IN THE SUPREME COURT OF NIGERIA
ON Friday. the 25th day of January 2008
ABUBAKAR, GCON and 2 ORS .........................................................................................PETITIONERS/APPELLANTS
YAR’ADUA and 5 ORS ...................................................................................... RSEPONDENT
Niki Tobi; George Adesola Oguntade; Mahmud Mohammed; Francis
Fedode Tabai; Ibrahim Tanko Muhammad, JJSC
Whether the leave of the Court of Appeal was required for the appeals to be lodged.
Whether the refusal by the Court of Appeal to allow the appellants to administer interrogatories on the fifth respondent was correct.
Whether the refusal of the Court of Appeal to grant the appellant’s application for further and better particulars was correct.
Whether the Court of Appeal had jurisdiction to grant the 4th–808th respondents leave to call additional witnesses for their defence.
Whether the issues raised in the appeals had become academic.
Whether the appeals constituted an abuse of the judicial process.
The petitioners/appellants (Alhaji Atiku Abubakar, Senator Ben Obi and the Action Congress Party) filed an application against the respondents at the Court of Appeal sitting as Presidential Election Tribunal. While the election petition was pending, the petitioners/appellants filed an application for leave to administer interrogatories on the fifth respondent (Professor Maurice Iwu, Chairman INEC) and for further and better particulars against the first and second respondents, (Alhaji Musa Yar’adua and Dr Jonathan Goodluck). The respondents also filed an application for leave to enable them to file the list of Statements on Oath of 213 additional witnesses. The Court of Appeal first heard and refused the petitioner’s/appellant’s application to administer the interrogatories and for further and better particulars. Dissatisfied with the ruling, the petitioners appealed to the Supreme Court. Thereafter, the Court of Appeal heard and granted the respondent’s application to file the Statements on Oath of the 213 additional witnesses. Being further dissatisfied with this second ruling, the petitioners/appellants again filed another appeal in the Supreme Court. There were therefore two separate appeals filed by the petitioners/appellants at the Supreme Court. The Supreme Court consolidated and determined the appeals.
Leading judgment by Niki Tobi, JSC; with G.A. Oguntade, M. Mohammed, F.F. Tabai, E.T. Muhammad, JJSC concurring
1. No leave to appeal required for ground of law
No leave of the court was required to file the Notice of Appeal. Even if it was an interlocutory appeal, the grounds of appeal were grounds of law for which leave was not required. Per Muhammad, JSC at 79; Per Tobi, JSC at 42.
2. The request for interrogatories justified
The appellants had every right to serve interrogatories on the fifth respondent. Per Muhammad, JSC at 79.
The facts sought to be interrogated which related directly to the fifth respondent’s acts in the conduct of the election could not be answered by any person other than the fifth respondent. This procedure would narrow down the issues and would facilitate the quick and early disposal of the petition. The Court of Appeal ought to have granted leave to the appellants to conduct interrogatories in relation to the fifth respondent’s role in the election. Per Muhammad, JSC at 79.
The answers being sought in the interrogatories could not easily have been obtained from other witnesses during the petition, and the application in this regard was wrongly refused. Per Tabai, JSC at 74.
3. Further particulars not reasonably required
There was no relevance in the further particular being sought from the first and second respondents. The application in that regard served no purpose and was refused. Per Muhammad, JSC at 79; Per Tobi, JSC at 42.
4. Additional list of statements of witnesses not prejudicial
The appellants had failed to show that they were prejudiced by the Court of Appeal’s granting leave to the 4th–808th respondents to file an additional list of witnesses. Per Tabai, JSC at 74.
5. Issues neither academic nor an abuse of due process
The issues raised in appeal against the refusal to grant interrogatories and further particulars were neither academic nor an abuse of the judicial process. Per Tobi, JSC at 42.
