IN THE COURT OF APPEAL
HOLDEN AT CALABAR
APPEAL NO.
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN
OTU BASSEY UKPENETU - APPELLANT
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION RESPONDENTS
3. THE RETURNING OFFICER, YAKURR 1
STATE CONSTITUENCY, CROSS RIVER
STATE
4. PEOPLES DEMOCRATIC PARTY
APPELLANT’S BRIEF OF ARGUMENT
PREPARED BY:
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
TRINITY HOUSE, 2ND FLOOR,
MABUSHI, ABUJA, NIGERIA.
OR
O. U. OKA & ASSOCIATES
104 CALABAR ROAD, CALABAR,
CROSS RIVER STATE.
ADDRESS FOR SERVICE
1. ON THE 1ST RESPONDENT
Honourable Mfawa Ofegobi
Ijiman Streety, Ijiman, Ugep, Yakurr LGA
Cross River State of Nigeria.
OR
C/O THE CROSS RIVER STATE HOUSE OF
ASSEMBLY QUARTERS CALABAR,
CROSS RIVER STATE, NIGERIA.
2. ON THE 2ND & 3RD RESPONDENTS
C/O The Independent National Electoral Commission
Murtala Mohammed High Way,
Calabar, Cross River State.
3. ON THE 4TH RESPONDENT
The Peoples Democratic Party
C/o The State Secretary, PDP,
Murtala Mohammed High Way,
Opposite the Federal High Court,
Calabar, Cross River State.
IN THE COURT OF APPEAL
HOLDEN AT CALABAR
APPEAL NO.
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN
OTU BASSEY UKPENTU - APPELLANT
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION RESPONDENTS
3. THE RETURNING OFFICER, YAKURR 1
STATE CONSTITUENCY, CROSS RIVER
STATE
4. PEOPLES DEMOCRATIC PARTY
INTRODUCTION
This is an Appeal against the Judgment of the National/State Assembly Election Tribunal sitting in Calabar, Cross River State of Nigeria, presided over by Honourable Justice Solomon A. Akinteye (Chairman); Honourable Justice K. O. Okpu (Member) and Chief Magistrate S. Muhammadu (Member) delivered on Friday the 11th Day of November, 2011, dismissing the Petition. The Petition was filed by the Appellant against the declaration of the 1st Respondent as the winner of election into the Yakurr One (1) State Constituency of the Cross River State House of Assembly held on the 26th April, 2011 on the 17th May, 2011.
The 1st Respondent filed his Reply on the 22nd June, 2011. The 2nd & 3rd Respondents filed their Reply on the 31st October, 2011, while the 4th Respondent filed on the 15th June, 2011. On the 3rd August, 2011, the Tribunal struck out the Petition upon the objection of the 4th Respondents that the Appellant has failed to disclosed his right to present the Petition. The Appellant appealed the order striking out the Petition to the Court of Appeal. On the 23rd September 2011 the Court of Appeal allowed the Appeal and remitted the case back to the Tribunal for hearing on the merit. The case resumed before a new Tribunal under the Chairmanship of Honourable Justice Solomon A. Akinteye on the 31st October, 2011. The pre hearing session was commenced on the 2nd November, 2011 and concluded on the 3rd November, 2011. The Appellant was given one and half day to present his case. During the pre-hearing session the Appellant with consent of the Respondents (through his Counsel) tendered a number of documentary evidence namely:
i. Voters Registers for Idomi Ward - Exhibits A - A4
ii. Voters Register for Ntan Ward - Exhibits B - B4
iii. Voters Register for Afrekpe/Epenti Ward - Exhibits C - C11
iv. Form EC8 A (i) for Afrekpe/Epenti - Exhibits D - D11
v. Form EC8 A (i) for Ntan (Seven Polling Units) - Exhibits E – ES
vi. Form EC8 A (i) for Idomi (Nine Polling Units) - Exhibits F - F9
vii. Form EC8 A (i) for Afrekpe/Epenti (Eleven Polling Units) - Exhibits D - D11
These documents (above) were pleaded in Paragraphs 34 - 74 of the Petition. The documents were also listed in the List of Documents pleaded by the Petitioner. See page 5 of the Record of Appeal. On the other hand the 1st Respondent tendered the following documents thus:
i. Form EC8E(i) - Exhibit L
ii. Form EC8B (i) - Exhibit K
iii. Form EC8B(i) – Exhibit I
iv. Order of the Federal High Court in Suit No. FHC/CA/CS/17/2011 - Exhibit H
The 2nd & 3rd Respondents did not tender the documents listed in their List of Documents pleaded and attached to its Reply filed on the 15th June, 2011. The 4th Respondent did not also tender any document. However, when the Appellant called PW1 to adopt his Statement on Oath, there was an objection by the Respondents that the Statement on Oath was incompetent because it did not strictly comply with the provisions of Section 13 of the Oaths Act on the ground that Paragraph 10 of the Statement on Oath of PW1 was not exactly worded in the form prescribed by the First Schedule of the Oaths for Statutory Declaration. The Statement on Oath of PW1 is at Page 31 of the Record. See further 627-630 of the Record.
It is pertinent to reproduce Paragraph 10 of the Statement on Oath of PW1 thus:
“That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004”. See Page 30-31 of the Record.
The Tribunal upheld the objection of the Respondents and ordered the Statement on Oath for PW1 be rejected. Despite the upholding of the objection, the Appellant still went ahead to call PW2, PW3 and PW4 as witnesses. There were also objections to the admissibility of the Statement on Oath by the Respondents on the ground on these Statements or Depositions also violated Section 13 of the Oaths Act. See 634-635 of the Record. The grounds of the objections were hinged on the fact that Paragraph 39 of the of Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW3 and Paragraph 5 of the Statement on Oath of PW4 contravened Section 13 of the Oaths Act (supra). The averment in Paragraph 10 of the Statement on Oath of PW1 is identical or exactly the same with Paragraphs 39 of the Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW2; Paragraph 5 of the Statement on Oath of PW4.
The Tribunal sustained the objection and ordered the Statements on Oaths of the PW2; PW3 & PW4 be rejected document Nos. 2, 3 and 4 respectively. See Pages, 635, 636 and 637 of the Record respectively. The Statement on Oath of PW2 is at Pages 18 - 29 of the Record; the Statement on Oath of PW3 is at Pages 34 - 35 of the record; the Statement on Oath of PW4 is at Pages 36-37 of the record. The Appellant then closed his case. The Respondents elected not to call evidence and closed their cases.
On the 11th November, 2011 the Tribunal delivered its Judgment dismissing the Petition. On the 15th November, 2011, the Appellant lodged a Notice of Appeal against the Judgment. The Appellant filed Nine (9) Grounds of Appeal on Tuesday the 15th November, 2011. The Appellant was utterly aggrieved with the said decision and hence lodged an appeal before this Honourable Court.
ISSUES FOR DETERMINATION
The Appellant has distilled and formulated the following issues for determination by this Honourable Court from these Nine (9) Grounds of Appeal thus:
1. Was the Tribunal right when it sustained the objection of the Respondents to the admissibility (adoption) of the Statements on Oaths of witnesses called by the Appellant on the ground that these Statements did not strictly comply with the provisions of the Oaths Act, 2004; and was the sustainability of the objection by the Tribunal not an infringed on the right of fair hearing of the Appellant?
2. Whether the refusal of the Tribunal to evaluate documentary evidence tendered by both the Appellant and the 1st Respondent concerning the documents used by the 2nd Respondent to conduct the election on the ground of absence of oral evidence is correct; and if the answer to the above is in the affirmative, whether such refusal has not occasioned a miscarriage of justice on the Appellant?
3. Whether the Tribunal had jurisdiction to grant the 2nd & 3rd Respondents’ Motion for extension of time to file their Reply on the 31st October, 2011, more than 150 days after the Petition was filed and more than 141 days after the 2nd & 3rd Respondents were out of time to file their Reply in view of the provisions of Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
4. Whether the Tribunal was correct when it held that the Replies of the 1st Respondent to the Petition was competent because it was filed within 21 days of service of the Petition?
5. Whether the Tribunal was right when it held that the Reply of the 4th Respondent was competent on the ground that it was relied on by the Court of Appeal solely to allow an appeal filed by the Appellant against an earlier order of the Tribunal striking out the Petition; and that the Appellant did not oppose the Motion filed by the 4th Respondent for amendment of the Reply?
6. Whether the Tribunal was right when it refused to strike out the Replies of the 2nd, 3rd & 4th Respondents after they failed to call evidence whether oral or documentary?
7. Whether the Tribunal was right when it refused to find in favour of the Appellant regard being had to the facts and circumstances of the case such as:
(a) Invocation of the principles of severance of pleadings;
(b) Consideration of all the issues raised by the Appellant in his Final Written Address;
(c) Admissibility of the witnesses Statements of the Appellant and his witnesses;
(d) Incompetency of the Replies of the Respondents;
(e) Evaluation of the documentary evidence tendered from the Bar with the consent of all parties?
ARGUMENTS OF ISSUE NO. 1
1.1. During trial when the Appellant as PW1 wanted to adopt his Statement on Oath in accordance with the procedure outlined in Paragraph 41(3) of the First Schedule to the Electoral Act, 2010 (as amended) the Respondents after PW1 had taken Oath on entering the witness box, took an objection to the admissibility of the Statement on Oath PW1 intended to adopt on the ground that the Statement contravened the provisions of Section 13 of the Oaths Act, 2004, because it did not use the exact wordings in the Form to the Schedule of the Oaths Act meant for Statutory Declarations. See Page 627-630 of the record.
1.2. Subsequent objections were taken against the Statements on Oath of PW2, PW3 and PW4 by the Respondents on the same ground that the Statements of these witnesses did not contain the exact wordings used by the provisions of Section 13 of the Oaths Act. Again the Tribunal sustained the objection and rejected admission of the Statements relying on the authority of OBUMNEKE V. SLYVESTER (supra). See 636-638 of the record.
1.3. When the Appellant as PW1 applied to adopt his Statement on Oath there was an objection by the Respondents that the Statement on Oath was incompetent because it did not strictly comply with the provisions of Section 13 of the Oaths Act on the ground that Paragraph 10 of the Statements on Oath was not exactly worded in the form prescribed by the First Schedule of the Oaths Act, for Statutory Declarations. The Statement on Oath of PW1 is at Page 31 of the Record. See further 627-630 of the Record.
1.4. It is pertinent to reproduce Paragraph 10 of the Statement on Oath of PW1 thus:
“That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004”. See Page 30-31 of the Record.
1.5. The Tribunal upheld the objection and ordered the Statement on Oath of PW1 rejected. Despite the upholding of the objection, the Appellant went ahead and called PW2, PW3 and PW4 as witnesses. There were objections to the admissibility of their Statements on Oaths as well by the Respondents on the ground on these Statements or Depositions also violated Section 13 of the Oaths Act. See 634-635 of the Record.
1.6. The grounds of the objections were hinged on the fact that Paragraph 39 of the of Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW3 and Paragraph 5 of the Statement on Oath of PW4 contravened Section 13 of the Oaths Act (supra).
1.7. The averment in Paragraph 10 of the Statement on Oath of PW1 is identical or exactly the same with Paragraphs 39 of the Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW3; and Paragraph 5 of the Statement on Oath of PW4.
1.8. The Tribunal sustained the objection of the Respondents to the Statements on Oaths of the PW2; PW3 & PW4 and ordered that the various Statements be rejected document Nos. 2, 3 and 4 respectively. See Page, 635, 636 and 637 respectively. The Statement on Oath of PW2 is at Pages 18-29 of the Record; the Statement on Oath of PW3 is at Pages 34-35 of the Record; the Statement on Oath of PW4 is at Pages 36-37 of the Record.
1.9. The Tribunal after taking arguments from both sides held that the Statements even though they conformed substantially, failed to strictly comply with the Format prescribed in the 1st Schedule to the Oaths Act and the form thereof and thus sustained the objection and ordered that the Statements be marked rejected.
1.10. We submit that the apposite questions at this point will be: What is a ‘Statutory Declaration’ as contemplated by the legislature of Section 13 of the Oaths Act? Is a Witness Statement or Written Deposition on Oath as contemplated by Paragraphs 4 (5) (b) & 41 (3) of the First Schedule to the Electoral Act the same as ‘Statutory Declaration’ envisaged by the Oaths Act? We shall answer the question in the negative.
1.11. A Statutory Declaration in the form prescribed by the provisions of Section 13 of the Oaths Act and the Schedule thereto is meant for age declaration, marriage and asset declaration. It follows that Statutory Declaration form in the Oaths Act are not meant for Witnesses Statements or Depositions contemplated by Paragraphs 4 (5) (b) and 41 (1) of the First Schedule to the Electoral Act. In IBRAHIM V. INEC (2007)3 EPR 50 @ 66 it was held that Section 13 of the Oaths Act, 2004, provides for four various Oaths or Declarations that may be subscribed by various persons depending on the nature of their duty. The provision must be contained in an affidavit. It provides for classes of oath that may be lawfully administered by any Commissioner of Oaths, Notary Public or any other person authorized by the Oaths Act to administer Oaths, for example, the oath to be subscribed to by a deponent to an affidavit as in the instant case is titled Oath for Affidavits at page 12250 of the Oaths Act Cap 333. The clear intention of the legislature under the Oath titled ‘Statutory Declaration’ is to afford persons who intend to make declarations such as marriage, age or assets to subscribe to that particular declaration in the form prescribed. It is not the intention of the legislature that the wording of the declaration be incorporated in an affidavit or a statement on oath of a deponent testifying before a Court of law or Tribunal to render it valid.
1.12. The Tribunal relied on the authority of Obumneke v. Sylvester (2010) ALL FWLR (PT. 506) 1945 @ 1961 to hold that failure to use the exact words or format prescribed by the legislature of the 1st Schedule to the Oaths Act in concluding the Statements on Oath of PW1, PW2, PW3 and PW4 is fatal and rendered the Statements inadmissible.
1.13. In the Obumneke case, an objection was taken to the competency of a witness statement on oath made by the Appellant on the ground that it did not strictly comply with the form prescribed by Section 13 of the Oaths Act. The objection was sustained by the Tribunal. On appeal, the Court of Appeal sustained the objection on the ground that the Statement on Oath of witnesses of the Appellant did not comply with the provisions of the Oaths because the Statements did not use the exact words used by the legislature of Section 13 of the Oaths Act especially the format for Statutory Declarations prescribed in the 1st Schedule to the Oaths Act.
1.14. It is submitted that the decision by the Court of Appeal in Obumneke’s case was per curiam because the attention of the Court was never averted to the fact that the Format prescribed in the 1st Schedule to the Oaths Act which the Court relied on to arrive at its decision was not the Form in the Oath Act meant for evidence on Oath which a witness’ statement actually is. The Format the Court relied on to arrive at its decision was the Format meant for Statutory Declaration which is not applicable and relevant to Oaths meant for Written Depositions or Witness Statement on Oath contemplated by Paragraph 4 (5) (b) and 41 (1) of the First Schedule to the Electoral Act (supra).
1.15. In the Obumneke’s case the lower Tribunal struck out the Statements of the Appellant for being incompetent. On appeal the Court of Appeal held that the statement was invalid because it did not use the format prescribed by the lawmaker of the First Schedule to the Oaths Act for Statutory Declaration.
1.16. It is submitted therefore that the authority of Obumneke is not relevant and applicable to the facts and circumstances of this case and is therefore distinguishable.
1.17. The lower Tribunal was absolutely wrong and fell into error to have relied solely on the case of Obumneke to reject all the Statements on Oath of the Appellant and his witnesses.
1.18. The Tribunal should have taken a liberal disposition rather than a strict and technical one towards the construction and interpretation of the provisions of Section 13 of the Oaths Act in view of the fact that Election Petitions are sui generis and public policy demands that the law should be interpreted liberally in order for substantial justice to be done to the parties.
1.19. The Obumneke’s case is distinguishable for the following reasons thus:
(a) The form prescribed in the 1st Schedule to the Oaths Act on which the case was decided was the form for Statutory Declarations not Written Statements on Oath of testifying witnesses to an election Petition;
(b) The Court was not invited to decide or make a pronouncement on what a ‘statutory declaration’ is;
(c) A witness statement contemplated by Paragraphs 4 Rule (5) (b) & 41 (3) of the First Schedule is NOT A STATUTORY DECLARATION!;
(d) The relevant form is the Form prescribed by the First Schedule to the Oaths Act for EVIDENCE OATH.
(e) A Statement on Oath contemplated by Paragraph 4 (5) (b) and 41 (3) of the First Schedule to the Electoral Act (supra) is not OATH FOR AFFIDAVITS as in Form A of the First Schedule to the Oaths Act.
(f) It is instructive to note that in Paragraph 4 (5) (b) of the First Schedule to the Electoral Act the Legislature uses the word “Written Statements on Oath of the witnesses” whereas in Paragraph 41 (1) and (3) of the First Schedule to the Electoral Act uses the words “written deposition”.
(g) It follows that a “written statement on oath” or “written deposition” envisaged by paragraphs 4 (5) (b) sand 41 (3) of the First Schedule to the Electoral Act is not an AFFIDAVIT or a STATUTORY DECLARATION as contemplated by the form prescribed by the 1st Schedule to the Oaths Act, but an EVIDENCE OATH which in the ordinary course of proceedings, had the procedural/innovations of the Practice Directions for Election Petitions not have been in place, would have enabled a witness give his evidence before a Court/Tribunal.
(h) A Statement on Oath must be in a narrative form whereas an affidavit must be divided into paragraphs and numbered consecutively. The Court of Appeal made a distinction between a ‘witness statement on oath’ and an ‘affidavit’ in the case of CHUKWUMA V. NWOYE (2011) ALL FWLR (PT. 553) 1942 @ 1 961-1962, Paras. A-H thus:
“A statement on oath is one of the procedural/innovations introduced by the Practice directions for election petition. And unlike an affidavit, must be numbered consecutively, a statement on oath could be in a narrative form and need not be divided into consecutive paragraphs”.
1.20. The Oxford Law Dictionary Page 478 defines a “statutory declaration” thus:
“A declaration made in a prescribed form before a justice of the peace, notary public, or other person authorized to administer an oath. Statutory declarations are used in extrajudicial proceedings and not in court, but have similar effects to declarations made on oath”.
1.21. It is submitted that a Witness Statement contemplated by Paragraphs 4 (5) (b) 41 (3) of the First Schedule to the Electoral Act does not become evidence but are mere pleadings until the witness enters the witness box, takes another oath, and adopts it.
1.22. The Court of Appeal per Ariwoola, JCA (as he then was) in the case of CHUKWUMA V. NWOYE (supra) Pages 1967-1968, Paras. H-E succinctly illuminated the position of the law thus:
“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 written 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 substantially by oath or swear to the truth of the statement”.
1.23. The lower Tribunal in this case, refused to follow the Court of Appeal decision in the case of DR FEMI ADEKANYE V. COMPTROLLER OF PRISON (2000) ALL FWLR (PT. 8) 1258 @ 1262 @ 1263 which is on the point that an affidavit that fails to conform strictly with the provisions of Section 13 of the Oaths Act, 1990, is competent, in so far as it substantially conforms to the provisions of Section 13 of the Oaths Act, on the ground that the case was not an ELECTION PETITION.
1.24. It is submitted that the lower Tribunal was wrong to have refused to consider the authority of ADEKANYE’S case (supra) on the ground it was not an election Petition.
1.25. The Tribunal was bound to consider the authority because it dealt with the Court of Appeal construction and interpretation of Section 13 of the Oaths Act vis a vis an affidavit that failed to conform with the form prescribed by the Oaths Act.
1.26. The Tribunal should have leaned toward the side of substantial justice rather than crass legalism (aimed at shutting out a Party from giving evidence in his case) by relying and applying the authority of ADEKANYE V. COMPTROLLER OF PRISONS (2000) 12 FWLR (PT.682) 568 commended to it by Counsel for the Appellant, which accords with the current trend of legal thought that the Courts should lean more on deciding the right of parties on the merit of cases especially since the matter is an election Petition.
1.27. The apposite question one would ask is: had the procedural/innovations of the Practice Direction to Election Petitions not have been in place, which we submit is meant to expedite the hearing of cases and not to shut out a party from proving his case, would the Appellant and his witnesses not have given their testimonies in proof of the Appellant’s case? The answer is in the affirmative!
