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Rabiu v. Magaji

HON. LAWAL M. RABIU

PEOPLES’ DEMOCRATIC PARTY (PDP)

V

HON. JUMARE TANIMU MAGAJI

ALL NIGERIA PEOPLES’ PARTY (ANPP)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

THE RETURNING OFFICER, LERE EAST, SAMINAKA CONSTITUENCY

COURT OF APPEAL

(KADUNA DIVISION)

BABA  ALKALI BA’ABA JCA (Presided and Read the Lead Ruling)

MOHAMMED LAWAL GARBA JCA

JOHN INYANG OKORO JCA

CA/K/296/M/2009

THURSDAY, 15 JULY 2010

APPEAL - Documentary evidence - Evaluation of - Power of appellate court to do

COURT - Functus officio - When a court becomes - Court of Appeal Judgment of - Inherent powers of to reopen - When may be exercised

EVIDENCE - Documentary evidence - Evaluation of - Power of appellate court to do

EVIDENCE - Document - Admissibility and weight attached thereto Distinction between

EVIDENCE  - Subpoena - Power of court to summon a person to produce a document only - Presence of witness subpoenaed When may be dispensed with - Needlessness of same being sworn - Cross-examination of - Impropriety of - Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, sections 192 and 193 considered

STATUTE - Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, sections 192 and 193 - Subpoena - Power of court to summon a person to produce  document only - Presence of witness subpoenaed - When may be dispensed with - Needlessness of same being sworn - Cross-examination of - Impropriety of

Issues:


1.             Whether the respondents/applicants’ fundamental right to fair hearing was breached by the admission of exhibit B1 which was rejected by the lower tribunal when tendered by an unsworn witness.

2.             Whether the judgment delivered by this honourable court on 1 December 2009 which heavily relied on exhibit B1 is null and void.

3.             Whether this honourable court has the jurisdiction to set aside its judgment arising from appeals against election tribunal.

Facts:


The appellants/respondents aggrieved by the decision of the lower tribunal rejecting without reason an exhibit (a police report) tendered in evidence, filed an interlocutory appeal and a main appeal. The applicants/ respondents filed a preliminary objection challenging the interlocutory appeal. Yet aggrieved by the Court of Appeal’s decision, the applicants/respondents filed the present application praying for order of court to set aside the judgment delivered in the appeal. The application was based, inter alia, on the following grounds: the appellate court admitted the police report earlier rejected by the tribunal which the applicants/respondents did not have the opportunity of cross-examining the maker and the report weighed heavily in the mind of the court while delivering its judgment.

In determination of the application, the Court of Appeal considered the following statute:

Court of Appeal Act, 2004, section 15 part of which provides: “... shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in

part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”