Prof. A.B. Kasunmu (SAN), with him Mr Ricky Tarfa (SAN), Mr Emeka Ngige, (SAN), Dr M. Ladan, H.A. Nganjuwa Esq., A.J. Owonikoko Esq., Dr (Mrs) Ego Ezuma, Gabriel Tsenyen Esq., Kolawole Olowookere Esq., R. Okotie-Eboh (Miss), Deborah Tarfa (Miss), H. Kwabe, I. Ngige Esq., A.C. Aderemi (Miss), Tunde Osadare Esq. for the appellants
Chief Wole Olanipekun (SAN) with him Dr Alex Izinyon (SAN), Pauline B. Abuhonin (Miss) Gbenga Adeyemi Esq., J.B. Udebang Esq., P.M. Ayim Esq., H. Abdulrahman (Mrs), A. Dada (Miss), T. Terhemba Esq. for first and second respondents
R.O. Yussuf Esq., with him Mr Lawal Abani and S.I. Bamgbose (Mrs) for the third respondent
Chief Amaechi Nwaiwu (SAN), with him Chief C. Ekomaru, O.N. Efut Esq., I.C. Acholonu (Miss), D. Osawe, Esq., E. Agabi Esq., J. Ochogwu Esq. and O. Enebeh (Mrs) for 4th–808th respondents
C.I. Irabo, Assistant Chief Legal Officer, Federal Ministry of Justice for the 809th respondent
Lamey Jibrin for the 810th respondent
The following cases were referred to in this judgment:
Abacha v State (2002) 5 NWLR (Part 761) 638
ABU v Molokwu (2003) 9 NWLR (Part 825) 265
Abubakar v Bebeji Oil Ltd and Allied Products Ltd (2007) NSCQR 1634
Afribank (Nigeria) Plc v Akwara (2006) 5 NWLR (Part 974) 655
Agwasim v Ojichie (2004) 18 NSCQR 359
AIC Ltd v NNPC (2005) 1 NWLR (Part 937) 563
Alsthom SA v Saraki (2000) 4 NWLR (Part 687) 514
Ayeni v Taiwo (1982) 5 SC 29
Baker Marine Ltd v Chevron (2006) 26 NSCQR (Part 2) 1121
C.C.B. (Nigeria) Plc v Attorney–General of Anambra State (1992) 8 NWLR (Part 261) 528
Coker v Uba (1997) 2 NWLR (Part 490) 641
Eboh v Akpotu (1968) 1 All NLR 220
Eboh v Akppotu SC 167/66
Famuyide v R.C. Irving and Co Ltd (1992) 7 NWLR (Part 256) 639
Federal Trustees v Akinwunmi (unreported) FSC 95/1960 at 22/7/60
Government of Plateau State v Attorney-General of the Federation (2006) 3 NWLR (Part 967) 436
Inakoju v Adeleke (2007) 29.2 NSCQR 959
Jamaledirie v F.R.I.R. (unreported) FSC 396/66 of 9/2/68
Joseph Oguntokun v Amodu Rufa 11 WACA 55
Lekwot v Judicial Tribunal (1993) 2 NWLR (Part 276) 410
Madubuchukwu v Madubuchukwu (2006) 10 NWLR (Part 989) 475
Mohammed v Olawunmi (1990) 2 NWLR (Part 133) 458
National Bank v Are Brothers (1977) 6 SC 97
Nnamani v Nnaji (1999) 7 NWLR (Part 610) 313
NNSC Ltd v Establishment Sima of Vadux (1990) 7 NWLR (Part 164) 526
Nwachukwu v Eneogwu (1999) 4 NWLR (Part 600) 629
Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718
Nyah v Noah (2007) 4 NWLR (Part 1024) 320
Obikoya v Ezenwa (1973) 11 SC 135
Ogolo v Ogolo (2003) 18 NWLR (Part 852) 494
Oguntokun v Rufai (1945) 11 WACA 55
Ohowofeyeke v Attorney-General of Oyo State (1996) 10 NWLR (Part 477) 190
Ojemen v Momodu (1983) 1 SCNLR 188
Okafor v NHDS (1972) 4 SC 175
Olochukwu v Emeregwa (1999) 5 NWLR (Part 602) 179
Onochie v Odogwu (2006) 6 NWLR (Part 975) 65
Orubu v NEC (1988) 5 NWLR (Part 94) 323
UBN v Marcus (2005) 23 NSCQR 1
UBN v Sogunro (2006) 27 NSCQR 182
Ukpong v Comm. for Finance (2006) 28 NSCQR 508
Umoru v Zibiri (2003) 11 NWLR (Part 832) 647
Usani v Duke (2004) 7 NWLR (Part 871) 116
WAB Limited v Savannah Ventures Ltd (2002) 10 NWLR (Part 775) 401
Attorney-General v Gaskell  20 Ch.D 528
Balir v Haycock Caddle Co  34 TLR 39
Dean of Chester v Smelting Corporation  WN 5
Heaton v Goldney  1 KB 653
Hennessy v Wright (No. 2)  24 QBD 447
Hewson v Cleeve  2 Ir. R. 536
Marriot v Chamberlain  17 QBD 154
Nash v Layton  2 Ch. 71
Osram Lamp Works Ltd v Gabriel lamp Co  2 Ch. 129
Plymouth Mutual Corporative Society v Traders Publishing Association  1 KB 403
Saunders v Jones  Ch.D. 435
Thomson v Birkley  47 LT 700
The following statutes were referred to in this judgment:
Constitution of the Federal Republic of Nigeria, 1999: Ss 233(1), (2), (3)
Electoral Act, 2006: First Schedule, paragraph 5(a), (b); (17)
Evidence Act: Ss 136, 137, 139
The following rules were referred to in this judgment
Election Tribunal and Court Practice Directions No. 1 of 2007: Paragraphs 1(2); 2; 3(7)(f); 5(a)
Federal High Court (Civil Procedure) Rules, 2000: Order 33 r 1; 2
English RSC: Order 26 Rule 1(3)
The following books were referred to in this judgment
A Dictionary of Modern Legal Usage (2ed) at 463 by B.A. Garner (1995)
Black’s Law Dictionary (6ed) at 819
