Senator (Sir) I. G. Abana V. Chief Ben Obi & Ors (2004)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.
In a motion on notice, the appellant/applicant seeks the order of this court:
“1. granting leave to adduce fresh and/or additional evidence on appeal.
2. that such fresh evidence be received by affidavit or by deposition taken by an Examiner or Commissioner of Oaths or as this Honourable Court may direct.
3. such further or other order(s) as this Honourable Court may deem fit to make in the circumstance.”
The grounds for the application are:
“1. That the appellant/applicant was not aware of the existence of the additional evidence sought to be adduced during the proceedings at the lower tribunal.
2. That the evidence if admitted would have a far-reaching effect on the result of this Appeal.
3. That the appellant/applicant only became aware of the said evidence after the matter was concluded before the lower tribunal.”
Supported by an affidavit of sixteen paragraphs deposed to by Tola Oshodi, Esquire, the affidavit has four exhibits annexed thereto.
Some of the said exhibits are marked while others are not. I must state at this stage that there seem to be some confusion as to the numbering of the exhibits. What we have are exhibits A, B, C, D as respectively referring to Form EC8E 0000193 bearing the name of Chief Ben Obi, form EC8E 0000193 bearing the name of Hon. C, N. Ukachukwu, the letter to the Inspector General of Police, Force Headquarters, Abuja, the petition of Hon. C. N. Ukachukwu also marked exhibit C and the Newspaper Report as exhibit D. Also annexed but without any exhibit numbers are three Forms EC8E one bearing the names of Hon. C. N. Ukachukwu, the second without a name and the third bearing the name of Chief Ben Obi.
We observe that the Forms EC8E bearing the names of Hon. C. N. Ukachukwu and Chief Ben Obi are the same with the documents marked exhibits B and A respectively. By the depositions in paragraphs 4, 5 and 6 of the affidavit in support, it appears exhibits ‘A’ and ‘B’ are referred to in the affidavit as exhibits TOA and TOB.
By paragraphs 13 and 14, exhibits TOC and TOD refer respectively to the letter to the Inspector-General of Police while TOD refers to the ‘Thisday Newspaper’ publication. In this ruling, we shall adopt the numbering A, B, C and D as indicated on the exhibits before us.
Upon being served with the counter-affidavit of the 1st respondent, the applicant filed a further affidavit sworn to by Chidi Nobis-Elendu, Esquire.
In response to the application, a counter affidavit of seventeen paragraphs was filed. Also relied on are the records of this court in the suit of Ukachukwu against INEC & 4 Ors.
The application is made pursuant to Order 1 rule 19(2) of the Court of Appeal Rule, 2002 and the inherent jurisdiction of this court.
Order 1 rule 19(2) states as follows:
“(2) The court shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner as the court may direct, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.” (emphasis are mine.)
This court will exercise this discretion only where the applicant has brought his case within the conditions prescribed in the rules as noted above. These are special grounds which have been well
adjudicated upon. The case of Awoke Owata v. Uchanchi Anyigor (1993) 2 NWLR (Pt. 276) p. 380 at 393 sets out the principles as follows; that:
“(i) The evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial.
(ii) If the fresh evidence is admitted, it would have an important, but not necessarily crucial effect on the whole case.
(iii) If the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible.
(iv) Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower court in favour of the applicant, if it had been available at the trial court.
(v) The evidence should be material and weighty even if not conclusive. Where the evidence sought to be admitted is irrelevant and immaterial, it will be rejected.” See also Akanbi v. Alao (1989) 3 NWLR (PU08) 118 at 137.
The facts supporting this application are deposed to in paragraphs 4, 5, 6, 7, 8, 9 and 13 of the affidavit and which paragraphs are hereby reproduced:
“4. In petition No. EPT/AN/NA/3/2003, Chief Ben Obi v. INEC & 4 Ors., the 1st respondent purported to have been issued with declaration of result of election to the Senate Form EC8E with serial No. 0000193, in respect of the Anambra Central Senatorial Elections. The said Form EC8E with serial No. 0000193 was admitted in evidence as ‘exhibit PI’ at the lower tribunal. A certified true copy of the said Form EC8E, serial No. 0000193 is attached herewith and marked exhibit ‘TOA’. The 1st respondent in the aforesaid petition claimed to have been returned as winner of the Anambra Central Senatorial Election by virtue of the said ‘exhibit TOA’.