1.28. The Court of Appeal in ADEKANYE’S CASE (supra) in stating its reasons for deciding that an affidavit that does substantially conform to the provisions of Section 13 of the Oaths Act is competent and should be allowed reviewed several decisions of the Court of Appeal such as LONESTRAR DRILLING NIGERIA LIMITED VS TRIVENI ENGINEERING AND INDUSTRIES LIMITED AND 9 OTHERS (1999) 1 NWLR (PT. 588) 622 and NEW NIGERIAN BANK PLC VS IBW LIMITED (1998) 6 NWLR (PT.554) 449 @ 450. The Court (per Sanusi, JCA) at Pages 12-69 Paragraphs A-G illuminated the position of the Law thus:
“...on the other hand, Mr. Ngige on behalf of the Respondents, cited and relied on another decision of this Court from the same Benin Division where this Court gave conflicting decision regarding the validity of an affidavit which does not embody the format of declaration contained in the First Schedule to the Oaths Act. The decision is that of Lonestrar Drilling Nigeria Limited vs. Treveni Engineering and Industries and 9 Others (1999) 1 NWLR (Pt. 588) 622 this Court (Coram Achike JCA as he then was) Akintan and Mahmud Mohammed JJCA held that failure of deponent to comply with the format prescribed in the Oaths Act could render an affidavit incompetent but where there is substantial compliance with the provisions of the Oaths Act such an affidavit will not be declared incompetent merely because the exact wordings prescribed by the Act were not used. This Court went further to conclude that where a deponent uses in his motion “I depose to this affidavit in good faith” instead of using the exact words prescribed in the Oaths Act is valid and competent. Failure to use the format in the 1st Schedule is therefore held not to render the affidavit as invalid. Note that in this latter case Achike (then JCA and now JSC) gave dissenting ruling which was however not included in the report. Apparently, the decision reached by this court in these decisions are conflicting as regard the validity of the two sets of affidavits. It is trite law that the Court of Appeal is bound by its previous decisions. It can be at liberty to decide which of its previous conflicting decisions to follow. The Court of Appeal is always at liberty to refuse to follow a decision of its own which though not expressly over ruled by the Supreme Court, the Court of Appeal is of the opinion that it will not stand with the decision of the Supreme Court and or the decision is arrived at per curiam. See the cases of N.O Akinade vs Non-Academic Staff Union of Educational and Associated Institution and Others (1999) 524, Peter vs David (1999) 4 NWLR (Pt. 603) 436. It should be noted that since in Lonestrar Drilling Nigeria Limited’s case the court was referred to its earlier decision from that decision in which two of the learned judges took part, that is to say, the case of New Nigeria Bank Plc was reached per curiam. In any case even if it was not reached per curiam, I am not ready to follow it. I regard the ratio in Lonestrar Drilling Nigeria Limited as more convincing and I chose to follow it. I therefore decide to act on it in this case. I refuse to accept the submission of learned counsel for the applicants that it is invalid and not in existence. It is valid and competent and I strongly hold so”.
1.7 The refusal of the lower Tribunal to allow the Appellant’s witnesses adopt their statements on oath even after they had entered the witness box and taken an evidence oath (on a purely technical ground) upon the objection of the Respondents which was calculated to ambush the Appellant by denying him an opportunity to ventilate his case before the Tribunal, was nothing short of cloistered justice which should not be encourage in a sensitive matter such as an election Petition that should be decided purely on merit.
1.8 The lower Tribunal was wrong to have rejected the statements on oath of PW1, PW2, PW3 and PW4, even after the witnesses had given an indication that they wanted their statements to be adopted as their evidence in chief. After the witnesses had taken their EVIDENCE OATH and swearing to tell the truth, the whole truth and nothing but the truth, they had cured whatever defect was apparent on their statements.
1.9 It is important to note at this point that even before PW1, PW2, PW3 and PW4 attempted to adopt their written depositions on oath as their evidence before the lower Tribunal, they were administered with the following oath before the Tribunal, which we submit (for the purpose of the argument) went thus:
“I, (PW1’s name) do hereby swear/solemnly declare (either by the Holy Bible or by Affirmation as the case may be), that the evidence I shall give in this Petition, before this Tribunal, shall be the truth, the whole truth and nothing but the truth, so help me God”
1.10 We submit, what can be farther from compliance with Section 13 of the Oaths Act, by these witnesses (PW1; PW2; PW3 and PW4) as done before the Tribunal on the day these witnesses sought to adopt their Written Depositions after being led to take an oath as shown above? We submit further, which Commissioner for Oath can be greater than the Court/Tribunal before which these witnesses (PW1; PW2; PW3 and PW4) were led to take their oaths?
1.11 Undoubtedly the Statements on Oaths of PW1; PW2; PW3 and PW4 substantially conformed to the provisions of the Section 13 of the Oaths Act (supra). The Statements were valid and competent.
1.12 It is clear that if the Tribunal had taken the pains to closely and methodically scrutinize and analyze the facts and circumstances of the Obumneke’s case, it would have appreciated that the facts of the Obumneke’s case are diametrically different from the facts of this Case.
1.13 In UDEAGHA V. OMEGARA (2010) 11 NWLR (PT. 1204) 168 @ 194, the issue that the Court of Appeal was confronted and invited to resolve was: Whether the Tribunal was right in rejecting the witness statements? The facts of the case was that the Election Tribunal had rejected the witness statement or depositions of all witness statements of the petitioner on the ground that they were offensive to Order 10 Rule 3 of the Federal High Court Rules and Section 84 of the Evidence Act on the ground that they were not sworn before a person duly authorized.
1.14 The Court of Appeal (per Ogunwumiju, JCA) in the OMEGARA’s case (supra) at Page 195, Paragraph B-H of the Report, illuminated thus:
“The Practice Directions made pursuant to the Electoral Act 2006 were made to facilitate speedy trials of election petition. By paragraphs 4 (1) and (3) of the Practice Directions No. 1 of 2007 parties were to front load witness statement on oath and those witnesses were to subject themselves to cross-examination during the trial. Usually, witness adopts the statement already filed as his own when being led during examination in chief. This is to cut short the time spent leading a witness. Let us assume that the statements of witnesses in this case was not sworn to before a person duly authorized to take oaths in contravention of S. 90 of the Evidence, it is my humble view that their subsequent adoption of these written depositions after they had been sworn in open court to give evidence, regularizes the depositions. Let us not forget that statements of witnesses which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross examination. It is such affidavit evidence which does not meet the requirements of S. 90 of the Evidence Act that are intrinsically inadmissible. Where a witness is in court to say he/she is adopting an irregular written deposition, the implication is that the witness is reasserting on oath what is contained in the irregular deposition and as I opined earlier, such deposition on oath makes all the evidence in the written deposition admissible...” (underlining and emphasis mine)
1.15 The case of OMEGARA (SUPRA) was commended to the lower Tribunal but the lower Tribunal ignored it on the ground the OMEGARA case was not decided on Section 13 of the Oaths Act. See Page 634 of the Record.
1.16 We submit if the Tribunal was not too mechanistic in its dispensation of justice it would have relied on the OMEGARA’s case to hold that whatever defect was apparent in the Statements of PW1, PW2, PW3 and PW4 had been cured by the witnesses taking another oath upon their entry into the wetness box.
1.17 It is instructive that in the case under reference the witnesses had entered the witness box, swore to Oath and expresses intention to adopt their statements before the objection and rejection of these statements by the lower Tribunal. The indication by these witnesses after being sworn is a reassertion of what is contained in the irregular deposition, (assuming without conceding) and makes all the evidence contained in the deposition as admissible by the authority of OMEGARA’s case (supra). See page 632 of the record, where PW2 was recorded thus “Sworn on the Holy Bible and states in English Language as follows:-I am a business man and Politician. I deposed to a Statement on oath on the 17th May, 2011 and I want to adopt same as my evidence in this petition”.
1.18 Undoubtedly these statements were properly and regularly sworn before the Secretary of the Tribunal as Commissioner for Oaths which means there was presumption of regularity. See UDEAGHA V. OMEGARA (supra) 195-196, where the Court held thus: “In any event, I agree with the argument of learned appellants Counsel that the questions under cross examination were targeted at where the witnesses made their depositions and not before whom they were sworn. The cross examination did not elicit the information that the witnesses never swore before the commissioner for oaths. The compelling factor in this matter is that all the statements showed that they were signed before the Secretary as commissioner for Oaths...The Statements of PW1, PW3, PW4 and PW5 are admissible and the evidence also...”
1.19 We agree that Tribunal was bound to adhere to the age long tradition of applying judicial precedents laid down by a Court higher than it in the hierarchy of our judicial system, which is the fountain of our legal system for the purpose of certainty and consistency.
1.20 However it is submitted that the doctrine of stares decisis applies only if the circumstances and issues decided in the previous case are the same or similar to those in the later case wherein it is commended to apply the doctrine. The Obumneke’s case (supra) was decided the way it was because the Appellant failed to draw the attention of the Court to the fact that a STATEMENT ON OATH is not a STATUTORY DECLARATION and the format prescribed for the EVIDENCE OATH was not the format the Court hinged its decision on. See Iwuno v. Dieli (1999) 5 NWLR (Pt. 149) 126 at 134-135.
1.21 The lower Tribunal was also wrong and in error to have taken the objection at that stage it did in view of the provisions of Paragraph 12 (5) of the First Schedule to the Electoral Act which provides that a respondent who has an objection to the hearing of the Petition shall file his reply and state the objection therein, and the objection shall be heard along side with the substantive Petition.
1.22 The objection was an ambush and a surprise contrived to scuttles the case but masked as an objection on a point of law by the Respondents who were obviously desperate to castrate the case of the Appellant after the Court of Appeal had allowed a previous appeal filed by the Appellant against the order striking out the Petition.
1.23 The Tribunal denied the Appellant fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria by rejecting the statements on oaths of the Appellant and his witnesses.
1.24 The denial of the Appellant the opportunity of adopting their statements after they had entered the witness box and taken an oath to speak the truth on a purely technical ground was undeniably the height of injustice that led to a serious miscarriage of justice.
1.25 In the light of the above, we respectfully invite the Court to set aside the rulings of the Tribunal rejecting the adoption of the statements of the witnesses of the Appellant and substituting these rulings with an order that these statements be adopted as the evidence in chief of the PW1, PW2, PW3 and PW4.
ARGUMENT OF ISSUE NO. 2
2.1 During the Pre-trial Session, the Appellant with the consent of the Respondents, tendered the following documentary evidence thus:
i. Voters Registers for Idomi Ward - Exhibits A - A4
ii. Voters Register for Ntan Ward - Exhibits B - B4
iii. Voters Register for Afrekpe/Epenti Ward - Exhibits C - C11
iv. Form EC8 A (i) for Afrekpe/Epenti - Exhibits D - D11
v. Form EC8 A (i) for Ntan (Seven Polling Units) - Exhibits E – ES
vi. Form EC8 A (i) for Idomi (Nine Polling Units) - Exhibits F - F9
vii. Form EC8 A (i) for Afrekpe/Epenti (Eleven Polling Units) - Exhibits D-D11.
See Pages 624-625 of the record.
2.2 The documents were documents used by the 2nd Respondent to conduct the disputed election. The documents were copiously pleaded by both the Appellant and the Respondents. The documents were admitted by consent of the Parties.
2.3 The documents were crucial and relevant to the determination of the question whether the election was conducted in accordance with the provisions of the Electoral Act (supra).
2.4 However the Tribunal in its Judgment bluntly refused to evaluate the documents on the ground that since it had refused to allow the witnesses called by the Appellant to adopt their statements there was no oral evidence to use to assess the documentary evidence tendered by the Appellant.
2.5 The Appellant in his Final Written Address had done an analysis of the documentary evidence but the Tribunal totally ignored it and refused to consider and pronounce on the Analysis.
2.6 The failure of the Tribunal to evaluate documents tendered by the Appellant occasioned a miscarriage of justice on the Appellant.
2.7 The failure of the Tribunal to evaluate the documents amounted to denial of fair hearing on the Appellant.
2.8 In this case the Appellant had established his case by tendering documentary evidence to prove the election in 3 (Three) Wards (Ntan, Afrekpe/Epenti & Idomi) where the 1st Respondent was allotted 4273 votes was not conducted in compliance with the Electoral Acts. Exhibit E - ES is the Result Form EC8A (i) of 7 (Seven) Polling Units in Ntan Ward of Yakurr One State Constituency). Form EC8A (i) is the foundation or bedrock for the collation of results in subsequent Forms and therefore cannot be ignored by any election tribunal. See KRESS NJIOKWUEMENI v. VICTOR OCHEI (2004) 15 NWLR (PT. 895) 196 @ 235. See NWOBODO v. ONOH (1984) 1 SCNLR 1.
2.9 It is submitted that there are two types of evidence, oral and documentary. See Section 105 of the Evidence Act, 2011. Once a document is received in evidence, and is so marked, it becomes evidence before the Court or Tribunal and the Court or Tribunal has the duty to evaluate the probative value of every piece of evidence tendered before it. See AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 696.
2.10 The position of the law is that documentary evidence is more reliable than oral evidence. See AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47; See AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (supra) 696.
2.11 The Tribunal was therefore totally wrong to have refused to evaluate the documentary evidence tendered by the Appellant on the ground that there was no oral evidence called by the Appellant and that they were dumped on the Tribunal.
2.12 The documents were never dumped on the Tribunal but were admitted after consent of the Parties. At the point of their tendering from the Bar, Counsel has explained the essence of the documents. The documents were identified and known to the Tribunal. It is instructive that the procedure of front loading which has been introduced into election petition litigation has obviated the essence of a witness explaining the purport of a document tendered through him. See Paragraph 41 (3) of the First Schedule to the Electoral Act (supra).
2.13 The Tribunal had wrongly and in grave error disallowed witnesses called by the Appellant from adopting their written depositions on the ground on that they were not in the format prescribed by the First Schedule to the Oaths Act (supra).
2.14 We therefore invite the Court to respectfully admit the Statements on oath of the witnesses called by the Appellant and use them as the hangar to evaluate Exhibits A-A4; Exhibits B-B4; Exhibits C-C11; Exhibits C-C11 respectively. Exhibits A - A4 are the Voters Registers for Polling Units in Idomi Ward; Exhibits B - B4 are the Voters Registers for Polling Units in Ntan Ward and Exhibits C - C11 are the Voters Register for Polling Units in Afrekpe/Epenti Ward. See Pages 624-625 of the Record. These exhibits were tendered from the Bar by Counsel to the Appellants with consent of the Respondents in accordance with the provision of paragraph 41 (2) of the First Schedule to the Electoral Act which empowers the Tribunal to allow admission of documents by consent of parties during the Pre-hearing Session. See Page 626 of the Record.
2.15 The exhibits were Certified True Copies of Voters Registers for the Three Wards of the Constituency where the Appellant was challenging the result of the election and Forms EC8A (i) which was used to collate results by the 2nd Respondents during election.
2.16 It is therefore submitted that documents that were admitted upon agreement by Parties are in a different class from documents that are admitted not based on the consent of parties but by the discretion of the Court after giving the adverse party the right to take objection to their admissibility.
2.17 It is clear that Exhibits D - D11 were Forms EC8A (i) for Afrekpe/Epenti Ward; Exhibits E - E5 were Forms EC8A (i) for Ntan Ward and Exhibits F - F9 were Forms EC8A (i) for Idomi Ward. These were election result sheets that contained scores of the candidates that contested the election in the Constituency made up of Eight (8) Wards. There was no dispute concerning five out of the 8 Wards. The result was only challenged in 3 (Three) Wards namely Ntan, Idomi and Afrekpe/Epenti. See Paragraph 84 (1) of the Petition at Page 15 of the Record. See also paragraphs 29-76 of the Petition found at Pages 4-14 of the Records.
2.18 The Tribunal deliberately decided to close its eyes to these result sheets, i.e. Exhibits D - D11 for Afrekpe/Epenti Ward; Exhibits E - E5) for Ntan Ward and Exhibits F - F9 which on the face of it were a contravention of Section 63 (1) 7 (2) of the Electoral Act, because they were not stamped and or signed especially in Polling Units in Ntan and Idomi Wards of the Constituency.
2.19 It is submitted that where the tribunal is in possession of the results it is duty bound to collate the results. See NIGIGE V. OBI (2006) 14 NWLR (PT. 999) 161. See INEC V. OSHIOMOLE (2008) 3 LRCN 649 @ 660-661.
2.20 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant and proceed under Section 16 of the Court of Appeal Act, assume the jurisdiction of the trial Tribunal, and evaluate the documentary evidence tendered by the Appellant.
ARGUMENT OF ISSUE NO. 3
3.1 The Appellant presented his Petition on the 17th May, 2011. See Page 1-14 of the record.
3.2 The 2nd & 3rd Respondents were served on the 26th May, 2011.
3.3 The 2nd & 3rd Respondents entered a Memorandum of Appearance on the 2nd June, 2011. See Page 42 of the Record.
3.4 The 2nd & 3rd Respondents failed to file their Reply to the Petition within 14 days of the service on them of the Petition as provided by Paragraph 12 (1) of the First Schedule to the Electoral Act (supra).
3.5 The 2nd & 3rd Respondents on the 1st November, 2011, more than 150 days after the Petition was filed moved a Motion for extension of time to file their Reply. See page 623 of the record.
3.6 The Appellant did not oppose the Motion for extension of time due to constraint of time because as at the 31st October, 2011, when the Motion was moved the Tribunal had only 12 more days to the expiration of time for the hearing and determination of the Petition.
3.7 The Tribunal granted the Motion and extended the time for the 2nd & 3rd Respondents to file their Reply on the 31st October, 2011, more than 145 days after the Petition was filed. Although the Appellant did not oppose the Motion for extension of time because he was desperate to beat the deadline of 12th November, 2011, when the 180 days would lapse since the Petition was filed on the 17th May, 2011, however, the Appellant raised the issue in his Final Written Address but the Tribunal in its Judgment held that its previous order extending time was still subsisting since it is yet to be set aside by the Court of Appeal. See Page 10 of the Judgment at Page 607 of the record.
3.8 It is submitted that the Tribunal did not have the jurisdiction to extend time for the 2nd & 3rd Respondents despite the provisions of Paragraph 45 (1) of the Electoral Act (supra) and the fact that that the Appellant did not oppose the Motion for extension of time, is immaterial. It is well settled that Parties cannot by consent or acquiescence confer jurisdiction on the Court where none exists.
3.9 It is clear that Paragraph 45 (1) of the First Schedule which vests on the Tribunal the discretion to extend time is no longer tenable in view of the provisions of Section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (Second Alteration Act) 2011 which provides that and election petition shall be filed within 21 days after the date of the Declaration of Results.
3.10 Further by Section 285 (6) of the Constitution of the Federal Republic of Nigeria (Second Alteration Act) (supra) an election Tribunal shall deliver its judgment in writing 180 days from the date of the filing of the Petition.
3.11 Section 148 of the Electoral Act (supra) provides that an election petition should be accorded accelerated hearing.
3.12 It is therefore submitted that a Respondent is not entitled to extension of time to file his Reply if he fails to file his Reply within 14 days of the service on him of the Petition despite the provisions of Paragraph 45 of the First Schedule to the Electoral Act in view of the combined provisions of Section 285 (6) & (7) of the Constitution of the Federal Republic of Nigeria (supra) (Second Alteration Act) that have limited the period for the hearing and determination of an election petition to 180 days even though the application for extension of time was not opposed.
3.13 In PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS in Appeal No. CA/C/NAEA/144/2011 delivered on the 21st July, 2011 (unreported) this Court (Per Akaahs, JCA) at Pages 7 - 9 held thus:
“There is no doubt that time is of essence in the handling of election petitions. This probably informed the decision by the National Assembly in deleting Section 134 of the Electoral Act 2010 and amending Section 29 of the First Alteration Act and Section 285 of the Constitution of the Federal Republic of Nigeria 1999. The erstwhile Section 134 of the Electoral Act, 2010 which was deleted by Section 32 of the Electoral (Amendment) Act No. 10 of 2010 stipulated as follows:
‘134-(1) An election petition shall be filed within 21 days after the date of the declaration of results of the elections. 2. An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. 3. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days of the delivery of judgment of the tribunal. 4. The Court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.’
By deleting this provision and amending Section 285 of the Constitution, whatever lingering doubts anybody had about the importance the National Assembly placed on the prompt disposal of election petitions, was removed. Even the period for the hearing and disposal of appeals was reduced. Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act No. 2 of 2010 substituted Sections 29 of the First Alteration Act and Section 285 of the Constitution and provides in Subsections (5)-(8) as follows:
‘(5) An election petition shall be filed within 21 days after the date of the declaration of result of the elections; (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition; (7) An appeal from a decision of an election tribunal or Court of Appeal in an election mater shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Curt of Appeal; (8) The court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date’.
Since Section 134 of the Electoral Act has been deleted and a specific provision is made under Section 285 of the Constitution (as amended) the enlargement of time envisaged under paragraph 45 of the 1st Schedule to the Electoral Act is no longer feasible. The effect of the failure to file the Respondent’s Reply within 14 days on him of the Petition as stipulated under Paragraph 12 (1) of the 1st Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked”.
3.14 See also the reinforcement and re-echoing of the decision of this Court in PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS (supra) by this Court in the case of PEOPLES DEMOCRATIC PARTY VS MR WILLIAM BALLANTYE in Appeal No. CA/C/NAEA/134/2011 delivered on the 20th July, 2011.
3.15 How can the Appellant’s time (as Petitioner) for the filing of the Petition be curtailed to 21 days but the Respondent be allowed unlimited time to file his Reply and yet the 180 days given to the Petitioner to prove his case will keep running? What kind of justice would that be? Is there even-handedness that runs through the entire gamut of constitutional jurisprudence?
3.16 The Tribunal was bound to consider the issue of whether or not the 2nd & 3rd Respondents’ Reply was competent raised by the Appellant in his Final Written Address even if the Tribunal had granted an extension of time to them to file their Reply since it bothers on the jurisdiction of the Tribunal to so grant the exercise its discretion under paragraph 45 (1) of the First Schedule to the Electoral Act.