Tobi, JSC (Delivered the leading judgment):– This appeal was argued on Tuesday, 22 January 2008 and it was adjourned to today. Friday, 25 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, 28 January 2008 and the outcome of the appeal is very likely to have an impact on the proceedings on 28 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 fifth respondent, and seek further and better particulars against Alhaji Umaru Musa Yar’Adua and Dr Goodluck Jonathan, the first and second respondents, respectively. The other is against the Ruling of the Court of Appeal granting extension of time to the 4th–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 17 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 17 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:–
“2.1 Whether the petitioners/appellants’ motion for leave to administer interrogatories on fifth respondent and further and better particulars from first and second respondents were rightly refused by the lower court in the light of the decision of this Court cited to 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 first and second respondents also formulated two issues:–
“1. Whether the lower court was right in refusing the application for interrogatories and further and better particulars.
2. Whether the lower court was right in granting 4th–808th respondents leave to call additional witnesses for their defence.”
So too the 4th–808th respondents. The issues read:–
“(a) Whether appeal lies as of right or at all from an interlocutory decision of the Court of Appeal made in the course of hearing a presidential election petition and if not whether this Honourable Court can entertain this appeal, filed without leave, either of the Court of Appeal or the Supreme Court.
(b) Whether this appeal has become academic or hypothetical having been rendered nugatory or futile by the proceedings in the court below which have since reached address stage and may soon be adjourned for judgment with the full participation of the appellants who have since closed their case?”
Learned Counsel for the appellants, Professor A.B. Kasunmu, SAN, submitted that the Court of Appeal was wrong in refusing the motion of the appellants for leave to administer interrogatories on Professor Iwu and further and better particulars from Alhaji Umaru Yar’Adua and Dr Goodluck Jonathan. He said that the court did not give any reason for the decision. He contended that the order the court made is totally at variance with the long-established principles which guide the grant of leave to administer interrogatories, or the grant or refusal of further and better particulars.
Learned Senior Advocate pointed out that Professor Iwu, who was sought to be interrogated, did not challenge the facts in support of the application and so the Court of Appeal made no finding against the facts in support of the affidavit. On the undisputed facts of the application, all that was left for the Court of Appeal to do was to apply the applicable law, learned Senior Advocate submitted. He relied on Famuyide v R.C. Irving and Co Ltd (1992) 7 NWLR (Part 256) 639 and paragraphs 4, 5, 6, 7 and 8 of the affidavit in support of the application to administer interrogatories. He also relied on the interrogatories attached as Exhibit A to the application at pages 618 to 622 of the Record (Volume E2) and Exhibit B to the application at pages 623 to 628 of the Record (Volume E2).
Learned Senior Advocate submitted that the refusal of interrogatories by the Court of Appeal is irreconcilably against the spirit and intendment of the Election Tribunal and Court Practice Directions No. 1 of 2007 and the Federal High Court (Civil Procedure) Rules 2000 with regards to matters for disposal at the pre-trial of the matter. He cited paragraph 3(7)(f) of the Practice Directions (as amended). He said that it was a serious misdirection in law for the Court of Appeal to have ruled that the facts to be interrogated can “… easily be ascertained from witnesses during the hearing of the petition.” Counsel pointed out that as Professor Iwu was not a listed witness to be called at the trial, the Court of Appeal was wrong in holding that the facts can easily be ascertained from witnesses during the hearing of the petition. Citing Afribank (Nigeria) Plc v Akwara (2006) 5 NWLR (Part 974) 655 learned Senior Advocate submitted that the Practice Directions have the full force of law. He also relied on AIC Ltd v NNPC (2005) 1 NWLR (Part 937) 563 and Famuyide v Irving and Co Ltd (supra). Learned Senior Advocate submitted that the Court of Appeal did not direct itself to the relevant law or facts and consequently reached a decision which prejudiced the justice of the case. He cited Umoru v Zibiri (2003) 11 NWLR (Part 832) 647 at 658 and Ogolo v Ogolo (2003) 18 NWLR (Part 852) 494 at 521.
