Ambassador Akpang Ade Obi Odu V. Donald Etim Duke and Ors (2004)
LawGlobal-Hub Lead Judgment Report
DONGBAN-MENSEM, J.C.A.
The contentious issue before us is the propriety of the ratio decidendi of the trial tribunal (hereinafter referred to as the Tribunal) in setting aside the subpoena duces tecum it had issued to the 1st respondent to produce some documents to wit:-
“The originals of all your academic qualifications, particularly:
1. Your qualifying certificate from Corona School, Apapa, Lagos.
2. Your qualifying certificate from St. Mary’s Private School, Lagos.
3. Your qualifying certificate from Federal Government College, Sokoto.
4. Your qualifying certificate from Federal Government College, Ilorin.
5. Your qualifying certificate from the Federal School of Arts & Science, Lagos.
6. Your Bachelor of Laws (LL.B) degree certificate from Ahmadu Bello University (ABU), Zaria.
7. Your Barrister-at-Law (B.L.) certificate from the Nigerian Law School, Lagos.
8. Your Call to Bar Certificate also from the Nigerian Law School, Lagos.
9. Your Master of Laws (L.L.M) degree certificate from the University of Pennsylvania, U.S.A.”
It is conceded by the appellant that the tribunal had the requisite jurisdiction to set aside the said subpoena duces tecum it had earlier issued, that is the correct position of the law and we need not expend energy on that. (Refer Civil Procedure in Nigeria, 2nd Edition (2000) by Fedelis Nwadialo, SAN pp. 652-655. D.S.P Alameiyeseigha v. Chief Saturday Yeiwa & 3 Ors. (2002) 7 NWLR (Pt. 767) 581 at 600-601 and R v. Lewes, Justices ex parte secretary of State for Home Dept. (1972) 1 QB 232 and Raymond v. Tapson (1883) 22 Ch. Div. 430 at 435 CA.)
What is a subpoena?
The Black’s Law Dictionary, 6th Edition, pg. 1426 provides some useful definitions and explanation of the nature of a subpoena. It defines subpoena as “a command to appear at a certain time and place to give testimony upon a certain matter”.
F. Nwadialo, SAN, learned author (supra p. 652) describes a subpoena as an order or a writ of the court, which may be for the person to attend the court and testify only, called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum, as was issued in the instant case. The subpoena simplicita could also require the person to do both, i.e., to produce document and also testify; the difference lies in the choice of the form used.
A subpoena duces tecum is thus a court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process. (Black’s Law Dictionary).
By these definitions, what we need to determine in this appeal is whether the tribunal was right in holding that the documents the subpoena sought were ‘no longer relevant’ on the grounds that issues were not joined on the said documents, (listed supra); the 1st respondent, held the learned members of the tribunal, having admitted the existence of the said documents.
On the 7th day of November, 2004 when the appeal came up for hearing before us, some preliminary issues were raised and addressed.
The learned Senior Advocate to the respondent, Wole Olanipekun, SAN had incorporated a preliminary objection in the 1st respondent’s brief of argument, which was deemed filed and served on the 08/11/04.
The appellant’s brief of argument filed on the 13th April, 2004 and the reply brief were adopted by Mba E. Ukweni, Esq., the learned counsel to the appellant. Counsel further addressed us briefly on the issues raised in the briefs, which he adopted. Counsel urged us to discountenance the preliminary objection and the submission of the 1st respondent against the appeal.
The learned senior counsel to the respondent also adopted the respondent’s brief and emphasized a few issues in a brief oral submission.
The other petitioners/and respondents filed no briefs of argument.
By the notice of preliminary objection, the Senior Advocate of Nigeria urged us to strike out the entire notice and grounds of appeal dated the 25th March, 2004 and filed on the 26th March, 2004.
The grounds for the preliminary objection are:-
i. Ground (ii) and particulars (a) & (b) thereunder do not arise from the decision appealed against.
ii. Particulars (a) and (b) under ground (iii) are argumentative.