5. Surprisingly, in Petition No. EPT/AN/NA/2/03 – Hon. C. N. Ukachukwu v. INEC & 4 Ors. The petitioner therein, Hon. C. N. Ukachukwu also purported to have been issued with the declaration of result of election Form EC8E, with serial No. 000193 in respect of the Anambra South Senatorial Elections. The said Form EC8E, Serial No. 0000193 was admitted in evidence by the lower tribunal in that petition as ‘exhibit A’. A certified true copy of the said Form EC8E, Serial No. 0000193 is herewith attached and marked ‘Exibit TOB’. The petitioner therein, Hon. C. N. Ukachukwu, also claimed to have been returned as winner of the Anambra South Senatorial Election by virtue of the said ‘exhibit TOB’.
6. Both the 1st respondent and the said Hon. C. N. Ukachukwu respectively claim to have contested the Anambra Central Senatorial District Election and the Anambra South Senatorial District Election of 12th and 16th April 2003. and to have been returned as duly elected by exhibits TOA and TOB annexed hereto.
7. That during the course of proceedings at the lower tribunal, the appellant/applicant herein was not aware of the existence of the result sheet allegedly issued to Hon. C. N. Ukachukwu which said result sheet Form EC8E serial No. 0000193 is the very same result sheet Form EC8E, serial No. 0000193 which the 1st respondent tendered as exhibit ‘P1’ in petition No. EPT/AN/NA/3/2003, the subject-matter of this appeal.
8. That the appellant/applicant has now obtained a copy of the said document and upon perusal of same, it was discovered that it is relevant and material evidence, which ought to have been brought to the attention of the trial tribunal.
9. That I verily believe that the trial tribunal would have come to a decision radically different from that being appealed against by the appellant/applicant had the said document been brought to its attention during the trial.
13. That upon discovery of this obvious anomaly, the application promptly protested to the Inspector General of Police vide his petition dated 5th January, 2004, a copy of which is attached herewith as exhibit ‘TOC’.”
These depositions were controverted in the counter-affidavit of the respondent. The relevant paragraphs are also hereby reproduced. These are paragraphs 5(a), 5(b), 5(c) and 5(d):
“5. That in reply to paragraphs 5, 6 and 7 of the affidavit in support, I state:
a. That Nobis-Elendu, Esq. and Chuma Oguejiofor both conducted the defence in petition EPT/AN/NA/2/03: Ron. C. N. Ukachukwu v. INEC & 4 Ors. where exhibit A was tendered as well as petition EPT/AN/NN3/2003: Chief Ben Obi v. INEC & Ors. Where exhibit PI was tendered.
b. That it is false that the Nobis-Elendu, Esq. by whom the deponent received his information, could say that he ‘was not aware of the existence of the result sheet issued to both Hon. C. N. Ukachukwu and Chief Ben Obi’, when on each occasion Nobis-Elendu was in court when these documents were tendered.
c. That at page 34 para. 4.3.6 up to p. 35 of the appellant’s brief of argument dated 15/9/2003 the applicant as appellant, argued this point and the same was controverted by the respondent in the later’s brief at p. 38 paragraph 41.
d. That 1 shall at the hearing of this application rely on the proceedings of the petition in EPT/AN/AN/2/03 in proof of paragraph 5 (a) and (b) of this counter-affidavit.”
The applicant filed a further affidavit upon being served with the counter-affidavit. The depositions in the further-affidavit and those of the main and the counter-affidavits shall be referred to as the need arises in the course of this ruling.
It is the submission of Dr. B. O. Babalakin (SAN) that upon the facts placed before this court the crucial question is ‘whether this issue should not be resolved by evidence’.
‘Is it not’, queried the learned senior counsel, ‘relevant to find out whether there have been three different Forms EC8E with serial No. 0000193 declaring different results to different contestants all claiming to have won the election in different Senatorial Districts?’.
