Engineer Goodnews Agbi & Anor V. Chief Audu Ogbeh & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the decision of the Court of Appeal Abuja Division, delivered on 21st day of March, 2005, wherein the Court of Appeal dismissed the appellants’ appeal and affirmed the decision of the trial High Court. The crucial issue is whether the 4th respondent herein, Governor James Onanefe Ibori of Delta State has been properly and adequately identified by the appellants, during the trial in the High Court, as the James Onanefe Ibori who was convicted by the Upper Area Court, Bwari in case No. CR-81-95. C.O.P v. James Onanefe Ibori on the 28th September, 1995, for the offences of negligent conduct and criminal breach of trust and sentenced accordingly. The matter started this way: On the 28th of September, 1995. the Upper Area Court, Bwari FCT in a criminal case No. CR-81-95 convicted one James Onanefe Ibori for the offences of negligent conduct and criminal breach of trust under Summary Trial Procedure under the provisions of section 157 of the Criminal Procedure Code of the former Northern Region of Nigeria, applicable to the Federal Capital Territory, Abuja. The said convict was sentenced to a fine of N1000 or one year imprisonment on the information.

On the 3/2/2003, the appellants herein filed suit FCT/HC/CY/321/2003, by originating summons in the High Court of the Federal Capital Territory (hereinafter referred to as FCT) against Chief Audu Ogbeh, Chief Vincent Ogbulafor, Peoples Democratic Party and Independent National Electoral Commission (later struck out as a defendant on the application of the plaintiffs) seeking a declaration that, James Onanefe Ibori is by virtue of the conviction aforesaid at Bwari Upper Area Court not qualified to contest election as the 3rd respondent’s gubernatorial candidate for the 2003 Delta State Governorship Elections. The plaintiffs also claimed injunctive reliefs aimed at restraining the 1st to the 3rd respondents from presenting the said James Onanefe Ibori to the INEC as their candidate for the said elections. On being aware of the pending suit, the 4th respondent herein, successfully applied to be joined as the 5th defendant. At the trial after the close of pleadings, the trial Judge Mukhtar, J. directed counsel to formulate the issues they considered “germane for the determination of the case.” The court having earlier admitted with the consent of all the parties the record of proceedings of the Upper Area Court, Bwari in CR/81/95 – C.O.P v. James Onanefe Ibori as exhibit A, the issue raised with the consent of all the parties was:

“Whether on the face of exhibit A, the record of proceedings of the Upper Area Court Bwari in CR/81/95 – C.O.P. v. James Onanefe Ibori, the accused was convicted.”

After the addresses of counsel, in his ruling delivered on 24/3/2003, the learned trial Judge ruled on that narrow issue that there was “no conviction against the accused in that case”, and dismissed the claims of the plaintiffs in their originating summons. The plaintiffs appealed against the ruling. The Court of Appeal, after criticising the procedure adopted by the trial Judge, held that on the face of exhibit A, there was a conviction of the person therein named as the accused. The court however held that in order to determine the identity of the person convicted, made an order remitting the case to the High Court for trial de novo in order to establish the identity of the convicted person. See Agbi v. Ogbeh (2003) 15 NWLR (Pt. 844) 493.

The 4th respondent herein felt dissatisfied with the decision of the Court of Appeal and appealed to this court, the appellants also felt unhappy with the decision and also cross-appealed. In its judgment, this court on the 6th of February, 2004, dismissed both the appeal and the cross-appeal and affirmed the decision of the Court of Appeal and sent the case to the High Court for trial de novo. This court further ordered the parties to file fresh pleadings to clearly plead the issues in dispute. It should be noted that this court has unequivocally held that the issue of the conviction of one James Onanefe Ibori was settled beyond any dispute, what remains in dispute was whether the 4th respondent was in fact the person convicted in exhibit A in CR/81/95 C.O.P. v. James Onanefe Ibori. See Ibori v.Agbi (2004) 6 NWLR (Pt.868) 78.

The trial de novo came before Hussein Mukhtar, J. who ordered pleadings as directed by the Supreme Court. The plaintiffs filed their statement of claim and the defendants their statement of defence. The 5th defendant, the 4th respondent herein also filed a counter-claim. On the 30th day of June the plaintiffs called their witness, (PW1) Alhaji Muhammed Awwal Yusuf, the presiding Judge of the Upper Area Court, Bwari, who along with another court member, Mr. Kuku Fajemi, on the 28/9/1 995, tried and convicted one James Onanefe Ibori in case No. CR/81/95. PW1 was vigorously cross-examined. After PW1, the plaintiffs closed their case. The Chief Registrar of the High Court FCT, Abuja was subpoenaed on the application of the 4th defendant only to produce documents and was in the witness box and sworn as DW1 on the 5/7/2004. The 1st to 3rd defendants did not call any evidence at the new trial. The 4th defendant called one witness: Barrister Bala Ngilari, DW2. In the course of the new trial, the following exhibits were tendered: A, B, C, C1 D, D1, E, E1, F, CP-1, G, H, 1, J and K.

Exhibit A – Judgment of the Supreme Court in SC.97/2003.

B – Certified Record of proceedings of the Supreme Court in SC.97/2003.

C- Criminal Complaints Book of Upper Area Court Bwari.

D- Criminal Record Book of Bwari Upper Area Court.

E1- Statement of PW1 to police on 7/2/2004

E2- Statement of PW1 to the police on 10/2/2004.

F- Report of the Chief Judge, High Court FCT, Abuja.