In The Supreme Court of Nigeria

On Friday, the 25^th day of January 2008

 

 

Before Their Lordships

 

 

 

S.C. 288/2007

Between

  

 

And

 

 

Judgement of the Court

Delivered by

Niki Tobi J.S.C.

 

This appeal was argued on Tuesday, 22^nd January, 2008 and it was adjourned to today, Friday, 25^th 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^th January, 2008 and the outcome of the appeal is very likely to have an impact on the proceedings on 28^th 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 5^th respondent, and seek further and better particulars against Alhaji Umaru Musa Yar'Adua and Dr. Goodluck Jonathan, the 1^st and 2^nd respondents, respectively. The other is against the Ruling of the Court of Appeal granting extension of time to the 4^th to 808^th 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^th of 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 the 17^th of 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 5^th respondent and further and better particulars from 1^st and 2^nd respondents were rightly refused by the lower court in the light of the decision of this court cited 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 4^th  - 808^th respondents leave to call additional witnesses notwithstanding that no such prayer was canvassed by the 4^th - 808^th 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 1^st and 2^nd 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 4^th-808^th respondents leave to call additional witnesses for their defence.”

 

So too the 4^th to 808^th 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. Irvinq and Co. Ltd. (1992) 7 NWLR (Pt. 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 (Nig) Plc v. Akwara (2006) 5 NWLR (Pt. 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 (Pt. 937) 563 and Famuyide v. Irvinq 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 (Pt. 832) 647 at 658 and Ogolo v. Ogolo (2003) 18 NWLR (Pt 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 1^st and 2^nd respondents to supply the appellants with further and better particulars. He cited paragraph 17 of the 1^st Schedule to the Electoral Act of 2006 and the case of WAB Limited v. Savannah Ventures Ltd, (2002) 10 NWLR (Pt. 775)401 at 4333.

 

On Issue No. 2, learned Senior Advocate submitted that the application for leave for the 4^th to 808^th respondents to amend their Reply to the Petition by filing additional list of witnesses and witness’s 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 4^th to 808^th respondents and grant them relief’s 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 (Pt. 610) 313; Ohowofeyeke v. Attorney-General of Oyo State (1996) 10 NWLR (Pt. 477) 190 at 210; and Olochukwu v. Emeregwa (1999) 5 NWLR (Pt. 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 1^st and 2^nd 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 their 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 been led by both parties relating to this in which parties have been given time to file addresses awaiting adoption on 28/1/08."

 

Citing the case of Government of Plateau State v. Attorney-General of the Federation (2006) 3 NWLR (Pt. 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 5^th respondent and further and better particulars from the 1^st and 2^nd 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 expedition; 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 4^th to 808^th respondents to file additional list of witnesses, as the court exercised its discretion judiciously and judicially. He cited Abacha v. State (2002) 5 NWLR (Pt. 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 4^th to 808^th 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 (Pt. 871) 116 at 138 and Orubu v. NEC (1988) 5 NWLR (Pt. 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 Maduabuchukwu_v. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475 at 494; Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) 718; Ojemen v. Momodu (1983) 1 SCNLR 188; Coker v. Uba (1997)2 NWLR(Pt 490) 641; NNSC Ltd. v. Establishment Sima of Vadux (1990) 7 NWLR (Pt. 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. Commissioner 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^th 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 (Pt 975) 65 at 99; Baker Marine Ltd. V. Chevron (2006) 26 NSCQR (Pt. 2) 1121 at 1137; Nyah v. Noah (2007) 4 NWLR (Pt. 1024) 320; Abubakar v. Bebeji Oil Ltd. (2007) NSCQR 1634 and Agwasim v. Qjichie (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. Akpotu SC.167/66. Citing Alsthom_SA v. Saraki (2000) 4 NWLR (Pt 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 4^1h respondent which is not relevant to the prosecution or just determination of the petition. The interrogatories represented nothing less than a bold and undisguised attempt on the part of the petitioners to make an issue out of the internal administration of the 4^th respondent. The interrogatories related either to pre-election issues or the internal affairs of the 4^th respondent or were merely intended to embarrass or scandalize the respondent. He urged the court to uphold the Rulings of the Court of Appeal.