Herein, submitted the senior counsel, lies the relevance of the fresh evidence sought to be tendered, which senior counsel contends, would have far reaching effect on the case.
On the depositions in the counter affidavit, the senior counsel stated that the issues raised to the effect that the fresh evidence sought to be tendered was available at the trial of the suit has been debunked in the further-affidavit in paragraphs 3, 5, and 6.
The said paragraphs are hereby reproduced for ease of reference:
“3. That paragraph 5(a), (b), (c) and (d) of the counter affidavit sworn to by Ikechukwu Ani dated the 19th day of January, 2003 are false and are hereby denied.
5. That as a matter of fact, I ceased appearing in petition No. EPT/ANA/3/03: Chief Ben Obi v. INEC & 4 Ors. On 14/7/03, when the matter was yet to proceed to trial and/or hearing and never took part in same after the preliminary applications.
6. That I was not present and did not participate in the conduct of the trial and/or proceeding in EPT/AN/NA/03, Hon. C. N Ukachukwu v. INEC and 4 Ors. during which or when exhibit ‘A’ (exhibit TOB in the application to adduce additional evidence) was tendered, but I became aware of exhibit TOB by my subsequent participation in EPT/AN/NA/2/03 aforesaid, which said participation has nothing whatsoever to do with the conduct of the defence in EPT/AN/NA/3/2003, a petition completely distinct from EPT/ AN/NA/2/03”. (emphasis mine)
The issue, argued the senior counsel, is was the evidence available at trial? Senior counsel contends it was not.
With utmost due respect, this is not the position of the law. The power conferred on this court in the exercise of its discretion to admit fresh evidence does not support this contention of the learned senior counsel. The relevant part of the Order 1 rule 19(2) of the rules of this court (supra) on this point states that in the case of appeal from a judgment after trial/hearing on the merit, no such further evidence shall be admitted. (emphasis mine). The said Order 1 rule 19(2) states the exception to be matters which have occurred after the date of the trial or hearing. See generally per Ogundare, J.S.C. (of blessed memory in Chief Phillips O. Anatogu & 2 Ors. v. H.R.H. Igwe Iweka 11 (Eze Obosi) & Ors. (1995) 8 NWLR (Pt. 415) p. 47.
On paragraph 7 of the counter-affidavit, on whether the fresh evidence was pleaded and made an issue at the trial, the senior counsel cited pages 93 – 100 of the records which is the petition filed at the lower tribunal as sufficiently pleaded the requisite facts questioning the authenticity of the Form EC8E 0000193 in exhibit ‘A’. They did not however have the pillar, argues the senior counsel, until exhibit ‘A’ surfaced. Senior counsel opines that it is not possible for three different results to be declared on one Form EC8E. For this reason submitted senior counsel, the fresh evidence is weighty if not conclusive and which fresh evidence will go a long way in unraveling the election results of at lest two senatorial seats in Anambra State.
Responding on points of law, Dr. Babalakin (SAN) submitted that election petitions are peculiar and that serious issues of facts cannot be submerged into technicalities. The senior counsel called on us to rather apply substantial justice and thereby identify the real winner in the appeal before us. Senior counsel cited the case of Kashim Ibrahim v. Senator Alli Sheriff (Unreported) and Muhammadu Buhari & Ors. v. Chief Olusegun A. Obasanio & Ors. (2003) 17 NWLR (Pt. 850) p. 423 at 507 – 508 in support of his submission for substantial justice.
Chief C. O. Akpamgbo for the 1st respondent drew our attention to the depositions in paragraphs 5(a) – (d) of the counter-affidavit and paragraphs 5 and 6 of the further-affidavit all of which show that the learned counsel who gave information to the deponent in the affidavit in support of this application was present and knew when exhibits P1 and A were tendered. Exhibit P1 is same as exhibit B. The said piece of evidence is therefore not fresh, contends the senior counsel who argues that since exhibit A was the result tendered in Ukachukwu’s case (supra), it means that the said document was available at trial but was not tendered. It is the submission of the learned senior counsel that for these reasons, this court cannot grant the application. The senior counsel cites the case of Rezcallah & Sons v. Federal Board of Inland Revenue (1962) 1 SCNLR 1, on this point.
