C. Odunukwe V. Moses Taiwo Adebanjo (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU J.C.A.

In the court below, the plaintiff now the respondent had claimed as follows:

“(i) A declaration that the plaintiff is entitled to the grant of a certificate of occupancy in respect of the place or parcel of land described as Plot 43 on the allotment of Magistrate Isaac John on plan No. AK 782 situate and being at Itire – Ikate near Iguru Mushin in Ikeja Division of Lagos State (now known and described as Plot 43, No.39 Ogunlana Street Aguda, Surulere, Lagos by virtue of the deed of conveyance dated 13/9/70 executed in favour of plaintiff by Isaac Sylvanus John and registered as No. 93 page 93 in volume 1131 of the Lands Registry in the office in Lagos.

(ii) Alternatively an order that the plaintiff is entitled to recover the said piece and parcel of land in view of the claim above.

On being served with the statement of claim the defendant filed his statement of defence in which he stated that he had been in undisturbed possession of the land since 1985. The plaintiff now the respondent filed in the court below a reply in which he asserted that in a previous action he instituted no suit No. LD/364/85 the defendant there had inordinately shielded the present defendant appellant by claiming the two plots thereby making it difficult for the plaintiff respondent to know the identity of the present defendant/appellant. The defendant then sought to file a rejoinder to the present claim but the court below refused. The court below had ruled as follows:

“There is a difference between amendment to pleadings and a rejoinder. Both these are provided in our rules and local order (sic) R.S.C. of England …”

It seems in this case the court had ruled that no damage can be done to the defence case if such rejoinder is included in amended statement of defence. The last order of that court is that the appellant includes such new facts in an amended statement of defence within 7 days from today?

Unhappy with this development the defendant filed, an appeal and framed two issues which are:

“(i) Was the learned trial Judge right in refusing to grant the defendant appellant leave to file his rejoinder.

(ii) Was the learned trial Judge right to make an order for defendant/appellant to amend his defence when that was not what he was asking for.”

In an application such as the one brought by the appellant in the court below, the court had a discretion to grant it or not but which ever stands it takes must be in the spirit of the law i.e. in accordance with the laid down rules of procedure for the time being enforceable in the court. Now it is manifestly evident that no provision for further pleadings after reply to the statement of defence is in the Lagos High Court rules, what does the court do when there is no local provision.

Section 12 of the High Court Law of Lagos State Cap. 50 states as follows:-

The jurisdiction vested in the High Court shall so far as practice and procedure are concerned be exercised in the manner provided by this or any other enactment by such rules and orders of court as may be made pursuant to this or any other enactment and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England. Order 18 rule 4 of English Supreme Court Practice contained in Vol. I of 1991 and extracted from R.S.P. 1962 4 states.”

“No pleading subsequent to a reply or a defence to counter claim shall be served except with the leave of court.”

In his application to file a rejoinder the defendant appellant through Uche Awa Esq. deposed as follows at paras. 6, 7 and 8 of the affidavit.

“That I am informed by counsel to the defendant Edwin Egede, Esq. whom I verily believe that as a result of certain averments in the plaintiffs reply to statement of defence he needed to get certain documents from the High Court.

That these documents were difficult to locate and were only located recently and the documents were obtained from the courts on the 15th of March, 1992.

That I am informed by the said Edwin Egede and I verily believe him that upon a study of the documents he found it necessary to file a rejoinder to the plaintiffs reply dated the 10th of October, 1992.

That I am informed by the said Edwin Egede, Esq. counsel to the Defendant, whom I verily believe that it is in the interest of justice that the rejoinder is filed and served on the plaintiff to clarify the new facts raised in the reply to the statement of defence.”

The respondent in disagreeing with the stand of the appellant in this matter referred the court to Order 25 rule 1 which he claimed was the procedure open to the defendant appellant. Order 25 rule 1 states:

“The court and Judge in chamber may at any stage of the proceedings allow either party to alter or amend his indorsement on-pleadings, in such manner and on such term/s as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

The entre point of the appellants’ case as evidenced from the affidavit in support is that the case of the appellants (as defendants in the court below) will be marshelled and succinctly put to enable him effectively challenge the case put forward by the respondents. It must be understood that as long as local provision can adequately deal with a particular state of affairs in that case we do not have to have resort to English rules. Where there is a slight deficiency in our rules, an aggrieved person can have recourse to English rules on the authority of section 12.

It seems to me that the provisions in the High Court rules of Lagos with respect to filing of pleadings and the rule in England which makes provision for rejoinder are not mutually exclusive. I believe they are alternate proceedings open to a litigant and he should not be fettered in resorting to a rule which he believes will advance his interests.

The aim of pleading is to enable parties to reflect all the relevant material facts which must feature in the pleadings and the court should steer clear of involving itself on how a litigant does his case as long as there has not been any breach of the rules. See Salami v. Oke (1987) 4 NWLR 1 at 17. It is not for the court in such an instance to try and make a case for the party and arrogate itself the power to make an order or grant prayer not specifically asked for. Thus in Ademola v. Sodipo (1987) 5 NWLR (pt.121) P.329 at 346 Akanbi, J.C.A. as he then was held.

“As a matter of general principle, a court should not grant reliefs which are not claimed by the parties before it.”A critical examination of the import of section 12 of Lagos High Court Act, leaves the impression that the appellant’s right to resort to Order 18 rule 4 of RSC England may lead to effectuate the resonance of his case. I am satisfied that Order 25 rule 1 does not foreclose any recourse to Order 18 rule of RSC of England and it is equally not intended to be exhaustive of the procedure that can be followed by the appellant pursuant to advancement of his case.

In the circumstances this appeal succeeds. The judgment of the court below is set aside. I make no order as to cost.

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Other Citations: (1999)LCN/0515(CA)

Alhaji Ibrahim Ahmad Goronyo V. Alhaji Isah Mai Alewa Goronyo (1999)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

This appeal emanated from the decision of the Sokoto State Sharia Court of Appeal (SCA) sitting at Sokoto on appeal No. SCA/WR/128/93, dated 7th December, 1994. The earlier decision of the Wurno Upper Area Court (UAC) in suit No. CV/FI/20/92 was the subject matter of the appeal before the SCA. The plaintiff was claiming before the UAC that when their father died about 40 years ago, his estate, which composed of 2 houses, four farms and some books, was not distributed among the heirs and was being withheld by the defendant. The defendant admitted knowing that their father died and left a house, four farms and some books. He denied knowledge of anything over and above that. Evidence was taken by the UAC and at the end, the trial Judge found that the only estate left by the deceased composed of a house and four farms which were subsequently distributed to the heirs.

Dissatisfied, the plaintiff, now appellant, appealed to the SCA. After taking more explanations from the parties, the SCA affirmed the UAC’s decision.

Dissatisfied further, the appellant appealed to this Court on four grounds reproduced below:-

“1. The Upper Area Court Judge at Wurno wrongly administered Oath to the respondent herein without considering possession.

2. The Sharia Court of Appeal judgment is equally unreasonable because it only uphold (sic) the lower court decision without regard to Islamic Law governing inheritance.
3. The quorum of Sharia Court Kadis is constitutionally 3 but only two Kadis sat and decided my case.
4. Further grounds shall later be filed on receipt of records of proceedings.”

On the 18th day of November, 1998 when the appeal came up for hearing, the appellant adopted and relied on the submissions he made at the UAC and the SCA of Sokoto State. He had nothing more to add. He urged the court to allow the appeal. The respondent on the other hand adopted and relied on his submissions made at the UAC and the SCA of Sokoto State. He urged us to dismiss the appeal.

The parties remained undefended from the trial stage to the present stage.

From the grounds of appeal, two issues are distilled for consideration:-

1. Whether the decision of the Sharia Court of Appeal, Sokoto is not a nullity as there was no proper quorum of the Kadis to determine the appeal.
2. Whether Oath was properly administered on the defendant/counter-claimant.

Issue No. 1 touches on jurisdiction of the lower court which is fundamental and must be resolved at once.

It is a basic requirement of the law that before a court of law determines a claim, it must ensure that it has jurisdiction to entertain it. See Abbas & anor. C.O.P. Kano State & anor (1998) 12 NWLR (Pt. 577) 308. In the 1979 Constitution, the requisite quorum for a Sharia Court of Appeal to entertain an appeal was two Kadis. Section 243 of the Constitution of the Federal Republic of Nigeria. 1979, stipulates:-

“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Sharia Court of Appeal of a State shall be duly constituted if it consists of at least 2 Kadis of that Court.”

An amendment to this section was introduced by Decree 107 Constitution (Suspension and Modification) Decree 1993 which amended the above section of the Constitution by substituting the word ‘two’ by the word ‘three’. See the second Schedule of the Decree. This, therefore, has changed the quorum of the Sharia Court of Appeal of a State to at least 3 Kadis. The effective commencement date of this Decree was the 17th day of November, 1993.

The appeal was heard and determined on the 7th day of December, 1994 by a quorum of 2 Kadis. This certainly was in clear contravention to the provision of the 1979 Constitution as amended. The lower court thus lacked jurisdiction to entertain the appeal. It has been repeatedly held by the Supreme Court and this Court that any proceeding however well conducted, if conducted without jurisdiction is a nullity. See Barclays Bank v. CBN (1976) 6 SC 175: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117)517; Abbas v. C.O.P. Kano State (supra).

For the above reasons, the decision of the lower court is a nullity which must be, and is hereby set aside. The appeal therefore succeeds and is hereby allowed, on the first issue alone. It will certainly serve no purpose to treat the remaining issue. Accordingly, the appeal is remitted hereby, to the honourable Grand Kadi of Sokoto State Sharia Court of Appeal for a fresh hearing by another duly constituted panel of the court apart from the earlier panel that entertained the appeal. I award N1,500.00 costs to the appellant.

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Other Citations: (1999)LCN/0514(CA)

Tecno Mechanical (Nigeria) Limited V. Adisa Ogunbayo (1999)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiff henceforth referred to in this judgment as respondent was engaged in the employment of the defendant now appellant in this judgment as a security staff as per undated letter titled “OFFER OF APPOINTMENT’ admitted and marked Exhibit ‘B’ respondent commenced work in the factory of appellant situate at PAKOTO AREA, IFO, Ogun State on 10th January, 1994.

On 13th January, 1994 in the course of duty as security staff at about 11.45 a.m. he was on patrol of appellants factory premises when a forklift driven by one labourer, also an employee, of the appellant knocked him down from his back and was rescued by one Mufu also a servant of appellant. As a result of the accident when respondent was knocked down with the forklift wrongly driven by Fatayi Enitan he received personal injuries and was referred to the Accident and Emergency Centre of Lagos University Teaching Hospital on 13th January, 1994 the same day of the accident, and admitted to ward E2. On 3rd February, 1994, respondent was operated upon under Local Anaesthesia. The medical report of 17th October, 1994 issued on respondent by Dr. E.A. Adeleye the Chief Medical Officer Traumatic of Lagos University Teaching Hospital, was admitted and marked Exhibit “A” when the Medical doctor testified as 1st plaintiff’s witness. As a result of the accident of 13th January, 1994 wherein respondent was knocked down by a servant of the appellant, respondent issued a writ of summons against the appellant. After service of the writ of summons on appellant pleadings were filed delivered and exchanged. The trial was concluded on statement of claim and statement of defence. As both the court and the parties are bound by their pleadings as unpleaded facts go to no issue, the claims of the respondent were as pleaded in some of the paragraphs of the statement of claim as under:-

“(5) On 13th January, 1994 at 11.45 a.m. the plaintiff was walking round the Mechanical Section of the defendant’s factory premises when the defendant’s Forklift driven by Mr. Fatayi Enitan A labourer collided with the plaintiff from the back, raised the plaintiff in the air several times and eventually knocked him down.

(12) The plaintiff was admitted at LUTH, Lagos and underwent surgical operations there and was on admission for four months. The medical report issued by the Chief Medical Officer Trauma Unit Dr. Adeleye will be tendered.

(13) Up till now the plaintiff cannot walk nor sit properly and has pains continually. The plaintiff has been incapacitated from going about to look for work or do farming as a result of the injuries suffered from the accident in the defendant’s factory premises on 13th January, 1994.

(15) The plaintiff ceased to be paid by the defendant as a staff as from January, 1995.

(17) The defendant has been negligent in the following manner:-

(a) Lack of control over the labourers in the defendant’s employment.

(b) Failure to issue regulations in the factory as to the category of staff authorised to drive the FORK LIFT.

(18) The plaintiff has been unable to lead a full life as a result of the injuries sustained on 13th January, 1994.

(19) The plaintiff will rely on the principle of RES IPSAL LOQUITOR.

(201 The plaintiff claims special and general damages as follows:-

SPECIAL DAMAGES

(a) Broken left leg and continual pains – N750,000.00

(b) Future hospital Treatments and Travelling costs for 13 years up to age of

65 years from Ifa to Lagos N70,000.00

GENERAL DAMAGES

(c) Loss of earnings al the rate of N12,000.00 p.a. for 13 years up to

the age of 65 years. N156,000.00

(d) Inability to lead a full life as a result of broken left leg and pains

N24 000.00

N1 ,000.000.00

——————-

(22) Whereof the plaintiff claims as per the writ of summons.”

which writ of summons was endorsed as follows:-

“The plaintiff’s claim against the defendant’s is for:-

(a) N1,000,000.00 special and general damages for injuries, pains, suffering and inconveniences suffered by plaintiff as a result of FORKLIFT negligently and incompetently driven by an employee of the defendant on 13th January, 1994 which collided and knocked down the plaintiff within the factory premises of the defendant at FAKOTO, IFO, OGUN STATE damaging the plaintiff’s left leg with accompanying abrassions on the cheek and left toes, and the face.

(b) The plaintiff was hospilalised at Lagos University Teaching Hospital, Lagos for four months and has not been able to walk properly and continues to have pains till today.

The defendant refused to take delivery of the letter of demand forwarded to it by the plaintiff’s solicitor by hand and by registered post.

(c) The plaintiff was on duty on the defendant’s factory premises on the date of the accident as a security staff.”

The appellant/defendant averred in the undermentioned paragraphs of the statement of defence thus:-

“After the general traverse

(3) With further reference to paragraphs 5, 7, 9, 13, 16, 17, 19, 20 of the statement of claim the defendant avers that if and in so far as Mr Fatai Enitan, a Labourer, acted as alleged therein which is not admitted, the said Mr. Fatai Enitan did not do so as servant or agent of the defendant and/or did so outside the scope of his employment as a labourer, by the defendant and it is denied that the defendant is liable in respect thereof whether as alleged or at all.

(4) It is denied that the defendant or any of its servants or agents acting within the scope of their respective employments was guilty of the alleged or any negligence or breach of duty as alleged in the statement of claim or at all or that any injury loss or damage which the plaintiff may have suffered or sustained was caused or occasioned thereby or by the alleged or any of the acts or matters complained of as alleged or at all.

(5) The alleged injuries, loss and damage are denied.

