Legalpedia Citation: (2015) Legalpedia (CA) 11814

In the Court of Appeal

HOLDEN AT YOLA

Mon Dec 21, 2015

Suit Number: CA/YL/EPT/TRS/SHA/107/2015

CORAM

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

UCHECHUKWU ONYEMENAM JUSTICE, COURT OF APPEAL

SAIDU TANKO HUSAINI JUSTICE, COURT OF APPEAL

PARTIES

1. DAVID ORBEE UCHIV
2. ALL PROGRESSIVE CONGRESS (APC)

APPELLANTS

1. PIUS SABO
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

 

 

RESPONDENTS

AREA(S) OF LAW

ELECTORAL LAW, CIVIL PROCEDURAL LAW, LAW OF EVIDENCE, STARE DECISIS, PUBLIC LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appeal is against the judgment delivered on 24th of October, 2015 by the National and State Houses of Assembly Election Tribunal. The Appellants as Petitioners filed a petition before the National and State Houses of Assembly Election Tribunal, Jalingo, against the Respondents. The said petition was against the declaration and return of the 1st Respondent as the winner of the election to the office of the member representing Wukari 1 state constituency of the Taraba state House of Assembly held on 11th April 2015. Upon being served with the said petition, the Respondents filed their respective replies to the petition, consequent upon which the Appellants applied for the issuance of a Pre-hearing Notice in the petition. During the pre-hearing session, the Nigeria Police Force and the Nigeria Security and Civil Defence Corps (NSDC) who were the 4th and 5th Respondents in the petition, were struck out as parties in the said petition.

Upon the conclusion of the pre-hearing session, the Tribunal issued a Pre-trial Report, wherein the remaining parties in the petition were ordered to file clean copies of their respective processes to reflect the reduction or change in the number of Respondents in the petition from five (5) to three (3). 

 

The Appellants proceeded to file clean copies of the petition. The 1st and 2nd Respondents filed their Amended replies without the statement on oath having earlier filed statements on oath with their first reply.  On the date of commencement of the hearing of the petition, the Respondents objected as to the amendment made by the Petitioners to the petition without leave of the Court and after hearing same, the Tribunal in its wisdom upheld the objection and struck out the petition. The Appellants dissatisfied with the said Ruling appealed against the striking out of their petition to this Court.

HELD

Appeal Dismissed

ISSUES

“1. Whether or not the Tribunal was right to have refused to strike out the pleadings of the 1st Respondent who did not call any evidence in support of the said pleadings and to sustain the answers elicited by the said 1st Respondent under cross-examination?

2. Whether or not the Tribunal was right to expunge the documents tendered and relied upon by the Appellants for improper certification and dismiss the petition on the ground of lack of evidence when the 3rd Respondent’s Resident Electoral Commissioner was subpoenaed to produce the documents and failed to do so; thereby entitling the Appellants to call secondary evidence  and when there was copious admission by the witnesses to the Respondent that the process leading to the declaration of the 1st Respondent was done in violation of the Approved Guidelines by the 3rd Respondent which affected the lawfulness of the votes credited to the 1st Respondent?”

 

RATIONES DECIDENDI

RESPONDENT’S REPLY – EFFECT OF A RESPONDENT’S REPLY NOT BEING ACCOMPANIED BY A WITNESS WRITTEN STATEMENT ON OATH

From the wordings of paragraph 12 (3) of the 1st Schedule to the Electoral Act, it does appear to me that failure of a Respondent’s reply to be accompanied by witness written statement on oath does not render the reply invalid nor oust such Respondent’s Constitutional Right to a fair hearing by cross-examining witnesses taken by the Petitioner to both discredit their evidence and to elicit evidence in support of his defense. The effect of failure to accompany a Respondent’s reply with witnesses’ written statement on oath is that the Tribunal as in this case will not allow such Respondent to call witnesses to give evidence. Accordingly, a Respondent who fails to accompany his reply with the witnesses’ written statement on oath but has accompanied same with copies of documentary evidence is permitted in law to rely on the documentary evidence where necessary and admissible in law to support his pleadings. PER – UCHECHUKWU ONYEMENAM, JCA.

EVIDENCE – THE POSITION OF THE LAW ON FAILURE OF A PARTY TO CALL EVIDENCE IN SUPPORT OF HIS CASE OR REBUTTAL OF THE CASE OF THE OPPOSING PARTY

The general principle of law as submitted by the Appellants’ counsel is as stated by this court in: Adebusuyi V. INEC (2010) All FWLR (Pt. 545) 202 At 237 – 238; where it was held that:

“Mere averments in pleadings without proof of facts pleaded cannot constitute proof of facts pleaded if not admitted. Averments in pleadings on which no evidence is adduced are deemed abandoned. Where no evidence is led in support of an allegation or ground in an election petition, the trial election tribunal or trial Judge will be right to hold that the allegation or ground has been abandoned and strike it out.”

See also: Kaydee Ventures V. Hon. Minister FCT (2010) All FWLR (Pt. 419) 1079 At 1103; The Administrator/Executors Of The Estate Of General San iAbacha(Deceased) V. Eke-Spiff (2009) All FWLR (Pt. 467) 1 At 35.

