Otu Bassey Ekpenetu V. Mfawa Ofegobi & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the State Houses of Assembly Election Tribunal sitting in Calabar, Cross River State, delivered on 11th November, 2011, in the petition challenging the election of the 1st Respondent into Yakurri I State constituency of the Cross River State House of Assembly, held on the 26th April, 2011.

The brief background facts of this matter are that, sequel to the declaration of the 1st Respondent as the winner of the election into the Yakurri I State Constituency of the Cross River State House of Assembly held on 26th April, 2011, the Appellant filed a petition on 17th May, 2011, to challenge the declaration.

The petition was struck out based upon the preliminary objection of the 4th Respondent that the Appellant had failed to disclose his right to present the petition. The Appellant filed an appeal to the court of Appeal Calabar Division against the striking-out order of the Tribunal. That initial appeal was heard and judgment was delivered on 23rd September, 2011 and the petition was sent back to the Tribunal for trial on the merit.

At the Tribunal for the second time, the petition was dismissed on 11th November, 2011 because according to the Tribunal, the testimonies of the four witnesses for the Appellant not having complied with the provisions of section 13 of the oaths Act, Cap. 01, Laws of the Federal Republic of Nigeria, 2004, became inadmissible in evidence and were consequently discountenanced.

The Appellant was dissatisfied with the judgment of the court of Appeal. On 15th November, 2011, the Appellant filed a Notice of Appeal to this court. The Appellant is seeking inter alia, the order of this court setting aside the said decision of the Tribunal. The Notice of Appeal consists of nine (9) grounds of Appeal. For easy reference, the nine grounds of appeal with their particulars are hereunder set out as follows:

GROUND 1

The Lower Tribunal erred in law when it rejected the statements on oath of PW1, PW2, PW3 and PW4 respectively on the ground that their statements on oath did not comply with Section 13 of the Oath’s Act, 2004, because the deponent failed to use the wordings used exactly by the legislature of the Oath Act.

PARTICULARS OF ERROR

I. The Statements on Oath of PW2; PW2; PW3 & PW4 respectively substantially conformed to the provisions of Section 13 of the Oaths Act.

II. The insistence of the lower Tribunal that the deponent to a statement on oath should have reproduced the Form in the Schedule to the Oaths Act word for word is crass technicality that is at variance with the current jurisprudence that substantial justice must prevail over technical justice.

III. It was clear that the swearing of another Oath by the witness operates to validate whatever defect was apparent in the statement including non-compliance with the provisions of the Oaths Act.

IV. The authority of Obumneke V. Sylvester which the Tribunal relied on was not applicable because there were also other authorities such as Femi Adekanye v. Controller of Prisons that says that an affidavit that substantially conforms to Section 13 of the Oaths Act is competent.

GROUND TWO