(7) Further or in the alternative the loss and damage claimed herein (if any which is denied) are too remote and are not recoverable in law.

(8) Further or in the alternative, the plaintiff failed, refused and or neglected to take any reasonable steps to mitigate the loss and damage suffered by him (if any which is denied) by reason whereof the plaintiff is not entitled to recover such alleged loss and damage or part thereof.

PARTICULARS

The plaintiff is sufficiently eligible for similar or alternative or any suitable employment if only he takes steps to secure one either in the public or private sector or by being self employed.

(10) The defendant avers that it at all times material to this suit exercised strict control over all its workers in general and labourers in particular and it did issue regulations from time to time concerning the scope of employment of its staff.

(11) Whereof the defendant avers that the plaintiffs claims are frivolous, misconceived and that the reliefs claimed by the plaintiff are not maintainable against the defendant or at all”

To establish his case respondent testified in line with his pleading as 2nd P.W. and called two other witnesses who were cross examined by the learned counsel for the appellant. In the course of their testimonies documents were admitted and marked as Exhibits.

Appellant called two witnesses and documents tendered were marked as Exhibits. They were cross examined by learned counsel for the respondent.

Upon completion of testimonies by the parties, learned counsel to the parties addressed the court after which the learned trial Judge delivered her judgment on 1st day of August, 1996. The judgment covers pages 41-61 of the record of appeal and found in favour of the respondent at pages 60 and 61 of the record of appeal as follows:-

“give judgment for the plaintiff in parties as follows:-

(3)” I award the sum of N250,000.00 to the plaintiff under claim 20(a) for the injury to his left leg.

(b) N70,000.00 to the plaintiff as claimed for (a) a special shoe at N10,000.00 (b) N60,000.00 for further treatment and (c) for transport to and from hospital.

(c) N25,000.00 for loss of earnings for 2 years and 1 month while plaintiff receives further treatment and finds gainful employment.

The claim for N24,000.00 for inability to lead a full life fails.”

Being dissatisfied with the said judgment appellant timeously filed its notice of appeal at pages 63 to 66 of the record of appeal and in paragraph 3 formulated 5 grounds of appeal as A-E. In accordance with the rules of this court about formulation of issues which must be based and to encompass the grounds of appeal appellant in its appellant’s brief of argument filed in this court on 13th February, 1997 was relied and adopted in the argument of this appeal. At page 3 in paragraph 3 appellant distilled the issues for determination as under:-

Issues for Determination

“3. It is the respectful contention of the defendant/appellant that the issues for determination in this appeal are as follows:-

Grounds of Appeal “A”

(a) Whether the learned Trial Judge was correct in holding that the defendant/appellant was vicariously liable for the negligence of Mr. Fatai Enitan.

(b) Grounds of Appeal” B”

Whether the learned trial Judge was correct in awarding N320,000.00 as special damages.

(c) Grounds of Appeal “C” and “D”

Whether the learned Trial Judge was correct in awarding N25.000.00 as general damages for loss of earnings for 25 months

(d) Grounds of Appeal “E”

Whether the conclusions reached by the learned Trial Judge on the accepted evidence can be justified in the circumstances of this case.”

Appellant’s brief of argument was served on respondent which made him to file a respondent’s brief of argument which brief of argument was relied and adopted in arguing respondent’s appeal. In paragraph 5.01 he raised the issues for determination as –

“Issues for Determination

5.01 The issues for determination formulated in this brief by the respondent are as follows:-

A. Whether there is a valid Notice of Appeal and competent Grounds of Appeal filed by the appellant.

B. Whether by balance of probabilities and or by RES IPSA, the totality of the evidence adduced by the plaintiff has established Negligence and consequently vicarious liability of the defendant.

C. Whether award of compensation for injuries in an accident should follow rigidly the concept of general and special damages or follow recognised items of compensation for personal injuries.”

Appellant on 8th December, 1998 filed appellant’s reply brief of argument and relied on same in argument of it’s appeal.

Respondent having contended that there was incompetent notice of appeal and grounds of appeal raised a fundamental and basic issue of the jurisdiction of this court to entertain this appeal being issue of jurisdiction and the competence of this court the dictum of Bairamian FJ in Gabriel Madukolu and others (For themselves and on behalf of the Umuonala Family v. Johnson Nkemdilim (1962) 1 All NLR 582 (1962) 2 SCNLR 341 at All NLR page 595 is apposite as under:-

“Before discussing those portions of the Record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when.

(1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another and

(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction and

(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided, the defect is extrinsic to the adjudication.

If the court is competent, the proceedings are not a nullity, but they may be attacked on the ground of irregularity, in the conduct of the trial, the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication.

A defect in procedure is not always fatal.”

applied and adopted in Adefulu v. Okulaja (1998) 5 NWLR (Pt.50) page 435 SC Dr. Tunji Braithwate v. GDM (1998) 7 NWLR (Pt.557) page 307 CA. UNITED Agro Ventures Ltd v. First City Merchant Bank Ltd. (1998)4 NLWR (Pt.547) page 546 CA; Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704 CA Ikeni v. Efamo (1997) 4 NWLR (Pt.499) page 318 at 333″

In support of his contention that the notice of appeal and grounds A- E are incompetent in that the grounds of appeal are of mixed law and facts leave of court must first be obtained to make the notice of Appeal valid. As no leave was obtained as in the instant case such notice of appeal is invalid with a consequential dismissal of the appeal buttressed by three judgments of the Supreme Court listed in support in respondent’s brief.

The grounds of appeal A to E without their particulars read as follows:-

“3. Grounds of Appeal

A. The learned Trial Judge erred in law by holding that the defendant/appellant is vicariously liable for the acts or omission of FATAI the person who drove the FORKLIFT on 13/1/94. Particulars of Error in Law

(i) (ii)

B. The learned trial Judge erred in law by awarding the sum of N320,000.00 as special damages

Particulars of Error in Law

(i) (ii) (iii)

C. The learned trial Judge Erred in law by awarding N25,000.00 as General Damages for loss of earnings for 25 months

Particulars of Error in Law

(i) (ii) (iii)

D. The learned trial Judge erred in law by awarding N25,000.00 as General Damages.

Particulars of Error in Law

(i) (ii) (iii)

E. The decision of the learned Trial Judge is against the weight of evidence.”

Appellant submitted in his reply brief issues A and B formulated as paragraph 5.01 at page 6 of respondent’s Brief are incompetent because they were based on no ground of appeal to support either or both of them. Contrary to the complaint in paragraph 6.01 respondent’s brief of argument leave was not required being a final decision of the High Court at first instant NISI PRIUS which by Section 220(1)(a) 1979 guaranteed an appeal as of right Total International Ltd v. Prince Awogboro (1994) 4 NWLR (Pt. 337) pp 147 150 SC; Adamu v. A.G. Barno State (1996) 8 NWLR (Pt.465) PP 203, 211 and 217 G.H.

Every appellate jurisdiction is statutory be it under the Constitution, Act or Decree, Law or Edict. The Court of Appeal derived its appellate jurisdiction under section 220(1) of Constitution of the Federal Republic of Nigeria 1979 Cap 62, Laws of the Federation of Nigeria 1990 is Ipsissima Verba Section 241(1) Constitution of the Federal Republic of Nigeria 1999 which reads thus:-

“241(1)

An appeal shall lie from decisions of the Federal High Court or a High Court to, the Court of Appeal as of right in the following cases:-

(a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court Sitting at First Instance.”

It is common ground that this appeal was against the judgment of the High Court of Ogun State holden at Otta sitting at first instance.

Section 318(1) of the Constitution of Federal Republic of Nigeria 1999 defines:-

“Decision, means in relation to a court, any determination of that court and includes judgment, decree, order conviction, sentence or recommendation.”

It is trite law that the attitude of the court is to give liberal interpretation to the provisions of the constitution and where the words are plain and unambiguous to give it ordinary, grammatical, natural meaning. Nafiu Rabiu v. The State (1980) 8/11 SC 130 at 146-148 (1980) 2 SCLR 293. NNPC v. Fawehinmi (1998) 7 NWLR (Pt. 559) page 598 CA Ogbunyiya v. Okuda (1979) 6/9 SC 32; Chief Obafemi Awolowo v. President Shehu Shagari & ors. (1979) 6/9 51.

Applying the above to the instant appeal being a case decided by the High Court NISI PRIUS, that it is a final decision at first instant no leave of the High Court or this court is required whether the grounds of appeal or ground of appeal be mixed law and fact or on fact alone. Respondent misconceived the law in respect of interlocutory appeal to this court where the ground is of mixed law and fact or fact and not real point of law. This court held in Lawrence Elendu & ors v. Felix Ekwoaba & 4 ors. (1995) 3 NWLR (Pt. 386) 704 at 732 that:-

“By virtue of section 220 of the 1979 Constitution, there is a right of appeal without leave of the High Court or the Court of Appeal, where an appeal from the High Court relates to a final judgment of the High Court in its original unlimited jurisdiction under Section 236(1) of the 1979 Constitution. In the instant case, as the appeal is against the final judgment given not in the appellate jurisdiction of the High Court, no leave of the High Court of the Court of Appeal is required (Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) page 410, CA. Bronik Motors Ltd. v. Wema Bank Nigeria Ltd. (1983) 6 SC 158, 1983 1 SCNLR 296, Savannah Bank of Nigeria Ltd v. PAN Atlantic Shipping & Transport Agency Ltd. (1987) 1 NWLR (Pt.49) page 212).”

The complaint raised in issue one of respondent’s brief of argument about the competence of the grounds of appeal was completely misconceived in law and lacks any merit in view of the judgments referred to above. The notice of appeal and grounds of appeal filed by appellant are competent thereby this appeal is maintainable and valid in this court.

Issue Two supra raised by respondent in his brief of argument touched on the issue of balance of probabilities and or by res ipsa. Appellant in its reply brief contends that this issue having not been based on any ground of appeal by the appellant and being the rule of brief writing that an issue must be based on ground or grounds of appeal with the issue to correlate and encompass the ground of appeal. An issue not based or formulated on the ground or grounds of appeal is by the attitude of the court ignored. There is much force in the contention of the appellant that as issue Two in respondent’s brief was not based on any ground of appeal be ignored, reflects the position of the law thereby the contention of the appellant to ignore issue Two in the respondent’s brief of argument being impeccable is upheld by this court with reliance and support in the cases referred to by appellant’s reply brief in addition to Haruna v. Salau (1998) 7 NWLR (Pt. 559) page 653, Wema Bank Ltd v. Intl Fishing Co. Ltd. (1998) 6 NWLR (Pt.555) page 557 CA, Akinbuwa v. Akinbuwa (1998) 7 NWLR (Pt.559) page 661 CA. Hyppolite v. Egharevba (1998) 11 NWLR (Pt.575) 598 CA. A fortiori issue two in respondent’s brief as stated supra for emphasis lacks and devoids of merit.

Be that as it may I shall now proceed to consider the appeal based on the issues for determination formulated in appellant’s brief of argument and issue three in respondent’s brief of argument but reliance shall be put on appellant’s issues for determination with liberty to make cross reference to competent issue raised by respondent.

The issues raised by the parties already set up above and after ignoring respondent’s issues A and B are further encompassed in this judgment as follows:-

(i) Whether the learned trial Judge based on the pleadings and evidence adduced was right to have found appellant to be vicariously liable for the negligent act of its labourer Fatai Enitan.

(ii) Whether the learned trial Judge’s awards for personal injuries as a result of the negligence of Fatai Enitan suffered by the respondent was based on wrong principle of law or that the amount awarded was so high or so low as to make it an entirely erroneous estimate of the damages to which the respondent was entitled.

In Marcus Enyika v. Shell BP Petroleum Development Company of Nigeria Limited and two ors (1997) 10 NWLR (Pt.526) at 638 at 650 this court observed as follows and held thus:-

“(5) Negligence has been defined as the omission to do something which a reasonable man guided upon the consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

(6) The question “What is the duty of care” in negligence and to whom it is owed has to be approached in two stages. First, one has to ask whether as between the wrong doer and the person who has suffered damages there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively it is necessary to consider whether there are any consideration which ought to negate, or to reduce, or limit the scope of the duty or the class of persons to whom it is owed or the damage to which a breach of it may give rise (Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 3 NWLR (Pt. 60) page 196 referred to and adopted).

(7) The doctrine of proximity as the foundation of duty of care in tort is now firmly established as the basis of an action in negligence (Nigerian Bottling Company Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) at 739 SC, U.S.A. Ltd v. Mrs. Achoru (1990) 6 NWLR (Pt. 156) page 254 U.S.N. v. Nwaokolo (1995) 6 NWLR (Pt. 400) page 127 referred to.”From the pleadings and evidence adduced in the lower court the learned trial Judge’s finding of fact of negligence against Fatai Enitan in knocking down the respondent with the driving of the Forklift was a breach of duty of care owed by Fatai Enitan to respondent as there was sufficient relationship of proximity and neighbourhood that in the reasonable contemplation of Fatai Enitan carelessness on his part was likely to cause damage to respondent. Having answered the first question of proximity affirmatively from evidence there were no extenuating consideration to negate, or reduce of limit the scope of the duty of care owed the respondent by Fatai Enitan. The negligence being evidence of fact in my assessment the finding of fact of negligence against Fatai Enitan was borne out from the evidence and in my estimation the finding by the learned trial Judge was not perverse. As an appellate court I am not prepared to disturb the said finding of fact. The complaints and attacks by the appellant against the finding of fact of negligence are devoid of any merit, leading this court to reject them. Having found Fatai Enitan a labourer in the employment of appellant liable in negligence against a co-employee the respondent is the appellant thereby liable vicariously for the negligence of Fatai Enitan?

At page 927 Blacks Law Dictionary Seventh Edition June 1999 Vicarious Liability means:

Liability that supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties” with derivation from Latin “respondent superior defined at page 1313 Blacks Law Dictionary 7th Edition aforesaid thus:-

(Law Latin “Let the superior make answer) Torts. The doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency based on the doctrine that “He who does a thing through another does it himself.”

It is appellant’s case that when Fatai Enitan drove the Forklift whereby he knocked down respondent within its factory premises on 13/1/94 being employed as labourer and not as Forklift driver he was on the frolic of his own and was not acting within the scope of his employment thereby appellant was not liable. Appellant averred in paragraph 10 of the statement of defence supra that at all material time to the suit, it exercised strict control over all its workers in general and labourers in particular and did issue regulations from time to time concerning the scope of employment of its staff. It is well established under our civil jurisdiction that pleaded facts in pleadings must be backed up with evidence, where an averment in pleading is not backed up with satisfactory or credible evidence the averment insupportable with evidence is treated as unestablished. Though appellant pleaded issue of regulations not a single regulation was given in evidence, so the learned trial Judge based on the joinder of issues of control of the labourers scope of employment was right when she held that appellant failed to establish that it did not authorise Fatai Enitan to drive the Forklift which was without its authority and outside the scope of Enitan’s employment.