3.17 It however does not help the case of the 2nd & 3rd Respondents that the Appellant did not oppose the Motion for extension of time. In PEOPLE DEMOCRATIC PARTY VS. WILLIAM BALLANTYNE (supra) at Page 19, where Isaiah Olufemi Akeju, JCA held thus:
“It is also noteworthy, that the fact that none of the parties to the petition opposed the grant of the application for extension of time to file appellant’s reply to the petition does not add any or much value to the issue of whether the election tribunal will either refuse or grant the said application”.
3.18 It is instructive that the Appellant had commended to the Tribunal the decision of this Court in PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS (supra) which is an authority on the point that the power of Election Tribunal to grant extension of time under Paragraph 45 (1) of the First Schedule to the Electoral Act amounts to breach of the provisions of Section 285 (6) of the Constitution of the Federal Republic of Nigeria (supra).
3.19 It is important to note that in the affidavit in support of the Motion for extension of time by the 2nd & 3rd Respondents no modicum of reason or ground was given to justify why the Tribunal should indulge the Respondents and grant extension of time to file their Reply. See Page 316-317 of the record.
3.20 In HONOURABLE SAVIOUR OKON NYONG VS HON JOSEPH EFFIONG ETENE & TWO OTHERS in Appeal No. CA/NAEA/160/2011 delivered on the 9th August, 2011, this Court (Per Akeju, JCA) at Pages 8-9 of the Judgment held thus:
”the provision of Section 38 of the Electoral Amendment Act, 2010, shows that the power of the Tribunal to extend time under Paragraph 45 of First Schedule is not absolute; it is subject to Paragraph 16 thereof which expressly prevents or forbids the grant of extension of time to the Petitioner to file a Petitioner’s reply and allows any order of enlargement of time only as the justice of the case may require. It therefore becomes a task for a respondent to have time extended for him where the petitioner who originated the action cannot have time extended to him to take steps. However, by Section 32 of the Electoral (Amendment Act), 2010, Section 134 of the Electoral Act, 2010, was deleted but subsequently incorporated into the Constitution of the Federal Republic of Nigeria, 1999, through Section 9 of Constitution of the Federal Republic of Nigeria (Second Amendment Act) which substituted a new section for Section 285 of the Constitution by adding the following:
‘5. An election petition shall be filed within 21 days after the date of declaration of result of the elections. 6. An election Tribunal shall deliver its Judgment in writing within 180 days from the date of filing of the petition; 7. An appeal from a decision of an election Tribunal to the Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the Tribunal or Court of Appeal’.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the Supreme law of Nigeria. The Constitution is the fountain from which all other laws and enactments must draw their validity and to which they must succumb. No act or Law can be inconsistent with the provision of the Constitution and remain valid as such Act or Law or such part thereof will be void to the full extent of their inconsistency. See A.G. Abia State vs A.G. Federation (2007) 1 CCLR 104; A.G. Lagos State vs. A.G of the Federation (2003) 12 NWLR (Pt. 833) 1; INEC & Anor. Vs. Musa & Ors. (2003) 8 All NLR 322. The removal of the above provision from the Electoral Act and insertion of same into the Constitution, in my view is to place emphasis on the period of filing of, and adjudicating on an election petition matter rather not only by the Tribunal but by the appellate courts. The failure of a Tribunal or court to conclude an election petition matter within the stipulated time now amounts to a breach of the Constitution which cannot be done with impunity”.
3.21 The delay tactics adroitness adopted by the Respondents in this matter calculated to stall the speedy hearing of the Petition calculated to cause the petition to be extinguished by the effusion of time took it toll on the Appellant when the Appellant was confronted with the reality of proving his case within one day because the Tribunal was in hurry to ensure that the 180 days which his Petition was filed and to be determined did not run out on the Appellant. See Page 626 of the record.
3.22 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant against the 2nd & 3rd Respondents and to hold that the lower Tribunal did not have the power to grant the 2nd & 3rd Respondents extension of time after more than 150 days after the Petition was filed and more than 140 days after the 2nd & 3rd Respondents were served with the Petition. The Court is respectfully invited to strike out the Reply and hold that the 2nd & 3rd Respondents did not file a Reply to the Petition.
ARGUMENT OF ISSUE NO. 4
4.1 It is submitted that the Tribunal was wrong to have held that the 1st Respondent’s Reply was filed within time because it was filed within 21 days after service of the Petition. See Page 7 of the Judgment at Page 604 of the record.
4.2 The Tribunal justified its decision on the ground that since the 1st Respondent did not file a Memorandum of Appearance by the provisions of Paragraph 10 (2) of the First Schedule to the Electoral Act (supra) he was right to file his Reply within 21 days.
4.3 The Tribunal lost sight of the fact that by the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act (supra) a Respondent is given 14 days from service of the Petition to file his Reply.
4.4 A Respondent must file his Reply to the Petition 14 days after service of the Petition. A Respondent cannot enjoy the luxury of waiting for 21 days after service simply because he failed to enter appearance. Paragraph 10 (2) of the First Schedule to the Electoral Act is no longer relevant. It is inapplicable, taking into account that speedy disposition of Election Petitions is the fulcrum upon which the Constitutional amendment that has seen the enactment of Section 285 (7) of the Constitution pegging the period for the hearing and determination to 180 days from the day of the filing of a Petition.
4.5 A Respondent cannot take umbrage under Paragraph 10 (2) of the First Schedule because a specific provision in a statute cannot take precedence over a general provision of such a statute. The general provision is Paragraph 12 (1) of the First Schedule to the Electoral Act. The heading of Paragraph 10 of the First Schedule is titled “filing of Memorandum” whereas the heading of Paragraph 12 of the First Schedule is titled “filing of Reply”.
4.6 It is clear that there is some ambiguity between Paragraph 10 (2) of the First Schedule to the Electoral Act that provides that a Respondent who has to file his Memorandum of Appearance is at liberty to file his Reply to the election Petition not later than 21 days after service of the Petition and Paragraph 12 (1) of the First Schedule to the Electoral Act that provides that a Respondent has within 14 days from the service of the Petition to file his Reply.
4.7 It is submitted that the heading used in a statute are treated in the same way as the preamble for the purpose of assisting resolve the ambiguity in such a statute. It is therefore submitted that the headings of Paragraph 10 and Paragraph 12 of the First Schedule to the Electoral Act can be called or looked into to assist in resolving the ambiguity between Paragraph 10 (2) and Paragraphs 12 (1) of the First Schedule thereto.
4.8 It is therefore clear that the intention of legislature of Paragraph 12 (1) of the First Schedule to the Electoral Act is that a Reply to an election Petition must be filed within 14 days of the receipt of the Petition by a Respondent.
4.9 In the case of PEOPLES DEMOCRATIC PARTY VS. EYO NSA EKPO (supra) (unreported) Page 9, paragraph 2 of the Judgment, the Court of Appeal held that the effect of the failure of a Respondent to file his Reply within 14 days of service on him of the Petition as stipulated under Paragraph 12 (1) of the First Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked. The Court further held that the need to do justice to a Respondent must take into consideration the right of the Petitioner to have his Petition determined within the stipulated time prescribed in the Constitution.
4.10 It is further submitted that under the new constitutional regime election Tribunals are circumscribed in their discharge of their onerous duties. The election Tribunal has 180 days from the date of filing of the Petition to deliver judgment in writing. It is instructive that a Petitioner does not enjoy the luxury of extension of time or any dilatoriness in not taking a procedural step within the time given to him either with regard to filing of the Petition in the first instance or his Reply to the Respondent’s Reply in the second instance. It is clear that all parties appearing before the election Tribunal cannot afford the added benefit of doing things at their own pace and for no just cause when others are racing ahead in order to set goals and deadlines. See PEOPLES DEMOCRATIC PARTY V. WILLIAM BALLANTYNE (supra) (unreported) Page 18, paragraph 2.
4.11 It is submitted that the specific provision is Paragraph 10 (2) of the First Schedule to the Electoral Act. The provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act has clearly laid down the number of days a Respondent has to file his Reply and such a Respondent who fails to enter appearance cannot take umbrage under Paragraph 10 (2) of the First Schedule and claim to be justified to file his Reply 21 days after service in view of the fact that Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) that stipulates that a Petition must be heard and judgment delivered within 180 days after the filing of the Petition, prevents any form of delay on the part of any Party.
4.12 It is clear that the provisions of Paragraph 10 (1) of the First Schedule are inconsistent to the provisions of Section 285 (7) of the Constitution and must therefore bow down to the Constitution since the Constitution is the basic law and all other Laws, Statutes and Regulations that are inferior to the Constitution must be consistent with the provisions of the Constitution. It is the Constitution that imparts efficacy and validity to other laws and regulation down the rung of the pyramid of laws.
4.13 In HONOURABLE SAVIOUR OKON NYONG VS HON JOSEPH EFFIONG ETENE & TWO OTHERS in Appeal No. CA/NAEA/160/2011 delivered on the 9th August, 2011, this Court (Per Akeju, JCA) at Pages 9 of the Judgment held thus:
“... However, by Section 32 of the Electoral (Amendment Act), 2010, Section 134 of the Electoral Act, 2010, was deleted but subsequently incorporated into the Constitution of the Federal Republic of Nigeria, 1999, through Section 9 of Constitution of the Federal Republic of Nigeria (Second Amendment Act) which substituted a new section for Section 285 of the Constitution by adding the following:
‘5. An election petition shall be filed within 21 days after the date of declaration of result of the elections. 6. An election Tribunal shall deliver its Judgment in writing within 180 days from the date of filing of the petition; 7. An appeal from a decision of an election Tribunal to the Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the Tribunal or Court of Appeal’
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the Supreme law of Nigeria. The Constitution is the fountain from which all other laws and enactments must draw their validity and to which they must succumb. No act or Law can be inconsistent with the provision of the Constitution and remain valid as such Act or Law or such part thereof will be void to the full extent of their inconsistency. See A.G. Abia State vs A.G. Federation (2007) 1 CCLR 104; A.G. Lagos State vs. A.G of the Federation (2003) 12 NWLR (Pt. 833) 1; INEC & Anor. Vs. Musa & Ors. (2003) 8 All NLR 322. The removal of the above provision from the Electoral Act and insertion of same into the Constitution, in my view is to place emphasis on the period of filing of, and adjudicating on an election petition matter rather not only by the Tribunal but by the appellate courts. The failure of a Tribunal or court to conclude an election petition matter within the stipulated time now amounts to a breach of the Constitution which cannot be done with impunity”.
4.14 See also the judgment of this Court in PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS in Appeal No. CA/C/NAEA/144/2011 delivered on the 21st July, 2011 (unreported) this Court (Per Akaahs, JCA) in Page 7-9, where it was held that Paragraph 45 (1) of the First Schedule to the Electoral Act which gives the power to an election Tribunal to extend time for a Respondent to file his Reply is inconsistent with the Section 285 (7) of the Constitution which has limited the time for the disposal of an election petition to 180 days after filing of the Petition.
4.15 In the light of the above, we urge the Court to resolve this issue in favour of the Appellant and strike out the Reply of the 1st Respondent which was filed out of the 14 days time allowed a Respondent to file his Reply to the Petition.
ARGUMENT OF ISSUE NO. 5
5.1 The 4th Respondent was served with the Petition on the 26th May, 2011.
5.2 However the 4th Respondent filed it Reply on the 15th June, 2011, more than 14 days after it was served with the election Petition.
5.3 The issue of the 4th Respondent filing its Reply out of time was raised and canvassed by the Appellant in his Issue No. 1 of his Final Written Address filed on 5th November, 2011. See Pages 541 - 572 of the record.
5.4 By the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act, the 4th Respondent has 14 days to file its Reply.
5.5 However, when the issue of the 4th Respondent was raised and canvassed by the Appellant, the Tribunal descended into the arena and held that the Appellant cannot raise the issue because the Court of Appeal relied on the Reply filed by the 4th Respondent to allow the appeal that the Appellant had filed against an earlier order of the Tribunal striking out the Petition. See Pages 481-487 of the record. See pages 488-493. See Page 493A of the record.
5.6 In its Rejoinder on Points of Law filed by the 4th Respondent, the 4th Respondent never invited the Tribunal to rely on the Judgment of the Court of Appeal to resolve the issue of the 4th Respondent filing its Reply out of time.
5.7 However in the Judgment the Tribunal abandoned its position as an independent and impartial adjudicator that is required to be detached from either parties, descended into the arena to fish out or wriggle the 4th Respondent out of the tight corner it found itself, and used the judgment as an escape route for the 4th Respondent.
5.8 The Tribunal in an open show of uneven-handedness, suo motu came into the arena and raised the issue of the Court of Appeal relying on the Reply of the 4th Respondent to allow the appeal the appellant had filed against an earlier order of the 1st Panel of the Tribunal (before it was sent back to the lower Tribunal for retrial) even though it was never canvassed by either party and the Tribunal did not invite address from the parties on that point, neither did it afford the Appellant the opportunity of being head on the point.
5.9 The Tribunal held thus:
“We are amazed that the counsel will ask this tribunal to discountenance the reply of the 4th respondent’s reply for non-compliance with the provision of Paragraph 12 (1) of the Electoral Act, 2010 (as amended). We say this because a careful perusal of the Court of appeal judgment in OTU BASSEY UKPENTU VS Mfawa Ofegobi & Ors. Appeal No. CA/C/NAEA/198/2011 will show that it is the admitted fact in the reply of the 4th Respondent that saved this petition on appeal. At page four of the judgment the court held thus:
‘However, the 4th respondent’s reply of 15th June, 2011 reads as follows: 1 Paragraphs 1, 2, 3, 4 and 5 of the substantive petition herein are admitted, only to the extent that: (a) The 1st Respondent herein was sponsored by the 4th Respondent herein. (b) The 2nd Respondent herein after successful conduct of election on 26th April, 2011, declared the 1st Respondent herein winner of the election to the House of Assembly for Yakurr State Constituency.’
What is admitted needs no further proof? See Section 75 of the Evidence Act, 2004; in re Odutola (2002) FWLR (Pt. 119) 1624 at 1633; Iyamo vs. FMBN (1999) 13 NWLR (Pt. 634) 178 at 188. A Petitioner has no onus of pleading and proving what the opponent has admitted. See Olale vs. Ekwelendu (1989) 7 SCNJ 181. The petition and replies constitutes notice of the case each party intends to canvass at the Tribunal. See Obisami Bricks and Stones Nig. Ltd vs. Attorney-General of Bendel State (1986) 1 NWLR (PT. 303) AT 317”. See pages 8 & 9 of the Judgment at Pages 605-606 of the Record.
5.10 It is submitted that the Tribunal was not entitled to descend into the arena to raise a point that was not canvassed by either of the Parties without affording the Appellant a hearing on such issue in accordance with his right to fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
5.11 The Tribunal was wrong and went into serious error by descending into the arena in such a brusque and unorthodox manner unbecoming of an independent and impartial umpire. The coming into the arena beclouded and blurred the vision of the Tribunal and made the Tribunal violate the right of fair hearing of the Appellant.
5.12 We therefore invite the Court to set aside this finding of fact concerning the reliance on the Judgment of the Court of Appeal to resolve the issue of the competence of the Reply of the 4th Respondent because it was the fulcrum and prop that was used to allow the appeal in OTU BASSEY UKPENTU VS Mfawa Ofegobi & Ors. in Appeal No. CA/C/NAEA/198/2011.
5.13 It is instructive to note that this Judgment was not tendered by either of the parties. If the Judgment was in the record of the Court, the Court was entitled to take judicial notice of it but the Court cannot do that without affording the Appellant a hearing since it was not canvassed by either of the parties. See UKPO V. IMOKE (supra).
5.14 The finding is perverse, unreasonable and not supported by any evidence before the Tribunal. It is well settled that an appellate Court is entitled to disturb a finding of fact by a trial Court which is not based on evidence before the Court.
5.15 Another fact that the Tribunal used to resolve that the Reply of the 4th Respondent was filed within time was the leave granted to the 4th Respondent to amend his Reply on the 31st October, 2011. The Tribunal reasoned that because the Appellant did not oppose the Motion for amendment it was too late in the day to attack the validity of 4th Respondent’s Reply. See Page 9 of the Judgment at Page 606 - 607 of the record.
5.16 It is submitted with due respect that the Tribunal missed the point. The fact that the Appellant did not oppose the Motion for amendment of the Reply would not operate to confer validity if the Reply was filed out of the 14 days which Paragraph 12 (1) of the First Schedule to the Electoral Act prescribed. The issue of the amendment of the Reply does not arise and cannot be used as the umbrage to suggest that the Reply was competent.
5.17 The Appellant did not acquiesce or waive his right. The Appellant had filed a Motion in which he had raised the issue of the competency of the Reply of the 4th Respondent. However, this Motion was not moved because trial resumed on the 28th October, 2011 after the previous appeal was allowed. See Pages 620-621 of the record. See The pre-Hearing Information Sheet Form TF 007 filed by the Appellant on the 5th July, 20011 at Page 277 where Appellant had indicated that he had a Motion that the Petition should be determined only on the Petition or evidence presented by the Petitioner on the ground that the Respondents Replies were filed out of time or not filed at all. See Pages 469-470 of the record. See Paragraphs 7 - 25 of the Counter-Affidavit filed by the Appellant on the 2nd August, 2011 at pages 474 - 475 of the record.
5.18 The Tribunal at Pages 620 - 621 of the Record recorded thus:
“Chief Obono-Obla says the petition is for retrial having been sent back by the Court of Appeal. He says he is ready for trial even tomorrow and requires only one day. He says that applications in the petition be taken with the main petition so as to save time...”
5.19 The Appellant had only 14 days from the 31st October to 12th November, 2011, when the Petition would have extinguished by the effusion of time. It was then agreed by the parties that any Motion not taken during the Pre-trial Session that lasted just one day rather than 14 days stipulated in the First Schedule to the Electoral Act should be taken together with the Final Written Address.
5.20 In the light of the above, we humbly invite this Court to set aside the finding of fact by the Tribunal that the Appellant did not oppose the Motion for amendment of the Reply of the 4th Respondent or that he acquiesced or waived his right. The finding is perverse as it is not supported by evidence before the Tribunal.
5.21 In the light of the above, we humbly invite the Court to resolve this issue in favour of the Appellants.
ARGUMENT OF ISSUE NO. 6
6.1. It is submitted that the position of the Tribunal that the Petition contained criminal allegation and so that the Appellant was required to prove his case beyond reasonable doubt is a perverse finding which was not based on objective and dispassionate consideration of the case of the Appellant.
6.2. The Appellant had urged the Tribunal to strip the Petition of criminal allegations made in the Petition especially in Paragraphs 33, 43, 46, 47 and 53 of the Petition. However rather than severing or stripping the Petition of the Paragraphs of the Petition where criminal allegations were made, the Tribunal went on to fish for other paragraphs where it claimed that the criminal allegations were made. The Tribunal singled out Paragraphs 27, 29, 30, 34, 35, 42, 48, 49, 50, 57, 62, 65 and 72 of the Petition. These Paragraphs which the Tribunal identified to contain criminal allegations were not identified by the Respondents but the Tribunal. The Tribunal was not entitled to come into the arena to dissect the Petition of the Petitioner to fish out paragraphs that it considered criminal allegations were made. It ought to have been the responsibility of the Respondents as their response to the submission of the Appellant.
6.3. The Tribunal ought to have remained at its Olympian height and allowed the disputants to slug it out before coming into the arena to decide which of the two disputants is on the side of the law and then apply the law accordingly.
6.4 However an objective and dispassionate examination of some of the paragraphs which the Tribunal singled out and identified by it as constituting criminal allegations are not in the slightest meaning of the word criminal. For instance Paragraph 35 of the Petition which the Tribunal fished out and identified as falling within this category made allegations on excess or over voting. See paragraph 35 of Page 7 of the record.
6.5 How can a complaint about over voting or excess voting be termed a criminal allegation in any ramification? The same is true of Paragraphs 27, 30, 42, 48, 49, 50, 57, 62, 65, and 71 of the Petition which the Tribunal in a fishing expedition to undo the Appellant identified as constituting criminal allegations. For instance Paragraph 48 of the Petition complains about non accreditation in KOTANI POLLING UNIT.
6.6 How on earth can non-accreditation constitute a criminal allegation? See Paragraph 48 of Page 8 of the record. In Paragraph 49 of the Petition a complaint of non-accreditation was made. Non accreditation is not a criminal allegation. So also is Paragraph 65 of the Petition not a criminal complaint.
6.7 In Paragraph 50 of the Petition which the Tribunal singled out to be criminal in nature, the Appellant had complained that Form EC8A (i), Result Sheet of Polling Unit – 007 - ST FRANCIS PRIMARY SCHOOL was not signed. This is a complaint against contravention of Section 63 (1) & (2) of the Electoral Act! A complaint against violation of Section 63 (1) & (2) of the Electoral Act cannot by any stretch of imagination be said to be a criminal allegation.
6.8 The principle of severance of pleadings which the Appellant urged the Tribunal to invoke was not invoked. Rather the Tribunal descended into arena and conveniently emasculated paragraphs of the Petition it thought were not civil wrongs but criminal allegations and came to the conclusion that if the Petition was saved the remaining paragraphs would not be enough to sustain the Petition.