The grounds of appeal and their particulars are hereby reproduced for the ease of reference:-
Ground one: Error in law:
The learned trial Judges of the Election Tribunal erred in law when they set aside the subpoena duces tecum issued by the Tribunal and commanding the 1st respondent to produce his certificates and academic qualifications duly pleaded by the petitioner/appellant in paragraph 8 of his petition and admitted by the 1st respondent in his reply to the petition on the ground that the documents having been admitted required no further proof and their production becomes irrelevant to the proceedings when infact the contentious issue of the irregularity of genuineness of the NYSC certificate of exemption is founded on the 1st respondent being a qualified graduate of a university or any tertiary institution which makes the production of those certificates necessary/relevant.
Particulars of error
a) The subpoena was based on facts upon which the parties have joined issues in their pleadings.
b) The issue of validity or otherwise of the NYSC certificate of exemption or qualification for national service under the Nation Youth Service Corps Scheme is founded on the 1st respondent being qualified as a graduate of a university or Tertiary institution which were facts which the subpoena required the 1st respondent to show to the Tribunal.
c) Though pleaded in the positive as found by the Tribunal that does not render the documents irrelevant to the proceedings.
d) The schools attended by the 1st respondent and the qualifying certificates obtained therefrom are all sequence of events culminating in the issuance of the NYSC certificate of exemption, which is in contention.
Ground two: Error in law:-
The learned Judges of the election tribunal erred in law when they prevented the petitioner/appellant from calling a witness of his choice, and determining at the stage of the proceedings what evidence was relevant to the proceedings which determination precluded him from putting in evidence relevant documents in proof of his case thereby interfering with his right to a fair trial.
Particulars or error:-
a) A party has the right to conduct his case and call witnesses of his choice whom he feels is necessary to prove his case.
b) It is the right of counsel to the adverse party to object to the admissibility of the document at the time of tendering it and not at the time of calling the witness.
c) The setting aside of the subpoena has the effect of preventing the petitioner/appellant from calling a witness of his choice to produce documents/evidence necessary to prove his case and assist the tribunal in a fair determination of the petition.
Ground three: Error in law:
The learned Judges of the Election Tribunal erred in law, when they misconstrued and misapplied the decision in Rex v. Agwuna (1949) 12 WACA 456 and A.-G., Western Nigeria v. African Press Ltd. (1965) 1 All NLR 6 with regard to the powers of a court to set aside subpoena issued by it.
Particulars of error:-
a) The authorities relied upon by the tribunal dealt with seditious publication and/or utterances, which were entirely different circumstances from the petition before them.
b) The subpoenas in those cases were set aside because they were vague and applied for on frivolous grounds. They were not required for the purpose of obtaining any evidence that were relevant.
c) In the present case, the subpoena was not vague. What it required 1st respondent to produce was clear and relevant to the petition. It was not to embarrass or ridicule him.
It is the submission of the learned senior counsel that ground 11 of the appeal does not arise from the decision of the tribunal and is therefore not a challenge to the validity of the decision, which an appeal should be. The senior counsel asserts that the said ground is at large and that particulars (a) & (b) of the said grounds are not grounded by the records of proceedings for the appeal. Cites pages 21-30 and 31-32 of the records Pages 21-30 of the small records of proceedings bear the ruling of the tribunal being appealed against.
Senior counsel relies on following cases in support of this point:-
Sarah v. Kotoye (1997) 3 NSCC 331 at 355; (1992) 9 NWLR (Pt. 264) 156, Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485 at 489; Igwegbe v. Ezuma (1999) 6 NWLR (Pt. 606) 228, Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207.
On ground iii, the Senior Advocate avers that particulars (a) & (b) subscribed thereunder are argumentative and therefore incompetent, relies on: Jamiyu Aliyu v. Aturu (1999) 7 NWLR (Pt.612) 536; Guda v. Kitta (1999) 12 NWLR (Pt.629) 21 at 39.