On the further and better particulars, learned Senior Advocate contended that the peremptoriness and misdirection which affected the Ruling of the Court of Appeal on interrogatories also apply with equal force to the court’s refusal to order first and second respondents to supply the appellants with further and better particulars. He cited paragraph 17 of the First Schedule to the Electoral Act of 2006 and the case of WAB Limited v Savannah Ventures Ltd (2002) 10 NWLR (Part 775) 401 at 433.
On Issue No. 2. learned Senior Advocate submitted that the application for leave for the 4th–808th respondents to amend their Reply to the Petition by filing additional list of witnesses and witnesses statements on Oath is grossly incompetent and incurably bad. He argued that the substance of the application is not an amendment of the Reply, rather, it is an attempt by the respondents to surreptitiously bring in statements that should have been filed along with their Reply, but which they failed to do. He argued further that the motion paper was faulty.
Learned Senior Advocate submitted that the Court of Appeal having rightly found that the application was misconceived, and that the respondents defiantly refused to take hint and apply for appropriate remedy, it was a serious misdirection for the court to have proceeded to make out a case for 4th–808th respondents and grant them reliefs which they ought to seek but elected not to pray for; and which they did not make out on merit or at all. He condemned the injustice done to the appellants. He cited Nnamani v Nnaji (1999) 7 NWLR (Part 610) 313; Ohowofeyeke v Attorney-General of Oyo State (1996) 10 NWLR (Part 477) 190 at 210 and Olochukwu v Emeregwa (1999) 5 NWLR (Part 602) 179 at 183 on a court raising a matter suo motu, non-compliance with rules of court, the exercise of discretionary power by the court, a court involving itself in sentiments and the meaning of “shall” in a statute. He urged the court to allow the appeal.
Learned Senior Advocate for the first and second respondents, Chief Wole Olanipekun raised a preliminary objection. The grounds of objection read:–
“1. Since the ruling in the two motions leading to the two appeals, the appellants had taken steps by leading witnesses and tendering several thousands of documents in proof of their cases which the appellants had sought at the lower court. The defence had equally opened and closed those case and written addresses ordered by the court.
2. It will become a mere academic exercise to determine the two issues arising from the two appeals as copious evidence have (sic) been led by both parties relating to this in which parties have been given time to file addresses awaiting adoption on 28 January 2008.”
Citing the case of Government of Plateau State v Attorney-General of the Federation (2006) 3 NWLR (Part 967) 436 and 419, learned Senior Advocate submitted that the appeal was academic and should be struck out. He did not say more on the preliminary objection. And so be it.
Taking Issue No. 1, learned Senior Advocate submitted that the Court of Appeal rightly refused the appellants leave to administer interrogatories on the fifth respondent and further and better particulars from the first and second respondents. He contended that the Court of Appeal gave sufficient reasons for the refusal of the application. He said that the case of Famuyide v R. Irving and Co Ltd (supra) cited by Counsel for the appellants is inapplicable to this appeal. He contended that it is not the law that once an affidavit is not controverted, it must be believed by the court. Citing National Bank v Are Brothers (1977) 6 SC 97 at 100, learned Senior Advocate submitted that an applicant must prove his petition; there is no escape route via interrogatories.
Relying on the Practice Directions by the President of the Court of Appeal, learned Senior Advocate submitted that interrogatories are not for fishing expeditions; they are expected to be related to the pleadings, as they cannot be issues at large. He referred to Order 33 rules 1 and 2 of the Federal High Court (Civil Procedure) Rules, 2000. Counsel argued that the interrogatories are not related to or vindicated by the pleadings. He regarded most of the questions as relating to commercial transactions.
On the further and better particulars, Counsel submitted that the reason also given above covered the argument. By the nature of the better and further particulars, the appellants were abdicating their case completely and relying on the respondents to prove their case for them.