In Bayley v. Manchester, Sheffield and Lincolnshire Railway Co. (1873) LR 8 CP 148, 42 LJCP 78, LT 366 it was observed that –

“Where a servant is acting within the scope of his employment, and so acting does something negligent or wrongful, the employer is liable even though the acts done may be the very reverse of that which the servant was actively directed to do.” See further Limpus v. London General Omnibus co. Ltd. (1862) 1 H & C 526, 32 LJEX 34, 7 LT 641, Warren v. Henlys Ltd (1948) 2 All ER 955, (1948) WN 449″.

As appellant failed to place before the trial court the regulations issued to disbar Enitan from driving Forklift and as it is not the habit of the court to speculate on the contents of a document not placed before it as decided in Gbajor v. Ogunburegui (1961) 1 All NLR 853 the learned trial Judge was right to have found the appellant to be vicariously liable for the negligence of Enitan which act resulted in personal injuries to the respondent. The complaints and arguments of the appellant on issue A & D raised in the matter after due consideration are hereby rejected and resolved against the appellant. Issue one encompassed by this court is resolved as unmeritorious against the appellant.

The next issues for consideration are issues B and C raised in appellant’s brief of argument and issue C in respondent’s brief of argument encompassed as issue (ii) by this court which revolved against the issue of damages awarded as stated above by the learned trial Judge in the case of personal injuries received as a result of the negligence of the appellant for which it was vicariously held to be liable.

The Supreme Court through KARIBI WHYTE, J.S.C. dealt exhaustively with the award of damages for personal injuries in United Bank for Africa v. Mrs Achoru (1990) 6 NWLR (Pt. 156) page 254 and per OPUTA, J.S.C. in NBC v. Ngonadi (1985) 1 NWLR (Pt.4) page 739 SC. all applied, adopted, and followed loyally by the Court of Appeal wherein it dealt comprehensively and exhaustively with the principle to guide courts in award of damages in personal injury cases in the case of the involuntary castrated man resulting from automobile accident in Paul S. Ebe v. Albert Nnamani, (2) Toisei (West Africa Ltd. (1997) 7 NWLR (Pt.513) page 479 at 506, 507, 508 wherein it was stated as follows:-

The award of personal injuries in negligence cases has not been clear as to whether to award for each head of claim or set out the heads of claim and award a lump sum. The approach in modern times was made by Lord Denning Mr in the case of Limpoh Choo v. Camden and Islington Area Health Authority (1979) 1 All ER 332 at 342, (1979) 1 QB 196 at 216 thus:

“The practice is now established and cannot be gainsaid that in personal injury cases the award of damages is assessed under four main heads:-

FIRST: Special damages in the shape of money actually expended.

SECOND cost of further nursing the attendance and medical expenses.

THIRD: Pain and suffering and loss of amenities

FOURTH: Loss of further earnings approved and confirmed by the House of Lords in Limpoh Chao v. Camden and Islington Area Authority (1979) 2 All ER 332, Cockson v. Knowles (1978) 2 All ER 604 at 614. In Re Croke (a minor) v. Wiseman (1981) 3 All ER 852 (1982) 1 WLR 71 followed in D.B. Solanke v. Tajudeen Ogunbanwo, Inspector Gen of Police & Ors. (1985) HCNLR 362 at 385.

In Samson Ediagbonya v. Dumez Nigeria Ltd. & Anor (1986) 6 SC 149 at 164, (1986) 3 NWLR (Pt.31) at page 753 “Karibi Whyte, J.S.C. observed as follows:-

It seems to have been established by judicial authority that in personal injury cases two main factors have to be taken into consideration in assessing damages in cases of liability. These are (a) financial loss resulting from the injury and (b) the personal injury involving not only pain and suffering but also loss of the pleasure of life. Salihu v. Tin Associated Minerals Ltd. (1958) NRNLR 99. Shaibu v. Maiduguri (1967) NMLR 56, Mauche v. Durie & Anor. (1970) NNLR 62. The broad distinction between personal loss and financial loss run through all cases.

Perhaps one of the most difficult exercises in assessing damages is the quantification of the loss whether financial or personal. The court proceeds with the underlying assumption that damages are compensation for injury sustained and are not meant to be punitive, see British Transport Commission v. Gourley (1956) AC 185 at page 208. In Roshton v. National coal Board (1963) 1 All ER 314 at page 316 SINGLETON L.J. said:-

“Every member of this court is anxious to do all he can to ensure that the damages are adequate for the injury suffered so far as they can be compensation for an injury and to help the parties and others to arrive at a fair and just figure.”

It must be recognised and conceded that the fullness and the adequacy of damages awarded as compensation will in each case depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of. Damages are assessed as a Lump Sum and once for all, not only in respect of loss accrued before trial but also in respect of prospective loss. Hence in the Ceramic (Owners) v. The Test bank (owners) (1942) 1 All ER, 281 Goddard LJ. said:-

“In an ordinary accident case there is no yardstick by which the court can measure the amount to be awarded for pain and suffering or ensuring disability.”

In respect of assessment of damages for personal loss which involves pain and suffering and the loss or diminution of enjoyment of life, the term personal loss” denotes every kind of harm and disadvantage which flows from a physical injury, other than the loss of money or property. It therefore necessarily includes the loss or impairment of integrity of the body, pain and suffering both physical and mental loss of the pleasures of life, actual shortening of life and mere discomfort or inconvenience.

In assessing damages both the financial and personal loss factors should be taken into account and compensation given for both types of loss,” adopted in United Bank for Africa Ltd & anor v. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) page 254 SC at 280- 286, Union Bank of Nigeria Ltd v. Odusote” (1995) 9 NWLR (Pt. 421) page 558 SC.”

As already stated above in this judgment the learned trial Judge at page 61 of the record of appeal concluded her judgment as under:-

“(a) I award the sum of N250.000.00 to the plaintiff (now respondent) under claim 20(a) for the injury to his left leg.

(b) N70,000.00 to the plaintiff as claimed (a) special shoe at N10,000.00 and (b) N60,000.00 for further treatment and (c) for transport to and from hospital

(c) N25,000.00 for loss of earnings for 2 years and 1 month while plaintiff receives further treatment and finds gainful employment.”

Appellant submitted that whilst the appellate court is reluctant to intervene on questions of damages unless the trial court acted on wrong principle of law or the amount awarded was so extravagant or so small as to make it an entirely erroneous estimate of damages then the appellate court can interfere with the awarded of damages as decided in Techno plastic Nig. Ltd v. Jatau (1986) 4 NWLR (Pt. 38) pp 771. The award of special and general damages totalling N345,000.00 broken down as stated above was wrong application of the law on award of special damages which must be pleaded and strictly proved.

Appellant failed to prove the amount awarded in his favour strictly in accordance with the law therefore the Court of Appeal should dismiss the heads of claims reliance was put on Yalaju-Amaye v.A.R.E. Const. Ltd & ors (1990)4 NWLR (Pt.145) pp 422, 431, 451 and UBN Ltd v. Nnoli (1990) 4 NWLR (Pt.145) pp 530, 533, 543 and 548, A.G. Oyo State v. Fairlakes Hotels Ltd (1989) 5 NWLR (Pt.121) page 255, 278 and Odumosu v. ACB Ltd. 1976 11 SC pp 55 are all cases not based on personal injury cases as a result of negligence, thereby they are distinguishable from the issue that gave rise to this appeal. It is for this reason that this court took the pains to highlight the principle laid down by the Supreme Court as reflected exhaustively above in this judgment.

It is trite law that in assessing damages both the financial and personal loss factors should be taken into account and compensation given for both types of loss. This is exactly what the lower court did basing it on the evidence of 1st PW Dr Adeleye and the medical report Exhibit A. In awarding the sum of N345,000.00 as stated in paragraph 5.09 page 7 of appellant’s brief was a lump sum as enjoined in Limpon Choo v. Camden and Islington Area Health Authority supra, Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. Samson Ediagbonya v. Dumez, supra, UBA v. Mrs Achoru supra followed and adopted in Ebe v. Nnamani supra Applying the above authorities the lower court adopted the paramount considerations of financial and personal loss factors.

The sum of N250,000.00 was awarded for the injury suffered and covered under personal loss.

The sum of N10,000.00 for special shoe covered also personal loss and the sum of N60,000.00 for further treatment falls into categories 2 and 4 in Limpon Chao’s case supra so also the sum N25,000.00 for loss of future earnings which is category 4 in Umpan Chao’s case adopted in Ebe v. Nnamani supra. For the above reasons I see no legal justification to disturb the-award for personal injuries in favour of the respondent. The attacks on the award are baseless in law resulting in resolving issues B,C,D and E and issue encompassed by this court against the appellant.

In the final result the appeal fails and is dismissed. Having dismissed the appeal as appellant succeeded in striking out issues A and B in respondent’s brief of argument, based upon the principle that costs follow the event, acting judicially and judiciously the cost to be awarded in favour of respondent is thereby reduced and fixed at N1,500.00 in favour of respondent against the appellant.

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Other Citations: (1999)LCN/0513(CA)

Thomas Ugwu V. Hon. Ede Samuel Igwe & Ors (1999)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the decision of the Local Government Election Tribunal holden at Enugu on 8/2/99 nullifying the return of the appellant as the elected Councillor of Ubahu/Amankanu Ward in Nkanu East Local Government Area. The tribunal returned the petitioner/respondent as the duly elected councillor of the same ward.

In the nationwide Local Government election held on 5/12/98, the 1st respondent vied under the banner of Alliance for Democracy (AD). The appellant herein contested on the platform of All Peoples Party (APP). One Simeon Akaeme tried his chance under Peoples Democratic Party (PDP). The appellant was returned as the winner on 5/12/98 a Councilor elect of the stated ward. The 1st respondent was not satisfied with the return of the appellant. In short, he felt he had cause to cry foul. The 1st respondent filed his petition at the Election Tribunal Registry on 21/12/98.

Eze O. Eze Esq., learned counsel for the 2nd – 3rd respondents, filed a notice of preliminary objection dated 7/1/99 on 18/1/99. He raised objection to the jurisdiction of the tribunal as, according to him, the petition is incompetent having been filed out of time allowed by law. In the reply filed on behalf of the appellant on 21/1/99, paragraph 5 contains a challenge to the competence of the petition.

The preliminary objection was taken on 23/1/99. The tribunal overruled the objection in a rather hasty fashion. The tribunal stated that the period of 5/12/98, when the result was declared and 21/12/98 when petition was filed, is 13 days. The trial tribunal then went ahead to determine the petition in favour of the petitioner/respondent on 8/2/99. The stance of the tribunal precipitated this appeal.

The notice of appeal dated 11/2/99, was filed on 15/2/99. The notice was accompanied by two grounds of appeal which read as follows:-

“Ground 1 – error in law

The Election Tribunal erred in law when it went on to hear and determine this petition on its merits without regard to the fact that it had no jurisdiction so to do.

Particulars

(a) The Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides that an election petition shall be presented within fourteen days of the declaration of the election result.

(b) The election held (sic) and result therefore was declared on 5/12/98.

(c) The petition was filed on 21/12/98.

Ground 2.

The judgment of the tribunal is against the weight of evidence.”

The appellant’s brief, dated 1/3/99, was filed on 3/3/99. The brief, as well as Mr. B.O. Igwe’s oral argument in the appeal, only touched on ground 1. The 1st respondent’s brief, dated 4/3/99, was filed on 5/3/99. It also dealt principally with ground 1. It appears that ground 2, which complains about weight of evidence, is abandoned. It is accordingly struck out.

The issue for determination is not far fetched. Both sides are ad idem that the issue relates to whether the petition was filed within the time allowed by the law or not so as to determine the jurisdiction of the tribunal.

Mr. B.O. Igwe, learned counsel for the appellant, in arguing the appeal, referred to section 82 of the Local Government (Basic Constitutional & Transitional Provisions) Decree No. 36 of 1998 hereafter to be referred to as the Decree. The section stipulates that petition under the Decree shall be presented within fourteen days from the date on which the result of the election is declared. The result of the election in the ward was announced on 5/12/98. Fourteen days from 5/12/98 expired on 19/12/98. Petition was filed on 21/12/98. Learned counsel contended that the fact that 19/12/98 was a Saturday did not in any way alter the situation as Saturday is not designated a ‘holiday’; and even if it is a holiday it will still be taken into account in computing the statutory period. He placed reliance on section 15(4) and (5) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990; and Order XXII, rule 1(c) of the Federal High Court Rules made applicable under paragraph 51 of Schedule 5 to the Decree.

Learned counsel finally submitted that the petition filed on 21/12/98 was void ab initio. The trial and determination of same by the tribunal was without jurisdiction and therefore null and void. He referred to the cases of Abdulkadir v. Musa (1999) 1 NWLR (Pt.587) 348; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. He urged that the appeal be allowed.

Mr. P.A. Ogwuche, learned counsel for the petitioner/respondent, tried his best to swim against the current of flow. Learned counsel submitted that section 82 of the Decree is relevant. The petitioner/respondent filed his petition at the tribunal registry on 21/12/98. To compute time he referred to Order XII rule 1(a) of the Federal High Court Rules. The 14days allowed the petitioner by law fell on Saturday, 19th December, 1998. Learned counsel opined that Saturday is a non-working day. He further referred to Order XII rule 1(d) of the Federal High Court Rules.

Learned counsel submitted that there is no ground of appeal challenging the ruling of the tribunal given on 23/1/99. He cited the case of Alfotrin Ltd. v. Attorney-General of Federation & Anor. (1996) 9 NWLR (Pt.475) 634 at page 643.

Mr. B.O. Igwe replied by “observing” that issue of jurisdiction can be raised at any time even on appeal. He referred to the case of Nwosu v. Imo State Environmental Sanitation (1990) 2 NWLR (Pt. 135)688. He urged that the appeal  be allowed and the decision of the trial tribunal be set aside.

For a proper appreciation of the issue at stake, I need to quote, in extenso, section 82 of the Decree; section 15(4) and (5) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990; Order XII rule 1(a) & (d) of the Federal High Court Rules.

Section 82 of the Decree reads as follows:-

“82. An election petition under this Decree shall be presented within fourteen days from the date on which the result of the election is declared.”

Section 15(4) and (5) of the Interpretation Act, Cap. 192 reads as follows:-

“15 (4) Where by an enactment any act is authorised or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.

(5) In this section “holiday’ means a day which is Sunday or a public holiday:

Order XII rules 1(a) and (d) provide thus:-

“1 (a) the limited time does not include the day of the date of or the happening of event, but commences at the beginning of the day next following that day;

(b) …….

(c) …….

(d) Where the time expires on public holiday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being a public holiday.”

From the express provisions of the relevant section 15(4) and (5) of the Interpretation Act, Cap. 192 as reproduced above, one thing that is certain is that Saturday is not a public holiday. Saturday is not a public holiday under the Public Holidays Act, Cap. 378, Laws of the Federation 1990. Even if Saturday were to be a public holiday (which it is not) it would not have been left out in computing the period since the time provided by section 82 of the Decree to file the petition is 14 days i.e. more than six days. If it were to be six days, holidays shall be left out in computing the time.

