National Electoral Commission & Ors. V. Sunday Ogonda Wodi (1989)

LawGlobal-Hub Lead Judgment Report

OWOLABI KOLAWOLE, J.C.A. 

This appeal came up for hearing on Wednesday, February 15, 1989. Mr. T. A. Koroye, State Counsel, who appeared for the 1st, 2nd and 3rd appellants sought to tender Rivers State of Nigeria Official Gazette No. 17 Volume 7 of 1st May, 1975 which shows at page 144 that the Petitioner/Respondent was dismissed from the Teaching Service Commission of the Rivers State Government as Technical Instructor on 1st April, 1974. Mr. C. O. Akpamgbo, S.A.N. who appeared for the 4th appellant also supported the tendering of the Gazette.

Learned Counsel for the Petitioner/Respondent, Mr. E. C. Ukala, opposed the application.

The appeal in question concerns the election to the Port Harcourt City Local Government Council in the Port Harcourt Local Government Area (PHALGA) for the Chairmanship of the Council at the Local Government Elections conducted in Nigeria on the 12th December, 1987 wherein the Petitioner/Respondent’s name was excluded from the list of nominated candidates because of an allegation that the petitioner had been dismissed from Government service while in the employment of the Rivers State Teaching Service Commission. The trial Judge declared the election of the 4th appellant, Dr. Emenike Wami, void on the ground that the petitioner/respondent, Sunday Wodi, was deemed to be eligible to be voted for under section 4 of the Local Government Elections Decree No. 37 of 1987 and was wrongly excluded from the election.

On the 1st of March, 1988, at the lower court, learned counsel for the petitioner/respondent, Mr. E. C. Ukala, called as first plaintiffs witness Anthony Iwo Okpan-Omo, a Higher Registrar Records of the High Court, Port Harcourt to produce and tender a sworn counter-affidavit by one Adolphus Enyinda Nwosu the third appellant herein dated 9th December, 1987 in respect of suit No. PHC/546/87 between Sunday O. Wodi as plaintiff and Adolphus Nwosu, the Electoral Officer Port Harcourt Local Government Area and two others. Learned counsel for the 4th appellant in the present appeal in the lower court, Mr. L. A. Mitee’s objection to the admissibility of the document was overruled and the document with its attachments was admitted as Exhibit 1. Exhibit 1 has attached with it a petition, Exhibit 18 by one Azunda Adele dated 26th November, 1987 in which he deposed that Sunday Wodi was dismissed from the service of the Rivers State Teaching Service Commission and with that petition he attached photo copy of Rivers State of Nigeria Official Gazette No.17 Volume 7 of 1st May, 1975, Exhibit 1D. At page 144 of the Gazette the following Notice appeared:

“Department- Teaching Service Commission

Name-Wodi, S. O.

Appointment- Technical Instructor

Date of leaving service – 1-4-74

Reasons for leaving service- Dismissed”

Mr. Koroye, in support of his submission to tender the original of the Gazette, cited Ogbunyiya & Ors. v. Okudo & Ors. (1979) 3 LRN 318, South Eastern State Newspaper Corporation & Anor. v. Edet Asuquo Anwara (1975) 1 All N.L.R. (Part II) page 38 at pages 43 – 45 and Order 9 rule 9 of the High Court (Civil Procedure) Rules 1987 of the Rivers State of Nigeria.

Mr. C. O. Akpamgbo, S.A.N. in support of the tendering of the Rivers State of Nigeria Official Gazette referred to page 324 of Ogbunyiya & Ors. v. Okuda & Ors. (supra) and contended that the photocopy of the Gazette had already been tendered by Mr. Ukala, learned Counsel for the respondent in the court below at page 83 lines 17 to 26 of the record of appeal. The original can therefore not be said to take the respondent by surprise.

Learned Senior Advocate referred to the cases of (1) Nwabuoku v. Ottih (1961) 1 All N.L.R. 487 at 490; NICON v. Power and Industrial Engineering Co. Ltd. (1986) 1 S.C. 2 at pages 46 and 47; (1986) 1 N.W.L.R. (Part 14) 1. Mr. Ukala, learned Counsel for the respondent, submitted that in objecting to the tendering of the Rivers State Official Gazette, it is his view that the interest of justice is the interest of the plaintiff, the defendant and the society in general. He submitted that it is not in the interest of justice that the Court should assist in advancing the cause of one of the parties before it. He submitted that the onus is on the party who asserts to prove his assertion.

What is pleaded per se does not constitute evidence in proof of the assertion.