However, this court in: Adebusuyi V. INEC (2009) LPELR-3599 (CA) Pp. 47 – 48 further held; per Ogunbiyi, JCA (now JSC); referring to the case of Ali Lawal V.Yama (2006) 2 EPR P. 663 where this court held per Nzeako, JCA thus:

“It is trite law that where a party fails to call evidence in support of his case or in rebuttal of the case of the opposite party, the trial Court is entitled to resolve the matter against that party unless thereby some other reasons to the contrary.”

In essence, where there are other reasons to the contrary, the court will not enter judgment for a party for failure of the opposing party to call evidence in rebuttal. It is these “other reasons to the contrary”, that will make the court not to enter judgment for a Petitioner even in the absence of evidence in support of a Respondent’s pleadings that the learned counsel for the 1st Respondent struggled to put forth at paragraphs 4.10 to 4.14 of her brief where he referred to the cases of: Agbaje V. Fashola (2008) 6 NWLR (Pt. 1082) 90 at 133 – 134; CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 560.

This principle of law was stamped with the final seal of approval by the Supreme Court in: CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 560; wherein the apex Court stated thus:

“By the very nature, an election petition is principally predicated on complaints on the conduct of election and is usually concluded with reliefs being sought most of which are declaratory in nature… A Plaintiff like the Appellant in this case claiming declaratory relief must rely on the strength of his own case and not on the weakness of the defence. This principle of law applies not only where the Defendant calls no evidence, which is the main complaint of the Appellant in the present case, but even where there is admission of the Plaintiff’s case by the Defendant. See the case of Wallersteiner V. Moir (1974) 3 ALL E.R.217 AT 251, where Buckley L.J. said:

“It has always been my experience, and I believe it to be a practice of long standing that the Court does not make declarations of right either on admission or default of pleading… but if the Court was satisfied by evidence.” (Underlining mine for emphasis).

PER – UCHECHUKWU ONYEMENAM, JCA.

PLEADING – WHETHER OR NOT THE FAILURE OF A PARTY TO CALL EVIDENCE IN SUPPORT OF PLEADING IS DEEMED ABANDONMENT OF PLEADING

On the contention of the Appellants in paragraph 4.1.1 of their brief of argument that where a party fails to call evidence in support of his or her pleadings, such pleadings are deemed abandoned, and consequently, such a party cannot be allowed to elicit evidence under cross-examination in support of his or her pleadings. May I start by stating that the cases of: Kaydee Ventures V. Hon. Minister, FCT (supra);The Administrator/Executors of Estate of General Sani Abacha (supra); Adebusuyi V. INEC (supra) did not espouse or expound such principle of law. When a party fails to call witnesses to adduce evidence in support of his pleadings; it is prima facie presumed that the said party has abandoned his or her pleadings. This presumption will be rebutted by the fact of other sources of evidence that could support the party’s pleadings as in the case where there is documentary evidence or evidence elicited through cross-examination of the opposing party. PER – UCHECHUKWU ONYEMENAM, JCA.

EVIDENCE – WHETHER OR NOT THE FAILURE OF A PARTY TO CALL WITNESS EQUATES TO NO EVIDENCE IN SUPPORT OF PLEADINGS

It must be noted that failure to call witnesses does not necessarily equate to no evidence in support of pleadings as failure to call witnesses is not the same as failure to Place evidence before the Court. Evidence elicited from a Petitioner’s witness under cross-examination forms part of the case of the Respondent. A party is allowed in law to rely on evidence he elicits by cross-examination of his opponent’s witnesses as long as the evidence is in respect of facts which he pleaded. See: Ayoola V. Yahaya (2005) 7 NWLR (Pt. 923).

Indeed the case of Akomolafe V. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338 at 351 is very apposite here. Therein, the Supreme Court held thus:

“On the issue as to whether both parties called evidence in support of their pleadings as held by the lower Court, it is settled law that evidence elicited from a party or his witness(es) under cross-examination constitute evidence in support of the case or defence of that party… if at the end of the day the party cross-examining decides not to call witnesses, he can rely on the evidence elicited from cross-examination in establishing his case or defence, in such a case you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence not evidence, as the evidence elicited from his opponent under cross-examination which are in support of his case or defence constitute evidence in the case”. (Underlining for emphasis) PER – UCHECHUKWU ONYEMENAM, JCA.

PLEADINGS – WHEN CAN THE QUESTION OF ABANDONING PLEADINGS BE ASCERTAINED

Standing on the firm footing that failure to call witnesses is by no means failure to adduce evidence in support of pleadings, it is my view that the question of abandoning pleadings can only be rightly ascertained upon the conclusion of the hearing of a case. For it is only when there is no evidence adduced by a party through evidence in chief, cross-examination or documentary evidence that such a party can be deemed to have abandoned his pleadings. Consequently, it is very incongruous and bereft of the backing of the law for a party who elicits cogent, compelling and convincing evidence vide cross-examination or documentary evidence in support of his pleading to still be deemed to have abandoned his pleading on the ground that he did not call witnesses of his own. The position would have been different if the contention of the Appellants was that the evidence elicited by the 1st Respondent from their witnesses under cross-examination does not support the 1st Respondent’s pleading. In that case it would have been correct to discountenance the evidence elicited under cross-examination and to hold that not only did the 1st Respondent not call witnesses but did not place evidence before the Court in support of his pleadings in which case his pleadings would have in law been deemed abandoned. Since this is not the case, from all I have said above, I hold that the Tribunal was right when it refused to strike out the 1st Respondent’s pleading for the reason the same was abandoned.  Accordingly, I resolve issue 1 in the affirmative, which is in favour of the 1st Respondent. PER – UCHECHUKWU ONYEMENAM, JCA.

