnesses statements were struck out, there was nothing to satisfy the requirement of the rules. Any testimony not front loaded cannot be adduced in support of the pleadings in the petition. Pleadings alone cannot make out a case. They must be fortified and proved by evidence, be it oral or documentary or both.

Pleadings, as stated by Niki Tobi, JSC, “not being human beings have no mouth to speak in court. And so they speak through witnesses. If witnesses do not narrate them in court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantage of the owner, in this context, the appellant.” See; Peter Ojoh v. Owuajakamalu & Ors. (2005) 24 NSCQR 256, (2006) 6 WRN 110.

The law is settled, that averments in pleadings are no evidence and they cannot be so construed. They are mainly to set out the facts that a party is likely to call evidence to prove, so that the opposing party would not be caught unaware or unprepared. The averments in pleadings must be proved by evidence except where they are admitted by the other party. See; Akanmu v. Adigun (1993) 7 NWLR (pt 304) 218 at 231, Honika Sawmill (Nig) Ltd. v. Hoff (1994) 2 NWLR (Pt 326) 252 at 260, Insurance Brokers of Nigeria v. Atlantic Textile Manufacturing Co. Ltd. (1996) 8 NWLR (Pt 466) 316 at 328, Nigerian Advertising Services Ltd. & Anor. v. UBA Plc. & Anor. (2005) 38 WRN 1 at 15-16, Help (Nig.) Ltd. v. Silver Anchor (Nig.) (2006) 20 WRN 107 at 125 (2006) 3 SCN 121, Engineer Goodnews Agbi & Anor. v. Chief Audu Ogbeh (2007) 10 WRN 144 at 205.

As the appellant’s petition remains at pleadings alone and there is no longer any statement of witnesses on oath, the entire averments remain and are deemed abandoned. The Appellant’s petition is therefore liable to be struck out and was rightly dealt with by the tribunal as such.

In the circumstance I have no hesitation in resolving the second issue against the Appellant. The tribunal was right in striking out the Appellant’s petition for being bereft of any statement on oath as required by the Practice Direction. This appeal therefore lacks merit and it is accordingly dismissed.

In the result, the ruling of the National Assembly/Governorship and Legislative Houses Election Tribunal delivered on 15th day of October, 2007 is affirmed.

Even though costs follow events, there shall be no order as to costs in the instant case.

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Other Citations: (2009)LCN/3264(CA)