 

Let me take the preliminary objection first. I do not agree with the submission of learned Senior Advocate for the 4^th to 808^th respondents that in all interlocutory appeals leave is necessary. He cited section 233(3) of the Constitution. With respect, the subsection does not say so; not even in the way he has subtracted the contents of section 233(2) from those of section 233(3) Interlocutory appeals come under section 233(2); not under section 233(3). I say this because, in my view, appeal under section 233(2) covers both final and interlocutory appeals. And so I will determine the objection in the light of section 233(2) and (3). If I come to the conclusion that the grounds of appeal come within section 233(2) then the objection fails. If I come to the conclusion that the appeal falls within the precinct of section 233(3) then it will be upheld. Let me read the Grounds of Appeal minus the particulars:

 

"GROUND ONE

 

The learned Justices of the Court of Appeal misconstrued and erroneously misapplied the principles guiding the grant of leave to administer interrogatories and thereby refused the Petitioners/Appellants application for same by holding thus:

 

‘I have listened to the learned’ counsel on all sides 3^rd I thank them for their industry I am of the view that answers being required by the interrogatories and particulars sought 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.'

 

GROUND TWO

 

The refusal of interrogatories by their lordships 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, including requirement for cutting down on number of witnesses to be called at the trial as enjoined by Paragraph 3(7) (f) of the Practice Directions (as amended) which provides that at the pre-hearing session'-

 

'Tribunal or Court shall consider and take appropriate action in respect of the following as may be necessary or desirable:

 

(f)        Narrowing the field of dispute between certain types of witnesses especially the Commission's staff and witnesses that officiated at the election, by their participation at pre-hearing session or in any other manner.'

 

GROUND THREE

 

The refusal of the interrogatories sought against the 5^th Respondent has occasioned a miscarriage of justice, in that the facts sought to be elicited by the interrogatories were within the peculiar knowledge of 5^th Respondent, who is not listed or intended to be called as a witness; but has generally and evasively denied same in his Reply to the petition.

 

GROUND FOUR

 

The learned Justices of the Court of Appeal erred in law and thus occasioned a miscarriage of justice to the Petitioners/Appellants when they held that it is in the interest of justice to refuse application for further and better particulars of the 1^st and 2^nd Reply to the petition.”

 

Grounds 1, 2, and 3 complain about the refusal of the Court of Appeal to administer interrogatories. Interrogatory is a straight and strict aspect or area of law. I do not see any fact or mixed law and fact deserving the leave of court. Appeal on grounds of law alone is as of right. See C.C.B. (Nig) Plc v. Attorney-General of Anambra State (1992) 3 NWLR (Pt. 261) 528. Ground 4 complains about the refusal of the Court of Appeal to ask for further and better particulars from the 1^st and 2^nd respondents. That could involve mixed law and facts or facts simpliciter. The law is trite that an appeal can be sustained by even one valid ground of appeal. There are three valid grounds of appeal. I am of the view that they can sustain this appeal, and I so hold.

 

I am almost forgetting the objection on abuse of judicial process. I can forget it for good because there is not much in it, if there is anything in it all. What is in the appeals that constitute an abuse of the judicial process? Is it the application to administer interrogatories'? Is it the request for further and better particulars? What is it, I ask? There is nothing in this appeal that constitutes an abuse of the judicial process. Both the process of interrogation and further and better particulars are known to our adjectival law and they cannot therefore constitute an abuse.

 

That takes me to the preliminary objection of the 1^st and 2^nd respondents. They are two. The first one is to the effect that the appellants had taken steps by leading witnesses and tendering several thousands of documents in proof of their cases and the defence had equally opened and closed their case and written addresses ordered by the court. The second one is that the appeal is now a mere academic exercise as the parties have led copious evidence and they have been given time to file addresses awaiting for adoption on 28^th January, 2008.

 

Appeal is a constitutional right which cannot be taken away from or denied an appellant. No court of law has the jurisdiction to take away from or deny an appellant his constitutional right to appeal. I cannot deny the appellants their right of appeal based on the two grounds of the preliminary objection. Whether the parties have taken steps in the matter in the Court of Appeal developing into the closure of their cases and awaiting adoption of written addresses, this court is not competent to deny the appellants their constitutional right to file an interlocutory appeal. It does not even appear that learned Senior Advocate argued the first objection in his brief. That is enough for me not to take it. I have taken it with great caution and in the alternative that I am wrong in my conclusion that counsel did not argue ii in his brief.