From the above analysis, one is at a loss as to how the trial tribunal arrived at the arithmetic that the period from 5/12/98 to 21/12/98 is 13 days. Order XII rule 1 (a) of the Federal High Court Rules provides that computation must start from the day next following the event. So counting of the days must start on 6/12/98.

Counting from 6/12/98 to 21/12/98 on one’s finger tips in proper sequence gives 16 days, not 13 days. With due diffidence to the trial tribunal, it goofed in appraising the applicable laws and rules. The tribunal made a mistake by arriving at the wrong answer.

It is clear that the last day for filing the petition was 19/12/98, a Saturday which was not a public holiday by law. The petition which was filed on 21/12/98 was clearly out of time. The trial and ensuing determination of the petition after wrongly overruling the preliminary objection on jurisdiction is no doubt null and void. Refer to Madukolu v Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587. A trial, however well conducted to judgment, is to no avail if a court or tribunal lacks jurisdiction as in this petition. See also Abdulkadir v. Musa supra at page 351; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377.

Mr. P.A. Ogwuche felt that there was no appeal against the ruling of the tribunal handed out on 21/1/99.

This matter deals with jurisdiction and can be raised at any time, even on appeal before us. The fact of the matter is that ground 1 of the grounds of appeal amply covers the complaint relating to the competence of the petition and afortiori the jurisdiction of the trial tribunal. The case of Alfotrin Ltd. cited by the learned counsel is not apposite as it deals with failure to appeal on findings of fact.

I feel constrained to say that the appeal is meritorious. Brick-bats notwithstanding, the law on jurisdiction is clear. The law is there and at play. The appeal is allowed by me. I quash and set aside the null and void ruling of the trial tribunal handed down on 23/1/99 and the ensuing judgment of the same tribunal delivered on 8/2/99. From the circumstance of the petition and the fact that part of the mistake is that of the tribunal, I make no order as to costs in favour of the appellant.

Let the appellant go and enjoy his ‘booty’ as Councilor of Ubahu/Amankanu Ward in the boisterous Council of Nkanu East Local Government. He needs to re-think.

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Other Citations: (1999)LCN/0512(CA)

Sadiq Ozovehe Umar V. Salihu Adinoyi Onikata & Ors (1999)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A. 

On 5th December, 1998, the Independent National Electoral Commission (INEC) conducted elections for Chairmanship and Counsellorship positions in Local Government Councils and Area Councils in the Federal Republic of Nigeria.

The appellant was a candidate on the platform of the Peoples Democratic Party (PDP) for the Chairmanship of the Ajaokuta Local Government Council while the 1st respondent was a candidate who contested the election for the same post on the platform of the All Peoples Party (APP).

The Ajaokuta Local Government Area consisted of 14 wards. On the day of election, elections commenced in all units and wards of the Local Government Area but in the course of the elections, disturbances occurred which disrupted elections in two wards of the Local Government which had five units. In the event, election results were received in only 12 wards of the Ajaokuta Local Government. These were collared and 9,378 of the votes cast were found to have been cast in favour of the 1st respondent while 9,318 of the votes cast were in favour of the appellant. The 1st respondent was declared winner of the chairmanship election while bye-elections were ordered to be held on 12th December, 1998 by INEC for Councillorship posts in the two wards in which voting was disrupted by disturbances on 5th December, 1998.

Appellant considered that declaration of results by officials of INEC in respect of the Chairmanship post of the Ajaokuta Local Government was premature and that bye-elections should also have been held in those two wards for the Chairmanship post as they were held for Councillorship posts on 12th December, 1998.

Not being satisfied with the determination of INEC in respect of the chairmanship election in which he contested, he lodged a petition before the Local Government Election Tribunal for Kogi State, the State in which Ajaokuta Local Government Area is situate.

Petitioner sought the following reliefs:-

That 1st respondent was not duly elected or returned by a majority of the lawful votes cast at the election of 5th December, 1998 and so election of 1st respondent should be nullified; that the petitioner polled a majority of the lawful votes cast and should be declared and returned as Chairman, Ajaokuta Local Government Council.

In the alternative, a bye-election should be conducted in the two wards in which elections were disrupted by disturbances and the votes cast be collated for the purpose of declaring the winner of the said chairmanship election.

The tribunal commenced hearing evidence on the petition.

The petitioner called five witnesses and himself gave evidence as the 6th witness.

When called upon to give evidence, 1st respondent applied by motion to the Tribunal that the petition be struck out, inter alia, on the ground that the petition is incompetent as INEC has not been joined as a respondent by the petitioner, the Commission being a necessary party who was acting by its servants or agents, the 2nd and 3rd respondents.

The Tribunal heard the application and ruled that as the petitioner did not in his petition join the INEC, and that the omission was fundamental. The Tribunal therefore struck out the petition.

It is against that decision that the petitioner has now appealed to this court acting as the Constitutional Court.

Shorn of its particulars, the three grounds of appeal of the appellant are as follows:-

“A. The learned Chairman of the Local Government Election Tribunal erred in law in allowing the prayer in the applicant/1st respondent’s motion, to strike out petition (which was filed en 18/12/98 with a limited life span) on account of the non-joinder of INEC (Independent National Electoral Commission) when she stated in her ruling as follows:-

‘All the above show that the Electoral Officer. Presiding officer (Returning Officer) etc as officials of INEC are agents and cannot be sued on their own recognition as they are not legal bodies. In effect, they cannot sue on their own, but INEC, being a creation of statute can sue and be sued. It is worthy of note to state that INEC being a creation of statute has the same legal status that Federal agencies like Federal Universities, NEPA, NITEL, etc. have.’

B. The honourable Tribunal misdirected itself in law in construing relevant provisions of Decree No. 36 of 1998 such as sections 83(2) and 87(3) as well as Schedule 5 paragraphs 5(1)-(6) and 48(1) as regards the question of necessary/proper panics in an election petition when it held as follows:-

‘Going through the contents of the petition itself I am/we are of the view that failures of the petitioner to join INEC as a necessary parry in the petition is fatal, for whatever relief the petitioner prays for or seeks would revolve around his claim regarding the conduct of election of 5th December, 1998 – a democratic process brought about by INEC – a body created for that purpose by Decree No. 17 of 1998. In the enabling Decree, i.e. No. 36 of 1998, the only statutory body in it is the Commission – or INEC (Independent National Electoral Commission) and as such, it is our view that INEC ought to have been joined as necessary party. Non-joinder of INEC as stated supra is fatal to this petition. On this ground therefore, this application succeeds. Petition No. LGET/KG/2/98 is defective, incompetent and is hereby struck out’.

“The learned Chairman of the honourable Tribunal erred in law in failing to exercise judicially, her discretion under section 87(3) of Decree No. 36 of 1998 not to strike out the petition at that stage (10/2/99) and in misconstruing relevant statutory provisions since the petition accorded not only with the provisions of part X of Decree No. 36 of 1998 but with the provisions of Schedule 5 to the said Decree when she held as follows (after quoting a pan only of paragraph 50 of Schedule 5 to Decree No. 36 of 1998):-

‘It is therefore the view of the Tribunal that this application is properly before it and could also be heard and determined.’ ” All learned counsel for the parties duly submitted briefs of argument and also expatiated upon the respective briefs which each learned counsel adopted at the hearings.

In his brief of arguments, learned counsel for appellant formulated two issues for determination in this appeal. They are:

“1. Whether the Chairman of the L.G. Election Tribunal was right, in the exercise of her discretion if at all, to have upheld or granted the motion to strike out the petition when the motion was not presented in accordance with and did not satisfy the provisions of Decree No. 36 of 1998 which has stipulated/specified necessary parties to an election petition. (An issue covering Grounds 1 and 3).

2. Whether the Chairman of the honourable Tribunal was right to held that the petitioner’s petition was incompetent simply on account of non-joinder of INEC when every other necessary party under the statute (Onikata, Electoral Officer, Returning Officer) had been made and joined as parties in accordance with the express provisions of the enabling Decree. (An issue covering Ground 2)”.

For his part, learned counsel for the 1st respondent formulated two issues for determination. They are:

“1. Whether Independent National Electoral Commission (INEC) is a necessary party, whose non-joinder is fatal to the petition (Grounds 1 & 2).

2. Whether the Honourable Tribunal was right when it entertained the 1st respondent’s motion at the time it did having regard to the fundamental nature of the objection. (Ground 3).”

For his part, learned counsel for 2nd and 3rd respondents formulated three issues for determination thus:

“(a) Whether Independent National Electoral Commission is a necessary party in the petition;

(b) Whether the failure of the petitioner to join INEC in the petition was fatal; and

(c) Whether the application to strike out the petition was belated in all the circumstance of the case.”

I consider that the grounds of appeal in this case can be disposed off by a consideration of two issues. They are:

Having made:

(a) The person whose election is complained of;

(b) The two officials of INEC whose conduct petitioner complains of, that is,

(i) The Electoral Officer; and

(ii) The Returning Officer

The 1st, 2nd and 3rd respondents respectively in the petition, was it necessary that the petitioner should have joined INEC in the circumstance of this case?

2. If the answer to issue 1 is in the affirmative, was the Election Tribunal justified in striking out the petition?

The 1st issue herein deals with the second ground of appeal while the second issue deals with the 1st and 3rd grounds of appeal.

In respect of the 1st issue, it is the contention of learned counsel for the appellant that by the provisions of section 83(3) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, it is specifically provided that a motion of a respondent in an election petition to strike out an election petition can only be entertained if the motion seeks the order to strike out on the ground that the Ejection Petition is not in accordance with the provision of Part X that is, sections 80 to 90 (inclusive) of the Decree or the provisions of Schedule 5 to the Decree.

He contends that the provisions of section 83(2) are exhaustive of whom the respondent should be that is, (1) the person whose election is complained of (2) where the petition complains of the conduct of an electoral officer, a presiding officer or any other person who took part in the election, then such electoral officer, presiding officer, returning officer or that other person who are deemed to be that the petitioner’s petition was incompetent simply on account of non-joinder of INEC when every other necessary party under the statute (Onikata, Electoral Officer, Returning Officer) had been made and joined as parties in accordance with the express provisions of the enabling Decree. (An issue covering Ground 2)”.

For his part, learned counsel for the 1st respondent formulated two issues for determination. They are:

“1. Whether Independent National Electoral Commission (INEC) is a necessary party, whose non-joinder is fatal to the petition (Grounds 1 & 2).

2. Whether the Honourable Tribunal was right when it entertained the 1st respondent’s motion at the time it did having regard to the fundamental nature of the objection. (Ground 3).”

For his part, learned counsel for 2nd and 3rd respondents formulated three issues for determination thus:

“(a) Whether Independent National Electoral Commission is a necessary party in the petition;

(b) Whether the failure of the petitioner to join INEC in the petition was fatal; and

(c) Whether the application to strike out the petition was belated in all the circumstance of the case.”

I consider that the grounds of appeal in this case can be disposed off by a consideration of two issues. They are:

Having made:

(a) The person whose election is complained of;

(b) The two officials of INEC whose conduct petitioner complains of, that is,

(i) the Electoral Officer; and

(ii) The Returning Officer

The 1st, 2nd and 3rd respondents respectively in the petition, was it necessary that the petitioner should have joined INEC in the circumstance of this case?

2. If the answer to issue 1 is in the affirmative, was the Election Tribunal justified in striking out the petition?

The 1st issue herein deals with the second ground of appeal while the second issue deals with the 1st and 3rd grounds of appeal.

In respect of the 1st issue, it is the contention of learned counsel for the appellant that by the provisions of section 83(3) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998, it is specifically provided that a motion of a respondent in an election petition to strike out an election petition can only be entertained if the motion seeks the order to strike out on the ground that the Ejection Petition is not in accordance with the provision of

Part X that is, sections 80 to 90 (inclusive) of the Decree or the provisions of Schedule 5 to the Decree.

He contends that the provisions of section 83(2) are exhaustive of whom the respondent should be that is, (1) the person whose election is complained of (2) where the petition complains of the conduct of an electoral officer, a presiding officer or any other person who took part in the election, then such electoral officer, presiding officer, returning officer or that other person who are deemed to be respondents for the purpose of the Decree and who are required to be joined in the Election Petition as necessary parties are the only persons who can be respondents in an election petition. He further submits that the “esjudem generis” rule must necessarily limit any other person to officials of INEC who are of the same category as those specifically named.

When his attention was invited to the provisions of section 92 of the Decree as well as paragraph 28 of the Schedule 4 to the Decree and asked to comment if a complaint in a petition about the determination of the Commission to postpone or not to postpone an election on account of disturbance at a Polling Station or Unit does not make the Commission some other person deemed to be a respondent and to be joined in an election petition as a necessary party, the response of learned counsel for the 1st respondent was that if the legislature had meant the Commission to be a party to an election petition, the Decree would have said so in so many words and that there are other provisions giving duties to other persons in the Decree. He relies on (i) Green v. Green (1987) 3 NWLR (Pt.61) p. 480; (ii) Omoboriowo v. Ajasin (1984) 1 SCNLR 108 at Pp. 130-156.

For the 1st respondent, learned counsel argued that by section 46 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 the Commission (INEC) has responsibility for the conduct of the Local Government Election of 5th December, 1998 nationwide; that the Independent National Electoral Commission established by the Independent National Electoral Commission Decree, 1998 is a legal person and the 2nd and 3rd respondents were acting for and on behalf of the Commission when they declared 1st respondent winner of the election. He further submits that for all intents and purposes being a “legal” person !NEC comes within the term other than the Electoral Officer, Presiding Officer or Returning Officer listed in Sec. 83(2) of Decree no. 36 of 1998.

He further submits that the cause of action of the petitioner in this case is complaint as to the alleged non-conduct of a bye-election in respect of the inconclusive election in two wards of the 14 wards in the Ajaokuta Local Government Area; that from the wordings of sections 46 and 99 of the Decree the Independent National Electoral Commission has the direction, organization and supervision of the conduct of elections under the Decree under itself.

Furthermore, learned counsel refers to the evidence of the 4th witness called by the petitioner himself, the Electoral Officer (2nd respondent) to the effect that the report given to him by officials whom he sent to the five units of the two wards was that election did not hold there because there were threats of violence. He reported to the headquarters of the Commission. Its consequence was the bye-election of 12th December, 1998 for the Councillorship post but the Commission did not order a bye-election for the chairmanship. He contends that the challenge of petitioner in the petition was on the decision of INEC not to conduct a bye-election for the chairmanship and as such the Commission was a necessary party without whom the action would be improperly constituted and that failure to join the Commission is not a defect as to form but a fundamental defect which affects the competence of the petition and consequently the jurisdiction of the Tribunal.

