19 June 2017

Nigeria: Appeal Court Ruling On Edo 2016 Guber Election - Matters Arising


IT is to be recalled that appellants, Pastor Osagie Ize-Iyamu/PDP had filed a motion supported by an affidavit Ize-Iyamu deposed to as the PDP gubernatorial candidate in the election. They had in that motion challenged some aspects of the recordings of the chairman of the trial tribunal and accordingly prayed the appellate court for an order to correct or otherwise rectify the records of the lower Tribunal.

Annexed to the affidavit were duly certified true copies of the chairman's record and that of the first member showing discrepancies between the two in some areas of the proceedings. Such discrepancies were clearly delineated for clarity. Also attached was a copy of the notes taken by appellant's counsel during proceedings. Such notes, while demonstrating convergence between them and that of the first member in the areas of the proceedings in question nevertheless showed similar discrepancies between it and the chairman's own.

In line with legal requirements the application was duly served, ahead of the appellate court's hearing of May 30, 2017, on the tribunal chairman, the two members and the secretary of the tribunal in their jurisdictions of Kano, Abakaliki, Gombe and Abuja respectively. Proofs of services so effected were duly placed before the court. Appellants took a further step, though not obligated under any law to do so, to serve all the respondents in the petition. By serving both all three members of the tribunal on the one hand and its secretary on the other hand, appellants did more than what the law required of them in that respect.

This is because the legal requirement is that they should serve the Judge (which in this case are chairman and members of the tribunal since it is a multiple membership court) or the registrar who is the secretary in this situation. Applicants were not obligated to serve both the judges and the secretary but they did. Further, where respondents in such a motion have been served it is up to them to file counter affidavits or not to file.

Recording of proceedings

As has been revealed, the court held that the procedure adopted by appellants/applicants was contrary to law; that what the law required them to do was to first file and serve on the respondents in the motion an affidavit and then follow it up with a motion. In such puerile reasoning which completely belies the legal position and, therefore, took flight from it, the court was said to have relied on the case of Garuba Vs Omokhodion reported as (2011)15 NWLR (Pt.1269) p.145. That was a case in which plaintiffs/appellants in trying to be clever by half while challenging at the Court of Appeal, a ruling of a Benin High Court Conrad Acha, J. their counsel had prayed the appeal court for amendment of record of the trial court to reflect two cases which were never cited at the lower court and therefore could not have formed part of its record on appeal.

What is of essence here is that the said prayer in that case was simply made in an affidavit without more. That is, the affidavit never took its bearing from any formal motion before the court. The affidavit though duly served but was nevertheless not countered by the respondents. Based on it not having been countered and drawing much strength from that situation but needlessly so, appellants' counsel then urged the court to deem as amended the record of the lower court to reflect the said two cases in line with the deposition in their affidavit since same was not countered.

This contention was rejected by the court of appeal and in my view, rightly so. In a further appeal to the apex court, appellants restated their earlier position at the court below and the Supreme Court would, of course, and also rightly so in my view, not accept such ridiculous proposition. On pages 179-180 of the report, while espousing the legal nicety, the apex court, per Chukwuma-Eneh, JSC, had this to say: "With the greatest respect, I must say that to amend the record of appeal in any proceeding including the instant one is much more than simply filing an affidavit challenging the record/proceeding as here without more. All the parties to this suit although served the affidavit challenging the record, it must be followed by a formal application to court to amend the record for the court to sanction the amendment as the whole essence of filing an affidavit in that respect is to bring about an amendment of the record of appeal/proceeding of 26/4/2010. A record of appeal, therefore, cannot be amended without the court's approval in exercise of its discretionary power to grant or refuse to sanction an amendment of the record of appeal... "

Now bearing in mind the reasoning of the Appeal Court in the instant case as reported, in construing the above quoted statement of the Supreme Court, it chose to take an erroneous view of it to the effect that an affidavit must first be filed by a party who is contesting the veracity or otherwise of a trial court's record on appeal and same served on respondents before he (the party challenging the records) proceeds to follow it up with a motion.

With very due respect to those learned Justices, their position sounds in nothing but absurdity in the extreme. The phrase "followed by a formal application to court... " as used by the Supreme Court in Garuba's case simply means "accompanied by a formal motion to court... " and NOT that an affidavit must, per force, precede the filing of a motion. In court proceedings, this is very elementary, affidavits do not stand alone as counsel tried to make the court believe and requesting it to hold in Garuba's case, supra hence the apex court made a clear elucidation of the legal position that in the matter of seeking correction of court's record, rather than simply filing an affidavit without more, same must be accompanied with a motion.

That is to say the word "followed" as used by the Supreme Court or the word "accompanied" as used by me in this write up, does not mean that the affidavit must first be filed and served before a motion is subsequently filed. What each of the two words connote is nothing but simply that there must be simultaneous filing of both motion and the supporting affidavit to which a certified true copy of the record being pilloried is annexed. That was exactly what appellants before the learned justices had done in this case hence a contrary interpretation which the court had foisted on the Supreme Court's position as espoused in Garuba's case, supra is not only absurd but reckless, just as it is most disturbing. The court grossly misapplied the Supreme Court's decision in Garuba's case and same certainly does not have any shelter in our legal jurisprudence. It is even more disturbing that such puerile reasoning was adopted by all five justices without any dissention.

Such contrary construction by this Appeal Court is an invitation to a dog's tail to wag the dog. The tail never wags the dog but rather it is the dog that wags the tail. In this case, the motion is the dog and the affidavit is it's tail. The affidavit cannot lead the motion. It is the motion that should lead the affidavit. By far more important is the fact that it is not the practice in litigation for an affidavit to contain a prayer. That belongs to the motion.

In any event, the steps taken by appellants in filing their motion are clearly supported by all known judicial decisions without exception in the matter of application for an order for correction of record. There is none of them in which this type of horrendous reasoning was adopted. Whether their Lords' said decision was informed by lack of adequate knowledge of the law (this I very much doubt) or whatever reason that might have informed it, it is unfortunate and it is a decision that must not be allowed to remain in our legal jurisprudence for a period that is more than necessary. I think applicants in that motion, through their counsel, know the path to thread in that respect.

*Dr. Asemota is a Warri based public affairs analyst


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