 

He argued the second ground dealing with academic exercise. He cited the case of Government of Plateau Slate v. Attorney-General of Federation. supra.  I said at page 419 of the Report:

 

"A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity”

 

An academic matter in a suit is one which is raised for the purpose of intellectual argument qua reason which cannot in any way affect the determination of the live issues in the matter. It is merely to satisfy intellectual prowess qua intellect. It is a matter which is theoretical and not related to practical situation. And in the context of this appeal, the practical situation is the application of the outcome of this appeal to the petition in the Court of Appeal. An academic matter could be built on some hypothesis when they are based only on a suggestion that has not been proved or shown to be real because they are imaginary. And an hypothesis is an assumption made, especially in order to test its logical or empirical consequences.

 

All the parties say that the Court of Appeal has adjourned the case to 28^th January, 2008 for them to adopt their addresses. Today is 25^th January, 2008, some three days to the date the matter is adjourned for adoption of addresses. I do not think the appeal is merely academic. The parties can make use of the judgment of this court in the Court of Appeal. Accordingly, the objection of the 1^stand 2^nd respondents also fails.

 

I go to the appeal. The first issue is on the interrogatories. Interrogatories are a set of series of written questions drawn up for the purpose of being propounded to a party, witness, or other person having information of interest in the case. They are a pre-trial discovery device consisting of written questions about the case submitted by one party to the other party or witness. The answers to the interrogatories are usually given under oath, that is, the person answering the questions signs a sworn statement that the answers are true. See Black’s Law Dictionary Sixth edition, page 819.

 

Interrogatories are legal questionnaires submitted to an opposing party as part of pre-trial discovery The plural noun "interrogatories" derive from the commonplace or market place expression of interrogation which means the act or process of questioning in dept or questioning as a form of discourse. This court dealt with the nature and functions of interrogatories   in Famuyide v, Irvinq and Co. Ltd. (1992) 7 NWLR (Pt 256) 639.   Delivering the judgment of the court, Karibi-Whyte, JSC, said at page 653:

 

 

"Order 27 rules 2 of the High Court of Lagos (Civil Procedure) Rules 1972 provides as follows:

 

'.... Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.^’

 

This rule has its origin in the English RSC Order 26 Rule 1(3). The principles governing the application of this rule have been clearly enunciated in several decided cases in Courts in England. These cases have constituted guides to our own Courts where confronted with similar situations. After the pleadings of the parties it is generally allowed to put questions to the opponent for the purpose of extracting information as to the facts material to the questions between them which the party interrogating has to prove on any issue raised between them, or for the purpose of securing admissions as to those facts to avoid delay and save costs. It is also allowed to enable the opponent to find out whether the particular averment in the pleadings of the party interrogating who has the burden of proof are true or untrue, and also to ascertain the case he has to meet. In essence, the interrogatory is aimed at ascertaining the real issue, so as to prevent surprise. It also enables the person interrogating to reveal the case of the person interrogated, or to elicit facts in support of the case of the person interrogating."

 

Interrogatories are never at large. They must have a nexus with the matter or matters in issue. They must be related to the matter or matters in issue. This does not mean that the interrogatories are strictly confined lo the facts directly in issue, but extend to the existence or non-existence of the facts directly in issue. See Marriot v. Chamberlain (1886) 17 OBD 154 at 163. The answers to the interrogatories need not be conclusive on the issues provided that they have some bearing on them. See Balir v. Haycock Caddie Co. (1917) 34 TLR 39. The main aim of interrogatories is to uphold the case of the party interrogating and destroy that of his opponent. See Plymouth Mutual Corporative Society v. Traders Publishing Association (1967) 1 KB 403 at 416; Hennessy v Wright (No.2) (1888) 24 QBD 447. Interrogatories elicit admissions from the opponent and admissions are most valuable evidence for determining liability. Dealing with interrogatories in his book, Civil Procedure in Nigeria, Nwadialo said at page 618:

 

"The interrogatories should be directed at obtaining admissions of facts or other pieces of information which are materially important for proving the case of the party administering them. A party may not interrogate to elicit information that has bearing exclusively on the case of his opponent for in such a case, the interrogatories will not assist him in establishing his own case."