Referring further to paragraph 5(a) – (d) of the counter-affidavit, the learned senior counsel drew our attention to petition No. EPT/AN/NA/3/2003 in which Nobis-Elendu of counsel filed the notice of appeal on the 25/07/03; a case in which the fresh evidence relates.
It is further the submission of the senior counsel that judgment in the said case was delivered on 08/08/03, therefore, as at 25/07/03, Nobis-Elendu, Esq. was aware of exhibit A, now sought to be tendered as fresh evidence.
Another hurdle in the path of the application, contended senior counsel is that contrary to the established principles on this issue, the further evidence was not pleaded nor were the pleadings amended to reflect such fresh evidence. The senior counsel called in aid the case of Alhaji I. A. Onibudo & Ors. v. Alhaji A. W Akibu (1982) 7 SC 60. It was also the case of the respondent that exhibits ‘C’ and ‘D’ were not made issues at the lower tribunal and should therefore be discountenanced. The senior counsel contends that exhibit ‘C’ pertains to fraud which savours on criminality, an issue which this court is under no legal obligation to consider at this stage. We agree with this point.
Finally, the senior counsel, calling for the dismissal of the application, urged us to take cognizance of the need to an end to litigation – and submitted that the applicant did not tell us when he became aware of the existence of exhibit ‘A’. We too have noted this lacuna.
The senior counsel submitted a list of authorities he relied on consisting the following:
“1. Ukariwo Obasi & Anor. v. Eke Onwuka (1987) 3 NWLR (Pt.61) 364 at 370 para. C – E.
2. Asaboro v. Aruwaji (1974) 4 SC 119 at 129.
3. Madam Adeleke v. Aserifia (1990) 3 NWLR (Pt. 136) 94 at 111
4. Stephen Abatan v. Dr. M. Awodu (2003) 10 NWLR (Pt…) at 459 para A-E.
5. Onibudo v. Akibu (1982) 7 SC 60
6. Edward Nwokoro & Anor. v. Ezekiel Nwosu (1990) 1 NWLR (Pt. 129) 679.
7. Rezcalleh & Sons Ltd. v. F.B.I.R. (1962) 1 SCNLR 1, (1962) 1ANLR p.1.”
Representing the 2nd to 5th respondents, i.e., the INEC group, A. T. Udechukwu, Esq. does not oppose the application to receive the fresh evidence. It was however the submission of the learned counsel that the case of the 2nd – 5th respondents at the lower tribunal did not challenge the authenticity of exhibit ‘A’, the fresh evidence.
Rather, the evidence of the Electoral Commissioner was that exhibit ‘A’ was similar to the one in the office and that the said exhibit ‘A’ was eventually withdrawn or cancelled – by the Resident Electoral Commissioner. That, submitted counsel, was INEC’s case in exhibit PI sought to be tendered in this application.
Finally, counsel submits that the instant application is saying that both documents bear the same number, which was not the case presented by INEC at the lower tribunal.
Dr. B.O.B. Babalakin (SAN) cited and provided in support of his submission, the case of Chief H.I.S. Idibi & Another v. Captain Shulgin Oleksardr & 70rs. (Unreported) suit No. CA/L/365/99.
Upon a perusal of the said case, we find that there were indeed fresh and substantial pieces of evidence which were not available at the trial. The facts of that case is clearly distinguishable from those of the one before us in very material particulars.
This distinction lies in the fact that in this application the depositions in paragraphs 5, 6, and 7 of the counter affidavit and paragraphs 5 and 6 of the further affidavit show that the evidence sought to be tendered as fresh was available at the time of the trial which evidence was within the close perception and indeed the very knowledge of Nobis-Elendu, Esq. Nobis-Elendu is the deponent in the further-affidavit. In paragraph 6 thereof, he deposed that although he was not present and did not participate in the conduct/proceedings in EPT/AN/NA/2/03, Hon. C. N. Ukachukwu v. INEC & 4 Ors., during which or when exhibit ‘A’ was tendered, he did subsequently participate in EPT/AN/NA/2/03 (emphasis mine).
