CORAM
PARTIES
YAKUBU OSENI APPELLANTS
NATASHA HADIZA AKPOTI & ORS RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant herein filed a notice of appeal against the ruling of the Kogi State National and State Houses of Assembly Election Tribunal at Lokoja, wherein the Tribunal granted the Petitioners’ Application to file two additional witness statements on oath of 530 paragraphs each out of time, in supplement to the 44 paragraph Petition filed on or about the 14th of March 2019, and by so doing enabled the Petitioners to surreptitiously amend their petition outside the statutory period for the filing of Petitions which is restricted by the provisions of section 285-(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to 21 days, thereby denying the Appellant the right to fair hearing. The Appellant, aggrieved with the above ruling appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the learned trial Tribunal erred in law when it granted the Petitioners Application to file two additional witness statements on oath of 530 paragraphs each out of time and in supplement to the 44 paragraph Petition filed on or about the 14th of March 2019 and by so doing enabled the Petitioners to surreptitiously amend their petition outside the statutory period for the filing of Petitions which is restricted by the provisions of section 285-(5) of the 1999 CFRN (as amended) to 21 days thereby denying the Appellant of the right to fair hearing? Whether the lower Tribunal erred in law when it granted the application aforedescribed without properly considering and reviewing the submissions made to it in part or in whole and properly evaluating the affidavit evidence placed before it and by so doing occasioned a miscarriage of justice on the Appellant?
RATIONES DECIDENDI
INSPECTION OF ELECTION MATERIALS – NATURE OF EVIDENCE OBTAINED FROM INSPECTION OF ELECTION MATERIALS SUFFICIENT TO SUPPORT FACTS PLEADED IN AN ELECTION PETITION
“I agree with the submission of Learned Counsel for the 1st respondent that the inspection of the election materials was ordered for the purpose of maintaining or defending the petition. This order is in keeping with S.151 of the Electoral Act 2010. For the evidence obtained from the inspection to support the petition, it must support the facts pleaded in the petition and should not contain facts not pleaded in the petition and should not introduce a case different or additional to the one in the petition. So it is not every fact discovered or obtained in the Tribunal or Court ordered inspection of election materials that can be relied on to prove or defend the petition. It will be contrary even to S.151 of the Electoral Act to allow the petitioners to file statement of facts not contained in the petition or that introduces a case not contained in the petition merely because they were obtained in the Tribunal or Court ordered inspection of the election materials.”
ELECTION PETITION – INSTANCES WHERE THE TRIBUNAL OR COURT MAY ORDER FURTHER PARTICULARS IN ELECTION PETITIONS
“Be that as it is, it is in the interest of substantial justice to bear in mind that paragraphs 5 and 17 of the First Schedule to the Electoral Act 2010 as amended provides that- (5) Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary-
(a) To prevent surprise and unnecessary expense;
(b) To ensure fair and proper hearing in the same way as in a civil action in the Federal High Court; and
(c) On such terms as to costs or otherwise as may be ordered by the Tribunal or Court.
(17) (1) If a party in an election petition wishes to have further particulars or other directions of the Tribunal or Court, he may, at any time after entry of appearance, but not later than ten days after the filling of the reply, apply to the Tribunal or Court specifying in his notice of motion the direction for which he prays and the motion shall, unless the Tribunal or Court otherwise orders, be set down for hearing on the first available day.
(2) If a party does not apply as provided in subparagraph (1) of this paragraph, he shall be taken to require no further particulars or other directions and the party shall be barred from so applying after the period laid down in subparagraph (1) of this paragraph has lapsed.
(3) Supply of further particulars under this paragraph shall not entitle the party to go beyond the ambit of the supplying such further particulars as have been demanded by the other party, and embark on undue amendment of, or additions to, his petition or reply, contrary to paragraph 14 of this Schedule.
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DOCUMENTARY EVIDENCE- DUTY OF A PARTY WHO RELIES ON DOCUMENTARY EVIDENCE IN PROVING HIS CASE
“This argument runs contrary to the rule against clumping of a bundle or bundles of documentary evidence on the court. Even though the court can observe the election documents and materials and form its opinion, it can only do so after a witness of the party that tendered the documents in evidence has sorted them out and tied each of them to the specific aspect of the case the document is meant to prove. A person who saw and observed the documents during Tribunal ordered inspection of the election materials can testify about what he saw and observed during the inspection and can carry out the sorting out of the bundle of documents and relating them to the parts of the case they seek to prove. If such bundles of documents are tendered and not sorted out by a witness or witnesses and merely left for the court to do the sorting out of the bundle of documents, observe same and form its opinion, the documents would be treated as dumped on the court and would have no probative value. In Sauda v. Aliru (1999) 5 NWLR Part 601 94 at 99 this Court held-
“The only way a petitioner can question the lawfulness of the votes cast at an election is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by individuals”. For example, if a petitioner wants to prove over-voting, he needs a witness to state where the over-voting took place. The documentary evidence of over-voting will be the voter’s register showing accreditation and the Form EC8A. Those pieces of documentary evidence can be tendered from the bar during pretrial or during the course of trial. The witness giving oral evidences would refer to the specific exhibit already tendered to cement the case. The petitioner has a duty to tie the documentary evidence to the facts pleaded through a witness-particularly a lead witness or during cross-examination of a Respondent’s witness. Anything short of that would be taken as “dumping” the evidence on the Tribunal in which case the Tribunal is not obliged to sift through the documents to get the facts of precisely which documentary evidence proved which allegation. The Appellant has to relate each document with his complaints.”
As held in Aloa v. Akano (2005) 22 NSCQR (pt, 11) 867 at 884 and Rimdam v. Lar (1999) 3 NWLR (pt. 620) 538, the entries in the electoral forms alone do not constitute proof of disputed scores, unless there is evidence from a person privy to or conversant with the entries to shed light on them before such allegation may be proved.”