He relies on:

(i) Green v. Green (1987) 3 NWLR (Pt.61) p. 480

(ii) Madukolu v. Nkemdilim (1961) 2 All NLR 578 1962 SCNLR 34; and

(iii) Paragraph 15(2)(a)(i) of Schedule 5 to Decree 36 of 1998. A

(iv) Ekpete & Ors. v. Aforije & Ors. 1 (1972) All NLR (Pt.1) 220.

For the 2nd and 3rd respondents, learned Chief Legal Officer in the Kogi

State Ministry of Justice, Mr. Salihu argued thus on this issue-

The complaint of the appellant in the main was the conduct of the election in the two wards of Orugbo/Unosi and Odonu/Ohuge. He contends that the power to order an election, to set the date and time of election, to postpone and/or cancel an election for threatened disturbance, are vested in INEC by the combined provisions of sections 46, 50 and 92 of Decree No. 36 of 1998. He therefore submits that the Commission is a necessary party as its presence is essential for the effectual and complete determination of the petition before the Tribunal. He relies on:

(i) Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 584 (1962) 2 SCNLR 341;

(ii) Oloba v. Akereja (1988) 3 NWLR (Pt.84) p. 508.

On the second issue posed in this judgment, i.e. if INEC is a necessary party, was the Election Tribunal justified in striking out the petition?

For the appellant, Dr. S.E. Mosugu of counsel submits that as there is no express provision in the Decree No. 36 of 1998 which requires INEC to be joined as a party to an Election Petition the principle of agency in contract law should not apply to bring in INEC as a party. Again, he stresses that no one of the provisions of the Decree should be looked into except Part X or in the alternative Schedule 5 whenever a motion to strike out a petition for non-compliance is being considered, that it is therefore improper to consider section 99(1) of the Decree which is in Part XI relating to the definition of “Commission”,

As for the provisionsofSchedule5 paragraph 50(a) of the Decree, he submits that the application was not made within a reasonable time of the knowledge of the defect by the petitioner/applicant and that the proceedings at the trial and the calling of evidence earlier at which the 1st respondent and his counsel took part amounted to “fresh steps taken after knowledge of the defect”.

In any case the defect was as to form which could be remedied by way of amendment, he contended.

He therefore urged this court to answer that the Tribunal was not justified in striking out the petition.

For the 1st respondent, U.O. Onoja Esq. submitted and argued that the objection to the petition was not merely one of form or procedural but goes to the root of the application and was fundamental to the competence of the petition. It could therefore be raised at any stage of the proceedings: he relies, inter alia, on the The State v. Dr. Onagoruwa (1992) 2 SCNJ 1. (1992) 2 NWLR (Pt.221) 33. He then argued that learned counsel only discovered the legal flaws in the petition the previous night when preparing for the trial to follow on the next day and that the application was brought at the earliest possible opportunity after the discovery by him. It was therefore his submission that the objection was raised within a reasonable time after the defect was noticed. Finally he urged this court to dismiss the appeal.

For the 2nd and 3rd respondents, learned counsel’s submission is that the averment in the counter-affidavit on behalf of 1st respondent in support of when his lawyers discovered the defect clearly showed that the objection was raised within a reasonable time and before any fresh step was taken after knowledge of the defect. He also urged this court to dismiss the appeal.

Now, I come to consider the issues. The first is whether INEC should not have been joined in the petition along with 1st, 2nd and 3rd respondents.

It is a cardinal rule of Interpretation of Statutes that a statute must be considered as a whole. Learned counsel has urged this court to limit its consideration of the necessary parties to the express provisions of Pan X of the Decree, that is, section 80 to 90.

Agreed; but section 80 of the Decree which begins Part X provides thus:-

“No election and no return at an election under this Decree shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Decree referred to as an “election petition”) presented to the Local Government Elections Tribunal in accordance with the provisions of this Decree, and in which the person elected or returned is joined as a party”. (Italics by me) for emphasis).

It would therefore be seen with respect, that the submission of learned counsel that the application to strikeout a petition as provided by s. 86(3) must only be looked at from the narrow confines of part X, that is sections 80-90 and excluding other provisions of the Decree. This would be contrary to the requirement of S. 80.

It is agreed by all the parties to the petition as constituted that the complaint of the petitioner from the petition and his evidence before the Tribunal against the Tribunal is the failure by the Commission (INEC) to order a bye-election in the two of the fourteen wards constituting his Local Government Area for the chairmanship election on account of disturbances to the election proceedings on the day of election as it ordered in respect of the two wards in respect of disturbances at the two wards in respect of elections for the Ward Councillors.

There would, it seems, be no quarrel by the learned counsel for the petitioner if the Commission could properly, under Part X be brought in as “any other person who took part in the conduct of the election”.

Now for a look at section 92(2) of the Decree (as contemplated by s. 80) provides thus;

“where an election has started on the appointed date but is, before conclusion, substantially disturbed by any intervening cause, the election may be cancelled, and the Commission shall appoint a new date for a fresh election”.

In the proceedings before the tribunal, petitioner himself as P.W.6 testified that no election held in two of the wards in his constituency because the proceedings were disrupted by disturbance. A look at paragraph 28(1) of the 4th Schedule reads;-

“Subject to the provisions of section 92(2) of this Decree, when the proceedings at a Polling Station or Unit are interrupted or obstructed by riot or violence or any other reason as may be determined by the Commission, the Presiding Officer may adjourn the proceedings till the following day, and shall give notice of the adjournments to the Electoral Officer”. (Italics by me)

It is the evidence of P.W.4 that the proceedings in the two wards were interrupted but the Commission did not order a bye-election in the two wards for the chairmanship election as it did for the Councillorship election.

It follows therefore that the cause of action of petitioner in this case was the alleged failure by the Commission to order bye-election in the two wards concerned for the chairmanship election in respect of the Ajaokuta Local Government Area. It seems to me in the circumstance that the Commission being a juristic person under the Decree which set it up is “any other person who took part in the elections” within the provisions of section 38(2) of the Decree No. 36 of 1998. I am not prepared to limit that term to only officials of the Commission.

In the circumstance, I hold that the Commission is a necessary party to the petition without whom the petition cannot be effectively and effectually determined. The Commission is a person deemed to be a respondent and ought to be joined by virtue of section 83(2) of the Decree.

On the second issue as to whether if the Commission is a necessary party, the Tribunal was justified in striking out the petition?

Paragraph 5(1) of schedule 510 Decree No. 36 of 1998 provides inter alia, that an election petition shall specify the parties interested in the election petition. It is the contention of learned counsel on behalf of the Petitioner that if the Commission ought to have been a party and was not made a party the Tribunal in exercise of its discretion under Order XXXII of the Federal High Court (Civil Procedure) Rules 1976 made applicable by paragraph 51 of the 5th Schedule to the Decree, ought to have ordered an amendment of the petition particularly since respondents have taken steps in the proceedings since discovery of the defect. On the other hand, it is contended on behalf of the respondents that the defect is not one of form but of substance and is not capable of amendment in law; that if it was a defect in form the 1st respondent took steps timeously to raise the objection after discovery of the defect. Now the combined effect of paragraphs 15(1) and 51 of Schedule 5 is that the provisions of the Federal High Court (Civil Procedure) Rules shall apply in respect of the practice and procedure of the Tribunal. As has been pointed out, Order XXXII of those rules permit an amendment of defects in proceedings at any stage of the proceedings subject to terms as to costs or otherwise as shall seem just. Therefore if the defect was merely as to form, the extreme penalty-of striking out the whole petition would not have been justified. But was the defect of not including the Commission as a party to the petition as required by paragraph 5(1) of the 5th Schedule to Decree No. 36 of 1998 a mere defect as to form? Sub-paragraph (2) of paragraph IS of the Schedule provides thus:-

“(2) After the expiry of the time limited by

(a) Section 82 of this Decree for presenting the election petition, no amendment shall be made –

(i) Introducing any of the requirements of sub-paragraph (1) of paragraph 5 of this Schedule not contained in the original petition filed, or

(ii)

(iii)

Now, it is a requirement of section 82 of the Decree (by the way, a section within Part X of the Decree), that an election petition under the Decree shall be presented within 14 days from the date on which the result of the election is declared. Exhibit 1 shows that the result of the election the subject of the petition was declared on 6th December, 1998. It follows that any amendment with relation to the parties to the petition must be made in accordance with procedural rule not later than 20th December, 1998. In this case on 3rd February, 1999 when the application to strike out the petition for incompetence was brought before the tribunal, no application had been made to amend the parties to the petition to include the Commission.

It was laid down by the Supreme Court in Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341 (1962) All NLR 581; 589-90 that a court (in this case a Tribunal) is competent when (1) it is properly constituted with respect to the number and qualification of its member; (2) the subject matter of the action is within its jurisdiction; (3) the action is initiated by due process of law; and (4) any condition precedent to the exercise of jurisdiction has been fulfilled.

In this case, a condition precedent to the exercise of the tribunal’s jurisdiction over the petition was that the names of the parties to the petition, must within 14 days of the declaration of the result of the election which is being complained of, be contained in the petition. The petition did not comply with that condition precedent.

In the circumstance, I must answer issue No.2 framed in this judgment that the tribunal was justified to have dismissed the petition.

All three grounds of appeal having failed, the appeal is hereby dismissed. There shall be costs of N1,000.00 in favour of 1st respondent and of N1,000.00 in favour of 2nd and 3rd respondents.

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Other Citations: (1999)LCN/0511(CA)

Prince Ifeanyi Ogbu V. Lazarus Ifeanyi Nnaji & Ors (1999)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal against the judgment of Local Government Election Tribunal delivered on 8th February, 1999. Which upheld the election of the 1st respondent at the 5/12/98 elections into the chairmanship and councillorship seats of Nkanu East Local Government Council but lost to the 1st respondent, the Flag bearer of the APP.

The following are the grounds of appeal without their particulars:”

Ground 1

“The Election Tribunal completely misdirected itself by holding as follows –

‘The facts disclosed by the evidence adduced pointed to one single direction. That is that there was an irregularity, thuggery and threat to life and property in one of the 14 wards that make up Nkanu East Local Government Area. The proof is of mishandling of election and thuggery in the local government election of 5/12/98 in Nomeh Ward.”

The petitioner wants the tribunal to believe that the local government election held on 5/12/98 in Nkanu East Local Government was mere farce if considered from the point of view of what happened in Nomeh Ward on that day. Nomeh ward we shall observe that is not Nkanu East Local Government but a part of it.’

Ground II

The tribunal erred in law by holding as follows –

“We agree that there were cancellations and mutilations in some of the result sheets tendered. But this piece of evidence is not backed by evidence. In fact the makers of the result sheets and or party agents who endorsed them should have been called to testify to enable us consider each document on merit. Speculation and wild-goose-chase cannot form the bed-rock of justice and equity.’

Ground III

The Election Tribunal misdirected itself by holding as follows-

The learned Senior Advocate of Nigeria, senator Anah, over flogged the issue of “nil” votes entry for the petitioner in many of the wards. It goes without saying that evidence on this is not well substantiated. In fact, going by the record of the election, the exhibits show that the petitioner scored the highest lawful votes in at least three of the wards in the Local Government Area.

Ground IV

The Election Tribunal erred in law by not considering the legal effect of the 1st respondent not giving evidence to rebut the evidence of the petitioner in respect of the incidents of thuggery, rigging and malpractices in all the wards in the Local Government Area.

Ground V

The decision is against the weight of evidence.

The appellant formulated 5 issues for determination as follows –

1. Whether the petitioner/appellant led evidence in wards other than Nomeh to prove his petition.
2. Whether the evidence of the appellant and the witnesses for the respondents was properly evaluated?
3. Whether the evidence of the petitioner/appellant to prove his case in wards other than Nomeh was challenged by the 1st respondent or his witnesses.
4. Whether the tribunal gave the petitioner/appellant an opportunity of a fair trial by not compelling the D.W.2 to produce and tender the voters’ register in 5 wards and the Forms EC8A in three wards.
5. Whether the judgment of the tribunal was consistent in error.

The 1st respondent adopts the appellant’s first two issues for determination and articulated two other issues as follows –

1. ‘Whether the judgment of the tribunal is consistent with evidence placed before it by the contending parties.
2. Was the appellant denied fair hearing?

Learned Senior Advocate, Senator N.N. Anah, 1st respondent’s counsel, having adopted and relied on the 1st respondent’s brief, further expatiated on the issues formulated for determination. It is the learned Senior Advocate’s contention that the trial tribunal was so carried away by over-whelming and staggering evidence which the appellant was allowed to lead in respect of one of the 14 wards which make up the Nkanu East Local Government Area. He submitted that the one hour given to each party to complete the presentation of his case and address lowered the tempo in respect of the other wards. Consequently, the appellant managed to give short and security evidence of the incidents of thuggery, intimidation, rigging in other wards in the Local Government. That it was humanly impossible for the petitioner to call witnesses to testify as to what happened in the 14 wards making up the Local Government within a time frame of one hour.

That the 1st respondent’s brief is articulated in such a way as to substitute the judgment of the tribunal. Learned Senior Advocate submitted that the appellant is not complaining against the finding of facts by the lower tribunal but against the non-evaluation of facts in all the 13wards except ward 14 i.e. Nomeh Ward. That the tribunal did not realise that the appellant gave evidence in respect or other wards other than Nomeh Ward. Says that the appellant gave vivid account or what he saw, found and was reported by his agents in all the wards but the tribunal failed to consider and evaluate that evidence. Learned Senior Advocate refers to page 49 last seven lines and page 50 lines 1-14 and says that is trite law that a trial court or tribunal should review and evaluate the evidence of the parties before he could make specific findings of fact and conclusion. He refers to the Fawehinmi v. Abacha (1996) 9 NWLR (Pt.475) p. 710 at 727.

Learned counsel has urged us to consider other issues and arguments in the appellant’s brief and exercise powers given to the Court of Appeal in S.16 of the Court of Appeal Act to evaluate the evidence of the appellant’s witnesses evidence and adopt them and enter judgment for the petitioner.

Learned counsel for the 1st respondent, B.O. Igwe, having adopted the first two issues formulated in the appellant’s brief and the two the formulated in the 1st respondent’s brief, submitted that except P.W.7 all other witnesses gave evidence of what happened in Nomeh Ward. That all witnesses called by the appellant testified in respect of the conduct of the election at Nomeh Ward. He refers to evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 in pages 18 to 31 of the records. That P.W.6, the Electoral Officer for Nkanu East, in total disagreement with the witnesses, testified that the election was peacefully held as he did not receive any report of any malpractice which operated to stop the election.

Learned counsel further submitted that there are 14 wards that make up the Nkanu East Local Government Area and though the petitioner said he had “genuine” agent in all of them not one of these agents came to testify before the tribunal. He argued that it will be stretching the limits of judicial logic to infer that because there were disturbances in Nomeh the genuine elections held in other thirteen wards should be nullified. Learned counsel for the 1st respondent further submitted that all the allegations contained in the petition are offences that arise in sections 68, 71, 73 of the Decree No. 36 the standard of proof for which is beyond reasonable doubt as provided in section 138 of the Evidence Act. That the attempt by petitioner to prove these malpractices in respect of the other wards was futile and the tribunal in line with reasoning in Nuha v. Musa National Electoral Commission (1989) 1 NEPLR 20 was rejected by the tribunal.