The learned senior counsel urged us to strike out the entire notice of appeal and the brief of argument in support thereof as it would be difficult to start the expunction or excising of arguments in support of the remaining grounds of appeal since the sole issue formulated cuts across both the competent and incompetent grounds.
Senior counsel submits upon the following authorities:- Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129 at 143; Egnr. Nura Khalil v. Yar’adua (2003) 16 NWLR (Pt. 847) 446; Manir Yakubu v. Ibrahim Tsauri; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; that it is not the business of the court to perform surgical operation on the appellant’s brief in order to separate the chaff from the grain. To do this, contends learned SAN, would becloud the judgment of the court as it would have descended to the arena- see per Salami, J.C.A. in Ayalogu v. Agu (supra). Senior counsel urged us to strike out the entire appeal, there being no issue to sustain the grounds of appeal.
The appellant’s reply brief addressed the issues raised in the preliminary objection. It is the contention of the learned counsel for the appellant that all the issues raised in the grounds and particulars of the appeal were effectively raised before the learned members of the Election Tribunal who erred in setting aside the subpoena duces tecum at that stage. (Refers to pages 7, 11, & 14 lines 24, 12, 6 respectively of the records Counsel also cited pages 24 and 25 lines 14, 9-26 respectively of the ruling of the tribunal as showing the consideration of the said issues by the tribunal and its decisions thereon.
Counsel cites the decision of this court in the case of Justice Party v. INEC (2004) 12 NWLR (Pt.886) p. 140 where a similar objection was over-ruled. In the Justice Party case (supra) this court held, per Muhammed, J.C.A. at pp. 154-155, that where there has been substantial compliance with the relevant rule of court, the grounds as filed by the appellants should be sustained as competent.
We have perused the proceedings and find at pages 12 & 14 particularly that the issues raised in ground 11 and its particulars (a) & (b) were actually canvassed before the Tribunal.
The tribunal did not however make any pronouncement on this issue, it made no decision.
This court is not one of trial. Until a trial court has adjudicated on the merit of an action or an application filed before it, we cannot determine the matter, not being a court of first instance. (Ref per Oduyemi, J.C.A. in Chief Lambert Necha v. INEC and 1 Ors. (2001) 3 NWLR (Pt.699) p. 74 at 89) We accordingly hold that ground ii and its particulars (a) & (b) is incompetent and is hereby struck out.
On the competence of particulars (a) and (b) of ground iii, the learned counsel for the appellant relied on the decision of the Supreme Court in the case of Alhaji Salami O. Aderounmu v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) p. 253 at 265-266; Military Administrator, Benue State v. Ulegede (2001) 51 WRN at 15-16 also reported in (2001) FWLR (Pt.78) p. 1268 at 1283-1284; (2001) 17 NWLR (Pt. 741) 194.
The learned counsel quotes extensively, the decision of the Supreme Court per Ayoola, J.S.C. (Rtd.) (supra) and urges us to be guided by the principles and the current trend in adjudication as amply elucidated in the said decisions. The said decisions, submits counsel, show that the courts now aim at applying substantial justice as against undue reliance on the rules of technicality, which shuts out litigants from the court.
We agree with the submission of the learned counsel for the appellant and are properly guided by the pronouncement of the Supreme Court in the two cases cited (supra).
It is difficult, one must say, to discern how particulars (a) and (b) of ground iii of the appeal as formulated have occasioned a miscarriage of justice to the 1st respondent. (Refers Okonji v. Njokanma (1999) 14 NWLR (Pt.638) p. 250 at 268). The said particulars though inelegantly drafted, adequately convey the contentions of the appellant and sufficiently put the 1st respondent on notice of the issues to be determined on the appeal.
