Chukwuemeka Godwin Nzewi & Anor V. Joseph C. Okeke & Ors (2008)

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VICTOR AIMEPOMO O. OMAGE, J.C.A.

In this appeal, the petitioner who participated in the general election which took place throughout the country on 14th April, 2007 filed his petitions on 25th May, 2008. On 20th August, 2007, 1st respondent sought an order before the tribunal to strike out the petition of the Petitioner because the petition was not supported by the petitioners written statements on oath.

The motion went before the tribunal which considered the written statements of the Petitioner, and came to the conclusion that the petition failed to comply with the provisions of the Practice direction of 2007, which requires that all the petitions to be presented before the tribunal or court to be accompanied by (a) a list of all the witnesses that the petitioner intends to call in proof of the petition (b) written statements on oath of the witnesses (c) copies or list of every document to be relied on at the hearing of the petition.

A petition which fails to comply with sub-paragraph 1 of this paragraph, “shall not be accepted for filing by the secretary” etc. The practice direction for conduct of the Election at the Election Tribunal 2007 came into operation, and became effective from 3rd April 2007, Practice Direction was issued by the Honourable President of the Court of Appeal under the provisions of the Constitution of Nigeria, and the directions are as binding as the provisions of the Electoral Act.

Acting upon these provisions the Election Tribunal into the, Anambra State House of Assembly seat over Nnewi North Constituency, the court strike out the petition of the Petitioner at the Tribunal below, for reasons of non compliance with the provisions as above, consequent upon which the tribunal ruled that the statement in writing of the witnesses that the petitioner intends to call are not in all cases supported by statements on oath or made on oath in compliance with the Practice Direction. The Tribunal therefore struck out the petition at the pre trial stage.

The petitioner was dissatisfied with the ruling of the Tribunal, he has filed this appeal on seven grounds namely, (a) the trial Tribunal erred in law when it struck out the statements on oath, attached to this petition on the grounds of non compliance with the provisions of the oaths Act, and this led to a miscarriage of justice.

The petitioner supplied copious particulars in each ground of appeal filed which for want of space I will not repeat in this judgment. They are contained on page 899 of the record of proceedings in this case (b) the appellant averred that the learned Chairman and members of the Election Tribunal erred in law when they struck out the statements on oath attached to the petition when by virtue of Section 4(2) of the Oath Act, any irregularity in the form in which an oath in affirmation is administered shall not invalidate any proceedings in any court or render inadmissible evidence in or in respect of which an irregularity took place in any proceeding, and this error led to grave miscarriage of injustice. (c) The trial Tribunal erred in law and thereby arrived at a wrong decision when it held that there had been total non compliance with the provisions of the Oaths Act, when from the impugned statements on oath, it was clear that the provisions of the Oaths Act had been fully complied with. (d) The Governorship/Legislative Houses Election Tribunal erred in law, when it relied on the provisions of the Election Tribunal and courts practice direction 2007 which is not valid in law to strike out the petition. (e) The Election Tribunal erred in law when upon striking out the written statement on oath of the petitioner’s witnesses it struck out the petition on the ground that it was not supported with witnesses’ statement on oath, as required by the Practice Direction (f) The election tribunal erred in law for striking out the statements on the ground of alleged defect in form. (g) The Election Tribunal erred in law in strike out the petition on the ground of irregularity in the witnesses’ statement when the petitioner is in substantial compliance with the provisions of Electoral Act 2006, and the Tribunal and Court Practice Direction 2007.

The appellant formulated issues on the grounds of appeal thus:

“(1) The appellant’s submit that based on the grounds of appeal, the following issues arise for determination (a) Was the tribunal right when it struck out the written statement of Petitioner whereas on the ground that they did not contain the oath/declaration prescribed in the first schedule to the oaths Act.

(2) Was the tribunal right to have struck out the petition for non compliance with the provisions of the Election Tribunal and Court Practice Direction 2007”.

I have written out in full shorn of the particulars all the Issues formulated on them because the 1st respondent in his brief has raised a preliminary objection to grounds 4, 5 and 7 of the grounds of appeal upon which the two issues are formulated. The 1st respondent raised the objection also in a notice filed by him on 7th March, 2008. The ground of the objection is that the grounds and issues argued in the appellants brief did not derive from the issues determined by the tribunal, and did not receive the benefit of submissions by both counsels in the court below. This being a Court of Appeal, a new issue cannot now be raised without the leave of court. Such leave was not asked for nor granted. The 1st Respondent counsel submitted that the issues and grounds are incompetent he relied on Owena Bank Plc. v. Olabaji (2002) 12 NWLR (Pt.781) 259 at 359; and MBN v. Nwobodo (2005) 14 NWLR 379 at 387-388.

I did not see any reply brief filed in the processes by the appellant in which he filed a reply to the preliminary objection raised by the 1st respondent. I assume therefore that the appellant filed no response to the preliminary objection to strike out from the brief grounds 4, 5 and 7. It would seem difficult to do so in my view since the appellant has already compiled his brief to reflect the issues composed.

In response to the preliminary objection filed by the Respondent, I write that it is trite in the rules of the hearing of appeal that the issues formulated by the parties, which is based on a ground of appeal should derive and arise from the decision given in the judgment of the court below. The ground of appeal being founded on the decision of the court below is based on the complaint made in the court below which the said lower court has resolved. See Abidoye v. Adawodi (2001) 3 SCNJ per Onu JSC. In the instant appeal the issue of ability in legality of the Tribunal to determine the petition of the appellant did not arise for determination of the tribunal and the tribunal did not give its ruling on the issue, as formulated in grounds 4, 5 and 7 of the grounds of appeal. Where therefore grounds of appeal which are not founded on the issue determined in the court below are formulated for determination in the Court of Appeal, the leave of the court is necessary. See Emeghare v. Health Management Board of Imo State & 2 Ors. (1987) 2 NWLR (Pt.56) page 330; and Odife & Anor v. G. Aniemeka & 2 Ors (1992) 7 NWLR (Pt.257) p. 25 at 42.

I rule therefore that grounds 4, 5 & 7 on which the two issues formulated is incompetent, and I hereby strike out the said grounds. The second set of grounds in the brief are, 1, 2, 3 and 6.