It is the submission of the learned counsel for the 1st respondent that there is nothing in the record of proceeding to disclose denial of fair hearing to the appellant. That in respect of the three wards in which the Forms EC8AS were not produced the Forms EC8B and EC8AS are abundantly available and they show that the appellant was in those wards.

I have carefully considered the issues formulated for determination. For the purpose of emphasis and clear understanding of these relevant issues I hereby reproduced them as follows.” First two of the appellant’s and two of the 1st respondent’s respectively:

1. Whether the appellant led evidence in wards other than Nomeh to prove his petition.
2. Whether the evidence of the appellant and the witnesses for the respondents was properly evaluated.
3. Whether the judgment of the tribunal is consistent with evidence placed before it by the contending parties.
4. Was the appellant denied fair hearing?

It is the contention of the learned Senior Advocate Senator Anah that even though the appellant was stampeded into giving evidence of thuggery, intimidation, rigging etc vividly in one of the wards, he did that scantly in the other wards. That the appellant gave evidence that ever before the accreditation of voters started hordes of thugs had littered all over the Local Government menacing and “distracting” people from all wards chasing a lot of people out. That the appellant specifically mentioned the wards of Ihuokpara, Owo, Amankanu, Ubahu, Amechi, Idodo and Onitsha Agwul, where election was not free and fair because of thuggery intimidation, carting away of ballot boxes denying his party votes and scored them with “NLR” votes at 6. That inspite of these copious evidence tribunal held that in proof of his petition the appellant led evidence of incidents that took place in Nomeh Ward alone and no more. Learned Senior Advocate has urged that the judgment clearly is against the weight of evidence in this respect and should be set aside. The 1st respondent counsel, however, contended that in proof of his case no iota of evidence was led by the appellant in a ward other than, Nomeh Ward, that all the witnesses called by the petitioner testified in respect of the conduct of the elections in Nomeh Ward. This can be seen from the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 and P.W.5 in pages 18-31 of the records. p.229 of the records P,W,6 the Electoral Officer testified that he did not receive any information about thuggery or misconduct that operated to stop the election.

My understanding is that there are 14 wards that make up the Nkanu East Local Government Area, PT, p, 31 P.W.7 the petitioner testified that he had “genuine agents” in all the wards who made reports and supplied him with information, but none was called as a witness. From all indications, I do not find it hard to come to the conclusion as did the lower tribunal that election in Nomeh Ward was really marred by act of thuggery and malpractices; but this cannot be measured as the yardstick for what took place in the whole Local Government Area. Strong and substantiated evidence must be produced to back each allegation of misconduct or malpractices up. Failure to do so may lead the tribunal to hold that the election was conducted in conformity with the electoral law. Otherwise it is desirable that where a petitioner in an election petition has alleged a particular non-compliance in an election he must strive to satisfy the court that such noncompliance is substantial enough to affect the over-all result of the poll complained against. See Kudu v. Aliyu (1992) 3 NWLR (Pt. 231) 615 at 634 in which reliance was placed on the case of Akinfosile v. Ijose (1960) SCNLR 447, Imiereve v. Salami (1989) 2 NEPLR 31; Ojukwu v. Onwudiwe (1984) Vol/ 1 SCNLR 247 at 306.

In Awolowo v. Shagari (1979) 6 SC 51 at p, 113, statement of Obaseki, J.S.C. (as he then was) reads –

“… It is my opinion that the second and third propositions do represent the state of the law in Nigeria and to vitiate an election, the non-compliance must be proved to have affected the result of the election.”

Section 92(1) of Decree No, 50 of 1991 which is similar to s. 85 of Decree No. 36 of 1988 was discussed in Kudu’s case (supra). The two sections read:

“An election shall not be invalidated by reason of non-compliance with the provisions of this Decree if it appears to the Election Tribunal that the election was conducted substantially in accordance with the principles of this Decree and that non-compliance did not affect substantially the result of the election.”

In Akinfosile v. ljose, supra. It was held that a petitioner who alleges in his petition a particular non-compliance and avers in his petition that non-compliance was substantial, must so satisfy the court.”

The allegation of thuggery, malpractices mass rigging as contained in the petition are criminal offences within the contemplation of sections 68, 71 and 73 of the Decree No. 36 of 1998. They ought to be proved beyond reasonable doubt vide section 138 of Evidence Act.

The 1st respondent’s counsel submits that the tribunal’s evaluation of the evidence of the witnesses for both parties was unimpeachable. I am of the opinion that the lower tribunal did evaluate the evidence of all the witnesses, what was legally placed before it was evidence of disturbance in Nomeh Ward, I am yet to see anything in the records showing a perverse course in the evaluation by tribunal, justifying the exercise of power of this court to reverse the decision of the Election Tribunal and now evaluate the evidence and order a fresh election. I do not hold that the evidence of the appellant was not evaluated and that the court failed to make any positive finding of fact. To agree to do this is to assume the functions of the Election Tribunal which the Decree No.36 of 1998 does not confer on any court.

I do not agree that the evidence of the petitioner was not challenged in cross-examination. It is the contention of the petitioner that he gave copious evidence of thuggery, rigging, cancellations and mutilations and robbing of votes at the same time inflation of the APP votes and therefore, did not make the election free and fair. At Ohuami Onitsha Agu Ward, the petitioner claimed he was the winner. This is not backed by documentary proof. In respect of Ihuokpara Ward, the petitioner said the boxes were removed to private house in Amagunze where they were counted. At the trial Tribunal the names of the perpetrators of this conduct or the owner of the house were not mentioned. I consider that failure to call direct evidence of what happened on the Election Day in the other 13 wards was fatal. I do not find it easy to place reliance or credibility on the testimony of the petitioner that were general and at sometimes only given the impression that they are hearsay evidence as the malpractices were reported to him by his agents. P.W.6 called by the appellant destroyed his case as he gave evidence against the appellant. P.W.6 denied any thuggery operated on that day to stop the election; he was not treated as a hostile witness. I am of the opinion that that tribunal was right to have considered his evidence.

I have not been able to find from the record of proceedings the denial by the tribunal of fair hearing against the appellant.

The allegation of denial of fair hearing is not based on a concrete material to convince the lower tribunal or this court.

On the whole, I have viewed the judgment of the lower tribunal fair and unimpeachable and I must go hold.

Consequently I find that the judgment of the tribunal is fair and I therefore dismiss this appeal, with cost of N3,000 awarded in favour of the 1st respondent and N1,000 to the 2nd – 4th respondents.

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Other Citations: (1999)LCN/0510(CA)

Franklin Okonkwo V. Samuel Mbadiwe Onovo & Ors (1999)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A. 

There were nation-wide elections into Local Government Councils on 5th December, 1998. Mr. Samuel Mbadiwe Onovo had contested this election on the platform of the peoples Democratic Party (PDP), one of the registered political parties in the country. He sought election to office of a councilor for the Nomeh Ward of Nkanu East Local Government Area of Enugu State. Mr. Franklin Okonkwo had contested the same election and for the same seat as did Mr. Samuel, hereinafter called the petitioner/respondent. Mr. Franklin, who for the purposes of this appeal will be referred as the 1st respondent/appellant contested the election under the umbrella of the all peoples party (APP), another political party. Mr. Sunday Nkumah was fielded by the Alliance for Democracy (AD) as the third contestant. The first respondent/appellant was declared the winner.

The petitioner/respondent approached the Enugu State return Election petition Tribunal praying that the appellant/respondent’s/be declared void and a fresh election for the office of the councillor for the Nomeh ward be ordered. Petitioner’s complaint about appellant/respondent election was based on the following grounds:-

(i) That the election was voided by corrupt practices, irregularities or offences against the Local Government (Basic constitution and transitional provisions) Decree 36 of 1998.

(ii) That the first respondent was not duly elected by a majority of valid votes.

(iii) That the first respondent was not qualified to contest the said election.

The petitioners’ case at the tribunal was that there were no elections at the four booths designated for Nomeh ward. Voting had started in two out of the four booths when thugs led by the All Peoples Party chairman made its continuance impossible. At the two remaining booths, voting had not even commenced before elections were stopped by the same All Peoples Party thugs. Ballot boxes and electoral materials for the four booths were conveyed to the police station for custody and they were so kept there until they were produced at the tribunal for the purposes of the trial that brought about this appeal. The parties to the petition led evidence before the tribunal and in a considered judgment the tribunal voided the declaration of the appellant/respondent and ordered a fresh election as prayed by the petitioners. The appellant/respondent was dissatisfied and came before us with this appeal.

The appellant/respondent filed two grounds of appeal complaining against the whole decision of the tribunal. These grounds are:-

GROUND I

ERROR IN LAW – The election tribunal erred in law when it held that the petitioner/respondent proved his allegations of corrupt practices and offences against the Decree 36 of 1998.

PARTICULARS OF ERROR

(a) The standard of proof required in respect of the said allegation is beyond reasonable doubt.

(b) The evidence of the petitioner/respondent and his witnesses taken together destroyed his case.

(c) No reason was proffered by the tribunal why it rejected the evidence of the 3rd respondent.

GROUND II

The judgment is against the weight of evidence. Briefs of argument were filed and exchanged.

The appellant’s only issue for determination for the purposes of this appeal is:-

Whether, regard being had to the evidence adduced before the tribunal, the petitioner/respondent was entitled to judgment.

On his point, the 1st respondent presented four issues for determination as follows:-

1. Whether the evidence of the respondent and prosecution witnesses were properly evaluated.
2. What should happen to the uncontradicted evidence of prosecution witnesses.
3. What is the effect of inability of the defence to produce voters’ register, documents the defence was given notice to produce and repeatedly asked after.
4. Did petitioner discharge all onus of proof placed on him by law?

In appellant’s brief of argument and his counsel’s submission by way of emphasis before us the point has rightly been stated that issue in this appeal relates principally to who told the truth as to what happened on 5/12/98 at Nomeh ward. The appellant contended that the evidence given by the petitioner/respondents’ witnesses were so contradictory that trial court ought to have rejected it. The attention of the court was drawn up to p. 11 of the record of proceedings wherein the testimonies of PW1 and PW2 were recorded. Whereas PW1 stated that electoral materials were distributed to the officials conducting the election on that fateful day at the collation centre – Community primary School, Nomeh, PW2 on the other hand testified to the fact that these electoral materials were distributed to them by the Supervisory officer who went from booth to booth to do so. In the same vain PW1’s evidence that the thugs who disrupted the election were armed with sticks contrasted sharply with that of PW2 who testified that the same thugs were armed with guns. Furthermore, the evidence of PW3 on p.16 stating that he took a ballot box to the police station was in direct conflict with petitioner’s averment in paragraph 8d of his petition that ballot boxes were taken to unknown destination. These contradictions, the appellant’s counsel submitted were not in consonance with the evidence of people who were telling the truth. Mr. B. O. Igwe contended that the trial tribunal ought to have preferred the respondent’s evidence, uncontradicted as it were, that the election on 5/12/98 was quiet, free and fair. Page 22 of the record of proceedings refers. He submitted that DW1 was the electoral officer who had testified and through whom Exhibits D1, D2, D3, D4 and D5 results of the elections recorded on authentic forms were tendered. The trial tribunal did not give reasons why it preferred the evidence of the petitioner to that of the respondent. Mr. B. O. Igwe concluded his submissions by emphasizing the arguments in appellant’s brief to the effect that by virtue of Section 149(c) of the Evidence Act there is a presumption of regularity in respect of election petitions and that where non-compliance with electoral law is alleged the petitioner must carry the burden of proving such allegation as was held in Kudu v Aliyu (1992) 3 NWLR pt. 231 at 615. The standard of proof in such cases where the issue for resolution rests on falsification of results, which is a criminal offence, is proof beyond reasonable doubt. This he said is the import of the decision in Jalingo v Nyame (1992) 2 NWLR 231 at 538.

Counsel then urged us to set aside the judgment of the tribunal and uphold the result of the election of the appellant as councillor for Nomeh ward.

In his arguments, respondent disagreed with the position taken by appellant’s counsel. Mr. Ugwu contended that the testimonies of petitioner’s witnesses were credible, overwhelming and detailed. The evidence touched on how the election was conducted in all the four ballot centres which made up Nomeh and bow the election remained inconclusive. The evidence so adduced, he submitted, remained unshaken, uncontroverted and unchallenged. The evidence of PW3 as corroborated by the other witnesses of the petitioner, Agwu contended, gave a graphic description of what happened at the four ballot centres of Nomeh. PW3, an Inspector of police was attached to Nomeh Police Station for the purposes of the election. He was the one, and he testified as such, who assigned a policeman each to the four polling centres. PW3 it was, and he testified to this effect, which had in his custody the four ballot boxes used for the election. Two of the boxes contained ballot papers while the remaining two were empty since accreditation was in process and election had not commenced at the two ballot centres for the use of the two boxes. In all the centres as indicated on p. 15, 16 and 17 of the record of proceedings, elections were disrupted and remained inconclusive. It is counsel’s submission that where the party’s evidence before the court remained uncontroverted, it is honoured to act upon it. He referred this to the decision of SONSKAN V Military Governor of Ogun State (1995) 1 KLR 193.

Mr. Ugwu went through the evidence of respondent in the petition drawing attention particularly to the fact that DW1 who claimed to be an electoral officer conceded that each ward had to have a different supervisor and a returning officer. Inspite of this. DW1 claimed he assigned DW2 to carry out the job of three different officers. DW2 purportedly carried out the job of a supervisor for two different wards in addition to his being the returning officer and supervisor for Nomeh. Counsel submitted that after watching the demeanor of the witnesses in the course of their testimony and assessing their credibility the tribunal preferred the evidence of petitioner’s witnesses. He argued that there is no reason to justify disturbing the trial tribunal’s findings of facts in relation to the testimonies of the witnesses before it. He made copious references to the record of proceeding and in particular pp. 21, 22 and 23 which carried the testimonies of the respondent’s witnesses.

Continuing his arguments, Ugwu also contended that the four form EC 8A produced as the purported results of the four polling booths in Nomeh ward ought to have been written by four different persons. Exhibits D1 and D2 where, he said, written by one person.

The chances therefore were that the four forms must have been written by less than the required persons.

Answering the issue he formulated as to what attitude courts adopt in dealing with the uncontradicted evidence of witnesses he referred this court to decisions of the Supreme Court: Amadi v. Nwosu (1992) 5 NWLR pt. 241, 273 at 284 and L.S.D.P.C. v. Nigerian Land and Sea Foods Ltd. (1992) pt. 244, 653 at 671. The decisions, he submitted, State that courts are entitled to and should act on such evidence which remain unshaken and uncontradicted as the trial tribunal had done in the petition before it. Counsel finally urged this court to strike out the appeal because the trial tribunal had done the correct thing, evaluated the evidence before it, acted on the uncontradicted evidence of the petitioner as by law it was expected to do.