6.9 In its judgment the Tribunal did not state the reasoning behind its position that these paragraphs contained criminal allegation rather it made a bland and blanket statement that the paragraphs contained criminal allegations. It is submitted that the Tribunal descended into the arena to dissect the Petition to fish out ten other paragraphs more than the five that were identified by the Appellant as containing criminal allegations.
6.10 It is submitted that this is a curious finding by the Tribunal which was out of tune with the reality of the situation. The Appellant in his Written Address had identified Paragraphs 33, 43, 46, 47 and 53 of the Petition as constituting criminal allegations.
6.11 If these 5 Paragraphs identified by the Appellants are added to the ones that the Tribunal fished out it would come to about 15 Paragraphs which in the findings of the Tribunal are criminal in nature.
6.12 The pertinent question is can 15 Paragraphs in a Petition made up of 84 Paragraphs be enough to suggest that if the Petition is stripped of these 15 paragraphs there would not be enough Paragraphs to sustain the Petition? See page 609 of the record.
6.13 It is clear that the finding of fact concerning which paragraphs of the Petition constitute criminal allegation and the sustainability of the Petition after these paragraphs are stripped was not findings that were reasonable or based on evidence before the Tribunal. The Tribunal became beclouded and its vision blurred as soon it compromised it detachment and independence and came into the arena.
6.14 It is pertinent to reiterate the principle of severance of pleadings to underscore the fact that the Tribunal completely misapplied and therefore fell into serious error when it failed to appreciate that where a paragraph contain both criminal and civil wrong the Tribunal should have carefully severed the criminal wrong from the civil from such paragraph of the Petition other than broadly condemning such paragraph to have made a criminal allegation.
6.15 It is not the position of the law that every allegations in a petition that resemblances a criminal allegation is one which required proof beyond reasonable doubt. There may very well be a thin line dividing what is a criminal allegation from a civil wrong! In ERUTOR V. UGHUMIAKPOR (1999) 10 NWLR) PT. 619) 460, where the allegations complaining of irregularities were held to be those bordering on crime which required proof beyond reasonable doubt, the Court of Appeal in reversing the decision of the tribunal at page 465 of the said thus:
“In election cases there is the increasing trend of lawyers, and even election tribunals regarding allegations of some wrong doing as an allegation of criminality for the purpose of its standard of proof being raised to that beyond reasonable. In my considerations, that does not represent the correct legal position where the allegation is simply that of some wrong doing its proof would be on preponderance of evidence”.
6.16 In AREGBESOLA V. OYINLOLA (supra) 1349-1350, Paras. H-B, PP 1350-1351, Paras. G-A, the Court of Appeal illuminated the position of the law thus:
“By the provisions of Section 137 (1), Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, if the averments alleging the commission of a crime are severable and if following such acts of severance the petitioners’ pleadings still contains sufficient averments which suffices and discloses a cause of action devoid of criminal imputation against any of the of the parties to the proceedings, then the burden of proof laying on the petitioner is not of a criminal nature beyond reasonable doubt but that which requires proof on preponderance of evidence. The determining factor is whether the allegations if severed and put into two separate compartments can be sustained as an entity. If the answer is positive, then proof of one is not dependent on the other but side by side. The crucial determining factor certainly is dependent on the pleadings of the parties. Where there are two causes of actions embedded within the same claim before a court, in such situation, the doing away with one cause of action would have no effect or bearing on the existence of the other. The existence of the two will amount to mere surplusages of one to the other. A pleader who has pleaded more than he strictly need have done can always disregard the unnecessary or surplus averments and rely simply on the more limited ones. In the instant case, the tribunal held that the petitioners failed to discharge the burden of proof on them concerning the criminal allegations therein, it erred because the criminal allegations when severed, the petition still has a cause of action, therefore it was wrongly dismissed”.
6.17 It is well settled that the Court will interfere to set aside a proceedings or decision that was done without regard or respect for the right of fair hearing of a party. It is clear that the Tribunal descended into the arena on its own accord to fish out paragraphs of the Petition which it considered bordered on criminal allegation but failed to objectively and dispassionately evaluate those paragraphs to ascertain if they truly bordered on criminality and then strip off the criminal allegation from the civil wrongs.
ARGUMENT OF ISSUE 7
7.1 The Tribunal in its Judgment ignored and never considered several issues that were raised in the Final Written Address of the Appellant and also during oral argument during the adoption of written addresses by the parties
7.2 One of the issues raised and canvassed by the Appellant during adumbration of final address was the fact that the Respondents filed Replies to the Final Written Address of the Appellant out of time. The Respondents had no answer to the application of the Appellant that these Replies filed out of time should be struck out.
7.3 On the 2nd November, 2011, at the close of the case of the Appellant at the Tribunal, the Respondents elected not to call evidence. The Tribunal ordered the Appellant to file and serve his Final Written Address within one day. The Respondents were given two days to file and serve their written address. The Respondents were given I day to file a Reply if they so desire. The case was then adjourned to the 9th November, 2011, for adoption of addresses. See Page 638 of the record.
7.4 The 4th Respondent filed his Written Address on the 4th November, 2011. See page 508-534 of the record.
7.5 The 1st Respondent filed his Final Written Address on the 4th November, 2011. See pages 535-540 of the record.
7.6 The Appellant filed his Final Written Address on the 5th November, 2011. See pages 541-572 of the record.
7.7 The 2nd and 3rd Respondents filed their final written address on an unknown date since the process was not stamped to know the date it was filed. See 590-597 of the record.
7.8 However, contrary to the order of the Tribunal, the 1st Respondent filed his Reply to the Written Address of the Appellant on the 7th November, 2011. See pages 586-587 of the record.
7.9 In Page 640 of the records, the Tribunal noted the application of the Appellant made through his Counsel thus: “Chief Obono-Obla...He submits that the 3 rejoinders were filed out of time. He says that Saturday is not a public holiday and that they have not asked for an order to regularize same. He urges the rejoinders to be discountenanced”.
7.10 It is submitted that the Respondents clearly filed their Replies out of time. The Respondents ought to have filed their Replies on the 5th November, 2011, but filed on the 7th and 8th November, 2011 respectively.
7.11 It is submitted that the Tribunal should not have ignored the application of the Appellant that the Replies which were filed out of time be struck out. The Tribunal had a duty to consider the application of the Appellant and rule on it. The Tribunal has a duty to consider and give a decision on every Motion or application made to it by either of the Parties and rule on it.
7.12 In the Final Written Address of the Appellant, the Reply of the 2nd & 3rd Respondents was impugned for being contrary to the intendment and purport of Paragraph 12 (1) of the First Schedule to the Electoral Act. See Paragraph 2.12.17 of the Final Written Address of the Appellant at Pages 547-550 of the record.
7.13 However in its Judgment, the Tribunal ignored the submission and application of the Appellant that the Reply of the 2nd & 3rd Respondents be struck out. The Tribunal did not consider and pronounce on the issue which bordered on the competence of the Reply of the 2nd & 3rd Respondents.
7.14 The Appellant also took an objection to the Written Addresses of the Respondents at Paragraph 5.0 Page 567-568 of the Record. The objection was as to whether or not the Respondents that elected not to call evidence can formulate issues in their Written Address for determination. The objection was premised on the decision of the Court of Appeal in DINGYADI V. WAMAKO (2008) 2 LRECN 102.
7.15 The Tribunal again totally ignored the objection taken by the Appellant on the competency of the Written Addresses of the Respondents.
7.16 It is clear that the Tribunal was duty bound to consider and pronounce on all issues that were legitimately raised and canvassed by the Appellant before it. It is a denial of the right of fair hearing as secured by Section 36 (1) of the Constitution for the Tribunal to ignore and refuse to consider and decide on issues raised and canvassed by the Appellant. See AGBITI V. NIGERIAN NAVY (2011) ALL FWLR (PT. 570) 1223 @ 1252, PARAS, B-D, on the connotation and demand on the constitutionality of the right to fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria (supra).
7.17 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant and hold that the Tribunal impinged the right of fair hearing by refusing to consider and resolve issues legitimately raised and canvassed by the Appellant.
CONCLUSION:
8.1 In the reliefs sought by the Appellant in the Notice of Appeal the Appellant had invited the Court to invoke the power conferred on it by Section 16 of the Court of Appeal Act and assume the jurisdiction of the Election Tribunal and hear and determine the Petition filed by the Appellant especially in the event that the Court decides that the Tribunal was wrong to have refused to admit the Statements on Oath of PW1, PW2, PW3 and PW4 who were witnesses called by the Appellant.
8.2 It is clear that the Petition was filed on the 17th May, 2011. By Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) the election Petition filed by the Appellant must be heard and determined by the election Tribunal within 180 days from the day of filing. It follows that the Petition is supposed to expire on the 12th November, 2011.
8.3 If this Court holds that the refusal of the Tribunal to allow the witnesses of the Appellant to adopt their statements infringed on their right to fair hearing an order of retrial should ordinarily be made. But since the period for the hearing of the petition would have expired by the time this Court will be hearing and delivery its judgment on this appeal, it is submitted that in the circumstances of this case, it is clear that the proper order that will meet the justice of the case is for this Court to invoke it power under Section 16 of the Court of Appeal Act and assume jurisdiction of the election Tribunal hear this matter on the merit and make orders that will meet the justice of the matter.
8.4 It is therefore submitted that the conditions for the invocation of Section 16 of the Court of Appeal, Act (supra) are present in the case under reference.
8.5 In Dapialong v. Dariye (2007) 8 M.J.S.C 140 @ 151, the Supreme Court illuminated thus:
‘The power conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are exercisable by that Court where certain fundamental conditionalities are met, such as :-
(a) availability of the necessary materials to consider and adjudicate in the matter;
(b) the length of time between the disposal of the action at the trial Court and the hearing of the appeal; and
(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties to the case’.
8.6 In Action Congress v. Jang (2009) 4 N.W.L.R (Pt. 1132) 475 @ 486, the Court of Appeal illuminated thus:
‘The purport of Section 15 of the Court of Appeal Act is to enable the Court of Appeal take a decision one way or another on a matter which could have been decided by the trial court or tribunal. Thus, in a case where the parties presented their cases before the trial court or tribunal which failed in its duty to make pronouncement on any issue relevant to the case, the appellate court can deal with the issue and resolve same as if it were sitting in place of the trial court or tribunal…’
8.7 It is submitted that the Court of Appeal can evaluate and appraise the evidence on record and make an order on such terms as the Court may think just, to ensure the determination of the merits of the real question in controversy between the parties and make appropriate findings in accordance with the evidence laid before it. Order 4 Rule 4 of the Court of Appeal Rules, 2007, provides as follows:
‘The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision below, or by any appeal or for affirming or varying the decision of that court is not specified in such a notice; and the court may make any order, or on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties’.
8.8 See Adams v. Umar (supra) 64-65, held 16, 17, 18 &19. In Yaro v. State (2007) 12 M.J.S.C 57 @ 74, the Court of Appeal was invited to resolve the issue whether the Court of Appeal was right to raise the issue of the defence of justification and provocation on its own accord by the Appellant. The Supreme Court answered the question in the affirmative after considering the provisions of Order 1 Rule 19 (1) of the Court of Appeal, Rules, 2002 (which is similar to Order 4 Rule 4 of the Court of Appeal Rules, 2007) and illuminated the position of the law thus:
‘By Order 1 Rules 19 (3) and 19 (4) of the Court of Appeal Rules, 2002, the Court of Appeal has power to evaluate the evidence in the record and do what it considers just in the circumstances. The Court also has the power to make any finding which ought to be arrived at by the trial court based upon the evidence available in the record’.
8.9 In Ndukwe v. State (2009) 7 NWLR (1139) 43 @ 55, the Supreme Court elucidated on the power of an appellate Court to evaluate evidence thus:
“An appellate court has the power to evaluate the evidence before it as an appeal is in the nature of a re-hearing. In other words, where a trial court fails in evaluating facts found by it, an appellate court can re-examine the whole facts and come to an independent decision”
See Ekpemupolo v. Edremoda (2009) 8 N.W.L.R (Pt.1142) 166 @175, held 10. In a similar circumstance, the Supreme Court in Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 @ 558, invoked its power conferred on it by Section 22 of the Supreme Court (which is similar to Section 15 of the Court of Appeal Act) thus:
‘…one other factor that the court has to take into account is the urgency surrounding this matter as the tenure of the members of the National Assembly is for a period of four years and so far 18 months of that period have already been spent i.e. the appellant could only serve for the unexhausted tenure of 4 years. It does not augur well for democracy to delay any further. Hence to remit this case back to the lower court to come back to this court on appeal apart from causing great hardship to the appellant, it does not work in the interest of the constituents who are entitled to know their true representatives at the National Assembly. For all this, I agree with the appellant that this is a case in which this court is eminently positioned and justified to exercise its power under section 22 of the Supreme Court Act and determine the matter on its merits here and now, as the preconditions to do so as I have outlined above are conclusive…’
See Amaechi v. INEC (2008) 1 M. J.S. C 1 @ 20. See Cappa & D’ Alberto Ltd v. Akintillo (2003) 9 NWLR (Pt. 824) 49; A. G, Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575; Jadesimi v. Okorie Eboh (1986) 1 NWLR (Pt. 160 264.
8.10 In the light of the above, this Honourable Court is invited to allow the appeal for the reasons which the Appellant has comprehensively and adequately discussed in the body of this Brief of Argument or the issues for determination framed from the grounds of appeal and in addition for the following reasons summarized as follows thus:
i. The Tribunal was wrong and fell into error that occasioned a miscarriage of justice by rejecting the statements on oaths of the witnesses called by the Appellant on the ground that the statements did not strictly comply with the format prescribed by the First Schedule to the Oaths Act (supra). It is clear the statements conform substantially with the format prescribed by the First Schedule to the Oaths Act and were admissible and constitute evidence. The authority of Obumneke v. Sylvester (supra) which the Tribunal relied on to hold that these statements were inadmissibility is inapplicable and not relevant.
ii. The refusal of the Tribunal to examine, analyse and evaluate documentary evidence that was tendered from the Bar in accordance with the provisions of Paragraph 41 (3) of the First Schedule to the Electoral Act on the ground that these documents were dumped on the Tribunal and that there was no oral evidence adduced by the Appellant to be used to assess the documents was wrong and led to a miscarriage of justice.
iii. The Tribunal had no jurisdiction to purport to exercise its discretionary power conferred by Paragraph 45 (1) of the First Schedule to the Electoral Act to extend time for the 2nd & 3rd Respondents to file their Reply out time more than 150 days after the filing of the Petition and service on them in view of the provisions of Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) that stipulates that a petition must be heard and judgment delivered within 180 days of filing.
iv. The Tribunal was wrong to have relied on the provisions of Paragraph 10 (2) of the First Schedule to the Electoral Act to hold that the 1st Respondent who was served on the 2nd June, 2011, but filed his Reply on the 22nd June, 2011 was within time. The provisions of Paragraph 10 (2) of the First Schedule to the Electoral Act cannot override the combined provisions Section 285(7) of the Constitution and even Paragraph 12 (1) of the First Schedule to the Electoral Act since time was of essence in the hearing and determination of election Petition.
v. The Tribunal was wrong to have descended into the arena to use the decision of the Court of Appeal in OTU BASSEY UKPENETU V. MFAWA OFEGOBI & THREE OTHERS in Appeal No. CA/C/NAEA/198/2011 to resolve the issue of whether or not the Reply of the 4th Respondent was filed within time.
vi. The Tribunal was wrong to have descended into the arena to find and hold that Paragraphs 27, 29, 30, 34, 35, 42, 48, 49, 50, 57, 62, 65 and 72 of the Petition contained criminal allegations in order to resolve the invitation by the Appellant that the Tribunal invoke the principle of severance of pleadings and severe criminal allegations from civil wrongs.
DATED THIS 30TH DAY OF NOVEMBER, 2011
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
TRINITY HOUSE, 2ND FLOOR,
MABUSHI, ABUJA, NIGERIA.
OR
O. U. OKA & ASSOCIATES
104 CALABAR ROAD, CALABAR,
CROSS RIVER STATE.
ADDRESS FOR SERVICE
1. ON THE 1ST RESPONDENT
Honourable Mfawa Ofegobi
Ijiman Streety, Ijiman, Ugep, Yakurr LGA
Cross River State of Nigeria.
OR
C/O THE CROSS RIVER STATE HOUSE OF
ASSEMBLY QUARTERS CALABAR,
CROSS RIVER STATE, NIGERIA.
2. ON THE 2ND & 3RD RESPONDENTS
C/O The Independent National Electoral Commission
Murtala Mohammed High Way,
Calabar, Cross River State.
3. ON THE 4TH RESPONDENT
The Peoples Democratic Party
C/o The State Secretary, PDP,
Murtala Mohammed High Way,
Opposite the Federal High Court,
Calabar, Cross River State.
TABLE OF DECIDED CASES RELIED ON
1. I.N.E.C v. Action Congress (2009) 2 NWLR (1126) 524.
2. I.N.E.C v. Oshiomole (2009) 4 N.W.L.R (Pt. 1132) 607
3. Goli v. Belief ((2009) 4 N.W.L.R (Pt. 1132) 585
4. Agagu v. Mimiko (2009) 7N.W.L.R (Pt. 1140) 342.
5. Amaechi v. INEC (2008) 1 M. J.S. C 1 @ 20.
6. Cappa & D’ Alberto Ltd v. Akintillo (2003) 9 NWLR (Pt. 824) 49
7. A. G, Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575
8. Jadesimi v. Okorie Eboh (1986) 1 NWLR (Pt. 160 264.
9. Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 @ 558
10. Yaro v. State (2007) 12 M.J.S.C 57
11. Action Congress v. Jang (2009) 4 N.W.L.R (Pt. 1132) 475
12. Dapianlong v. Dariye (2007) 8 M.J.S.C 140
13. Iwuno v. Dieli (1999) 5 NWLR (Pt. 149) 126
14. Abubukar v. INEC (2004) 1 NWLR (Pt. 854) 207
15. Chief Liyel Imoke v. Amb. Akpang Ade Odu & Anor., in CA/C/112/2007
16. Buhari v. Obasanjo (2005)13 NWLR (Pt. 941) 1
17. Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303@ 311
18. Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242 @ 311.
19. Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622.
20. Ezeke v. Dede (1999) 5 NWLR (Pt. 601) 80
21. African Newspapers of Nigeria Ltd v. Federal Republic of Nigeria (1985) NWLR (Pt. 6) 137.
22. Goodhead v. Amachree (2004) 1 NWLR (Pt. 854) 354
23. Ikoro v. Izunaso (2009) 4 NWLR (Pt. 1130) 45
24. Board of Customs & Excise v. Barau (1982) 10 S.C 48
25. Up Bottling Co. Ltd v. Abiola (1996) 7 NWLR (Pt. 463) 714 @ 732
26. Ibidapo v Lufthansa Airline (1997) 4 NWLR (Pt. 498) 124@16
27. Peters v. David (1999) 5 NWLR (Pt. 602) 476.
28. Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481
29. National Electrical Power Authority v. Ango (2001) 15 NWLR (Pt. 737) 627 @ 657.
30. Adams v. Umar (2009) 5 N.WL.R (Pt. 1133) 41
31.Engineering Enterprises Ltd v A.G., Kaduna State (1987) 2 NWLR (Pt.57) 381
32. Alhaji Raimi Edun v. Odan Community, Ado Family and Okokomaiko Community (1980) 8-11 SC 103.
33. Ndukwe v. State (2009) 7 NWLR (1139) 43 @ 55
34. Ekpemupolo v. Edremoda (2009) 8 N.W.L.R (Pt.1142) 166
TABLE OF STATUTES RELIED ON
1. Electoral Act, 2011.
2. Constitution of the Federal Republic of Nigeria, 1999.
DATED THIS 30TH DAY OF NOVEMBER, 2011
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
TRINITY HOUSE, 2ND FLOOR,
MABUSHI, ABUJA, NIGERIA.
OR
O. U. OKA & ASSOCIATES
104 CALABAR ROAD, CALABAR,
CROSS RIVER STATE.
ADDRESS FOR SERVICE
1. ON THE 1ST RESPONDENT
Honourable Mfawa Ofegobi
Ijiman Streety, Ijiman, Ugep, Yakurr LGA
Cross River State of Nigeria.
OR
C/O THE CROSS RIVER STATE HOUSE OF
ASSEMBLY QUARTERS CALABAR,
CROSS RIVER STATE, NIGERIA.
2. ON THE 2ND & 3RD RESPONDENTS
C/O The Independent National Electoral Commission
Murtala Mohammed High Way,
Calabar, Cross River State.
3. ON THE 4TH RESPONDENT
The Peoples Democratic Party
C/o The State Secretary, PDP,
Murtala Mohammed High Way,
Opposite the Federal High Court,
Calabar, Cross River State.
HOLDEN AT CALABAR
APPEAL NO.
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN
OTU BASSEY UKPENETU - APPELLANT
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION RESPONDENTS
3. THE RETURNING OFFICER, YAKURR 1
STATE CONSTITUENCY, CROSS RIVER
STATE
4. PEOPLES DEMOCRATIC PARTY
APPELLANT’S BRIEF OF ARGUMENT
PREPARED BY:
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
TRINITY HOUSE, 2ND FLOOR,
MABUSHI, ABUJA, NIGERIA.
