Auwal Dahiru Sale V. Hon. Auwalu Abdu & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment)

This appeal is against a ruling of the National and State Houses of Assembly Election Petition Tribunal, Bauchi State (hereinafter simply referred to as “the tribunal”) which was delivered on July 26, 2011. The first and second petitioners before the tribunal [who are now first and second respondents in this appeal] had filed a petition at the tribunal. In the said petition, they challenged the return of the appellant as the Member of the House of Representatives in the Katagun Federal Constituency of Bauchi State in the general elections held in April 2011 elections which were conducted by the fourth respondent.

On July 26, 2011, when the PW3 was about to adopt his witnesses statement on oath, the appellant’s counsel raised an objection. He contended that the use of the figures “002”, in identifying the witness instead of his initials, was in breach of paragraph 1 of the Practice Directions. Instructively, the fifth – thirty ninth witnesses, also, were identified with figures in the List of witnesses and statement on oath. The tribunal’s ruling dismissing the said objection prompted this appeal. The appellant distilled two issues from his Notice of Appeal. These issues were couched thus:

1. Whether upon a proper construction of the provisions of paragraph 1 of the Election Tribunal and Court practice Directions, 2011, the use of figures to identify witnesses, is within its contemplation
2. Whether a petitioner who does not comply with the provisions of paragraph 1 of the Election Tribunal and Court Practice Directions, 2011, will be allowed to call a witness on the premise that the impugned witness was not misled and the respondents will not suffer any injury.

On their part, the first and second respondents identified the following two issues as sufficient for the determination of this appeal. These issues are:

1. Whether the failure of the petitioner to identify some of his witnesses’ statement on oath with their initials is sufficient to invalidate the evidence of such witnesses and deny the tribunal the benefit of taking evidence from such competent witnesses.
2. Whether it is every non-compliance with the Election Tribunal and Court Practice Direction 2011 that can vitiate the effectual trial of an election petition.

We have, carefully, perused the Grounds of Appeal and we take the humble view that the issues, which the first and second respondents formulated, are more cogent having regard to their piquancy. We shall, therefore, adopt them in the determination of this appeal. We shall deal with them seriatim. Before then, however, we are under obligation to dispose of the Preliminary Objection of the first and second respondents to the competence of Ground two in the Notice of Appeal.

PRELIMINARY OBJECTION

In their brief of argument, which as shown above, was deemed properly filed and served on September 20, 2011, the first and second respondents raised an objection to the competence of Ground two in the Notice of Appeal on the premise that, since it did not arise from the ruling appealed against, it was liable to be struck out.

Pointing to page 479 of the record, it was contended that for a ground of appeal to be competent, it must be an attack on the ratio decidendi of the decision appealed against, M. B. Nig, Plc v Nwohodo (2005) 40 WRN 1, 40; West African Cotton Ltd v Haruna (2008) 13 WRN 130, 142. Counsel urged the court to strike out the said Ground two for being incompetent.

The appellant responded to the issue raised in the preliminary objection in his reply brief which was deemed properly filed and served on September 20, 2011. It was contended on his behalf that a careful reading of the particulars under Ground two would reveal that the ratio decidendi of the said ruling was the tribunal’s conclusion that the appellant would not suffer any injury as a result of the use of the figures ”002” to identify the witnesses and that the witness was not misled. It was observed that, from the said ruling, the issue of the witness not being misled and or the appellant not suffering any injury as a result of the use of the figures to identify the witness had arisen.

Thus, the issue or complaint which the appellant raised had satisfied the requirements of the definition of a ground of appeal, Ajuwon v. Fashina (2008) 6 WRN 89. Furthermore, the appellant took the view that the gravamen of his complaint in Ground two could be appreciated when read together with the particulars. The particulars under the said ground had, succinctly, captured his grouse against the said ruling of the tribunal, Obun v Ebu (2007) 6 WRN 105, 137. Relying on Gambari v Mohmud (2008) 7 WRN 76, 102-103, the appellant maintained that for a ground of appeal to be competent, it must be connected with the controversy between the parties and must stem from the decision of the court below. In effect, when the ground of appeal is borne out of the facts in the record and the findings of the trial court, it is competent. Against this background, therefore, the cases which were relied on the above objection were irrelevant.

RESOLUTION OF THE ARGUMENTS IN THE PRELIMINARY OBJECTION

As noted earlier, objection was taken at the tribunal to the adoption of a witness statement on oath which was identified with figures instead of initials or alphabets. The objector’s ground was that the use of figures to refer to witnesses was in breach of paragraph 1 of the Practice Directions.

The tribunal overruled the said objection on page 479 of the record in these words:

This witness we are of the opinions not (sic) misled, he has identified in (sic) his signature, and the use of the figures is to protect the witness.