Careful studies of the various issues formulated by the two sides seem to reveal two questions:-

(a) Did the petitioner adduce sufficient evidence to warrant the finding of the tribunal where the allegation was that the election was voided by corrupt practices, irregularities and offences against the Decree 36 of 1998?: Was the decision of the tribunal against the weight of evidence?

(b) Did the tribunal evaluate the evidence before it in arriving at the decision it did?

Undoubtedly where a petitioner grounds his petition on non-compliance with electoral laws, falsification of results and such other conduct which in them constitutes criminal offences, the burden he places on himself is much greater than he otherwise would be called upon to discharge. Such a petitioner’s burden is one to be discharged beyond reasonable doubt.This is indeed the import in the decisions cited by Appellant’s counsel in Kudu v. Aliyu and Jalingo v Nyame supra. It must be pointed out however at this point that in discharging this greater burden it is the quality and not necessarily the quality of the evidence of such a petitioner that would avail him. It will only be fatal for him if he omits to call available material witness to establish all such important facts that have fallen into issue. The quantum of evidence and the number of witnesses is only dictated on the petitioner on the basis of the necessity to prove his case. See Ohunyon v. State (1996) 3 NWLR 264 at 273 paragraph F – G.

In the present appeal arising out of petition heard below, the petitioner’s case was that he was unlawfully excluded from participating in the election of 5/12/98 into the office of councillor in Nomeh ward. He alleged that elections did not take place at two centres and in the remaining two where voting commenced, voting was disrupted. It was his case that loyalist of the APP caused this disruption. This conduct on the part of members of APP was called thuggery. It is on record that PW3 had testified to the effect that elections did not take place in the two centres and in respect of the other two centres where voting commenced, elections had remained inconclusive. His other witnesses, too, testified to this fact. This evidence remained unshaken and uncontroverted. The tribunal that had the advantage of seeing the witnesses choose to believe the petitioner’s witness and this it was entitled to do.

In Adisa v. Afuye (1994) 1 NWLR Part 318 75 at 79 where it was held:-

“A trial court can rely validly on evidence when that evidence is unchallenged and uncontroverted particularly where it is oral evidence establishing clearly his claim against the defendant in terms of his writ and such evidence was not rebutted by the defence”.

And see also IITA v Amarani (1994) 3 NWLR Part 332, 297 at 315. It was also held:-

“The law is that evidence not controverted or discredited or challenged ought to be accepted as proving an existing or alleged fact. Once it is relevant to the issues joined, it ought to be accepted as the true facts sought to be proved”.

In the first issue formulated by the Appellants, it is argued that wrong probative value had been ascribed to the Respondents evidence by the trial tribunal. The weight of petitioner’s evidence was inadequate to warrant the conclusion drawn by the tribunal.

On our part as an appellate court, one has considered the evidence so adduced at the trial court and one is satisfied that the evidence had been rightly received and correct probative value had been placed on same by the trial tribunal. Having regards to the burden of proof, as the tribunal appreciated in its use of the evidence of the two sides, the scale was in favour of the petitioner/Respondent. The tribunal had found and correctly, in my view that based on the evidence of the two sides election into the office of councillor in Nomeh ward did not take place. On the 1st issue for determination, which pertaining to the weight ascribed to the evidence by the trial court, I am unable to sustain Appellant counsel’s submission. The appeal in this regard has not succeeded.

And this brings us to the 2nd issue for determination: that the trial tribunal did not evaluate the evidence before it. It is the law that this court has the powers under Section 16 of the Court of Appeal Act, 1982, to step into a trial court’s shoes and carry out such evaluation. But not in all cases. Authorities abound as to the circumstances which will justify such an exercise.Evaluation of evidence, most appropriately, is the primary function of the trial court. Evaluation of evidence will only be undertaken by an appellate court if, truly, the tribunal below had done so only in part or not at all. It equally will be the duty of an appellate court to carry out evaluation of evidence in instances where it was shown that although the trial court had done the evaluation of the evidence before it, the court all the same arrived at a wrong and perverse conclusion consequent upon such an evaluation.

Furthermore, it is not sufficient for an appellant as the one in the instant appeal to simply allege that a trial tribunal had not properly evaluated the evidence before it. The appellant carries the further burden of not only pointing out the error he complains about, in addition he has to convince this court that if correction of the errors are made the decision of the tribunal will not stand. See Chukwu V. NITEL (1996) 2 NWLR Pt. 430, 290, at 300 – 301. Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR Pt. 143 at 162. Atolagbe v. Shorun (1985) 1 NWLR Pt. 2 360 Nwokor v. Nwosu (1994) 4 NWLR Pt. 337, 172 at 194.

The appellant having not specified any point of perversity in the tribunals evaluation of the evidence before it and the conclusions drawn therefrom, he leaves me with the firm and unshaken view that the judgment of the trial court must be allowed to stand as it is. The decision of the court below does demonstrate a full, dispassionate and proper consideration of the issues raised before and heard by it. Resultantly the 2nd issue for determination, as the first one, is hereby resolved in favour of the Respondent.

The appeal has, therefore, for the reasons advanced, failed and is accordingly dismissed. The decision of the trial tribunal is hereby affirmed. Respondent is entitled to cost.

I fix this cost at N3,000 against the Appellant.

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Other Citations: (1999)LCN/0509(CA)

Evangelist Johnson Igodo V. Godwin I. Owulo & Ors (1999)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

At the Oju Local Government Area of Benue State of Nigeria Chairmanship elections held on 5th of December 1998 and another election of 12th December 1998, the appellant and the 1st respondent were candidates. The Independent National Electoral Commission (INEC) at the conclusion of the elections declared the 1st respondent the winner.

Dissatisfied with the decision of INEC, the appellant filed a petition at the Local Government Council Election Tribunal holden in Makurdi. The petitioner/appellant in his petition complained:

(1) That the 1st respondent was not qualified to contest the election.

(2) That the 1st respondent was not validly elected by a majority of valid votes cast at the election.

(3) That the bye-election held at Ainu Council Ward on 12th December 1998 was unlawful as the election was voided by corrupt practices, offences and non-compliance with the provisions of the Decree.

Among others, the petition stated that the petitioner prayed the tribunal.

“That the said Godwin I. Owulo was not duly elected or returned and his election was void and that the said Evangelist Johnson Igodo ought to have been returned as duly elected.

The 1st respondent filed a reply. For the 2nd – 6th respondent, a joint reply was filed. The respondents thus joined issues with the petitioner on his petition.

The parties called evidence and cross-examined each other’s witnesses.

Trial concluded, the Election Tribunal dismissed the petition of the appellant and confirmed the declaration by the INEC of the 1st respondent Godwin I. Owulo as duly elected Chairman of Oju Local Government Council.

Dissatisfied with the decision of the Election Tribunal, the petitioner appealed to this court.

The grounds of his appeal are as follows:

1. The decision is against the weight of evidence.
2. The tribunal erred in law in holding that the election of 5th December 1998 in Ainu Council Ward of Oju Local Government Area was not conclusive in the circumstances of the case.
3. The trial tribunal erred in law when it held that the 2nd-5th respondents complied with Decree 36 of 1998 when it ordered a bye-election at Ainu Council Ward of Oju Local Government Area on the election rather than declaring and returning the appellant duly elected with the valid votes of 20,100 and required spread to the 15,348 valid votes of the 1st respondent.”
4. The tribunal misdirected itself on the facts when it held that the election of 5th December, 1998 in Oju Local Government Area was disturbed or substantially disturbed by an intervening cause.
5. The tribunal erred in law when it held that the second election ordered and conducted at in Ainu Council Ward on 12th December, 1998 was proper and lawful.
6. “The tribunal failed to adequately review and evaluate the evidence before it in coming to its decision dismissing the of appellant.”

The reliefs sought by the appellant are as follows:

“a. allowing the appeal;

b. setting aside the decision of the trial tribunal dated 1st February, 1999, and in its place to grant the appellant the relict’s claimed before the tribunal and

c. nullify the election of 12th December 1998 and return of the 1st respondent as the elected Chairman of Oju Local Government Council.

d. Declare and return the appellant as the elected Chairman of Oju Local Government Council by the conclusive election of 5th December, 1998 with the majority scores of 20, 100 lawful voles and the required spread to 1st respondent’s 15,348 lawful votes.”

Parties exchanged briefs of argument which each adopted and relied upon at the hearing of the appeal.

On the part of the appellant, he urged the court to allow the appeal in accordance with the terms set out in his notice of appeal. The respondents on the other hand, urged the court to dismiss the appeal.

In his brief of argument, appellant’s counsel who also filed a reply brief identified 5 issues for determination in the appeal as follows:

1. Whether the trial tribunal was right in holding that the Chairmanship election of 5th December, 1998 in Oju was conclusive in the circumstances of the case.
2. Whether a winner emerged at the Oju Chairmanship election of 5th December, 1998, after the cancellation of the results of the election from Ainu Council Ward.
3. Whether the Oju Local Government Chairmanship election of 5th December, 1998 was disturbed or substantially disturbed by any intervening cause.
4. Whether the 2nd -6th respondents complied with section 54 of Decree 36 and paragraph 11 of INEC guidelines, when, on the 5th December, 1998 it ordered a second election in Ainu Council Ward of Oju Local Government Council after the cancellation of the results from the same Ainu Council Ward consequent upon the established irregularities.
5. Whether the second election ordered for the 12th December, 1998 for Chairmanship seat in Oju LGA, if proper, ought to be confined to only Ainu Council Ward which is only one of the

eleven (11) Wards in Oju LGA.

The 1st respondent’s issues are set out as follows:

1. Whether the trial tribunal was right in holding that the Chairmanship election of the 5th December 1998 in Oju Local Government area was substantially disturbed by intervening cause and therefore inconclusive.
2. Whether after cancelling the election in Ainu Council Ward, the Independent National Electoral Commission had power under the Decree to order a fresh election in the said Ainu Council Ward only.
3. Who secured the majority votes.

The issues identified by the 2nd – 6th respondents were:

1. Whether the trial tribunal was right in holding that the Chairmanship election of 5th December 1998 in Oju was inconclusive in the circumstances of the case.
2. Whether the trial tribunal was right in holding that the fresh election of 12th December was justified and lawful.

After reviewing the grounds of appeal, the submissions of counsel for the parties and the issues as set out for the parties in their briefs of argument, I find the issues distillable into two major issues for determination in this appeal.

For all the parties have identified the same issue in their issue No 1 and appellant’s issue No. 3 is subsumed in that. Then, from the combination of appellant’s issue No 5, 1st respondent’s and 2nd – 6th respondent’s issue No 2 which are virtually the same, emerges a second issue.

All other issues raised by the appellant and the 1st respondent fall within the ambit of the foregoing and will be addressed along with them.

The two issues for determination in the appeal therefore are:

“1. Whether the Election Tribunal was right in holding that the Chairmanship election was substantially disturbed by an intervening cause and was therefore inconclusive.

This issue arises from grounds 1,2,4 and 6 of the grounds of appeal.

2. If the answer to issue No 1 is ‘yes’. was the trial tribunal right in upholding the order and conduct of fresh elections by the INEC only in Ainu Ward, rather than in the entire Oju Local Government Area. After the cancellation of the election.

This issue relates to grounds 3 and 5 of the grounds of appeal.

Evidence on record shows and the tribunal found that voting had taken place at Ainu Ward consisting of 30 polling units, before the results of the votes could be collated, certain events occurred, giving rise to the cancellation of the election on 5th December, 1998 in Ainu Ward by the Independent Electoral Commission (INEC).

In its judgment the tribunal stated thus:

“It is not in dispute that the election in Ainu Ward for the Chairmanship Election in Oju LGA held on 5th December, 1998 was cancelled…”

“Since the result of the said Ainu Ward was neither collated nor released it goes without saying that the election was not concluded ….

“From the evidence before us which we believe, there are 30 polling units in Ainu Council Ward with voters numbering are 110,000. See the evidence of RW 3, the electoral officer of Oju and RW 2 the ward returning officer,”

These findings of fact, this court has no reason to disturb. For it is the law that an appellate court should not interfere with findings of a lower court, unless found to be perverse or that the court below raised wrong interferences upon accepted facts of applied wrong principles to such facts. See Chinwendu v. Mbamali (1980) 3 – 4 SC-31, Ibodo v. Enarofia (1980) 5 SC 42. There is nothing to prompt this court to disturb the above findings.

As to whether the election was concluded, it is my humble view that this can be determined by observing whether all the acts and things required to be done under the procedure for elections set out in Decree 36 and Schedule 4 of Decree 36 of 1998, have been gone through in accordance with the provisions of the Decree.

Part VIII of the Decree, in sections 46 -57 and Schedule 4 to the Decree set out all the acts and things and the procedures required to be done or performed and the manner of doing them to perfect the conduct of an election.”

These show that an election (on the appointed date), commences with accreditation, proceeds with voting at polling units, counting of votes at polling units, completion of the appropriate INEC prescribed form, collation of results at various designated collation centres, and declaration of results.

The system has to be gone through as required by Decree No 36. Thus, without the collation of all results of the polling units and the wards which made up a Local Council Area, and the declaration of result, an election may not be regarded as completed or concluded. This is so in the present matter. For when trouble started, collation could not proceed at Ainu Ward and its result could not be collated with that of the other 10 wards. If so collated a result could have been declared. The position in this matter falls within section 92(2) of Decree 36 of 1998 which provides as follows:

92(2) “Where an election has started on the appointed date and is before conclusion, substantially disturbed by any intervening cause, the Commission shall appoint a new date for a fresh election.”

There can be no doubt from the unrebutted evidence of RW 2 and 3 on the records and the findings of fact by the trial tribunal, that there were incidents during which tension was created by the political parties of the appellant and 1st respondent and their supporters. That it was fuelled by the uncompromising attitude of the appellant’s agent, Ode Ibo Igangan at the collation centre. That these events occurred before the conclusion of the Chairmanship election. Every available evidence indeed shows that the appellant considered the events which took place serious enough and that his agent and party were all out and intent on securing the cancellation which took place consequently.

How can the appellant now justly raise issues challenging the cancellation?

In my humble view, from the foregoing, the Election Tribunal was correct In holding that the election not having been concluded there being no result declared by INEC when trouble commenced, the INEC was entitled under section 92(2) of Decree 36 to cancel and to order fresh election. It must be pointed out before concluding that there is some distortion of the lower tribunal’s decision when learned counsel for the appellant submitted at page 7 of his written brief that “it was erroneous of the tribunal to hold that the role of PW 2 in protecting the interest of its party when he requested for the cancellation of the result .. ” was an intervening cause which substantially disturbed the election for section 92(2) of Decree 36 ” to be applicable.” It is clear to me that he was quite incorrectly stating the findings of the lower tribunal. This is clear from the facts set out earlier. The intervening cause identified from the evidence on record and the judgment of the Election Tribunal is the threat to peace from tension generated from the parties at the collation centre, preventing the INEC returning officer from doing his duty.