OR
O. U. OKA & ASSOCIATES
104 CALABAR ROAD, CALABAR,
CROSS RIVER STATE.
ADDRESS FOR SERVICE
1. ON THE 1ST RESPONDENT
Honourable Mfawa Ofegobi
Ijiman Streety, Ijiman, Ugep, Yakurr LGA
Cross River State of Nigeria.
OR
C/O THE CROSS RIVER STATE HOUSE OF
ASSEMBLY QUARTERS CALABAR,
CROSS RIVER STATE, NIGERIA.
2. ON THE 2ND & 3RD RESPONDENTS
C/O The Independent National Electoral Commission
Murtala Mohammed High Way,
Calabar, Cross River State.
3. ON THE 4TH RESPONDENT
The Peoples Democratic Party
C/o The State Secretary, PDP,
Murtala Mohammed High Way,
Opposite the Federal High Court,
Calabar, Cross River State.
IN THE COURT OF APPEAL
HOLDEN AT CALABAR
APPEAL NO.
THE ELECTION INTO YAKURR I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.
BETWEEN
OTU BASSEY UKPENTU - APPELLANT
AND
1. MFAWA OFEGOBI
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION RESPONDENTS
3. THE RETURNING OFFICER, YAKURR 1
STATE CONSTITUENCY, CROSS RIVER
STATE
4. PEOPLES DEMOCRATIC PARTY
INTRODUCTION
This is an Appeal against the Judgment of the National/State Assembly Election Tribunal sitting in Calabar, Cross River State of Nigeria, presided over by Honourable Justice Solomon A. Akinteye (Chairman); Honourable Justice K. O. Okpu (Member) and Chief Magistrate S. Muhammadu (Member) delivered on Friday the 11th Day of November, 2011, dismissing the Petition. The Petition was filed by the Appellant against the declaration of the 1st Respondent as the winner of election into the Yakurr One (1) State Constituency of the Cross River State House of Assembly held on the 26th April, 2011 on the 17th May, 2011.
The 1st Respondent filed his Reply on the 22nd June, 2011. The 2nd & 3rd Respondents filed their Reply on the 31st October, 2011, while the 4th Respondent filed on the 15th June, 2011. On the 3rd August, 2011, the Tribunal struck out the Petition upon the objection of the 4th Respondents that the Appellant has failed to disclosed his right to present the Petition. The Appellant appealed the order striking out the Petition to the Court of Appeal. On the 23rd September 2011 the Court of Appeal allowed the Appeal and remitted the case back to the Tribunal for hearing on the merit. The case resumed before a new Tribunal under the Chairmanship of Honourable Justice Solomon A. Akinteye on the 31st October, 2011. The pre hearing session was commenced on the 2nd November, 2011 and concluded on the 3rd November, 2011. The Appellant was given one and half day to present his case. During the pre-hearing session the Appellant with consent of the Respondents (through his Counsel) tendered a number of documentary evidence namely:
i. Voters Registers for Idomi Ward - Exhibits A - A4
ii. Voters Register for Ntan Ward - Exhibits B - B4
iii. Voters Register for Afrekpe/Epenti Ward - Exhibits C - C11
iv. Form EC8 A (i) for Afrekpe/Epenti - Exhibits D - D11
v. Form EC8 A (i) for Ntan (Seven Polling Units) - Exhibits E – ES
vi. Form EC8 A (i) for Idomi (Nine Polling Units) - Exhibits F - F9
vii. Form EC8 A (i) for Afrekpe/Epenti (Eleven Polling Units) - Exhibits D - D11
These documents (above) were pleaded in Paragraphs 34 - 74 of the Petition. The documents were also listed in the List of Documents pleaded by the Petitioner. See page 5 of the Record of Appeal. On the other hand the 1st Respondent tendered the following documents thus:
i. Form EC8E(i) - Exhibit L
ii. Form EC8B (i) - Exhibit K
iii. Form EC8B(i) – Exhibit I
iv. Order of the Federal High Court in Suit No. FHC/CA/CS/17/2011 - Exhibit H
The 2nd & 3rd Respondents did not tender the documents listed in their List of Documents pleaded and attached to its Reply filed on the 15th June, 2011. The 4th Respondent did not also tender any document. However, when the Appellant called PW1 to adopt his Statement on Oath, there was an objection by the Respondents that the Statement on Oath was incompetent because it did not strictly comply with the provisions of Section 13 of the Oaths Act on the ground that Paragraph 10 of the Statement on Oath of PW1 was not exactly worded in the form prescribed by the First Schedule of the Oaths for Statutory Declaration. The Statement on Oath of PW1 is at Page 31 of the Record. See further 627-630 of the Record.
It is pertinent to reproduce Paragraph 10 of the Statement on Oath of PW1 thus:
“That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004”. See Page 30-31 of the Record.
The Tribunal upheld the objection of the Respondents and ordered the Statement on Oath for PW1 be rejected. Despite the upholding of the objection, the Appellant still went ahead to call PW2, PW3 and PW4 as witnesses. There were also objections to the admissibility of the Statement on Oath by the Respondents on the ground on these Statements or Depositions also violated Section 13 of the Oaths Act. See 634-635 of the Record. The grounds of the objections were hinged on the fact that Paragraph 39 of the of Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW3 and Paragraph 5 of the Statement on Oath of PW4 contravened Section 13 of the Oaths Act (supra). The averment in Paragraph 10 of the Statement on Oath of PW1 is identical or exactly the same with Paragraphs 39 of the Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW2; Paragraph 5 of the Statement on Oath of PW4.
The Tribunal sustained the objection and ordered the Statements on Oaths of the PW2; PW3 & PW4 be rejected document Nos. 2, 3 and 4 respectively. See Pages, 635, 636 and 637 of the Record respectively. The Statement on Oath of PW2 is at Pages 18 - 29 of the Record; the Statement on Oath of PW3 is at Pages 34 - 35 of the record; the Statement on Oath of PW4 is at Pages 36-37 of the record. The Appellant then closed his case. The Respondents elected not to call evidence and closed their cases.
On the 11th November, 2011 the Tribunal delivered its Judgment dismissing the Petition. On the 15th November, 2011, the Appellant lodged a Notice of Appeal against the Judgment. The Appellant filed Nine (9) Grounds of Appeal on Tuesday the 15th November, 2011. The Appellant was utterly aggrieved with the said decision and hence lodged an appeal before this Honourable Court.
ISSUES FOR DETERMINATION
The Appellant has distilled and formulated the following issues for determination by this Honourable Court from these Nine (9) Grounds of Appeal thus:
1. Was the Tribunal right when it sustained the objection of the Respondents to the admissibility (adoption) of the Statements on Oaths of witnesses called by the Appellant on the ground that these Statements did not strictly comply with the provisions of the Oaths Act, 2004; and was the sustainability of the objection by the Tribunal not an infringed on the right of fair hearing of the Appellant?
2. Whether the refusal of the Tribunal to evaluate documentary evidence tendered by both the Appellant and the 1st Respondent concerning the documents used by the 2nd Respondent to conduct the election on the ground of absence of oral evidence is correct; and if the answer to the above is in the affirmative, whether such refusal has not occasioned a miscarriage of justice on the Appellant?
3. Whether the Tribunal had jurisdiction to grant the 2nd & 3rd Respondents’ Motion for extension of time to file their Reply on the 31st October, 2011, more than 150 days after the Petition was filed and more than 141 days after the 2nd & 3rd Respondents were out of time to file their Reply in view of the provisions of Section 285 (7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
4. Whether the Tribunal was correct when it held that the Replies of the 1st Respondent to the Petition was competent because it was filed within 21 days of service of the Petition?
5. Whether the Tribunal was right when it held that the Reply of the 4th Respondent was competent on the ground that it was relied on by the Court of Appeal solely to allow an appeal filed by the Appellant against an earlier order of the Tribunal striking out the Petition; and that the Appellant did not oppose the Motion filed by the 4th Respondent for amendment of the Reply?
6. Whether the Tribunal was right when it refused to strike out the Replies of the 2nd, 3rd & 4th Respondents after they failed to call evidence whether oral or documentary?
7. Whether the Tribunal was right when it refused to find in favour of the Appellant regard being had to the facts and circumstances of the case such as:
(a) Invocation of the principles of severance of pleadings;
(b) Consideration of all the issues raised by the Appellant in his Final Written Address;
(c) Admissibility of the witnesses Statements of the Appellant and his witnesses;
(d) Incompetency of the Replies of the Respondents;
(e) Evaluation of the documentary evidence tendered from the Bar with the consent of all parties?
ARGUMENTS OF ISSUE NO. 1
1.1. During trial when the Appellant as PW1 wanted to adopt his Statement on Oath in accordance with the procedure outlined in Paragraph 41(3) of the First Schedule to the Electoral Act, 2010 (as amended) the Respondents after PW1 had taken Oath on entering the witness box, took an objection to the admissibility of the Statement on Oath PW1 intended to adopt on the ground that the Statement contravened the provisions of Section 13 of the Oaths Act, 2004, because it did not use the exact wordings in the Form to the Schedule of the Oaths Act meant for Statutory Declarations. See Page 627-630 of the record.
1.2. Subsequent objections were taken against the Statements on Oath of PW2, PW3 and PW4 by the Respondents on the same ground that the Statements of these witnesses did not contain the exact wordings used by the provisions of Section 13 of the Oaths Act. Again the Tribunal sustained the objection and rejected admission of the Statements relying on the authority of OBUMNEKE V. SLYVESTER (supra). See 636-638 of the record.
1.3. When the Appellant as PW1 applied to adopt his Statement on Oath there was an objection by the Respondents that the Statement on Oath was incompetent because it did not strictly comply with the provisions of Section 13 of the Oaths Act on the ground that Paragraph 10 of the Statements on Oath was not exactly worded in the form prescribed by the First Schedule of the Oaths Act, for Statutory Declarations. The Statement on Oath of PW1 is at Page 31 of the Record. See further 627-630 of the Record.
1.4. It is pertinent to reproduce Paragraph 10 of the Statement on Oath of PW1 thus:
“That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004”. See Page 30-31 of the Record.
1.5. The Tribunal upheld the objection and ordered the Statement on Oath of PW1 rejected. Despite the upholding of the objection, the Appellant went ahead and called PW2, PW3 and PW4 as witnesses. There were objections to the admissibility of their Statements on Oaths as well by the Respondents on the ground on these Statements or Depositions also violated Section 13 of the Oaths Act. See 634-635 of the Record.
1.6. The grounds of the objections were hinged on the fact that Paragraph 39 of the of Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW3 and Paragraph 5 of the Statement on Oath of PW4 contravened Section 13 of the Oaths Act (supra).
1.7. The averment in Paragraph 10 of the Statement on Oath of PW1 is identical or exactly the same with Paragraphs 39 of the Statement on Oath of PW2; Paragraph 13 of the Statement on Oath of PW3; and Paragraph 5 of the Statement on Oath of PW4.
1.8. The Tribunal sustained the objection of the Respondents to the Statements on Oaths of the PW2; PW3 & PW4 and ordered that the various Statements be rejected document Nos. 2, 3 and 4 respectively. See Page, 635, 636 and 637 respectively. The Statement on Oath of PW2 is at Pages 18-29 of the Record; the Statement on Oath of PW3 is at Pages 34-35 of the Record; the Statement on Oath of PW4 is at Pages 36-37 of the Record.
1.9. The Tribunal after taking arguments from both sides held that the Statements even though they conformed substantially, failed to strictly comply with the Format prescribed in the 1st Schedule to the Oaths Act and the form thereof and thus sustained the objection and ordered that the Statements be marked rejected.
1.10. We submit that the apposite questions at this point will be: What is a ‘Statutory Declaration’ as contemplated by the legislature of Section 13 of the Oaths Act? Is a Witness Statement or Written Deposition on Oath as contemplated by Paragraphs 4 (5) (b) & 41 (3) of the First Schedule to the Electoral Act the same as ‘Statutory Declaration’ envisaged by the Oaths Act? We shall answer the question in the negative.
1.11. A Statutory Declaration in the form prescribed by the provisions of Section 13 of the Oaths Act and the Schedule thereto is meant for age declaration, marriage and asset declaration. It follows that Statutory Declaration form in the Oaths Act are not meant for Witnesses Statements or Depositions contemplated by Paragraphs 4 (5) (b) and 41 (1) of the First Schedule to the Electoral Act. In IBRAHIM V. INEC (2007)3 EPR 50 @ 66 it was held that Section 13 of the Oaths Act, 2004, provides for four various Oaths or Declarations that may be subscribed by various persons depending on the nature of their duty. The provision must be contained in an affidavit. It provides for classes of oath that may be lawfully administered by any Commissioner of Oaths, Notary Public or any other person authorized by the Oaths Act to administer Oaths, for example, the oath to be subscribed to by a deponent to an affidavit as in the instant case is titled Oath for Affidavits at page 12250 of the Oaths Act Cap 333. The clear intention of the legislature under the Oath titled ‘Statutory Declaration’ is to afford persons who intend to make declarations such as marriage, age or assets to subscribe to that particular declaration in the form prescribed. It is not the intention of the legislature that the wording of the declaration be incorporated in an affidavit or a statement on oath of a deponent testifying before a Court of law or Tribunal to render it valid.
1.12. The Tribunal relied on the authority of Obumneke v. Sylvester (2010) ALL FWLR (PT. 506) 1945 @ 1961 to hold that failure to use the exact words or format prescribed by the legislature of the 1st Schedule to the Oaths Act in concluding the Statements on Oath of PW1, PW2, PW3 and PW4 is fatal and rendered the Statements inadmissible.
1.13. In the Obumneke case, an objection was taken to the competency of a witness statement on oath made by the Appellant on the ground that it did not strictly comply with the form prescribed by Section 13 of the Oaths Act. The objection was sustained by the Tribunal. On appeal, the Court of Appeal sustained the objection on the ground that the Statement on Oath of witnesses of the Appellant did not comply with the provisions of the Oaths because the Statements did not use the exact words used by the legislature of Section 13 of the Oaths Act especially the format for Statutory Declarations prescribed in the 1st Schedule to the Oaths Act.
1.14. It is submitted that the decision by the Court of Appeal in Obumneke’s case was per curiam because the attention of the Court was never averted to the fact that the Format prescribed in the 1st Schedule to the Oaths Act which the Court relied on to arrive at its decision was not the Form in the Oath Act meant for evidence on Oath which a witness’ statement actually is. The Format the Court relied on to arrive at its decision was the Format meant for Statutory Declaration which is not applicable and relevant to Oaths meant for Written Depositions or Witness Statement on Oath contemplated by Paragraph 4 (5) (b) and 41 (1) of the First Schedule to the Electoral Act (supra).
1.15. In the Obumneke’s case the lower Tribunal struck out the Statements of the Appellant for being incompetent. On appeal the Court of Appeal held that the statement was invalid because it did not use the format prescribed by the lawmaker of the First Schedule to the Oaths Act for Statutory Declaration.
1.16. It is submitted therefore that the authority of Obumneke is not relevant and applicable to the facts and circumstances of this case and is therefore distinguishable.
1.17. The lower Tribunal was absolutely wrong and fell into error to have relied solely on the case of Obumneke to reject all the Statements on Oath of the Appellant and his witnesses.
1.18. The Tribunal should have taken a liberal disposition rather than a strict and technical one towards the construction and interpretation of the provisions of Section 13 of the Oaths Act in view of the fact that Election Petitions are sui generis and public policy demands that the law should be interpreted liberally in order for substantial justice to be done to the parties.
1.19. The Obumneke’s case is distinguishable for the following reasons thus:
(a) The form prescribed in the 1st Schedule to the Oaths Act on which the case was decided was the form for Statutory Declarations not Written Statements on Oath of testifying witnesses to an election Petition;
(b) The Court was not invited to decide or make a pronouncement on what a ‘statutory declaration’ is;
(c) A witness statement contemplated by Paragraphs 4 Rule (5) (b) & 41 (3) of the First Schedule is NOT A STATUTORY DECLARATION!;
(d) The relevant form is the Form prescribed by the First Schedule to the Oaths Act for EVIDENCE OATH.
(e) A Statement on Oath contemplated by Paragraph 4 (5) (b) and 41 (3) of the First Schedule to the Electoral Act (supra) is not OATH FOR AFFIDAVITS as in Form A of the First Schedule to the Oaths Act.
(f) It is instructive to note that in Paragraph 4 (5) (b) of the First Schedule to the Electoral Act the Legislature uses the word “Written Statements on Oath of the witnesses” whereas in Paragraph 41 (1) and (3) of the First Schedule to the Electoral Act uses the words “written deposition”.
(g) It follows that a “written statement on oath” or “written deposition” envisaged by paragraphs 4 (5) (b) sand 41 (3) of the First Schedule to the Electoral Act is not an AFFIDAVIT or a STATUTORY DECLARATION as contemplated by the form prescribed by the 1st Schedule to the Oaths Act, but an EVIDENCE OATH which in the ordinary course of proceedings, had the procedural/innovations of the Practice Directions for Election Petitions not have been in place, would have enabled a witness give his evidence before a Court/Tribunal.
(h) A Statement on Oath must be in a narrative form whereas an affidavit must be divided into paragraphs and numbered consecutively. The Court of Appeal made a distinction between a ‘witness statement on oath’ and an ‘affidavit’ in the case of CHUKWUMA V. NWOYE (2011) ALL FWLR (PT. 553) 1942 @ 1 961-1962, Paras. A-H thus:
“A statement on oath is one of the procedural/innovations introduced by the Practice directions for election petition. And unlike an affidavit, must be numbered consecutively, a statement on oath could be in a narrative form and need not be divided into consecutive paragraphs”.
1.20. The Oxford Law Dictionary Page 478 defines a “statutory declaration” thus:
“A declaration made in a prescribed form before a justice of the peace, notary public, or other person authorized to administer an oath. Statutory declarations are used in extrajudicial proceedings and not in court, but have similar effects to declarations made on oath”.
1.21. It is submitted that a Witness Statement contemplated by Paragraphs 4 (5) (b) 41 (3) of the First Schedule to the Electoral Act does not become evidence but are mere pleadings until the witness enters the witness box, takes another oath, and adopts it.
1.22. The Court of Appeal per Ariwoola, JCA (as he then was) in the case of CHUKWUMA V. NWOYE (supra) Pages 1967-1968, Paras. H-E succinctly illuminated the position of the law thus:
“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 written 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 substantially by oath or swear to the truth of the statement”.
1.23. The lower Tribunal in this case, refused to follow the Court of Appeal decision in the case of DR FEMI ADEKANYE V. COMPTROLLER OF PRISON (2000) ALL FWLR (PT. 8) 1258 @ 1262 @ 1263 which is on the point that an affidavit that fails to conform strictly with the provisions of Section 13 of the Oaths Act, 1990, is competent, in so far as it substantially conforms to the provisions of Section 13 of the Oaths Act, on the ground that the case was not an ELECTION PETITION.
1.24. It is submitted that the lower Tribunal was wrong to have refused to consider the authority of ADEKANYE’S case (supra) on the ground it was not an election Petition.
1.25. The Tribunal was bound to consider the authority because it dealt with the Court of Appeal construction and interpretation of Section 13 of the Oaths Act vis a vis an affidavit that failed to conform with the form prescribed by the Oaths Act.
1.26. The Tribunal should have leaned toward the side of substantial justice rather than crass legalism (aimed at shutting out a Party from giving evidence in his case) by relying and applying the authority of ADEKANYE V. COMPTROLLER OF PRISONS (2000) 12 FWLR (PT.682) 568 commended to it by Counsel for the Appellant, which accords with the current trend of legal thought that the Courts should lean more on deciding the right of parties on the merit of cases especially since the matter is an election Petition.
1.27. The apposite question one would ask is: had the procedural/innovations of the Practice Direction to Election Petitions not have been in place, which we submit is meant to expedite the hearing of cases and not to shut out a party from proving his case, would the Appellant and his witnesses not have given their testimonies in proof of the Appellant’s case? The answer is in the affirmative!