In PDP V INEC & Ors CA/A/EPT/139/2019) this Court held that –
“The electoral documents being a huge mass of documents, needs to be sorted out and each related to particular aspects of the case of a party to the petition. The party relying on them has a duty to call witnesses to do this. It is not for the court to burrow into the mass of documents, sorting them out and relating each to the case of the party that relies on them. This would make the court appear to be helping that party to make its case and thereby destroy its toga of impartiality and violate the fair trial of the case.”
In Nwole V. Iwuagwu (supra) at page 341, it was held that –
“A party is under obligation to tie his document to facts or evidence or admitted facts in the open court and not through counsel’s address- written or oral. This is because it is not the duty of a court or Tribunal to embark upon cloistered justice by making inquiry into the case outside the court, not even by examination of documents which were in evidence when the documents have not been examined in open court, nor brought out and exposed to test in court or were not things that at least must have been noticed in the open court.”
In Aliucha & Anor v. Elechi & Ors (2012) LPELR — 7823 (SC) the Supreme Court held that
“When a party decides to rely on documents to prove his case there must be a link between the document and the specific area/s of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case. See: ANPP v. INEC 2010 13 NWLR Pt. 1212 p.549.”
JUDGE – DUTY OF A JUDGE
“A Judge is to descend from his heavenly abode, no lower than the treetops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.
In Obasi Brothers Ltd. V. Mba Securities (2005) 2 SC (1) 51 at 68 the Supreme Court held thus:-
“The admission of Exhibits F – Q in evidence at the trial is not a cure to this either because it is well settled that a judge cannot sit down out of court on his own and examine documents to sort out the case of a party. It is the duty of the party to elicit such evidence in court through its witnesses especially as in this case where various documents are involved.”
In Alao V. Akano (2005) 4 SC 25 at 36 it again held that:-
“It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be, would not be of much assistance to the court in the absence of oral evidence by persons who can explain their purport.”
See also Adewale & Anor v. Olaifa & Ors (2012) LPELR – 7861 (CA).”
AMENDMENT OF ELECTION PETITION- WHETHER THE AMENDMENT OF AN ELECTION PETITION CAN BE DONE AT ANY STAGE
“There is no doubt that established legal principle prohibits an amendment that changes the case initially filed by a plaintiff or claimant or petitioner. This legal principle applies to an election petition as it applies to all civil actions. A change from the case in the petition or an introduction of a case different from the one in the petition is clearly seek to filing a new election petition. This cannot be done after the expiry of the 21 days period prescribed by S.285(5) of the 1999 Constitution for filing an election petition. Apart from an amendment that introduces a case different from the one contained in the petition, non-substantial amendment of a petition can be done at any stage of the proceedings in the interest of justice. There is nothing in S.285(5) of the 1999 Constitution or the Electoral Act 2010 and the First Schedule thereto that prohibits such an amendment. Paragraph 14(1) of the said First Schedule gives the Tribunal the power to so amend. It states thusly-
“14. (1) Subject to subparagraph (2) of this paragraph, the provisions of the Civil Procedure Rules relating to amendment of pleadings shall apply in relation to an election petition or a reply to the election petition as if for the words “any proceedings” in those provisions there were substituted the words “the election petition or reply.”
The restriction placed on this power by subsection (2) of paragraph 14 have been rendered meaningless and ineffective by the deletion of S.134 of the Electoral Act 2010 as amended without a corresponding amendment of Paragraph 14(2)(a) of the said First Schedule to make it enforceable.
The said subparagraph 2(a) reads thusly-
“(2) After the expiration of the time limited by-
(a) Section 134 (1) of this Act for presenting the election petition, no amendment shall be made:
(i) Introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original Election petition filed, or
(ii) Effecting a substantial alteration of the ground for, or the prayer in, the election petition, or
(iii) Except anything which may be done under the provisions of subparagraph (3) of this paragraph, effecting a substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition; and.”
S. 134(1) of the Electoral Act no longer exists having been deleted. So the restriction on the power to amend after the time prescribed therein for filing a petition cannot be effective as it has ceased to exist. Obviously that time is now prescribed in S.285(5) of the 1999 Constitution. There is need to amend Paragraph 2(a) to replace S.134(l) therein with S.285(5) of the 1999 Constitution. Until that is done the Court cannot read that provision as if S. 134(1) of the Electoral Act stated therein is S.285(5) of the 1999 Constitution so as to give it effect. This clearly amounts to legislation, which a Court has no power to engage in. that power is vested in the National Assembly by S.4(l) of the 1999 Constitution and the House of Assembly of a State by S.4(6) of the same Constitution.”
DENIAL OF FAIR HEARING- WHETHER A DENIAL OF THE PETITIONER TO FILE ADDITIONAL STATEMENT OF WITNESS ON OATH WOULD CONSTITUTE A DENIAL OF FAIR HEARING.
“It will not make any sense if petitioners will not be allowed to give evidence of report of inspection ordered by the court. The only way they can do this is by filing additional statement on oath of witnesses whose written statement on oath had already been filed or filing written statements on oath of new witnesses or both. For the Tribunal to deny the Petitioners the right to file written statement on oath of witnesses’ consequent upon the inspection ordered by the Tribunal will amount to denial of fair hearing. See the cases of Amere Gafaru Akintayo V. George Jalaoye & Ors (2010) LPELR 3688 (C. A) and Abubakar V. Yaradua (2008) 1 SC (PT.ll) 77 and Oni V. Fayami (2008) 8 NWLR (PT.1089) 409.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)|Electoral Act 2010|
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