The cardinal consideration is that where the parties to an appeal and the court are not misled by the contents of a ground of appeal, complain about its form becomes a technicality which does not occasion a miscarriage of justice. Courts now pursue the cause of substantial justice as against reliance on rules of technicality. (Refer generally to City Engr. (Nig.) Ltd. v. NAA (1999) 11 NWLR (Pt.625) p. 76 at 89; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) p. 355 at 386-387.
We find no justification in striking out the said particulars, which are accordingly hereby sustained.
The unique facts of this appeal are as follows:-
The constituted National Assembly/Governorship and Legislative Election Tribunal sitting at Calabar (Coram – Hon. Justice O. A. Boade, (Chairman) Hon. Justice 1. Hwande, Hon. Justice M.
L. Abimbola, Hon. Justice J. J. Jella) had, at the instance of the petitioner issued a subpoena duces tecum to the 1st respondent commanding him to produce his academic certificates as listed supra in this judgment. Hearing commenced and some witnesses who had also been subpoenaed at the instance of the petitioner testified. On the 16/03/04, the 1st respondent had filed on his behalf a motion to set aside the subpoena issued on him.
The motion was contested particularly by the petitioner who had a counter affidavit filed.
The grounds for the application as stated on page 3 of the small records are:-
“(i) The subpoenas have been applied for in utmost bad faith.
(ii) The subpoenas have been applied for and issued to embarrass or ridicule the 1st respondent.
(iii) This Tribunal on 25th February, 2004 dismissed an application brought by the petitioner to amend his petition to challenge or attack the educational qualifications of the 1st respondent and petitioner has appealed to the Court of Appeal against the said ruling.
(iv) The subpoenas have no relevance to the pleading and grounds of the petition adumbrated in the petitioner’s pleading.
(v) The subpoenas are vague.
(vi) The subpoenas constitute abuse of the processes of this Honourable Tribunal.
(vii) The Tribunal has no jurisdiction to entertain any issue relating to the contents and demands of the subpoenas.”
In a reserved ruling pronounced on the 19th March, 2004, the Tribunal preferred the submission of the learned SAN and accordingly set aside the subpoena earlier issued on the 1st respondent.
Aggrieved by the decision of the tribunal, the petitioner, hereinafter, referred to as the appellant, filed this appeal seeking a reversal of the decision of the Tribunal and a restoration of the subpoena issued on the 1st respondent.
A sole issue for determination in this appeal is formulated by the appellant upon the three grounds of appeal filed along with the particulars.
The 1st respondent also formulated a sole issue. We shall adopt the appellant’s issue in this judgment.
This issue is:-
“Whether, taking into consideration the state of the pleadings, the totality of the evidence led and the circumstances of the petition, the Election Tribunal was right in setting aside the subpoena duces tecum issued by it on the 1st respondent to produce his academic qualification/certifications?”
We have found supra that although the grounds of appeal and the issue are inelegantly drafted, they do raise substantial legal issues touching on the decision of the Tribunal and are therefore viable and sustainable. This court has the power and we hereby take the leverage of such to recast the issue for determination as follows:-
Whether taking into consideration the state and stage of the proceedings, the Election Tribunal was right in following the decision in R. v. Agwuna to declare as irrelevant and thereby setting aside the subpoena duces tecum issued on the 1st respondent to produce his academic qualification/certifications.
I must say that both parties have made a great issue of this appeal, which in our humble view is a very narrow issue of law, therefore the volumes of verbiage loaded into the submissions of particularly the learned counsel to the appellant are not necessary. We have therefore looked at the real issue and ferreted out all other irrelevances. The main stake is the order setting aside the subpoena. The appellant contends that the tribunal acted in bad faith and misdirected itself in law, when it relied on the decisions in R v. Agwuna 12 WACA 456 at 457; A.-G., Western Nigeria v. African Press Ltd. (1965) 1 All NLR 6 in setting aside the subpoena.
