Alhaji Atiku Abubakar, G.c.o.n & 2 Ors V Alhaji Umaru Musa Yar’adua & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

This appeal was argued on Tuesday, 22nd January, 2008 and it was adjourned to today, Friday, 25th January, 2008 for judgment. This was as a result of the urgency involved in the appeal. The parties in this appeal are scheduled to adopt their addresses on Monday, 28th January, 2008 and the outcome of the appeal is very likely to have an impact on the proceedings on 28th January, 2008. In the circumstances, we had to expedite this judgment; not easy, though.

This is a consolidated appeal. Two interlocutory appeals are consolidated. One is against the Ruling of the Court of Appeal refusing leave to the petitioners/appellants to file interrogatories against Professor Maurice Maduakolam Iwu, the 5th respondent, and seek further and better particulars against Alhaji Umaru Musa Yar’Adua and Dr. Goodluck Jonathan, the 1st and 2nd respondents, respectively. The other is against the Ruling of the Court of Appeal granting extension of time to the 4th to 808th respondents to file 213 additional witnesses’ statements on oath. The interlocutory appeals emanate or emerge from the Presidential Election Petition filed by the appellants: Alhaji Atiku Abubakar, Senator Ben Obi and the Action Congress. All the parties to the Presidential Election are involved in this interlocutory appeal.

In the Ruling on the interrogatories, the Court of Appeal said at pages 720 and 721 of Record (Volume E2):

“I have listened to the learned senior counsel on all sides and I thank them for their industry. I am of the view that the answers being required by the interrogatories and particulars sought for in this application can easily be ascertained from witnesses during the hearing of the petition. In an election matter, anything that will impede speedy trial must be avoided. In the circumstances, I refuse the application and it is hereby dismissed.”

In the Ruling to file 213 additional witnesses’ statements on oath, the Court of Appeal said at page 723 of the Record (Volume E2):

“The learned senior counsel for the petitioners/ respondents opposed the motion on the grounds of incompetence of the relief and the failure of the applicants to exhibit the statements on oath of the witnesses in the motion papers.

I have given a very serious thought to the submissions of counsel on all sides and it is clear that the motion paper has some lapses which counsel for the applicants should have corrected before filing the application. For example, what the relief is seeking is actually not amendment of the petition but leave to call more witnesses with their statements on oath.

In a presidential election petition of this magnitude, it is in the interest of justice that parties are given full opportunity to ventilate their cases without due regard to technicalities. Since the list of witnesses and their statements on oath were all filed in the registry of this court on the 17th of August, 2007, they are properly before the court and accordingly I grant leave to the applicants to call additional witnesses whose statements on oath were duly filed on the 17th of August, 2007 and they are deemed properly filed and served today.”

Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated the following two issues for determination:

“2.1Whether the petitioners/Appellants’ motion for leave to administer interrogatories on 5th respondent and further and better particulars from 1st and 2nd respondents were rightly refused by the lower court in the light of the decision of this court cited but ignored in the Ruling? (Grounds 1, 2, 3 and 4) hereinafter referred to as Appeal No. 1.

2.2 Whether the lower court acted without jurisdiction when it granted 4th-808th respondents leave to call additional witnesses notwithstanding that no such prayer was canvassed by the 4th-808th respondents before their Lordships; and the time mandatorily prescribed for such an application was not sought. (Grounds 1, 2 and 3 of the Notice of Appeal) hereinafter referred to as Appeal No. 2.”

The 1st and 2nd respondents also formulated two issues:

“1. Whether the lower court was right in refusing the application for interrogatories and further and better particulars.