The senior learned counsel also relied on the case of Mrs. P M. Coker v. & Mrs. T Reis (2000) 6 NWLR (Pt. 659) p. 78 at 81. In that case, Nzeako (J.C.A.) who read the lead judgment, set out the fresh evidence which manifestly brings out the distinction with the instant case.
For its aptness to the application under consideration, I crave indulgence for the liberty to quote the said judgment in extenso. Nzeako (J.C.A.) found in these terms at page 90:
“I should think that the depositions in paragraphs 2C and 2(d) of the applicant’s affidavit in support show that the documents – exhibits A, B, C and D sought to be adduced as additional evidence were not and could not have been obtained till after August 1996. For it was then the applicant discovering that her father’s account had been closed instructed her counsel Mr. Amobi to make enquiries in London, which enquiries resulted in finding these exhibits. This was long after the ruling delivered on 20/10/95. There does not seem to be a way the respondent/applicant could have known of these document earlier or used them for purposes of the motion filed and heard in 1995.”
The case before us is be-reft of the weighty issues revealed in that case. Our decision cannot therefore be the same.
C. O. Akpamgbo, SAN, had submitted, upon the authority of Alhaji I. A. Onibudo & Ors. v. Alhaji A. W Akibu and Ors. (1982) 7 SC 60, that evidence not pleaded does not meet the special circumstances for the admission of fresh evidence on appeal. Dr. Babalakin SAN, in response to this issue and as earlier noted cited pages 93-100 of the records of appeal as having sufficiently pleaded the facts questioning the authenticity of the said Forms EC8E. We note with utmost due respect that the learned senior counsel did not cite any particular paragraph in support of this submission. Pages 93 to 100 contain the reply of the applicant in suit No. EPT/AN/NA/3/2003 in which the applicant was 5th respondent.
Paragraph 6(f), (g) and (r) and paragraph 7(a) and (b) are the paragraphs which made reference to Form EC8E in the said reply. None of these paragraphs contain an allegation of the forgery of Form EC8E nor any mention of the form with serial No. 0000193 ,INEC, the 2nd-5th respondent, whose document is alleged to have been forged says, per its learned counsel A. T. Udechukwu, Esq. that it did not make forgery its case at the trial tribunal. Issues were therefore not joined on the forgery – of Form EC8E. In the cases of Chief P.D.C. Okenwa v. Military Governor of Imo State Hand 3 Ors (1996) 6 NWLR (Pt. 455) p. 394 at 407 paras. G – H. the Supreme Court per Iguh (J.S.C.) delivering the lead judgment held that an appellant will not be allowed to raise on appeal a fresh point or question which was not raised or tried or considered by the by the trial court, particularly where to raise such point or question will require fresh or additional evidenced to be adduced.
Further, on this issue, the imputation to be made from the position of INEC is that this document was available at the trial and was known to exist but INEC the legal custodian of the said document did not make an issue of it.
The relevance of the submission of A. T. Udechukwu for the 2nd – 5th respondents is that the document now called fresh evidence is in fact not fresh. The applicant cannot feign ignorance of its existence.
Paragraph 2 of the affidavit in support of the application cites N. C. Nobis-Elendu, Esq. as the source of the information – of the existence of the fresh evidence. In paragraphs 5 (a) – (d) of the counter-affidavit, Nobis Elendu, Esq. is shown to have been neck deep in the suits in which the said exhibit ‘A’ was tendered. In debunking these depositions in a further-affidavit, Nobis-Elendu, Esq. tacitly avoided the use of dates in his depositions, which usage would have adequately answered the depositions in the counter-affidavit.
Paragraphs 10 each of the main affidavit, and further affidavit merely state that ‘new facts came to the knowledge of the appellants after judgment in the petition’. Exactly when did this information become available? Could it have been on the 5th of January when the deponent discussed with Nobis-Elendu, Esq, the informant? It is not however the place of this court to speculate nor fill in the gap in the depositions of litigants.
We find that paragraphs 3, 5, and 6 of the further-affidavit earlier reproduced in this ruling are anything but the rebuttal of the facts deposed to particularly in paragraph 5(c) of the counter affidavit.
The further-affidavit of Nobis-Elendu, Esq. simply ignored the said paragraph which stands admitted in law.