 

Courts will not allow fishing interrogatories, which are interrogatories completely outside the pleadings. After all, pleadings are the fulcrum and parameters of the case and a plaintiff cannot, under the guise of interrogatories move out of the pleadings. An owner of an aquarium may, but certainly not the court. That will be a fishing expedition and the court will not allow such an expedition Therefore, interrogatories outside the pleadings will go to no issue, and the opponent has no legal duty to provide answers.

 

Similarly, a court of law; will not allow interrogatories which are oppressive. Oppressive interrogatories are interrogatories which put the party interrogated in an undue burden which is out of all proportion to the benefit to be gained by the interrogating party. See Heaton v. Goldney (1910) 1 KB 653 A party who has unequivocally or categorically denied a fact in his pleadings should not be interrogated on it because he has made his position known in his pleadings. A court will dismiss such an interrogation as a waste of time. Interrogatories must be administered bona fide. They must not be administered male fide. A court will not allow interrogatories administered male fide.

 

Although interrogatories which meet with positive answers save the burden of proof placed on the plaintiff, a plaintiff cannot by sheer craftiness or artifice in administering the process of interrogatories, shift the burden of proof on the defendant. That will be reversing the trend of our adjectival law in sections 136, 137 and 139 of the Evidence Act. In other words, a court will not allow a plaintiff to lure a defendant to admit a fact which is unequivocally or categorically denied in the statement of defence. A court will invoke its equitable jurisdiction to stop such smartness on the part of the plaintiff.

 

I have talked some law. Let me go now to the factual position. And this I will do by producing the ipsissima verba of the interrogatories they are 27. They read;

 

"1.       Did you award a fresh contract for printing of ballot papers for the presidential election, less than 5 days to the date of the election?

 

2.         If yes, did you not award the said contract to a company in South Africa after the company originally contracted, declined on the ground that the delivery deadline was unrealistic if the ballots must carry serial numbers, and in booklet forms with counterfoils?

 

3.         If you deny that the contract was re-awarded to a different company less than 5 days to the election for reasons stated in question No. 2, what was the reason for re-awarding the printing contract less than 5 days to the date of the presidential election?

 

4.         Did you not agree with the second company that printed the ballot papers less than five days to the election to print same without serial numbers and booklet forms with counterfoils?

 

5.         If you answer No to question number,4, have you annexed to the said answer your contract documents evidencing the terms on which the ballot papers were to be printed'?

 

6.         When (date and time of arrival) were the ballot papers air-freighted to Nigeria, on which airline and in what quantity?

 

7.         Did you obtain a destination inspection report before taking delivery of the ballot papers?

 

8.         Have you annexed copies of the destination inspection report of each such delivery to your answer?

 

9.         How many days did it take INEC to take full delivery of the ballot papers from the airport?

 

10.       By what means did you ascertain the total number of ballot papers supplied by the contractor in South Africa?

 

11.       Did the ballot papers used in the presidential election of 21^st April 2007, have serial numbers, or counterfoils and made in booklet forms?

 

12.       How many ballot papers did you supply to each of the Resident Electoral Commissioners in each of the following states for the conduct of the presidential elections, namely: Anambra, Adamawa, Bauchi, Benue, Cross River, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Katsina, Kebbi, Kwara, Kogi, Nasarawa, Niger, Ogun, Osun and Zamfara.

 

13.       If you indicate the figures of ballot papers supplied to each resident electoral commissioner in respect of the states listed in question No 10 above, have you supplied the Form EC.40 duly signed by the commissioners and/or witnessed by party agents in respect of the supply of such ballot papers to each state?

 

14.       Do you have record of true identity by name of the Electoral Officers who received the ballot papers, the quantity received by the electoral officer and the time of receipt, as well as evidence that such receipt was witnessed by party agents other than the agents of Peoples Democratic Party?

 

15.       If you answer yes, can you give, and if so have you supplied, the names of the other party agents and their parties apart from POP who witnessed the distribution and delivery of the said ballot papers in each local government area of the states listed, in question No 10 above?