It is the contention of the appellant’s learned counsel that the reasoning of the tribunal that because issues were not joined on the said documents, they are not relevant is a misdirection in law. The learned counsel cites sections 3, 6, 7, 8, 9, (1),10 and 12 of the Evidence Act in support of his submission that the said documents are relevant. It was also the contention of counsel that since non of the pieces of evidence sought by the subpoena has been expressly declared or rendered inadmissible by either the Evidence Act or any other statute, the Tribunal was equally wrong from the stand point of section 5(a) of the Evidence Act, Cap. 112 of the LFN, 1990 to exclude them by declaring them irrelevant.
Citing the authority of Olukade v. Alade (1976) 1 All NLR 67; (1976) 2 SC. 183; Hassan v. Maiduguri Management Committee (1991) 8 NWLR (Pt.212) p. 738 at 750. Counsel argues that the Tribunal had rejected the admissibility of these documents even before they were produced. Also upon the authority of Oyediran v. Alebiosu 11 (1992) 6 NWLR (Pt. 249) p. 550; Monoprix (Nig.) Ltd. v. Okenwa (1995) 3 NWLR (Pt.383) p. 325 at 340 counsel submits that the Tribunal failed to take into consideration the age old principle of law that in civil proceedings for a document to be admissible, it must not only be pleaded, it must be as well relevant to the just determination of the suit.
It is further the assertion of the counsel that the tribunal was wrong in applying the ratio in Adeye v. Chief Adesanya (2001) 2 SCNJ 79; (2001) FWLR (Pt.415) 1847; (2001) 6 NNWLR (Pt. 708) 1, which in fact supports the position of the appellant. (Refers per Ognegbu, J.S.C. at 1856 paras. E – F).
While conceding the general principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof, counsel cites the case of Yashe v. Umar (2003) 45 E WRN 115 at 128-129; (2003) 13 NWLR (Pt. 838) 465 which says that there exist circumstances in which documents pleaded and admitted will need to be tendered in evidence in order for the court to be aware of their contents and to give them proper interpretation.
This, contends counsel, is to satisfy the court’s conscience as to the existence, condition and content of the said documents. The appellant seeks to do just that in his petition, declares the learned counsel (refers to per Ba’ aba, J.C.A. in Yashe case (supra).
It was finally the submission of the learned counsel that setting aside the subpoena was to gag the appellant and control what evidence he gives. The petitioner is however entitled to the opportunity to avail himself of all available evidence and witnesses to prove his case. (Refers to Savannah Bank v. Motor Parts Installation Enterprises Ltd. (1997) 3 NWLR (Pt.492) 209 at 218.
The learned senior counsel for the 1st respondent submitted that the subpoena was not sought bona fide and declared that the subpoena ‘at best was asking the 1st respondent to produce non-existing documents’ a mere ‘fishing expedition,’ (refers to the case of Rex v. Agwuna, African Press Ltd. (supra); Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at pp. 188’97189), the learned SAN concluded.
We find this submission curious for the simple reason that if the 1st respondent admitted the qualifications credited to him, there must be evidence to support such. With due respect to the learned senior counsel, the said documents cannot be said to be ‘non’-existent’ unless of course the admission and declaration of the qualifications of the 1st respondent is a farce.
It was further the submission of the senior counsel that by the nature and contents of the document, the tribunal lacks the jurisdiction to look into the documents covered by the subpoena (cites Jang v. Dariye (2003) 15 NWLR (Pt.843) p. 436 at 459. Again, we are unable to comprehend the basis of this argument.
It appears the court must look at the contents of a document vis-a-vis the facts pleaded to determine its relevance. This seems to be the theme of the Supreme Court decision in Agwuna (supra) that:-
“the relevance of evidence is for the court not the Minister to decide …”
The declaration of the learned senior counsel that the subpoena was sought in “Utmost bad faith”
is not supported by any reason in either the brief nor the oral submission of the learned SAN in court. We hold with due respect to the learned senior counsel that the said submission goes to no Issue.