We further find that there is a remarkable silence as to the time/date of the discovery of this all important fresh evidence. We are left to wonder why the time of this great discovery is shrouded in secrecy.
In this era of transparency in the affairs of the governance of this great nation, Nigeria, this court must be wooly of upholding a weary application. Why is Nobis-Elendu, Esq. sitting on the fence as it were, on this issue?
In paragraphs 11 and 12 of the affidavit in support, the deponent “declared” that the entire purpose of the serial number of each declaration of result Form EC8E is to distinguish the forms from each other and that the authentic declaration of results for the election and return in two separate Senatorial Districts in the same State would not have the same serial number. The deponent did not inform us in the said affidavit that he is an officer of INEC and therefore should possess personal knowledge of these facts. Further, the 2nd – 5th respondents who should know, have not informed us that the serial numbers of the said forms must be different. What then are the basis of the depositions in paragraphs 11 and 12 of the affidavit?.
We agree with the submission of Akpamgbo (SAN) that paragraphs 11 and 12 are bad in law. How do we know that one Form EC8E 0000193 cannot be used for two different Senatorial Districts?
Depositions in an affidavit which leaves one asking the ‘how’, ‘why’, ‘when’ and ‘who’ of facts deposed to offends the provisions of section 87 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. The depositions in paragraphs 11 and 12 therefore go to no issue and with their exit, the application before us lacks substance.
Even if the said paragraphs were valid in law what are the special circumstances which make the said piece of evidence a compelling acceptance by this court?.
We had earlier in this ruling highlighted the principles guiding the consideration of an application such as this. It is the contention of Dr. Babalakin, SAN that the crucial issue in this motion is that one document, with the same serial number declared two different results in two different districts.
The said Form EC8E with the same serial No. 0000193 exhibited as A and B are in respect of election results in two different senatorial districts, the contents of each of these forms are different, the officials stated on each of the forms are different. What then is amiss?. What is new about the new Form EC8E discovered?
The Supreme Court in their wisdom held that the rule guiding the exercise of appellate jurisdiction is to enable the Superior Court to correct the errors of fact or law made by the inferior court. The purpose of an appeal therefore is to determine whether on the same evidence and or on no other, and the law applicable, the trial court came to the right decision.
The Supreme Court reasoned that it would be difficult to assess the correctness of the decision of the trial court where fresh evidence not tendered before is taken into consideration. The apex court held that it must be shown that special circumstances exist and that the evidence is a new fact arising after the decision. See the case of Madam Jarawa Adeleke v. Liadi Ajadi Aserija. See also per Oputa (J.S.C.) in Ukarimo Obasi & Anor. v. Eke Onwuka & 5 Ors. (1987) 3 NWLR (Pt. 61) p. 364 at 370 paras. C – E in which the Supreme Court held that courts lean against hearing fresh evidence on appeal. See also Chief Phillip O. Anatogu & 2 Ors. v. HRH Igwe Iweka II (Eze Obasi) & 4 Ors. (1995) 8 NWLR (Pt.415) p. 547 at 587 – 588. Akpamgbo (SAN) urged us to take cognizance of the need for an end to litigation.
We agree and are guided by the decision in Trans Nab Ltd. v. Rays Joseph (1997) 5 NWLR (Pt. 504) p. 176 at 196 which held that there must be a limit to litigation and that a party should not be allowed to prove his case by instalments.
We note also that even the deponent to the affidavit in support of this application had no faith in the depositions; for paragraph 2 thereof ended in these terms:
“…which information likely believed to be true”.
He does not believe the information which are only ‘likely’, which we interpret to mean the information are merely plausible!
With these pieces of contradiction, missing links and the general reluctance of this court to admit fresh evidence, also with the submission of A. T. Udechukwu, Esq. for INEC and the established knowledge of Nobis-Elendu, Esq. of the existence of the said fresh evidence, the fragrance of freshness in the piece of evidence sought to be tendered quickly fades into oblivion, swept away by the ravaging storm of credibility.
This application lacks merit and is hereby dismissed.
The applicant shall pay a cost of N3,000.00 to the 1st respondent.
Other Citations: (2004)LCN/1525(CA)