On Issue No. 2, learned Senior Advocate submitted that the Court of Appeal was right in granting the application of 4th–808th respondents to file additional list of witnesses, as the court exercised its discretion judiciously and judicially. He cited Abacha v State (2002) 5 NWLR (Part 761) 638 at 653. Counsel pointed out that filing of additional witnesses is not the same thing as filing a reply to the petition. The list of additional witnesses is material evidence to prove the already filed replies. It is not the case of filing a new reply, Counsel argued. He urged the court to dismiss the appeal.
Learned Senior Advocate for the 4th–808th respondents, Chief Amaechi Nwaiwu, also raised a preliminary objection in the following terms:–
“1. No leave of court was sought and obtained before filing the appeals.
2. The issues in these Appeals have become academic and hypothetical.
3. These appeals constitute an abuse of judicial process.”
Learned Senior Advocate submitted that an interlocutory appeal to the Supreme Court requires leave of the Court of Appeal or the Supreme Court. He cited section 233(3) of the 1999 Constitution and the cases of Usani v Duke (2004) 7 NWLR (Part 871) 116 at 138 and Orubu v NEC (1988) 5 NWLR (Part 94) 323. He argued that as the grounds of appeal at best can be classified as grounds of mixed law and fact, leave was required. He cited Madubuchukwu v Madubuchukwu (2006)10 NWLR (Part 989) 475 at 494; Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718; Ojemen v Momodu (1983) 1 SCNLR 188; Coker v Uba (1997) 2 NWLR (Part 490) 641; NNSC Ltd v Establishment Sima of Vadux (1990) 7 NWLR (Part 164) 526; UBN v Sogunro (2006) 27 NSCQR 182 at 192-193; Inakoju v Adeleke (2007) 29.2 NSCQR 959 at 1185 and 1186 and Ukpong v Comm. for Finance (2006) 28 NSCQR 508 at 529.
Taking Issue No. 2, learned Senior Advocate submitted that as all the parties have closed their cases and the matter adjourned to 28 January 2008 for adoption of addresses of Counsel, and thereafter for judgment, the appeal is now academic. To learned Senior Advocate, the proceedings in the Court of Appeal cannot now be reopened to enable the appellants serve the interrogatories. He also said that the witnesses called by the appellants cannot now be recalled. He cited Onochie v Odogwu (2006) 6 NWLR (Part 975) 65 at 99; Baker Marine Ltd v Chevron (2006) 26 NSCQR (Part 2) 1121 at 1137; Nyah v Noah (2007) 4 NWLR (Part 1024) 320; Abubakar v Bebeji Oil Ltd and Allied Products Ltd (2007) NSCQR) 1634 and Agwasim v Ojichie (2004) 18 NSCQR 359. He urged the court to uphold the preliminary objection.
On Issue No. 1, learned Senior Advocate relied on paragraph 2 of the Practice Directions, 2007 and argued that the provision does not stipulate the consequence of failing to attach the written statement on oath at the time of filing the Reply. He contrasted this with the provision of paragraph 1(2) of the Practice Directions relating to filing of the petition where consequences immediately attend the failure to file the written statements along with the petition. The Court of Appeal did not think fit to impose upon the respondents a limitation or burden which the Practice Directions did not see fit to impose, learned Senior Advocate contended.
Referring to paragraph 7 of the Practice Directions, learned Senior Advocate argued that if further particulars may be given in respect of facts which have been pleaded, there is no reason why witness deposition may not be furnished in respect of facts that have been pleaded. He contended that the appellants have not been able to show that the exercise of the discretion of the Court of Appeal in favour of granting leave to file additional witness depositions occasioned a miscarriage of justice. He cited the unreported case of Eboh v Akppotu, SC 167/66. Citing Alsthom SA v Saraki (2000) 4 NWLR (Part 687) 514. Learned Counsel submitted that the issue was a mere irregularity and urged the court not to follow technicalities but to do substantial justice.
On the issue that the relief granted by the Court of Appeal was not sought by the respondents, learned Senior Advocate contended that the respondents sought leave to amend their reply by listing additional witnesses whose depositions were attached. He argued that the view of the court that it was not an application to amend but merely one to call additional witnesses is supported by all the facts before the court as made out in the affidavit in support of the application; and so the Court of Appeal rightly exercised its discretion in favour of the respondents.
On Issue No. 2, learned Senior Advocate submitted that the Court of Appeal correctly rejected the application for interrogatories. He contended that the premise upon which the leave to administer interrogatories was founded was too weak. He also contended that the character of the information sought related to the internal administration of the fourth respondent which is not relevant to the prosecution o