No “bad faith” has been made out in support of the contention of the 1st respondent for setting aside the subpoena. In R v. Agwuna (supra), a criminal matter, it was held that the subpoena was not necessary to obtain any evidence relevant to the trial. It was therefore set aside. In the A.-G., Western Nigeria v. African Press Ltd. (supra) the subpoena was a wild one, it was therefore declared vague and applied for on frivolous grounds.
In the English case of Morgan v. Morgan (1877) 2 All ERS 515, the witness was not bound or concerned in the proceedings. He was subpoenaed for the purposes of obtaining evidence from him about his asset and testamentary intentions. The subpoena was set aside for the reason that such evidence sought to be obtained will amount to invasion of the witness’s personal right and private affairs.
None of these situations is similar to the facts of the instant case. The person subpoenaed here is a principal party. The documents sought are very clearly and distinctly identified. These are all documents, which are personal to the 1st respondent and are therefore under his personal control and custody.
By the provisions of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, a party is entitled to prepare for his case.
At the stage of preparation as in this case, investigation and discoveries are vital in building up the case of the litigant. Should the litigant desire such documents of his opponent, he must be allowed the benefit of such enquiry. Good circumspection dictates some allowance to the litigant at this preliminary stage. The reason is that the other party has a chance at the trial, to respond and query the relevance of such materials demanded and produced.
The crux of the decision of the trial Tribunal is borne out on page 28 of the records being part of the ruling of the Tribunal recorded in pages 21-30 of records of this particular appeal (referred to as the small record). The Tribunal wondered if there were any:
“real need for the petitioner to subpoena the 1st respondent to produce the documents”
To answer the question, the learned members of the Tribunal turned to paragraph 8(a)-(d) of the amended petition in which the various institutions the 1st respondent attended are listed with dates from the primary school to the Nigerian Law School up to his enrolment as a banister and solicitor of the Supreme Court of Nigeria in 1983. The Tribunal observed that the 1st respondent admitted those averments in their replies. The Tribunal concluded that it is trite law that admission in pleadings binds the party who made it and no further proof of the truth of the fact so admitted is required.
It cited the case of Adeye & Ors. v. Chief Adesanya & Ors. (2001) 2 SCNJ 79; (2001) 6 NWLR (Pt. 708) 1, above, in a nutshell is the basis of the decision of the Tribunal that the documents were not necessary and it therefore set aside the subpoena.
The 1st flaw apparent in the decision of the Tribunal is the fact that admissions are not conclusive proof of the matters admitted but they may operate as estoppel (refer Ojiegbe v. Okwaranyia (1962) 1 All NLR 605 at 607; (1962) 2 SCNLR 358.) By the provisions of section 132 of the Evidence Act (supra) documentary evidence prevails over any other matter as only the document itself will be admissible evidence.
Further, section 75 of the Evidence Act (supra) that the Tribunal seems to rely upon, though not cited, refers to the parties agreeing to admit, was there any such agreement in this matter? The petitioner made some depositions/declaration about the 1st respondent, which the 1st respondent admitted. There was no agreement per se. It is correct that by the rule of pleadings, facts admitted need not be proved. The court however reserves the discretion to allow or require proof other than by the prior admission/agreement of the parties. The discretion of the court is a power to be exercised judicially and judiciously. This then requires that the court in so exercising its discretion must be guided by the basic tenets of justice to prevail over the rules of technicalities (Refer Egolum v. Obasanjo supra).
This, in my humble opinion, is the basis of the discretion reposed in the court by section 75 of the Evidence Act; to require further proof. Indeed, the said section does not empower the court to dispense with further proof of the admitted facts, this is instructive.
Had the learned members of the Tribunal averted their minds to these areas of the law, they would have arrived at a different decision than the one they did.
The reason the tribunal struck down, by setting aside, the subpoena is the relevance of tendering the documents, which had already been admitted.
With due respect to the learned members of the tribunal, relevance in the circumstance is a matter of details which should arise only at the adduction of evidence. At that stage, the 1st respondent has the opportunity to prevent whatever mischief or injury he perceives the tendering of such documents would wrought to his case. Not before then.