1.28. The Court of Appeal in ADEKANYE’S CASE (supra) in stating its reasons for deciding that an affidavit that does substantially conform to the provisions of Section 13 of the Oaths Act is competent and should be allowed reviewed several decisions of the Court of Appeal such as LONESTRAR DRILLING NIGERIA LIMITED VS TRIVENI ENGINEERING AND INDUSTRIES LIMITED AND 9 OTHERS (1999) 1 NWLR (PT. 588) 622 and NEW NIGERIAN BANK PLC VS IBW LIMITED (1998) 6 NWLR (PT.554) 449 @ 450. The Court (per Sanusi, JCA) at Pages 12-69 Paragraphs A-G illuminated the position of the Law thus:
“...on the other hand, Mr. Ngige on behalf of the Respondents, cited and relied on another decision of this Court from the same Benin Division where this Court gave conflicting decision regarding the validity of an affidavit which does not embody the format of declaration contained in the First Schedule to the Oaths Act. The decision is that of Lonestrar Drilling Nigeria Limited vs. Treveni Engineering and Industries and 9 Others (1999) 1 NWLR (Pt. 588) 622 this Court (Coram Achike JCA as he then was) Akintan and Mahmud Mohammed JJCA held that failure of deponent to comply with the format prescribed in the Oaths Act could render an affidavit incompetent but where there is substantial compliance with the provisions of the Oaths Act such an affidavit will not be declared incompetent merely because the exact wordings prescribed by the Act were not used. This Court went further to conclude that where a deponent uses in his motion “I depose to this affidavit in good faith” instead of using the exact words prescribed in the Oaths Act is valid and competent. Failure to use the format in the 1st Schedule is therefore held not to render the affidavit as invalid. Note that in this latter case Achike (then JCA and now JSC) gave dissenting ruling which was however not included in the report. Apparently, the decision reached by this court in these decisions are conflicting as regard the validity of the two sets of affidavits. It is trite law that the Court of Appeal is bound by its previous decisions. It can be at liberty to decide which of its previous conflicting decisions to follow. The Court of Appeal is always at liberty to refuse to follow a decision of its own which though not expressly over ruled by the Supreme Court, the Court of Appeal is of the opinion that it will not stand with the decision of the Supreme Court and or the decision is arrived at per curiam. See the cases of N.O Akinade vs Non-Academic Staff Union of Educational and Associated Institution and Others (1999) 524, Peter vs David (1999) 4 NWLR (Pt. 603) 436. It should be noted that since in Lonestrar Drilling Nigeria Limited’s case the court was referred to its earlier decision from that decision in which two of the learned judges took part, that is to say, the case of New Nigeria Bank Plc was reached per curiam. In any case even if it was not reached per curiam, I am not ready to follow it. I regard the ratio in Lonestrar Drilling Nigeria Limited as more convincing and I chose to follow it. I therefore decide to act on it in this case. I refuse to accept the submission of learned counsel for the applicants that it is invalid and not in existence. It is valid and competent and I strongly hold so”.
1.7 The refusal of the lower Tribunal to allow the Appellant’s witnesses adopt their statements on oath even after they had entered the witness box and taken an evidence oath (on a purely technical ground) upon the objection of the Respondents which was calculated to ambush the Appellant by denying him an opportunity to ventilate his case before the Tribunal, was nothing short of cloistered justice which should not be encourage in a sensitive matter such as an election Petition that should be decided purely on merit.
1.8 The lower Tribunal was wrong to have rejected the statements on oath of PW1, PW2, PW3 and PW4, even after the witnesses had given an indication that they wanted their statements to be adopted as their evidence in chief. After the witnesses had taken their EVIDENCE OATH and swearing to tell the truth, the whole truth and nothing but the truth, they had cured whatever defect was apparent on their statements.
1.9 It is important to note at this point that even before PW1, PW2, PW3 and PW4 attempted to adopt their written depositions on oath as their evidence before the lower Tribunal, they were administered with the following oath before the Tribunal, which we submit (for the purpose of the argument) went thus:
“I, (PW1’s name) do hereby swear/solemnly declare (either by the Holy Bible or by Affirmation as the case may be), that the evidence I shall give in this Petition, before this Tribunal, shall be the truth, the whole truth and nothing but the truth, so help me God”
1.10 We submit, what can be farther from compliance with Section 13 of the Oaths Act, by these witnesses (PW1; PW2; PW3 and PW4) as done before the Tribunal on the day these witnesses sought to adopt their Written Depositions after being led to take an oath as shown above? We submit further, which Commissioner for Oath can be greater than the Court/Tribunal before which these witnesses (PW1; PW2; PW3 and PW4) were led to take their oaths?
1.11 Undoubtedly the Statements on Oaths of PW1; PW2; PW3 and PW4 substantially conformed to the provisions of the Section 13 of the Oaths Act (supra). The Statements were valid and competent.
1.12 It is clear that if the Tribunal had taken the pains to closely and methodically scrutinize and analyze the facts and circumstances of the Obumneke’s case, it would have appreciated that the facts of the Obumneke’s case are diametrically different from the facts of this Case.
1.13 In UDEAGHA V. OMEGARA (2010) 11 NWLR (PT. 1204) 168 @ 194, the issue that the Court of Appeal was confronted and invited to resolve was: Whether the Tribunal was right in rejecting the witness statements? The facts of the case was that the Election Tribunal had rejected the witness statement or depositions of all witness statements of the petitioner on the ground that they were offensive to Order 10 Rule 3 of the Federal High Court Rules and Section 84 of the Evidence Act on the ground that they were not sworn before a person duly authorized.
1.14 The Court of Appeal (per Ogunwumiju, JCA) in the OMEGARA’s case (supra) at Page 195, Paragraph B-H of the Report, illuminated thus:
“The Practice Directions made pursuant to the Electoral Act 2006 were made to facilitate speedy trials of election petition. By paragraphs 4 (1) and (3) of the Practice Directions No. 1 of 2007 parties were to front load witness statement on oath and those witnesses were to subject themselves to cross-examination during the trial. Usually, witness adopts the statement already filed as his own when being led during examination in chief. This is to cut short the time spent leading a witness. Let us assume that the statements of witnesses in this case was not sworn to before a person duly authorized to take oaths in contravention of S. 90 of the Evidence, it is my humble view that their subsequent adoption of these written depositions after they had been sworn in open court to give evidence, regularizes the depositions. Let us not forget that statements of witnesses which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross examination. It is such affidavit evidence which does not meet the requirements of S. 90 of the Evidence Act that are intrinsically inadmissible. Where a witness is in court to say he/she is adopting an irregular written deposition, the implication is that the witness is reasserting on oath what is contained in the irregular deposition and as I opined earlier, such deposition on oath makes all the evidence in the written deposition admissible...” (underlining and emphasis mine)
1.15 The case of OMEGARA (SUPRA) was commended to the lower Tribunal but the lower Tribunal ignored it on the ground the OMEGARA case was not decided on Section 13 of the Oaths Act. See Page 634 of the Record.
1.16 We submit if the Tribunal was not too mechanistic in its dispensation of justice it would have relied on the OMEGARA’s case to hold that whatever defect was apparent in the Statements of PW1, PW2, PW3 and PW4 had been cured by the witnesses taking another oath upon their entry into the wetness box.
1.17 It is instructive that in the case under reference the witnesses had entered the witness box, swore to Oath and expresses intention to adopt their statements before the objection and rejection of these statements by the lower Tribunal. The indication by these witnesses after being sworn is a reassertion of what is contained in the irregular deposition, (assuming without conceding) and makes all the evidence contained in the deposition as admissible by the authority of OMEGARA’s case (supra). See page 632 of the record, where PW2 was recorded thus “Sworn on the Holy Bible and states in English Language as follows:-I am a business man and Politician. I deposed to a Statement on oath on the 17th May, 2011 and I want to adopt same as my evidence in this petition”.
1.18 Undoubtedly these statements were properly and regularly sworn before the Secretary of the Tribunal as Commissioner for Oaths which means there was presumption of regularity. See UDEAGHA V. OMEGARA (supra) 195-196, where the Court held thus: “In any event, I agree with the argument of learned appellants Counsel that the questions under cross examination were targeted at where the witnesses made their depositions and not before whom they were sworn. The cross examination did not elicit the information that the witnesses never swore before the commissioner for oaths. The compelling factor in this matter is that all the statements showed that they were signed before the Secretary as commissioner for Oaths...The Statements of PW1, PW3, PW4 and PW5 are admissible and the evidence also...”
1.19 We agree that Tribunal was bound to adhere to the age long tradition of applying judicial precedents laid down by a Court higher than it in the hierarchy of our judicial system, which is the fountain of our legal system for the purpose of certainty and consistency.
1.20 However it is submitted that the doctrine of stares decisis applies only if the circumstances and issues decided in the previous case are the same or similar to those in the later case wherein it is commended to apply the doctrine. The Obumneke’s case (supra) was decided the way it was because the Appellant failed to draw the attention of the Court to the fact that a STATEMENT ON OATH is not a STATUTORY DECLARATION and the format prescribed for the EVIDENCE OATH was not the format the Court hinged its decision on. See Iwuno v. Dieli (1999) 5 NWLR (Pt. 149) 126 at 134-135.
1.21 The lower Tribunal was also wrong and in error to have taken the objection at that stage it did in view of the provisions of Paragraph 12 (5) of the First Schedule to the Electoral Act which provides that a respondent who has an objection to the hearing of the Petition shall file his reply and state the objection therein, and the objection shall be heard along side with the substantive Petition.
1.22 The objection was an ambush and a surprise contrived to scuttles the case but masked as an objection on a point of law by the Respondents who were obviously desperate to castrate the case of the Appellant after the Court of Appeal had allowed a previous appeal filed by the Appellant against the order striking out the Petition.
1.23 The Tribunal denied the Appellant fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria by rejecting the statements on oaths of the Appellant and his witnesses.
1.24 The denial of the Appellant the opportunity of adopting their statements after they had entered the witness box and taken an oath to speak the truth on a purely technical ground was undeniably the height of injustice that led to a serious miscarriage of justice.
1.25 In the light of the above, we respectfully invite the Court to set aside the rulings of the Tribunal rejecting the adoption of the statements of the witnesses of the Appellant and substituting these rulings with an order that these statements be adopted as the evidence in chief of the PW1, PW2, PW3 and PW4.
ARGUMENT OF ISSUE NO. 2
2.1 During the Pre-trial Session, the Appellant with the consent of the Respondents, tendered the following documentary evidence thus:
i. Voters Registers for Idomi Ward - Exhibits A - A4
ii. Voters Register for Ntan Ward - Exhibits B - B4
iii. Voters Register for Afrekpe/Epenti Ward - Exhibits C - C11
iv. Form EC8 A (i) for Afrekpe/Epenti - Exhibits D - D11
v. Form EC8 A (i) for Ntan (Seven Polling Units) - Exhibits E – ES
vi. Form EC8 A (i) for Idomi (Nine Polling Units) - Exhibits F - F9
vii. Form EC8 A (i) for Afrekpe/Epenti (Eleven Polling Units) - Exhibits D-D11.
See Pages 624-625 of the record.
2.2 The documents were documents used by the 2nd Respondent to conduct the disputed election. The documents were copiously pleaded by both the Appellant and the Respondents. The documents were admitted by consent of the Parties.
2.3 The documents were crucial and relevant to the determination of the question whether the election was conducted in accordance with the provisions of the Electoral Act (supra).
2.4 However the Tribunal in its Judgment bluntly refused to evaluate the documents on the ground that since it had refused to allow the witnesses called by the Appellant to adopt their statements there was no oral evidence to use to assess the documentary evidence tendered by the Appellant.
2.5 The Appellant in his Final Written Address had done an analysis of the documentary evidence but the Tribunal totally ignored it and refused to consider and pronounce on the Analysis.
2.6 The failure of the Tribunal to evaluate documents tendered by the Appellant occasioned a miscarriage of justice on the Appellant.
2.7 The failure of the Tribunal to evaluate the documents amounted to denial of fair hearing on the Appellant.
2.8 In this case the Appellant had established his case by tendering documentary evidence to prove the election in 3 (Three) Wards (Ntan, Afrekpe/Epenti & Idomi) where the 1st Respondent was allotted 4273 votes was not conducted in compliance with the Electoral Acts. Exhibit E - ES is the Result Form EC8A (i) of 7 (Seven) Polling Units in Ntan Ward of Yakurr One State Constituency). Form EC8A (i) is the foundation or bedrock for the collation of results in subsequent Forms and therefore cannot be ignored by any election tribunal. See KRESS NJIOKWUEMENI v. VICTOR OCHEI (2004) 15 NWLR (PT. 895) 196 @ 235. See NWOBODO v. ONOH (1984) 1 SCNLR 1.
2.9 It is submitted that there are two types of evidence, oral and documentary. See Section 105 of the Evidence Act, 2011. Once a document is received in evidence, and is so marked, it becomes evidence before the Court or Tribunal and the Court or Tribunal has the duty to evaluate the probative value of every piece of evidence tendered before it. See AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 696.
2.10 The position of the law is that documentary evidence is more reliable than oral evidence. See AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47; See AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (supra) 696.
2.11 The Tribunal was therefore totally wrong to have refused to evaluate the documentary evidence tendered by the Appellant on the ground that there was no oral evidence called by the Appellant and that they were dumped on the Tribunal.
2.12 The documents were never dumped on the Tribunal but were admitted after consent of the Parties. At the point of their tendering from the Bar, Counsel has explained the essence of the documents. The documents were identified and known to the Tribunal. It is instructive that the procedure of front loading which has been introduced into election petition litigation has obviated the essence of a witness explaining the purport of a document tendered through him. See Paragraph 41 (3) of the First Schedule to the Electoral Act (supra).
2.13 The Tribunal had wrongly and in grave error disallowed witnesses called by the Appellant from adopting their written depositions on the ground on that they were not in the format prescribed by the First Schedule to the Oaths Act (supra).
2.14 We therefore invite the Court to respectfully admit the Statements on oath of the witnesses called by the Appellant and use them as the hangar to evaluate Exhibits A-A4; Exhibits B-B4; Exhibits C-C11; Exhibits C-C11 respectively. Exhibits A - A4 are the Voters Registers for Polling Units in Idomi Ward; Exhibits B - B4 are the Voters Registers for Polling Units in Ntan Ward and Exhibits C - C11 are the Voters Register for Polling Units in Afrekpe/Epenti Ward. See Pages 624-625 of the Record. These exhibits were tendered from the Bar by Counsel to the Appellants with consent of the Respondents in accordance with the provision of paragraph 41 (2) of the First Schedule to the Electoral Act which empowers the Tribunal to allow admission of documents by consent of parties during the Pre-hearing Session. See Page 626 of the Record.
2.15 The exhibits were Certified True Copies of Voters Registers for the Three Wards of the Constituency where the Appellant was challenging the result of the election and Forms EC8A (i) which was used to collate results by the 2nd Respondents during election.
2.16 It is therefore submitted that documents that were admitted upon agreement by Parties are in a different class from documents that are admitted not based on the consent of parties but by the discretion of the Court after giving the adverse party the right to take objection to their admissibility.
2.17 It is clear that Exhibits D - D11 were Forms EC8A (i) for Afrekpe/Epenti Ward; Exhibits E - E5 were Forms EC8A (i) for Ntan Ward and Exhibits F - F9 were Forms EC8A (i) for Idomi Ward. These were election result sheets that contained scores of the candidates that contested the election in the Constituency made up of Eight (8) Wards. There was no dispute concerning five out of the 8 Wards. The result was only challenged in 3 (Three) Wards namely Ntan, Idomi and Afrekpe/Epenti. See Paragraph 84 (1) of the Petition at Page 15 of the Record. See also paragraphs 29-76 of the Petition found at Pages 4-14 of the Records.
2.18 The Tribunal deliberately decided to close its eyes to these result sheets, i.e. Exhibits D - D11 for Afrekpe/Epenti Ward; Exhibits E - E5) for Ntan Ward and Exhibits F - F9 which on the face of it were a contravention of Section 63 (1) 7 (2) of the Electoral Act, because they were not stamped and or signed especially in Polling Units in Ntan and Idomi Wards of the Constituency.
2.19 It is submitted that where the tribunal is in possession of the results it is duty bound to collate the results. See NIGIGE V. OBI (2006) 14 NWLR (PT. 999) 161. See INEC V. OSHIOMOLE (2008) 3 LRCN 649 @ 660-661.
2.20 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant and proceed under Section 16 of the Court of Appeal Act, assume the jurisdiction of the trial Tribunal, and evaluate the documentary evidence tendered by the Appellant.
ARGUMENT OF ISSUE NO. 3
3.1 The Appellant presented his Petition on the 17th May, 2011. See Page 1-14 of the record.
3.2 The 2nd & 3rd Respondents were served on the 26th May, 2011.
3.3 The 2nd & 3rd Respondents entered a Memorandum of Appearance on the 2nd June, 2011. See Page 42 of the Record.
3.4 The 2nd & 3rd Respondents failed to file their Reply to the Petition within 14 days of the service on them of the Petition as provided by Paragraph 12 (1) of the First Schedule to the Electoral Act (supra).
3.5 The 2nd & 3rd Respondents on the 1st November, 2011, more than 150 days after the Petition was filed moved a Motion for extension of time to file their Reply. See page 623 of the record.
3.6 The Appellant did not oppose the Motion for extension of time due to constraint of time because as at the 31st October, 2011, when the Motion was moved the Tribunal had only 12 more days to the expiration of time for the hearing and determination of the Petition.
3.7 The Tribunal granted the Motion and extended the time for the 2nd & 3rd Respondents to file their Reply on the 31st October, 2011, more than 145 days after the Petition was filed. Although the Appellant did not oppose the Motion for extension of time because he was desperate to beat the deadline of 12th November, 2011, when the 180 days would lapse since the Petition was filed on the 17th May, 2011, however, the Appellant raised the issue in his Final Written Address but the Tribunal in its Judgment held that its previous order extending time was still subsisting since it is yet to be set aside by the Court of Appeal. See Page 10 of the Judgment at Page 607 of the record.
3.8 It is submitted that the Tribunal did not have the jurisdiction to extend time for the 2nd & 3rd Respondents despite the provisions of Paragraph 45 (1) of the Electoral Act (supra) and the fact that that the Appellant did not oppose the Motion for extension of time, is immaterial. It is well settled that Parties cannot by consent or acquiescence confer jurisdiction on the Court where none exists.
3.9 It is clear that Paragraph 45 (1) of the First Schedule which vests on the Tribunal the discretion to extend time is no longer tenable in view of the provisions of Section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (Second Alteration Act) 2011 which provides that and election petition shall be filed within 21 days after the date of the Declaration of Results.
3.10 Further by Section 285 (6) of the Constitution of the Federal Republic of Nigeria (Second Alteration Act) (supra) an election Tribunal shall deliver its judgment in writing 180 days from the date of the filing of the Petition.
3.11 Section 148 of the Electoral Act (supra) provides that an election petition should be accorded accelerated hearing.
3.12 It is therefore submitted that a Respondent is not entitled to extension of time to file his Reply if he fails to file his Reply within 14 days of the service on him of the Petition despite the provisions of Paragraph 45 of the First Schedule to the Electoral Act in view of the combined provisions of Section 285 (6) & (7) of the Constitution of the Federal Republic of Nigeria (supra) (Second Alteration Act) that have limited the period for the hearing and determination of an election petition to 180 days even though the application for extension of time was not opposed.
3.13 In PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS in Appeal No. CA/C/NAEA/144/2011 delivered on the 21st July, 2011 (unreported) this Court (Per Akaahs, JCA) at Pages 7 - 9 held thus:
“There is no doubt that time is of essence in the handling of election petitions. This probably informed the decision by the National Assembly in deleting Section 134 of the Electoral Act 2010 and amending Section 29 of the First Alteration Act and Section 285 of the Constitution of the Federal Republic of Nigeria 1999. The erstwhile Section 134 of the Electoral Act, 2010 which was deleted by Section 32 of the Electoral (Amendment) Act No. 10 of 2010 stipulated as follows:
‘134-(1) An election petition shall be filed within 21 days after the date of the declaration of results of the elections. 2. An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. 3. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days of the delivery of judgment of the tribunal. 4. The Court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.’
By deleting this provision and amending Section 285 of the Constitution, whatever lingering doubts anybody had about the importance the National Assembly placed on the prompt disposal of election petitions, was removed. Even the period for the hearing and disposal of appeals was reduced. Section 9 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act No. 2 of 2010 substituted Sections 29 of the First Alteration Act and Section 285 of the Constitution and provides in Subsections (5)-(8) as follows:
‘(5) An election petition shall be filed within 21 days after the date of the declaration of result of the elections; (6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition; (7) An appeal from a decision of an election tribunal or Court of Appeal in an election mater shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Curt of Appeal; (8) The court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date’.
Since Section 134 of the Electoral Act has been deleted and a specific provision is made under Section 285 of the Constitution (as amended) the enlargement of time envisaged under paragraph 45 of the 1st Schedule to the Electoral Act is no longer feasible. The effect of the failure to file the Respondent’s Reply within 14 days on him of the Petition as stipulated under Paragraph 12 (1) of the 1st Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked”.
3.14 See also the reinforcement and re-echoing of the decision of this Court in PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS (supra) by this Court in the case of PEOPLES DEMOCRATIC PARTY VS MR WILLIAM BALLANTYE in Appeal No. CA/C/NAEA/134/2011 delivered on the 20th July, 2011.
3.15 How can the Appellant’s time (as Petitioner) for the filing of the Petition be curtailed to 21 days but the Respondent be allowed unlimited time to file his Reply and yet the 180 days given to the Petitioner to prove his case will keep running? What kind of justice would that be? Is there even-handedness that runs through the entire gamut of constitutional jurisprudence?
3.16 The Tribunal was bound to consider the issue of whether or not the 2nd & 3rd Respondents’ Reply was competent raised by the Appellant in his Final Written Address even if the Tribunal had granted an extension of time to them to file their Reply since it bothers on the jurisdiction of the Tribunal to so grant the exercise its discretion under paragraph 45 (1) of the First Schedule to the Electoral Act.