 

16.       If you answer yes to any of the sub-questions in twelve (12) and thirteen (13) above, have you annexed to your answer the documents evidencing the record, in respect of each of the local government areas?

 

17.       Did you publish list of candidates standing nominated to contest the presidential election of 21^st April, 2007 as mandatory required by the Electoral Act?

 

18.       If yes, on what date was the publication and have you annexed a certified true copy of same to your answer?

 

19.       Did you communicate to the petitioners or to the public, the fact that the names of 1^st and 2^nd Petitioners had been restored to the list of candidates after the judgment of the Supreme Court delivered on Tuesday 16^th April, 2007?

 

20.       If you answer question 16, yes, on what date did you publish a fresh list of candidates standing nominated to contest the presidential election inclusive of 1^st Petitioner?

 

21.       On what date did you display the voters registers used for the presidential election and up till what date did you sustain the display?

 

22.      Was there objection to the list, and if so, did you indicate in your answer the correction made to the list, in respect of each of the states listed in question No. 10?

 

23.       Did you award, or authorize the award of a contract for the erection of voting cubicles to be used for thumb-printing ballot papers in secret before dropping same in the ballot boxes in the open, in any of the polling stations during the presidential election?

 

24.       How much was the contract, and to whom was the contract awarded?

 

25.       Was the contract executed?

 

26.       If yes, can you list the locations of the polling units in each of the states mentioned in question No. 10 where such voting cubicles were erected?

 

27.       Have you annexed to your answer the certificate of completion issued to the said contractor showing that it had performed the contract?"

 

Learned Senior Advocate for the 2^nd and 3^rd respondents described the questions as pertaining to commercial transaction and therefore not relevant to the petition of the appellants with respect, I disagree. I think most of the questions are relevant. They may help the case of the petitioners. They may not. That is left for the Court of Appeal to decide. We are not there and we cannot jump the gun. It can hurt us in the process of a shoot-out. Apart from their relevance, they are within the knowledge of the 5^th respondent, Professor Maurice Iwu. Our law requires that he provides answers to the interrogatories, and 1 so order.

 

The Federal High Court (Civil Procedure) Rules 2000 govern proceedings of the Court of Appeal as an election tribunal in Presidential Elections Order 33 Rule 1 provides for the delivery of interrogatories. Rule 1(1) provides:

 

"After the close of pleadings in any cause or matter any party by leave of court or Judge in Chambers may deliver interrogatories in writing for the examination of any other party or parties, and those interrogatories when delivered shall state clearly which of the interrogatories each of the parties is required to answer."

 

The Court of Appeal, in rejecting the application to administer interrogatories, said that it will impede speedy trial of the case. Courts of law cannot sacrifice the constitutional principle of fair hearing at the alter of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing in the sense of availing the parties, as in this appeal, the right to administer interrogatories. A party, who is entitled in law to administer interrogatories and is denied that right, is denied the right to fair hearing. And when I say that, I am not oblivious of the law that speedy hearing is one vocal and important aspect of fair hearing. The point 1 am struggling to make is that speedy hearing of a case which denies a party access to pre-trial evidence, such as interrogatories, is not fair as it runs contrary to the constitutional principle of fair hearing. I do hope I have succeeded in making the point. It is fairly difficult one and quite a mouthful. Accordingly, I am of the firm view that Professor Iwu should answer the 27 questions.

 

The next consideration is the request for further and better particulars from the 1^st and 2^nd respondents. A party asks for further and better particulars where, in his view, the pleadings are not only generic and omnibus but vague, nebulous and lacking specificity in such a situation, the party asks for further and better particulars to make the pleadings more exact or precise. The purpose of further and better particulars is not to amend or rewrite the pleadings. The purpose is to explain them so that they can sound more exact and precise. See Nwodo v. Onoh (1984) 1 SCNLR 1. Thus, where a party has any doubt about any matter pleaded, he can ask for further and better particulars. See Okafor v. NHDS (1972) 4 SC 175. The object of further and better particulars is to put the adverse party on notice as regards the kind of evidence he would meet at the trial. See Obikoya v. Ezenwa (1973) 11 SC 135. Another object is to limit the generality of the pleadings. They "prevent surprise at the trial, and limit inquiry at the trial to matters set out in the particulars; they tend to narrow issues.” See Thomson v. Birkley (1882) 47 LT 700.