OBITER DICTUM – WHETHER OR NOT A LOWER COURT RESERVE THE RIGHT TO RELY ON OBITER DICTUM IN REACHING A CONCLUSION

While obiter dictum is not binding on a lower Court, yet it is highly persuasive and no law holds the view that it cannot persuade a lower Court in arriving at its decision. Therefore, a lower Court reserves a right as it is free to rely on obiter dictum in reaching a conclusion. I refer to the Supreme Court case of: Ferodo Ltd. & Anor V. Ibeto Industries Ltd. (2004) LPELR 1275 (SC) where Tobi JSC in his contributory judgment at page 64 paras E – G said:

“As a general rule, an obiter dictum is not binding. See: Alhaji Yusuf V. Egbe (1987) 2 NWLR (Pt. 56) 341. However, there are occasions when obiter dictum may have a binding effect. See Mrs. Macleans V. Inlaks Ltd. (1980) 8 – 11 SC 1; Ifediorah V. Ume (1988) 2 NWLR (Pt. 74) 5. That is not relevant for our purposes and so I will not pursue it, what is important however is that an obiter dictum, which is what the Courts says by the way, has persuasive effect. A Court of law can allow itself to be persuaded by an obiter dictum. I know of no law which holds a contrary view. The Court of Appeal, in my view, was therefore free to rely on the statement of Romer, L.J, in Re Clement.” PER – UCHECHUKWU ONYEMENAM, JCA.

OBITER DICTUM – WHETHER OR NOT THE DECISION OF THE SUPREME COURT CAN BE TREATED WITH IMPUNITY

Instructive here too, is the decision of the apex Court in the case of: Buhari & Ors V. Obasanjo &Ors. (2003) LPELR 813 (SC) 66 paras B –C; where the Supreme Court admonished the lower Court not to treat the obiter of the Supreme Court with impunity. Hear Edozie JSC thus:

“This does not mean that an obiter has no strength or teeth indeed no lower Court may treat an obiter of the Supreme Court with careless abandon or disrespect but the Supreme Court could ignore it if it does not firm up or strengthen the real issue in controversy.”

Having said that, it is necessary to establish the fact that the so called obiter dicta of the apex Court which the Appellants have complained about in my view is the position of the law. PER – UCHECHUKWU ONYEMENAM, JCA.

PUBLIC DOCUMENT – WHETHER OR NOT A PUBLIC DOCUMENT SOUGHT TO BE TENDERED AS SECONDARY EVIDENCE WHICH DOES NOT CONFORM TO S. 104 (2) OF THE EVIDENCE ACT 2011 QUALIFIES TO BE A CERTIFIED COPY

Section 104 (1) & (2) of the Evidence Act 2011 provides:

“1. Every Public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with the certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

2. The certificate mentioned in subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”

In otherwords any public document sought to be tendered as secondary evidence which does not conform to Section 104 (2) of Evidence Act, 2011 shall not be qualified to be called a certified copy. PER – UCHECHUKWU ONYEMENAM, JCA.

ELECTION – DUTY OF THE PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST IN AN ELECTION TO TENDER IN EVIDENCE ALL THE RELEVANT DOCUMENTS

The duty placed on a Petitioner who contests the legality of votes cast in an election and the subsequent result is that; such Petitioner must tender in evidence all the relevant documents in which the result of the votes are recorded. Such a Petitioner must effectively employ both documents and witnesses. He cannot dump documents on the Tribunal neither can he succeed by calling witnesses alone. He must call eye witnesses who will lead evidence in respect of the irregularities both in the conduct of the election and the recording of the votes; and same must substantially affect the result of the election. See: Buhari V. INEC (2008) 12 SCM. PER – UCHECHUKWU ONYEMENAM, JCA.

ELECTION – WHETHER OR NOT NON-COMPLIANCE OR VIOLATION OF THE APPROVED GUIDELINES ISSUED BY INEC IS A GROUND TO NULLIFY AN ELECTION

It is without any shadow of doubt therefore that under the current electoral jurisprudence of Nigeria, the non-compliance or the violation of the Approved Guidelines issued by INEC cannot be a ground to nullify an election once the election has been shown to have been conducted pursuant to the Electoral Act, 2010 (as amended). PER – UCHECHUKWU ONYEMENAM, JCA.

 

CASES CITED

Not Available

STATUTES REFERRED TO

Electoral Act 2010 (as amended)

Evidence Act 2011

 

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