3.17 It however does not help the case of the 2nd & 3rd Respondents that the Appellant did not oppose the Motion for extension of time. In PEOPLE DEMOCRATIC PARTY VS. WILLIAM BALLANTYNE (supra) at Page 19, where Isaiah Olufemi Akeju, JCA held thus:
“It is also noteworthy, that the fact that none of the parties to the petition opposed the grant of the application for extension of time to file appellant’s reply to the petition does not add any or much value to the issue of whether the election tribunal will either refuse or grant the said application”.
3.18 It is instructive that the Appellant had commended to the Tribunal the decision of this Court in PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS (supra) which is an authority on the point that the power of Election Tribunal to grant extension of time under Paragraph 45 (1) of the First Schedule to the Electoral Act amounts to breach of the provisions of Section 285 (6) of the Constitution of the Federal Republic of Nigeria (supra).
3.19 It is important to note that in the affidavit in support of the Motion for extension of time by the 2nd & 3rd Respondents no modicum of reason or ground was given to justify why the Tribunal should indulge the Respondents and grant extension of time to file their Reply. See Page 316-317 of the record.
3.20 In HONOURABLE SAVIOUR OKON NYONG VS HON JOSEPH EFFIONG ETENE & TWO OTHERS in Appeal No. CA/NAEA/160/2011 delivered on the 9th August, 2011, this Court (Per Akeju, JCA) at Pages 8-9 of the Judgment held thus:
”the provision of Section 38 of the Electoral Amendment Act, 2010, shows that the power of the Tribunal to extend time under Paragraph 45 of First Schedule is not absolute; it is subject to Paragraph 16 thereof which expressly prevents or forbids the grant of extension of time to the Petitioner to file a Petitioner’s reply and allows any order of enlargement of time only as the justice of the case may require. It therefore becomes a task for a respondent to have time extended for him where the petitioner who originated the action cannot have time extended to him to take steps. However, by Section 32 of the Electoral (Amendment Act), 2010, Section 134 of the Electoral Act, 2010, was deleted but subsequently incorporated into the Constitution of the Federal Republic of Nigeria, 1999, through Section 9 of Constitution of the Federal Republic of Nigeria (Second Amendment Act) which substituted a new section for Section 285 of the Constitution by adding the following:
‘5. An election petition shall be filed within 21 days after the date of declaration of result of the elections. 6. An election Tribunal shall deliver its Judgment in writing within 180 days from the date of filing of the petition; 7. An appeal from a decision of an election Tribunal to the Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the Tribunal or Court of Appeal’.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the Supreme law of Nigeria. The Constitution is the fountain from which all other laws and enactments must draw their validity and to which they must succumb. No act or Law can be inconsistent with the provision of the Constitution and remain valid as such Act or Law or such part thereof will be void to the full extent of their inconsistency. See A.G. Abia State vs A.G. Federation (2007) 1 CCLR 104; A.G. Lagos State vs. A.G of the Federation (2003) 12 NWLR (Pt. 833) 1; INEC & Anor. Vs. Musa & Ors. (2003) 8 All NLR 322. The removal of the above provision from the Electoral Act and insertion of same into the Constitution, in my view is to place emphasis on the period of filing of, and adjudicating on an election petition matter rather not only by the Tribunal but by the appellate courts. The failure of a Tribunal or court to conclude an election petition matter within the stipulated time now amounts to a breach of the Constitution which cannot be done with impunity”.
3.21 The delay tactics adroitness adopted by the Respondents in this matter calculated to stall the speedy hearing of the Petition calculated to cause the petition to be extinguished by the effusion of time took it toll on the Appellant when the Appellant was confronted with the reality of proving his case within one day because the Tribunal was in hurry to ensure that the 180 days which his Petition was filed and to be determined did not run out on the Appellant. See Page 626 of the record.
3.22 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant against the 2nd & 3rd Respondents and to hold that the lower Tribunal did not have the power to grant the 2nd & 3rd Respondents extension of time after more than 150 days after the Petition was filed and more than 140 days after the 2nd & 3rd Respondents were served with the Petition. The Court is respectfully invited to strike out the Reply and hold that the 2nd & 3rd Respondents did not file a Reply to the Petition.
ARGUMENT OF ISSUE NO. 4
4.1 It is submitted that the Tribunal was wrong to have held that the 1st Respondent’s Reply was filed within time because it was filed within 21 days after service of the Petition. See Page 7 of the Judgment at Page 604 of the record.
4.2 The Tribunal justified its decision on the ground that since the 1st Respondent did not file a Memorandum of Appearance by the provisions of Paragraph 10 (2) of the First Schedule to the Electoral Act (supra) he was right to file his Reply within 21 days.
4.3 The Tribunal lost sight of the fact that by the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act (supra) a Respondent is given 14 days from service of the Petition to file his Reply.
4.4 A Respondent must file his Reply to the Petition 14 days after service of the Petition. A Respondent cannot enjoy the luxury of waiting for 21 days after service simply because he failed to enter appearance. Paragraph 10 (2) of the First Schedule to the Electoral Act is no longer relevant. It is inapplicable, taking into account that speedy disposition of Election Petitions is the fulcrum upon which the Constitutional amendment that has seen the enactment of Section 285 (7) of the Constitution pegging the period for the hearing and determination to 180 days from the day of the filing of a Petition.
4.5 A Respondent cannot take umbrage under Paragraph 10 (2) of the First Schedule because a specific provision in a statute cannot take precedence over a general provision of such a statute. The general provision is Paragraph 12 (1) of the First Schedule to the Electoral Act. The heading of Paragraph 10 of the First Schedule is titled “filing of Memorandum” whereas the heading of Paragraph 12 of the First Schedule is titled “filing of Reply”.
4.6 It is clear that there is some ambiguity between Paragraph 10 (2) of the First Schedule to the Electoral Act that provides that a Respondent who has to file his Memorandum of Appearance is at liberty to file his Reply to the election Petition not later than 21 days after service of the Petition and Paragraph 12 (1) of the First Schedule to the Electoral Act that provides that a Respondent has within 14 days from the service of the Petition to file his Reply.
4.7 It is submitted that the heading used in a statute are treated in the same way as the preamble for the purpose of assisting resolve the ambiguity in such a statute. It is therefore submitted that the headings of Paragraph 10 and Paragraph 12 of the First Schedule to the Electoral Act can be called or looked into to assist in resolving the ambiguity between Paragraph 10 (2) and Paragraphs 12 (1) of the First Schedule thereto.
4.8 It is therefore clear that the intention of legislature of Paragraph 12 (1) of the First Schedule to the Electoral Act is that a Reply to an election Petition must be filed within 14 days of the receipt of the Petition by a Respondent.
4.9 In the case of PEOPLES DEMOCRATIC PARTY VS. EYO NSA EKPO (supra) (unreported) Page 9, paragraph 2 of the Judgment, the Court of Appeal held that the effect of the failure of a Respondent to file his Reply within 14 days of service on him of the Petition as stipulated under Paragraph 12 (1) of the First Schedule to the Electoral Act is tantamount to a breach of Section 285 of the Constitution and cannot be waived or overlooked. The Court further held that the need to do justice to a Respondent must take into consideration the right of the Petitioner to have his Petition determined within the stipulated time prescribed in the Constitution.
4.10 It is further submitted that under the new constitutional regime election Tribunals are circumscribed in their discharge of their onerous duties. The election Tribunal has 180 days from the date of filing of the Petition to deliver judgment in writing. It is instructive that a Petitioner does not enjoy the luxury of extension of time or any dilatoriness in not taking a procedural step within the time given to him either with regard to filing of the Petition in the first instance or his Reply to the Respondent’s Reply in the second instance. It is clear that all parties appearing before the election Tribunal cannot afford the added benefit of doing things at their own pace and for no just cause when others are racing ahead in order to set goals and deadlines. See PEOPLES DEMOCRATIC PARTY V. WILLIAM BALLANTYNE (supra) (unreported) Page 18, paragraph 2.
4.11 It is submitted that the specific provision is Paragraph 10 (2) of the First Schedule to the Electoral Act. The provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act has clearly laid down the number of days a Respondent has to file his Reply and such a Respondent who fails to enter appearance cannot take umbrage under Paragraph 10 (2) of the First Schedule and claim to be justified to file his Reply 21 days after service in view of the fact that Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) that stipulates that a Petition must be heard and judgment delivered within 180 days after the filing of the Petition, prevents any form of delay on the part of any Party.
4.12 It is clear that the provisions of Paragraph 10 (1) of the First Schedule are inconsistent to the provisions of Section 285 (7) of the Constitution and must therefore bow down to the Constitution since the Constitution is the basic law and all other Laws, Statutes and Regulations that are inferior to the Constitution must be consistent with the provisions of the Constitution. It is the Constitution that imparts efficacy and validity to other laws and regulation down the rung of the pyramid of laws.
4.13 In HONOURABLE SAVIOUR OKON NYONG VS HON JOSEPH EFFIONG ETENE & TWO OTHERS in Appeal No. CA/NAEA/160/2011 delivered on the 9th August, 2011, this Court (Per Akeju, JCA) at Pages 9 of the Judgment held thus:
“... However, by Section 32 of the Electoral (Amendment Act), 2010, Section 134 of the Electoral Act, 2010, was deleted but subsequently incorporated into the Constitution of the Federal Republic of Nigeria, 1999, through Section 9 of Constitution of the Federal Republic of Nigeria (Second Amendment Act) which substituted a new section for Section 285 of the Constitution by adding the following:
‘5. An election petition shall be filed within 21 days after the date of declaration of result of the elections. 6. An election Tribunal shall deliver its Judgment in writing within 180 days from the date of filing of the petition; 7. An appeal from a decision of an election Tribunal to the Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the Tribunal or Court of Appeal’
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the Supreme law of Nigeria. The Constitution is the fountain from which all other laws and enactments must draw their validity and to which they must succumb. No act or Law can be inconsistent with the provision of the Constitution and remain valid as such Act or Law or such part thereof will be void to the full extent of their inconsistency. See A.G. Abia State vs A.G. Federation (2007) 1 CCLR 104; A.G. Lagos State vs. A.G of the Federation (2003) 12 NWLR (Pt. 833) 1; INEC & Anor. Vs. Musa & Ors. (2003) 8 All NLR 322. The removal of the above provision from the Electoral Act and insertion of same into the Constitution, in my view is to place emphasis on the period of filing of, and adjudicating on an election petition matter rather not only by the Tribunal but by the appellate courts. The failure of a Tribunal or court to conclude an election petition matter within the stipulated time now amounts to a breach of the Constitution which cannot be done with impunity”.
4.14 See also the judgment of this Court in PEOPLES DEMOCRATIC PARTY V. EYO NSA EKPO & THREE ORS in Appeal No. CA/C/NAEA/144/2011 delivered on the 21st July, 2011 (unreported) this Court (Per Akaahs, JCA) in Page 7-9, where it was held that Paragraph 45 (1) of the First Schedule to the Electoral Act which gives the power to an election Tribunal to extend time for a Respondent to file his Reply is inconsistent with the Section 285 (7) of the Constitution which has limited the time for the disposal of an election petition to 180 days after filing of the Petition.
4.15 In the light of the above, we urge the Court to resolve this issue in favour of the Appellant and strike out the Reply of the 1st Respondent which was filed out of the 14 days time allowed a Respondent to file his Reply to the Petition.
ARGUMENT OF ISSUE NO. 5
5.1 The 4th Respondent was served with the Petition on the 26th May, 2011.
5.2 However the 4th Respondent filed it Reply on the 15th June, 2011, more than 14 days after it was served with the election Petition.
5.3 The issue of the 4th Respondent filing its Reply out of time was raised and canvassed by the Appellant in his Issue No. 1 of his Final Written Address filed on 5th November, 2011. See Pages 541 - 572 of the record.
5.4 By the provisions of Paragraph 12 (1) of the First Schedule to the Electoral Act, the 4th Respondent has 14 days to file its Reply.
5.5 However, when the issue of the 4th Respondent was raised and canvassed by the Appellant, the Tribunal descended into the arena and held that the Appellant cannot raise the issue because the Court of Appeal relied on the Reply filed by the 4th Respondent to allow the appeal that the Appellant had filed against an earlier order of the Tribunal striking out the Petition. See Pages 481-487 of the record. See pages 488-493. See Page 493A of the record.
5.6 In its Rejoinder on Points of Law filed by the 4th Respondent, the 4th Respondent never invited the Tribunal to rely on the Judgment of the Court of Appeal to resolve the issue of the 4th Respondent filing its Reply out of time.
5.7 However in the Judgment the Tribunal abandoned its position as an independent and impartial adjudicator that is required to be detached from either parties, descended into the arena to fish out or wriggle the 4th Respondent out of the tight corner it found itself, and used the judgment as an escape route for the 4th Respondent.
5.8 The Tribunal in an open show of uneven-handedness, suo motu came into the arena and raised the issue of the Court of Appeal relying on the Reply of the 4th Respondent to allow the appeal the appellant had filed against an earlier order of the 1st Panel of the Tribunal (before it was sent back to the lower Tribunal for retrial) even though it was never canvassed by either party and the Tribunal did not invite address from the parties on that point, neither did it afford the Appellant the opportunity of being head on the point.
5.9 The Tribunal held thus:
“We are amazed that the counsel will ask this tribunal to discountenance the reply of the 4th respondent’s reply for non-compliance with the provision of Paragraph 12 (1) of the Electoral Act, 2010 (as amended). We say this because a careful perusal of the Court of appeal judgment in OTU BASSEY UKPENTU VS Mfawa Ofegobi & Ors. Appeal No. CA/C/NAEA/198/2011 will show that it is the admitted fact in the reply of the 4th Respondent that saved this petition on appeal. At page four of the judgment the court held thus:
‘However, the 4th respondent’s reply of 15th June, 2011 reads as follows: 1 Paragraphs 1, 2, 3, 4 and 5 of the substantive petition herein are admitted, only to the extent that: (a) The 1st Respondent herein was sponsored by the 4th Respondent herein. (b) The 2nd Respondent herein after successful conduct of election on 26th April, 2011, declared the 1st Respondent herein winner of the election to the House of Assembly for Yakurr State Constituency.’
What is admitted needs no further proof? See Section 75 of the Evidence Act, 2004; in re Odutola (2002) FWLR (Pt. 119) 1624 at 1633; Iyamo vs. FMBN (1999) 13 NWLR (Pt. 634) 178 at 188. A Petitioner has no onus of pleading and proving what the opponent has admitted. See Olale vs. Ekwelendu (1989) 7 SCNJ 181. The petition and replies constitutes notice of the case each party intends to canvass at the Tribunal. See Obisami Bricks and Stones Nig. Ltd vs. Attorney-General of Bendel State (1986) 1 NWLR (PT. 303) AT 317”. See pages 8 & 9 of the Judgment at Pages 605-606 of the Record.
5.10 It is submitted that the Tribunal was not entitled to descend into the arena to raise a point that was not canvassed by either of the Parties without affording the Appellant a hearing on such issue in accordance with his right to fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
5.11 The Tribunal was wrong and went into serious error by descending into the arena in such a brusque and unorthodox manner unbecoming of an independent and impartial umpire. The coming into the arena beclouded and blurred the vision of the Tribunal and made the Tribunal violate the right of fair hearing of the Appellant.
5.12 We therefore invite the Court to set aside this finding of fact concerning the reliance on the Judgment of the Court of Appeal to resolve the issue of the competence of the Reply of the 4th Respondent because it was the fulcrum and prop that was used to allow the appeal in OTU BASSEY UKPENTU VS Mfawa Ofegobi & Ors. in Appeal No. CA/C/NAEA/198/2011.
5.13 It is instructive to note that this Judgment was not tendered by either of the parties. If the Judgment was in the record of the Court, the Court was entitled to take judicial notice of it but the Court cannot do that without affording the Appellant a hearing since it was not canvassed by either of the parties. See UKPO V. IMOKE (supra).
5.14 The finding is perverse, unreasonable and not supported by any evidence before the Tribunal. It is well settled that an appellate Court is entitled to disturb a finding of fact by a trial Court which is not based on evidence before the Court.
5.15 Another fact that the Tribunal used to resolve that the Reply of the 4th Respondent was filed within time was the leave granted to the 4th Respondent to amend his Reply on the 31st October, 2011. The Tribunal reasoned that because the Appellant did not oppose the Motion for amendment it was too late in the day to attack the validity of 4th Respondent’s Reply. See Page 9 of the Judgment at Page 606 - 607 of the record.
5.16 It is submitted with due respect that the Tribunal missed the point. The fact that the Appellant did not oppose the Motion for amendment of the Reply would not operate to confer validity if the Reply was filed out of the 14 days which Paragraph 12 (1) of the First Schedule to the Electoral Act prescribed. The issue of the amendment of the Reply does not arise and cannot be used as the umbrage to suggest that the Reply was competent.
5.17 The Appellant did not acquiesce or waive his right. The Appellant had filed a Motion in which he had raised the issue of the competency of the Reply of the 4th Respondent. However, this Motion was not moved because trial resumed on the 28th October, 2011 after the previous appeal was allowed. See Pages 620-621 of the record. See The pre-Hearing Information Sheet Form TF 007 filed by the Appellant on the 5th July, 20011 at Page 277 where Appellant had indicated that he had a Motion that the Petition should be determined only on the Petition or evidence presented by the Petitioner on the ground that the Respondents Replies were filed out of time or not filed at all. See Pages 469-470 of the record. See Paragraphs 7 - 25 of the Counter-Affidavit filed by the Appellant on the 2nd August, 2011 at pages 474 - 475 of the record.
5.18 The Tribunal at Pages 620 - 621 of the Record recorded thus:
“Chief Obono-Obla says the petition is for retrial having been sent back by the Court of Appeal. He says he is ready for trial even tomorrow and requires only one day. He says that applications in the petition be taken with the main petition so as to save time...”
5.19 The Appellant had only 14 days from the 31st October to 12th November, 2011, when the Petition would have extinguished by the effusion of time. It was then agreed by the parties that any Motion not taken during the Pre-trial Session that lasted just one day rather than 14 days stipulated in the First Schedule to the Electoral Act should be taken together with the Final Written Address.
5.20 In the light of the above, we humbly invite this Court to set aside the finding of fact by the Tribunal that the Appellant did not oppose the Motion for amendment of the Reply of the 4th Respondent or that he acquiesced or waived his right. The finding is perverse as it is not supported by evidence before the Tribunal.
5.21 In the light of the above, we humbly invite the Court to resolve this issue in favour of the Appellants.
ARGUMENT OF ISSUE NO. 6
6.1. It is submitted that the position of the Tribunal that the Petition contained criminal allegation and so that the Appellant was required to prove his case beyond reasonable doubt is a perverse finding which was not based on objective and dispassionate consideration of the case of the Appellant.
6.2. The Appellant had urged the Tribunal to strip the Petition of criminal allegations made in the Petition especially in Paragraphs 33, 43, 46, 47 and 53 of the Petition. However rather than severing or stripping the Petition of the Paragraphs of the Petition where criminal allegations were made, the Tribunal went on to fish for other paragraphs where it claimed that the criminal allegations were made. The Tribunal singled out Paragraphs 27, 29, 30, 34, 35, 42, 48, 49, 50, 57, 62, 65 and 72 of the Petition. These Paragraphs which the Tribunal identified to contain criminal allegations were not identified by the Respondents but the Tribunal. The Tribunal was not entitled to come into the arena to dissect the Petition of the Petitioner to fish out paragraphs that it considered criminal allegations were made. It ought to have been the responsibility of the Respondents as their response to the submission of the Appellant.
6.3. The Tribunal ought to have remained at its Olympian height and allowed the disputants to slug it out before coming into the arena to decide which of the two disputants is on the side of the law and then apply the law accordingly.
6.4 However an objective and dispassionate examination of some of the paragraphs which the Tribunal singled out and identified by it as constituting criminal allegations are not in the slightest meaning of the word criminal. For instance Paragraph 35 of the Petition which the Tribunal fished out and identified as falling within this category made allegations on excess or over voting. See paragraph 35 of Page 7 of the record.
6.5 How can a complaint about over voting or excess voting be termed a criminal allegation in any ramification? The same is true of Paragraphs 27, 30, 42, 48, 49, 50, 57, 62, 65, and 71 of the Petition which the Tribunal in a fishing expedition to undo the Appellant identified as constituting criminal allegations. For instance Paragraph 48 of the Petition complains about non accreditation in KOTANI POLLING UNIT.
6.6 How on earth can non-accreditation constitute a criminal allegation? See Paragraph 48 of Page 8 of the record. In Paragraph 49 of the Petition a complaint of non-accreditation was made. Non accreditation is not a criminal allegation. So also is Paragraph 65 of the Petition not a criminal complaint.
6.7 In Paragraph 50 of the Petition which the Tribunal singled out to be criminal in nature, the Appellant had complained that Form EC8A (i), Result Sheet of Polling Unit – 007 - ST FRANCIS PRIMARY SCHOOL was not signed. This is a complaint against contravention of Section 63 (1) & (2) of the Electoral Act! A complaint against violation of Section 63 (1) & (2) of the Electoral Act cannot by any stretch of imagination be said to be a criminal allegation.