The appellant/petitioner must not be shut out/short charged at the stage of collating materials for the prosecution of his petition, unless of course, he short charges himself.
Accordingly, the Tribunal was not, at that preliminary stage, seized of the relevant facts to decide at the time it did, that the documents sought were not relevant.
The current trend in judicial circle is the doing of substantial justice. Efforts must be geared towards upholding the rights of individuals without sacrificing the general interest. When there exists ample opportunity for the other party to raise further objections during the course of a proceeding, the courts must not rush into shutting out a party who seeks to haul in some materials he considers vital to his case at the very preliminary stage. The exception to this rule will be where the case is incurably defective and no judicial surgery can resuscitate it.(Refer Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26, Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) p.179, Obimonure v. Erinosho (1966) 1 All NLR 250).
As the proceedings progress, objections can be raised through which the grains can be separated and the chaffs jettisoned for good and substantial judicious reasons.
Assuming the admission of the existence of these documents preclude their production, the petitioner should not be denied the right to a visual perception of the said documents.
In my humble opinion, the deposition/statements in paragraph 8(A-D) of the amended petition are no more than a repetition of the expected basic qualifications of the 1st respondent, which by law, qualifies him to stand election for the office of the Governor. A few additional qualifications, which are not required by the provision of section 117 of the Constitution merely go to enhance the credentials of the 1st respondent as presented by him to INEC.
The mere fact of the reproduction of the same by the petitioner in this petition should not preclude/estop the petitioner from desiring to have a visual perception of the certificates evidencing those declared qualifications (refer Barrister Boloukuromo Ugo v. Bolobowei lndiamaowei & 6 Ors. (1999) 13 NWLR (Pt.633) P. 152 at 160).
This procedure allows for comparison, which enables the inference to be drawn from the inspection and comparison of that which is declared, and what actually is. In the determination of the issues placed before it, the court has the inherent powers to draw legitimate inference arising from facts presented before it (refer Sodipo v. Leminkainen OY (1986) 1 NWLR (Pt.15) p. 220 at 224-5 per Karibi-Whyte, J.S.C. (Rtd).
In the special circumstance of an election matter being sui generis, it appears reasonable to hold that a party is not shut out at the inception of his case. He should be allowed to garner whatever materials he perceives requisite for the prosecution of his case. The Tribunal must not give the impression of siding with any party by appearing to shield such a party. The said documents could be used to impugn the evidence adduced and thereby radically affect the evidential weight/probative value ascribable to the case of the 1st respondent. This, the appellant is allowed to do. It is a contest.
It is our humble and considered view that the tribunal threw caution to the winds in deciding on the relevance of the documents at that preliminary stage of the proceedings.
I fail to see what injustice was occasioned by the issuance of the subpoena. The injustice to be suffered by the appellant by the setting aside of the subpoena is however visible and apparent; the party is being denied an opportunity to prosecute his case with the materials he deems relevant. While the setting aside of the subpoena was an act to protect the one party from “whatever”, its withdrawal constitutes a denial of an element of fair hearing, a constitutional and natural right which is more fundamental than merely shielding a party from a ‘perceived embarrassment’. It needs to be accentuated that the right to fair hearing is more than a personal right of the individual, it is a matter of public policy. The individual’s right to a fair hearing is non-negotiable, sacrosanct.
Why would a party feel harassed or embarrassed by the production of his certificates? I think the Tribunal acted in haste and thereby occasioned a miscarriage of justice to the appellant.
The learned members of the election Tribunal erred in setting aside the subpoena duces tecum at that stage.
The Justice of the case demands a reversal of the decision of the Tribunal and it is hereby so ordered.
The subpoena is restored and the respondent shall comply with same as ordered initially. Appeal is allowed. A cost of N5,000.00 is awarded to the appellant against the 1st respondent.
Other Citations: (2004)LCN/1659(CA)