 

In Oquntokun v. Rufai (1945) 11 WACA 55 at 66 and 67, the West Africa Court of Appeal said:

 

"... Where a party omits to set out details which he ought to have given and his opponent did not apply for particulars, he is entitled to give evidence at the trial of any fact which supports the allegation in the pleading."

 

In Ayeni v. Taiwo (1982) 5 SC 29, this court followed the decision in Oguntokun. Udo Udoma, JSC, said at page 36 of the judgment:

 

 "As was said by the West African Court of Appeal in Joseph Oguntokun v Amodu Rufai, 11 WACA 55 at p.56, there is nothing to prevent a defendant in a suit from asking for particulars of any averment contained in a Statement of Claim even after the Statement of Defence has been filed and delivered. And where therefore a party omits to set out in descriptive detail an allegation in his Statement of Claim and his opponent does not supply particulars, he is entitled to give evidence at the trial of any facts supporting the allegation given by him."

 

And in the more recent case of WAB Limited v. Savannah Ventures Ltd. (2002) 10 NWLR (Pt. 775) 401, the Supreme Court, relying on the decision of Dean of Chester v. Smelting Corporation (1902) WN 5 and Hewson v. Cleeve (1904) 2 Ir. R. 536, said at page 433:

 

"However, it has also been held that where the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings."

 

I would like to think that, apart from the genuine belief on the part of the appellants that further and better particulars are needed, it was also to avoid the legal consequences mentioned in the cases above that the appellants asked for them. Apart from that, paragraph 17 of the 1^st Schedule to the Electoral Act is authority for the request.

 

So far so good the law on that is settled. What is the factual situation? That is my next consideration. It is the case of the appellants that the request for further and better particulars was made "to avoid the ambush embedded in paragraph 21 of the 1^st and 2^nd respondents' Reply to the Petition."

 

Paragraph 21 is one very long paragraph. It deposes to the election in twenty-six States: Anambra, Adamawa, Bauchi, Bayelsa, Benue, Cross River. Ebonyi, Edo, Ekiti, Enugu, Gombe, Sokoto, Taraba, Imo, Jigawa, Katsma, Kebbi, Kwara, Kogi, Nasarawa, Niger, Ogun, Osun, Oyo, Rivers and Zamfara States.

 

The further and better particulars required are legion. They are 51 in number. I should reproduce them in their length:

 

"1.        The time when election materials arrived in each of the 21 local government areas in Anambra State.

 

2.         Names of the electoral officer who received the said material in each of the 21 local government areas.

 

3.         Name of the person who physically witnessed the commencement of actual voting in each of the polling units in all the local government areas of Anambra State on the day of the presidential election.

 

4.         The time when election materials arrived in each of the local government areas in Bauchi State.

 

5.         Names of the electoral officer who received the said material in each of the local government areas.

 

6.         Name of the person who physically witnessed the commencement of actual voting in each of the polling units in all the local government areas of Bauchi State on the day of the presidential election.

 

7.         The time when election materials arrived in each of the local government areas in Bayelsa State.

 

8.         Names of the electoral officer who received the said material in each of the local government areas.

 

9.         Name of the person who physically witnessed the commencement of actual voting in each of the polling units in all the local government areas of Bayelsa State on the day of the presidential election.

 

10.       The time when election materials arrived in each of the local government areas in Benue State.

 

11.       Names of the electoral officer who received the said material in each of the local government areas.

 

12.       Name of the person who physically witnessed the commencement of actual voting in each of the poling units in all the local government area of Benue State on the day of the presidential election.

 

13.       The time when, election materials arrived in each of the local government areas in Cross River State.

 

14.       Names of electoral officer who received the said material in each of the local government areas.

 

15.       Name of the person who physically witnessed the commencement of actual voting in each of the poling units in all the local government areas of Cross River State on the day of the presidential election.

 

16.       The time when election materials arrived in each of the local government areas in Ebonyi State.

 

17.       Names of electoral officer who received the said material in each of the local government areas.

 

18.       Name of the person who physically witnessed the commencement of actual voting in each of the poling units in all the local government areas of Ebonyi State on the day of the presidential election.