6.8 The principle of severance of pleadings which the Appellant urged the Tribunal to invoke was not invoked. Rather the Tribunal descended into arena and conveniently emasculated paragraphs of the Petition it thought were not civil wrongs but criminal allegations and came to the conclusion that if the Petition was saved the remaining paragraphs would not be enough to sustain the Petition.
6.9 In its judgment the Tribunal did not state the reasoning behind its position that these paragraphs contained criminal allegation rather it made a bland and blanket statement that the paragraphs contained criminal allegations. It is submitted that the Tribunal descended into the arena to dissect the Petition to fish out ten other paragraphs more than the five that were identified by the Appellant as containing criminal allegations.
6.10 It is submitted that this is a curious finding by the Tribunal which was out of tune with the reality of the situation. The Appellant in his Written Address had identified Paragraphs 33, 43, 46, 47 and 53 of the Petition as constituting criminal allegations.
6.11 If these 5 Paragraphs identified by the Appellants are added to the ones that the Tribunal fished out it would come to about 15 Paragraphs which in the findings of the Tribunal are criminal in nature.
6.12 The pertinent question is can 15 Paragraphs in a Petition made up of 84 Paragraphs be enough to suggest that if the Petition is stripped of these 15 paragraphs there would not be enough Paragraphs to sustain the Petition? See page 609 of the record.
6.13 It is clear that the finding of fact concerning which paragraphs of the Petition constitute criminal allegation and the sustainability of the Petition after these paragraphs are stripped was not findings that were reasonable or based on evidence before the Tribunal. The Tribunal became beclouded and its vision blurred as soon it compromised it detachment and independence and came into the arena.
6.14 It is pertinent to reiterate the principle of severance of pleadings to underscore the fact that the Tribunal completely misapplied and therefore fell into serious error when it failed to appreciate that where a paragraph contain both criminal and civil wrong the Tribunal should have carefully severed the criminal wrong from the civil from such paragraph of the Petition other than broadly condemning such paragraph to have made a criminal allegation.
6.15 It is not the position of the law that every allegations in a petition that resemblances a criminal allegation is one which required proof beyond reasonable doubt. There may very well be a thin line dividing what is a criminal allegation from a civil wrong! In ERUTOR V. UGHUMIAKPOR (1999) 10 NWLR) PT. 619) 460, where the allegations complaining of irregularities were held to be those bordering on crime which required proof beyond reasonable doubt, the Court of Appeal in reversing the decision of the tribunal at page 465 of the said thus:
“In election cases there is the increasing trend of lawyers, and even election tribunals regarding allegations of some wrong doing as an allegation of criminality for the purpose of its standard of proof being raised to that beyond reasonable. In my considerations, that does not represent the correct legal position where the allegation is simply that of some wrong doing its proof would be on preponderance of evidence”.
6.16 In AREGBESOLA V. OYINLOLA (supra) 1349-1350, Paras. H-B, PP 1350-1351, Paras. G-A, the Court of Appeal illuminated the position of the law thus:
“By the provisions of Section 137 (1), Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, if the averments alleging the commission of a crime are severable and if following such acts of severance the petitioners’ pleadings still contains sufficient averments which suffices and discloses a cause of action devoid of criminal imputation against any of the of the parties to the proceedings, then the burden of proof laying on the petitioner is not of a criminal nature beyond reasonable doubt but that which requires proof on preponderance of evidence. The determining factor is whether the allegations if severed and put into two separate compartments can be sustained as an entity. If the answer is positive, then proof of one is not dependent on the other but side by side. The crucial determining factor certainly is dependent on the pleadings of the parties. Where there are two causes of actions embedded within the same claim before a court, in such situation, the doing away with one cause of action would have no effect or bearing on the existence of the other. The existence of the two will amount to mere surplusages of one to the other. A pleader who has pleaded more than he strictly need have done can always disregard the unnecessary or surplus averments and rely simply on the more limited ones. In the instant case, the tribunal held that the petitioners failed to discharge the burden of proof on them concerning the criminal allegations therein, it erred because the criminal allegations when severed, the petition still has a cause of action, therefore it was wrongly dismissed”.
6.17 It is well settled that the Court will interfere to set aside a proceedings or decision that was done without regard or respect for the right of fair hearing of a party. It is clear that the Tribunal descended into the arena on its own accord to fish out paragraphs of the Petition which it considered bordered on criminal allegation but failed to objectively and dispassionately evaluate those paragraphs to ascertain if they truly bordered on criminality and then strip off the criminal allegation from the civil wrongs.
ARGUMENT OF ISSUE 7
7.1 The Tribunal in its Judgment ignored and never considered several issues that were raised in the Final Written Address of the Appellant and also during oral argument during the adoption of written addresses by the parties
7.2 One of the issues raised and canvassed by the Appellant during adumbration of final address was the fact that the Respondents filed Replies to the Final Written Address of the Appellant out of time. The Respondents had no answer to the application of the Appellant that these Replies filed out of time should be struck out.
7.3 On the 2nd November, 2011, at the close of the case of the Appellant at the Tribunal, the Respondents elected not to call evidence. The Tribunal ordered the Appellant to file and serve his Final Written Address within one day. The Respondents were given two days to file and serve their written address. The Respondents were given I day to file a Reply if they so desire. The case was then adjourned to the 9th November, 2011, for adoption of addresses. See Page 638 of the record.
7.4 The 4th Respondent filed his Written Address on the 4th November, 2011. See page 508-534 of the record.
7.5 The 1st Respondent filed his Final Written Address on the 4th November, 2011. See pages 535-540 of the record.
7.6 The Appellant filed his Final Written Address on the 5th November, 2011. See pages 541-572 of the record.
7.7 The 2nd and 3rd Respondents filed their final written address on an unknown date since the process was not stamped to know the date it was filed. See 590-597 of the record.
7.8 However, contrary to the order of the Tribunal, the 1st Respondent filed his Reply to the Written Address of the Appellant on the 7th November, 2011. See pages 586-587 of the record.
7.9 In Page 640 of the records, the Tribunal noted the application of the Appellant made through his Counsel thus: “Chief Obono-Obla...He submits that the 3 rejoinders were filed out of time. He says that Saturday is not a public holiday and that they have not asked for an order to regularize same. He urges the rejoinders to be discountenanced”.
7.10 It is submitted that the Respondents clearly filed their Replies out of time. The Respondents ought to have filed their Replies on the 5th November, 2011, but filed on the 7th and 8th November, 2011 respectively.
7.11 It is submitted that the Tribunal should not have ignored the application of the Appellant that the Replies which were filed out of time be struck out. The Tribunal had a duty to consider the application of the Appellant and rule on it. The Tribunal has a duty to consider and give a decision on every Motion or application made to it by either of the Parties and rule on it.
7.12 In the Final Written Address of the Appellant, the Reply of the 2nd & 3rd Respondents was impugned for being contrary to the intendment and purport of Paragraph 12 (1) of the First Schedule to the Electoral Act. See Paragraph 2.12.17 of the Final Written Address of the Appellant at Pages 547-550 of the record.
7.13 However in its Judgment, the Tribunal ignored the submission and application of the Appellant that the Reply of the 2nd & 3rd Respondents be struck out. The Tribunal did not consider and pronounce on the issue which bordered on the competence of the Reply of the 2nd & 3rd Respondents.
7.14 The Appellant also took an objection to the Written Addresses of the Respondents at Paragraph 5.0 Page 567-568 of the Record. The objection was as to whether or not the Respondents that elected not to call evidence can formulate issues in their Written Address for determination. The objection was premised on the decision of the Court of Appeal in DINGYADI V. WAMAKO (2008) 2 LRECN 102.
7.15 The Tribunal again totally ignored the objection taken by the Appellant on the competency of the Written Addresses of the Respondents.
7.16 It is clear that the Tribunal was duty bound to consider and pronounce on all issues that were legitimately raised and canvassed by the Appellant before it. It is a denial of the right of fair hearing as secured by Section 36 (1) of the Constitution for the Tribunal to ignore and refuse to consider and decide on issues raised and canvassed by the Appellant. See AGBITI V. NIGERIAN NAVY (2011) ALL FWLR (PT. 570) 1223 @ 1252, PARAS, B-D, on the connotation and demand on the constitutionality of the right to fair hearing as guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria (supra).
7.17 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant and hold that the Tribunal impinged the right of fair hearing by refusing to consider and resolve issues legitimately raised and canvassed by the Appellant.
CONCLUSION:
8.1 In the reliefs sought by the Appellant in the Notice of Appeal the Appellant had invited the Court to invoke the power conferred on it by Section 16 of the Court of Appeal Act and assume the jurisdiction of the Election Tribunal and hear and determine the Petition filed by the Appellant especially in the event that the Court decides that the Tribunal was wrong to have refused to admit the Statements on Oath of PW1, PW2, PW3 and PW4 who were witnesses called by the Appellant.
8.2 It is clear that the Petition was filed on the 17th May, 2011. By Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) the election Petition filed by the Appellant must be heard and determined by the election Tribunal within 180 days from the day of filing. It follows that the Petition is supposed to expire on the 12th November, 2011.
8.3 If this Court holds that the refusal of the Tribunal to allow the witnesses of the Appellant to adopt their statements infringed on their right to fair hearing an order of retrial should ordinarily be made. But since the period for the hearing of the petition would have expired by the time this Court will be hearing and delivery its judgment on this appeal, it is submitted that in the circumstances of this case, it is clear that the proper order that will meet the justice of the case is for this Court to invoke it power under Section 16 of the Court of Appeal Act and assume jurisdiction of the election Tribunal hear this matter on the merit and make orders that will meet the justice of the matter.
8.4 It is therefore submitted that the conditions for the invocation of Section 16 of the Court of Appeal, Act (supra) are present in the case under reference.
8.5 In Dapialong v. Dariye (2007) 8 M.J.S.C 140 @ 151, the Supreme Court illuminated thus:
‘The power conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are exercisable by that Court where certain fundamental conditionalities are met, such as :-
(a) availability of the necessary materials to consider and adjudicate in the matter;
(b) the length of time between the disposal of the action at the trial Court and the hearing of the appeal; and
(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties to the case’.
8.6 In Action Congress v. Jang (2009) 4 N.W.L.R (Pt. 1132) 475 @ 486, the Court of Appeal illuminated thus:
‘The purport of Section 15 of the Court of Appeal Act is to enable the Court of Appeal take a decision one way or another on a matter which could have been decided by the trial court or tribunal. Thus, in a case where the parties presented their cases before the trial court or tribunal which failed in its duty to make pronouncement on any issue relevant to the case, the appellate court can deal with the issue and resolve same as if it were sitting in place of the trial court or tribunal…’
8.7 It is submitted that the Court of Appeal can evaluate and appraise the evidence on record and make an order on such terms as the Court may think just, to ensure the determination of the merits of the real question in controversy between the parties and make appropriate findings in accordance with the evidence laid before it. Order 4 Rule 4 of the Court of Appeal Rules, 2007, provides as follows:
‘The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision below, or by any appeal or for affirming or varying the decision of that court is not specified in such a notice; and the court may make any order, or on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties’.
8.8 See Adams v. Umar (supra) 64-65, held 16, 17, 18 &19. In Yaro v. State (2007) 12 M.J.S.C 57 @ 74, the Court of Appeal was invited to resolve the issue whether the Court of Appeal was right to raise the issue of the defence of justification and provocation on its own accord by the Appellant. The Supreme Court answered the question in the affirmative after considering the provisions of Order 1 Rule 19 (1) of the Court of Appeal, Rules, 2002 (which is similar to Order 4 Rule 4 of the Court of Appeal Rules, 2007) and illuminated the position of the law thus:
‘By Order 1 Rules 19 (3) and 19 (4) of the Court of Appeal Rules, 2002, the Court of Appeal has power to evaluate the evidence in the record and do what it considers just in the circumstances. The Court also has the power to make any finding which ought to be arrived at by the trial court based upon the evidence available in the record’.
8.9 In Ndukwe v. State (2009) 7 NWLR (1139) 43 @ 55, the Supreme Court elucidated on the power of an appellate Court to evaluate evidence thus:
“An appellate court has the power to evaluate the evidence before it as an appeal is in the nature of a re-hearing. In other words, where a trial court fails in evaluating facts found by it, an appellate court can re-examine the whole facts and come to an independent decision”
See Ekpemupolo v. Edremoda (2009) 8 N.W.L.R (Pt.1142) 166 @175, held 10. In a similar circumstance, the Supreme Court in Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 @ 558, invoked its power conferred on it by Section 22 of the Supreme Court (which is similar to Section 15 of the Court of Appeal Act) thus:
‘…one other factor that the court has to take into account is the urgency surrounding this matter as the tenure of the members of the National Assembly is for a period of four years and so far 18 months of that period have already been spent i.e. the appellant could only serve for the unexhausted tenure of 4 years. It does not augur well for democracy to delay any further. Hence to remit this case back to the lower court to come back to this court on appeal apart from causing great hardship to the appellant, it does not work in the interest of the constituents who are entitled to know their true representatives at the National Assembly. For all this, I agree with the appellant that this is a case in which this court is eminently positioned and justified to exercise its power under section 22 of the Supreme Court Act and determine the matter on its merits here and now, as the preconditions to do so as I have outlined above are conclusive…’
See Amaechi v. INEC (2008) 1 M. J.S. C 1 @ 20. See Cappa & D’ Alberto Ltd v. Akintillo (2003) 9 NWLR (Pt. 824) 49; A. G, Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575; Jadesimi v. Okorie Eboh (1986) 1 NWLR (Pt. 160 264.
8.10 In the light of the above, this Honourable Court is invited to allow the appeal for the reasons which the Appellant has comprehensively and adequately discussed in the body of this Brief of Argument or the issues for determination framed from the grounds of appeal and in addition for the following reasons summarized as follows thus:
i. The Tribunal was wrong and fell into error that occasioned a miscarriage of justice by rejecting the statements on oaths of the witnesses called by the Appellant on the ground that the statements did not strictly comply with the format prescribed by the First Schedule to the Oaths Act (supra). It is clear the statements conform substantially with the format prescribed by the First Schedule to the Oaths Act and were admissible and constitute evidence. The authority of Obumneke v. Sylvester (supra) which the Tribunal relied on to hold that these statements were inadmissibility is inapplicable and not relevant.
ii. The refusal of the Tribunal to examine, analyse and evaluate documentary evidence that was tendered from the Bar in accordance with the provisions of Paragraph 41 (3) of the First Schedule to the Electoral Act on the ground that these documents were dumped on the Tribunal and that there was no oral evidence adduced by the Appellant to be used to assess the documents was wrong and led to a miscarriage of justice.
iii. The Tribunal had no jurisdiction to purport to exercise its discretionary power conferred by Paragraph 45 (1) of the First Schedule to the Electoral Act to extend time for the 2nd & 3rd Respondents to file their Reply out time more than 150 days after the filing of the Petition and service on them in view of the provisions of Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) that stipulates that a petition must be heard and judgment delivered within 180 days of filing.
iv. The Tribunal was wrong to have relied on the provisions of Paragraph 10 (2) of the First Schedule to the Electoral Act to hold that the 1st Respondent who was served on the 2nd June, 2011, but filed his Reply on the 22nd June, 2011 was within time. The provisions of Paragraph 10 (2) of the First Schedule to the Electoral Act cannot override the combined provisions Section 285(7) of the Constitution and even Paragraph 12 (1) of the First Schedule to the Electoral Act since time was of essence in the hearing and determination of election Petition.
v. The Tribunal was wrong to have descended into the arena to use the decision of the Court of Appeal in OTU BASSEY UKPENETU V. MFAWA OFEGOBI & THREE OTHERS in Appeal No. CA/C/NAEA/198/2011 to resolve the issue of whether or not the Reply of the 4th Respondent was filed within time.
vi. The Tribunal was wrong to have descended into the arena to find and hold that Paragraphs 27, 29, 30, 34, 35, 42, 48, 49, 50, 57, 62, 65 and 72 of the Petition contained criminal allegations in order to resolve the invitation by the Appellant that the Tribunal invoke the principle of severance of pleadings and severe criminal allegations from civil wrongs.
DATED THIS 30TH DAY OF NOVEMBER, 2011
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
TRINITY HOUSE, 2ND FLOOR,
MABUSHI, ABUJA, NIGERIA.
OR
O. U. OKA & ASSOCIATES
104 CALABAR ROAD, CALABAR,
CROSS RIVER STATE.
ADDRESS FOR SERVICE
1. ON THE 1ST RESPONDENT
Honourable Mfawa Ofegobi
Ijiman Streety, Ijiman, Ugep, Yakurr LGA
Cross River State of Nigeria.
OR
C/O THE CROSS RIVER STATE HOUSE OF
ASSEMBLY QUARTERS CALABAR,
CROSS RIVER STATE, NIGERIA.
2. ON THE 2ND & 3RD RESPONDENTS
C/O The Independent National Electoral Commission
Murtala Mohammed High Way,
Calabar, Cross River State.
3. ON THE 4TH RESPONDENT
The Peoples Democratic Party
C/o The State Secretary, PDP,
Murtala Mohammed High Way,
Opposite the Federal High Court,
Calabar, Cross River State.
TABLE OF DECIDED CASES RELIED ON
1. I.N.E.C v. Action Congress (2009) 2 NWLR (1126) 524.
2. I.N.E.C v. Oshiomole (2009) 4 N.W.L.R (Pt. 1132) 607
3. Goli v. Belief ((2009) 4 N.W.L.R (Pt. 1132) 585
4. Agagu v. Mimiko (2009) 7N.W.L.R (Pt. 1140) 342.
5. Amaechi v. INEC (2008) 1 M. J.S. C 1 @ 20.
6. Cappa & D’ Alberto Ltd v. Akintillo (2003) 9 NWLR (Pt. 824) 49
7. A. G, Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575
8. Jadesimi v. Okorie Eboh (1986) 1 NWLR (Pt. 160 264.
9. Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 @ 558
10. Yaro v. State (2007) 12 M.J.S.C 57
11. Action Congress v. Jang (2009) 4 N.W.L.R (Pt. 1132) 475
12. Dapianlong v. Dariye (2007) 8 M.J.S.C 140
13. Iwuno v. Dieli (1999) 5 NWLR (Pt. 149) 126
14. Abubukar v. INEC (2004) 1 NWLR (Pt. 854) 207
15. Chief Liyel Imoke v. Amb. Akpang Ade Odu & Anor., in CA/C/112/2007
16. Buhari v. Obasanjo (2005)13 NWLR (Pt. 941) 1
17. Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303@ 311
18. Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242 @ 311.
19. Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622.
20. Ezeke v. Dede (1999) 5 NWLR (Pt. 601) 80
21. African Newspapers of Nigeria Ltd v. Federal Republic of Nigeria (1985) NWLR (Pt. 6) 137.
22. Goodhead v. Amachree (2004) 1 NWLR (Pt. 854) 354
23. Ikoro v. Izunaso (2009) 4 NWLR (Pt. 1130) 45
24. Board of Customs & Excise v. Barau (1982) 10 S.C 48
25. Up Bottling Co. Ltd v. Abiola (1996) 7 NWLR (Pt. 463) 714 @ 732
26. Ibidapo v Lufthansa Airline (1997) 4 NWLR (Pt. 498) 124@16
27. Peters v. David (1999) 5 NWLR (Pt. 602) 476.
28. Awuse v. Odili (2004) 8 NWLR (Pt. 876) 481
29. National Electrical Power Authority v. Ango (2001) 15 NWLR (Pt. 737) 627 @ 657.
30. Adams v. Umar (2009) 5 N.WL.R (Pt. 1133) 41
31.Engineering Enterprises Ltd v A.G., Kaduna State (1987) 2 NWLR (Pt.57) 381
32. Alhaji Raimi Edun v. Odan Community, Ado Family and Okokomaiko Community (1980) 8-11 SC 103.
33. Ndukwe v. State (2009) 7 NWLR (1139) 43 @ 55
34. Ekpemupolo v. Edremoda (2009) 8 N.W.L.R (Pt.1142) 166
TABLE OF STATUTES RELIED ON
1. Electoral Act, 2011.
2. Constitution of the Federal Republic of Nigeria, 1999.
DATED THIS 30TH DAY OF NOVEMBER, 2011
CHIEF OKOI O. OBONO-OBLA
OBONO, OBONO & ASSOCIATES
(APPELLANT’S SOLICITORS)
TRINITY HOUSE, 2ND FLOOR,
MABUSHI, ABUJA, NIGERIA.
OR
O. U. OKA & ASSOCIATES
104 CALABAR ROAD, CALABAR,
CROSS RIVER STATE.
ADDRESS FOR SERVICE
1. ON THE 1ST RESPONDENT
Honourable Mfawa Ofegobi
Ijiman Streety, Ijiman, Ugep, Yakurr LGA
Cross River State of Nigeria.
OR
C/O THE CROSS RIVER STATE HOUSE OF
ASSEMBLY QUARTERS CALABAR,
CROSS RIVER STATE, NIGERIA.
2. ON THE 2ND & 3RD RESPONDENTS
C/O The Independent National Electoral Commission
Murtala Mohammed High Way,
Calabar, Cross River State.
3. ON THE 4TH RESPONDENT
The Peoples Democratic Party
C/o The State Secretary, PDP,
Murtala Mohammed High Way,
Opposite the Federal High Court,
Calabar, Cross River State.
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