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ArticleReview: Conflicting Court of Appeal decision in Polycarp Danladi v Nasir El rufai (2018)

August 11, 20190

A court is not bound to consider argument or address of counsel; a review of the conflicting Court of Appeal decision in Polycarp Danladi v Nasir El rufai (2018) All FWLR (Pt. 924
) 118

Although a not-too-recent judgement which was delivered on the 11th day of December 2015, I was nonetheless taken aback when I recently read the concurring judgement of my lord Justice Samuel Chukwudumebi Oseju, JCA in the case of Polycarp Danladi v Nasir Elrufai reported very recently by All FWLR in 2018 where his lordship equivocally held that:

“I need emphasize again that a court is not bound to consider argument or address of counsel, rather the decision of a case should be based on evidence adduced before the Court.” (Emphasis mine)

Since facts of a case are the fountainhead of the law and principles applied therein (see Today’s Cars Limited v LASACO Assurance Plc (2016) LPELR-41260(CA), I would take my readers into a brief journey of the facts of the case.

As a consequence of the 2015 governorship election, on the basis of which, Mallam Nasir El rufai was returned as governor of Kaduna state, Mr. Polycarp Danladi (the candidate of All Progressive Congress (APGA) filed a petition challenging the said election on the main ground that “the election was invalid by reasons of illegal and unjustifiable practices and non-compliance with the provision of the Electoral Act.”

At the tribunal, both the appellant and one other witness testified on oath and

tendered electoral forms EC8A, EC8B and EC8C in further proof of the appellant’s allegation of irregularity in 15 local government areas. However, at the conclusion of trial, the tribunal resolved all issues against the petitioner (Danladi) and dismissed his petition.

On appeal, the appellant’s counsel argued that, since the electoral forms tendered and admitted in evidence were statutory documents which contained conclusive information on what happened at the polling units, the tribunal was in error to have dismissed the petition.

In direct response to counsel’s submission, the Court of Appeal copiously held per Saulawa, JCA that:

“Ironically, however, the above postulation does not seem to represent the current position of the law regarding the issue. Indeed, there is a plethora of veritable authorities by the Apex Court to the effect that mere dumping of documentary exhibits on the Court or Tribunal without charting any nexus or connection between them and the complaints, go to no issue. see Omisore v Aregbesola (2015) 5 – 6 SC (Pt. 111) 30. Indeed, it is a well settled doctrine to the effect, that it is not the responsibility of the Court or Tribunal to resort to a cloistered justice by embarking on a voyage of discovery or enquiry in the case outside the open Court, not even by examination of documentary exhibits which were in evidence, but not duly examined in open Court. See ACN v Lamido (2012) 8 NWLR (Pt. 1303) 560. In the case of Ucha v Elechi (2012) 13 NWLR (Pt. 1317) 330, the Supreme Court aptly held thus:


When a party decides to rely on documents to prove his case, there must be a link between the document and specific areas of the petition. He must relate each document to the specific areas of his case for which the document was tendered. On no account must counsel dump documents on a trial Court, no Court would spend precious judicial time linking documents to specific areas of a party’s case.” Not surprisingly, against the backdrop of the authoritative decisions of the Apex Court in Ucha v Elechi (supra) et al, the Tribunal found, rightly in my view, at page 3480 paragraph 2 of the record, thus:


We wish to state however, that the tendering and admission of these documents could not advance the case of the petition to any considerable length. This is because all the said exhibits were just dumped on the Tribunal without any link made between the documents and the specific areas of the petition. On the other words, no attempt was made by the petitioner to relate the document specific aspect of the fact pleaded.” (Emphasis mine)


Perhaps, upon this realization, appellant’s counsel attempted to salvage the situation in his final address, at the Tribunal, to characterize and explain the nature of anomalies that allegedly existed at the polling units but the Tribunal would have none of it when their lordships held that:


“Stating in the Petitioner’s final written address for the first time that after a cross-check and recount, the total of the number of spoilt ballot papers plus rejected ballot papers plus valid votes do not equal the total number of used ballot papers means that an anomaly exists without any evidence on record to ground same goes to no issue.”


The above finding was affirmed by the Court of Appeal thus:


“In my considered view, the above finding of the Tribunal is cogent, as it is duly supported by the evidence on record and the trite extant principles of law. It is equally a trite fundamental doctrine, that counsel’s address cannot be a substitute for legal evidence no matter how eloquently postulated.”


Up till this point of the judgement, the position of the Tribunal and the Court of Appeal appeared to be in conformity with settled principles of law as reiterated by the apex court over the years, what however remains befuddling in Oseju, JCA’s concurring judgement is his lordship’s position that the court is not bound to consider arguments or addresses.


For the avoidance of doubt, the word “consider” is defined at page 75 of Babalola’s Law Dictionary as:


“(1)To fix the mind on, with a view to careful examination; (2)to examine; (3) to inspect; (4) to deliberate about and pounder over; (5) to entertain or give heed to.” See also Tangale Traditional Council v Fawu (2002) FWLR (Pt. 117) 1137 CA


Question is, if a court is not bound to consider addresses, why do the various procedural rules provide for the filing of written addresses then? While looking for an answer, I stumbled on the following decisions:


First, it must be emphasized that the decision under review conflicts with an earlier decision in Siaka Isezuo v Chief J.A. Sanni (2013) LPELR-21974(CA), where the Benin division of the same court in a judgement delivered on the 26th day of November 2013 held thus:


“There is no doubt that a learned trial judge is bound to consider the addresses of all the parties to a case. Addresses are of beneficial effect and are meant to streamline before the Court, the case being made out by each party.” (Emphasis mine) Per Ogunwunmiju, JCA


Further in Obodo v Olomu (1987) 3 SC 43 or (1987) 6 SCNJ 72 the Supreme Court held per Belgore, JSC (as he then was) that


“Addresses are not directed at the Court alone. The purport of the address by a party is to let the court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the court. Therefore, at is a wrong supposition for a trial court to believe that an address at the close of a party’s case is meant for it alone, the other side, throughout the trial of a case must not be blinded from what his adversary relies upon.”


Later in Bernard Okoebor v Police Council & 2 Ors. (2003) 6 SC 13 at 34-35, the apex court again held that:


“Address of counsel forms part of the case and failure to hear the address of one party however overwhelming the evidence on one side vitiates the trial. In a written address, the court must ensure that the parties exchange address… the court had a duty to ask parties to address it at close of the case for the plaintiff and defendant. This is a duty which the court must perform. A court of law cannot adjourn a matter for judgment without asking the parties to address it.”


Recently in Britannia U Nigeria Limited v Seplat Petroleum Development Ltd. (2016) 4 NWLR (Pt. 1503) 541 SC


“A court is not bound to apply any authority it has considered in its judgment. It has a duty to consider all authorities relied on by the parties but it has a right and indeed a duty not to apply particular authorities if the issue decided therein is inapplicable to the facts and law before it.” (Emphasis mine)


Another poser is: how then does a court consider authorities in an address if it is not bound to consider the said address in the first place as held in the case under review? Your retort is as good as mine on this.


From the foregoing, it is my respectfully conclusive view that, while a court is not bound to agree with the submissions in arguments and addresses, the court is nevertheless bound to consider same before arriving at any conclusion in the case, otherwise, a complete snub would amount to denial of fair hearing since the arguments also form part of the case as held by the apex court.


Olumide Babalola, managing partner, Olumide Babalola LP

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