This stopped the collation of results on 5/12/98.

That submission goes to no issue therefore. In the premises, the answer to issue No. 1 is therefore in the affirmative.

Issue No.2: This issue as earlier set out raises the question, what order should the lower tribunal have made in the light of the provisions of section 92(2) of Decree 36, 1998, following the cancellation of the election. (It is to be noted that apart from the appellant and the 1st respondent, there were two other candidates from other parties contesting this election.)

For the appellant, it was submitted that “where section 92(2) of Decree 36 of 1998 becomes relevant, it has to do with the entire election in question to be cancelled and not just part of it, as was the case here. In the instant case, only the result from Ainu Ward was cancelled and not the election … assuming without conceeding that the 6th respondent acted under section 92(2)… he is not covered because he only cancelled part of the result and not the entire election.”

Section 92(2) of Decree 36 of 1998 provides as follows:

“Where an election has started on the appointed date but is, before conclusion, substantially disturbed by any intervening cause, the election may be cancelled, and the Commission shall appoint a new date for a fresh election.”

At page 15 of appellant’s brief counsel also stated:

“Where the 6th respondent is permitted to conduct a second election for the purpose of determining the winner of the election, the second election is required to cover the entire constituency involved and not a segment …

In the case in hand, the entire Oju Local Government Area, not just Ainu Council ward …. ”

For the respondents. it was their case in respect of issue No 2 that the 6th respondent duly exercised its powers under section 92(2) of Decree 36 1998 to cancel the election and appoint a new date for a fresh election if the election is substantially disturbed.

They further submitted that the 6th respondent has powers to order election in a polling unit or council ward and not the entire constituency (See page 7 of 1st respondent’s brief of argument).

The 2nd – 6th respondent’s brief also shows that they too are in agreement that it was necessary to conduct another election for the Ainu ward to enable the electorate elect a candidate of their choice – See page 9 of their counsel’s brief of argument.

The application of the word “election” in section 92(2) is the bone of contention as the above submissions show. And, the issue is whether it refers to the whole process of election, constituting accreditation, voting, collating, recording on all relevant INEC forms under the Decree and declaration of result.

Or, on the other hand does “election” refer to merely voting – as in units or wards, as the case may be’?

It seems to me that applying the ordinary meaning of the word “election” the meaning referring to the whole process is preferable. Voting in polling units or wards cannot amount to “election”.

In the case of Chibok v. Bello (1993) 1 NWLR (Pt. 267) 109. the Court of Appeal was called upon to determine whether the power to order a bye-election under section 43(2) of Decree 18 of 1992 relates to the entire constituency or part or unit thereof and whether the Election Tribunal could order a bye election for two polling stations.

The court, per Oguntade JCA, held that, ‘the tribunal could not order a bye-election for the two polling stations where irregularities were found. Rather what it should have done was to order for the election for the whole constituency.”

I should think that in the present matter, the word “election” in section 92(2) of Decree 36, 1998 would have the same meaning and application as in section 43(3) of the 1992, Decree, adopting the interpretation which I proffered above.

This is how the law seems to stand presently and I would adopt that meaning. It is in the light of the foregoing I would uphold the submission of the learned appellant’s counsel. The order which the Election Tribunal ought to have made” was to the effect that having cancelled the inconclusive election, fresh elections be had for chairmanship in the whole Oju Local Government Council Area which is the constituency for the local council Chairmanship election, and not just Ainu Ward. The decision of INEC should not have been upheld.

In the final analysis, this appeal succeeds in part. Although the trial tribunal was right in holding that the Chairmanship election of 5th December 1998 in Oju LGA was not concluded and thus inconclusive in the circumstances of the case, the order which it should have made was one for fresh elections in the whole 11 wards, whose total result was not collated and declared due to the intervening event. In the premises, it so ordered.

It is hereby ordered that the Independent National Election Commission (INEC) do proceed forthwith to conduct fresh elections for the position of Council Chairman in all the wards of the council.

There shall be no order as to costs.

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Other Citations: (1999)LCN/0508(CA)

Jacob Omman V. Darlington Ekpe (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

By a Writ of Summons dated 15th June, 1992 the Plaintiff claims against the Defendant is for:

‘The sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) being money paid by the Plaintiff to the Defendant on or about 18th January, 1987, as deposit on account of immediate supply/delivery to the Plaintiff by the Defendant, 13 bales of Nigerian Wax texture of Clothes manufactured by Wichestex and sold to the Plaintiff at the rate of N10,000.00 (Ten Thousand Naira only) per bale, which bales of cloth the Defendant failed to supply to the Plaintiff despite repeated demands.

2. N263,000.00 (Two Hundred and Sixty Three Thousand Naira) being special damages for losts of profits occasioned by failure of the Defendant to execute the said contract or refund the said Sum of N121,805.00 One Hundred and Twenty One Thousand, Eight Hundred and Five Naira).

Particulars of Loss of Profits

From 18th January, 1987 to 15th June, 1992 (1,974 days) or (263 weeks) Minimum profit generated on investment of N 121,805 on bales of Nigerian Wax texture of cloth as aforesaid since 18th January, 1987 to date -N1,000 Per Week

263 weeks – N263,000,00

3. Interest on the sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) at the low commercial rate of 18% per annum from 18th January, 1987 to the date of Judgment and thereafter at same rate till the date full and final payment by the Defendant.
4. N100,000.00 (One Hundred Thousand Naira) being general damages for breach of contract as aforesaid.”

Pleadings were ordered filed and delivered. On the 13/1/93 the date the case was adjourned for hearing the defendant and his counsel were absent and from the records no reasons were given for their absence and the trial commenced. The Plaintiff witnesses testified and thereafter counsel for the Plaintiff appellant addressed the court and judgment was reserved on the same date. On 18th February, 1993 a new counsel who had now supplanted the former counsel for the defence informed the court that he was taking over the case of the defence and, he moved his motion to present the defendant/respondents case notwithstanding that “judgment had been reserved.” The court in a subsequent adjourned date granted his prayers stating thus:

“It is ordered that the case to be re-opened to the extent that the defendant shall present his defence. I refuse to recall Plaintiffs’ witnesses for cross-examination.”

The Defendant opened his case with testimony of four witnesses. Thereafter both counsel addressed the court at different dates. The main case of the Plaintiff appellant is that he had a contract with the Respondent to supply him with wax materials at the rate of N10,000.00 per bale. He paid him the sum of N121,805.00 for 15 bales of cloth but the Respondent failed to supply the materials or refund the money. The Defendant informed the court that by 1987 he had not known the appellant as he first met him in 1988. He denied telling the appellant that he was a distributor of wax material, or that he collected a sum of N121,805 from the Plaintiff for 15 bales of wax materials. He further emphatically denied being investigated by the Police for holding the appellant’s money. He however admitted receiving a sum of N20,000.00 from the appellant with which he paid his creditor who had seized his Range Rover vehicle. He equally denied being charged with stealing or obtaining money under false pretences pointing out that the appellant employed these gimmicks for his own pursuit. He stated that any transaction or reference to money was the one affecting the issue concerning the seizure of the Range Rover and nothing more. In his judgment the learned trial Judge held as follows after considering the facts of the case as presented to him.

“Having carefully considered the evidence and learned Counsel’s submission and having closely watched the demeanour of each witness during his testimony, I have been given the impression that the side of the matter narrated to the Court by the Defendant and his witnesses sound more credible than the simple story of an agreement to supply clothing materials for which the Defendant collected N121,805 and failed to supply same or to return the money. I believe the defence evidence which links the seizure of the Defendant’s vehicle by Inspector Nwachukwu and the Plaintiff with the Defendant’s report against Nwachukwu who was queried by Police authorities. I also believe that the Defendant was directed, detained and forced to sign the original copy of Exhibit 1 which was given to the police and not to the plaintiff. The evidence of the Defendant and DWs. 3 and 4 are alone on these matters of seizure of the Defendant’s vehicle and the making of Exhibit 1 under forced circumstances. Learned Counsel for the plaintiff was not able to shake DWs 3 and 4 in their strong evidence.”

He thereupon dismissed the claim.

Being dissatisfied with the judgment of the court below the plaintiff filed notice of appeal. There are four grounds of appeal from which he formulated 2 issues for determination and they are as follows:

“(a) Whether the lower court properly appraised and evaluated all the evidence proffered in this suit having regard to the quality of evidence led by both parties.

(b) Whether the lower court was right when it failed to enter judgment in favour of the appellant for the liquidated sum claimed by the appellant in the court below which sum would include the sum of N20,000.00 admitted by the Respondent plus an appropriate award of damages under the reliefs claimed by the appellant.”

The Respondent on the other hand framed 7 issues for determination. The counsel for the Respondent may not have learnt that issues are just the matter to be determined and they are smaller in number having been distilled from the grounds of appeal.

The real issue is whether apart from the sum of N20,000 the Respondent has acknowledged owing the Appellant in respect of a loan, he was in breach of contract for accepting a sum of N100,000.00 to supply bales of Wax which he failed to deliver.

I noted that brevity is the main feature of the evidence of the appellant and his 2 witnesses in the court below. The appellant’s counsel in his brief submitted that the court below failed to make a proper appraisal of the case when all the witnesses for the appellant testified that the Respondent was owing the appellant a sum of N121,000.00 as a result of money had and received for wax cloth which was not delivered. These evidences of the 3 witnesses were not challenged as the court refused to give the Defendant/Respondent opportunity of cross examining them.

A court should ordinarily give clear consideration to any testimony before it, its reasonableness in view of the surrounding circumstance the inherent probabilities the existence or lack of corroboration, accuracy and the truthfulness of the witnesses and all attendant and relevant facts accompanying admission of evidence. I would however sound a note of warning. Although it is the general rule that uncontradicted and undisputed testimony is testimony from which reasonable minds can draw but one conclusion and may not be disregarded by the court but must be accepted as true and control the decision arrived hereafter, it is the law and I so hold that a court is not under all circumstances required to accept as true testimony of a witness even though it is not contradicted as where it is unlawfully and corruptly false, unreasonable, improbable or inconsistent with other evidence in which case it may be given such weight as may be deemed proper or be wholly disregarded. Therefore evidence which is not contradicted by positive testimony and is not inherently improbable or unreasonable cannot be arbitrarily or capriciously discredited, disregarded, despised, rejected, even though in the particular case the witness is a party or an interested witness and unless such evidence is shown to be untrustworthy, it is taken as conclusive and binding on the court or at least it is entitled to and should ordinarily be accorded substantial weight. In the case of Isaac Omaregee v. D.P. Lawani (1980) 3 – 4 S.C. 108 at 117) Idigbe JSC said:

“Again this court has in many of its decisions observed that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it. See Odulaja v. Haddad (1973) 11 S.C. p. 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81 – 82.”

In the present case the Respondents were not allowed or afforded any opportunity to challenge the testimonies of the appellant witnesses after they were re-admitted into the matter. Instead they were allowed to tell their own story and it is this story that the court believed. In his judgment he commented thus as to his evaluation and appraisal of the evidence without going into specifics.

“Although, the testimonies of the three witnesses for the Plaintiff were not subjected to scrutiny and opposition under cross-examination, I am obliged to weigh against the copious evidence of the four witnesses for the defence in an imaginary scale and weigh them together to see where the balance of credibility lies.”

He obviously placed much relevance on the evidence of DW2 who though an employee of the Respondent impressed him a lot. As to when the appellant got to know the Respondent he said:

“I am satisfied that the Defendant was introduced to the plaintiff sometime in 1988 as told by DW2 Jacob Onuh. If the Defendant was introduced to the Plaintiff in 1988, he could not have entered into an agreement to sell clothing materials to him in 1997.”

I observed that much of the evidence was concentrated on the fate of the Range Rover after the denial of indebtedness to the appellant.

It is the law that when the court which had seen and observed witnesses testify and drawn a wrong conclusion which is regarded as perverse the Court of Appeal will overturn it. See Fashanu v. Adekoya (1974) 6 S.C. 83 where Coker J.S.C. said:

“The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a Tribunal of Trial and a Court of Appeal would only interfere with performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which these facts do not support or indeed has approached the determination of these facts in a manner which these facts cannot and do not in themselves support.”

Now Nwanedo the learned counsel for the Respondent derided Exh. 1 which he submitted was made in the Police form and the contents was made 4 full years before the action, under duress as it was made while the Respondent was in Police Custody. It is most unfortunate that our citizens now use the army and Police personnel to collect debts from fellow business associates whether the debt is real or imaginary. Any document signed in the presence of the Police and relating to a civil claim shall be viewed with suspect particularly if the persons against whom it will affect was in custody or under some detention or handicap that he cannot freely enter into a contract with enforcement officers breathing down his neck. Any document that seeks to establish the existence of a contractual relationship which takes place under the very watchful eyes of the Police to whom a purely civil matter is brought to its attention to enforce or put a fear of God into the other side will certainly not be enforced as there is no consensus and is voidable. Exhibit 1 does not therefore avail the appellant.

In his further submission the appellant prayed that the sum of N20,000.00 odd admitted be paid to him. But this sentimental submission overlooks the fact that he made no such a claim. His claim is for N121,000.00 arising out of a contract that went awry, never fulfilled, not for lending the Respondent a sum of N20,000.00. It is what a party claims that he gets.

When a party initiates a proceeding he must satisfy himself that he has a good and reasonable chance of offering sufficient and cogent evidence to convince the court of the merit and worthiness of the case. It is like a commander who set out for a war and who must reason and calculate within himself that given the man and armour he has would he over run the enemy. If the answer is in the negative, it will be idle exercise to talk of invasion which in all probability he and his army will be overwhelmed.

This is a case as in all civil cases where the appellant must succeed on the preponderance of evidence. The Respondent raised fundamental issues in his pleading which I am of the view the appellant ought to have filed a Reply. Failure to do that was part of death knell on the case of the appellant.

In the final result the appeal fails and is dismissed. The Judgment of the High Court is affirmed. There will be costs to the Respondent assessed at N4,000.00.

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Other Citations: (1999)LCN/0507(CA)

Mr Frank Muobike V. Mr Thomas Nwigwe (1999)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the judgment of Ugwu, CJ. of Enugu State High Court, handed out on 18th March, 1998. Judgment was entered in favour of the Respondent and against the Appellant in the total sum claimed to wit:- N870,000 with N1,000 as costs including out of pocket expenses as well as 5% per annum interest on the judgment debt from 18/3/98 until the whole sum is liquidated.

For a proper and adequate consideration of the issues seriously at stake and canvassed in this appeal, the relevant and material facts must be assembled with some measure of considerable detail. Such facts are subsumed as follows “The Respondent herein filed his writ of summons under the undefended list on 12-1-98 claiming the sum of N870,000. He deposed to an affidavit in support of his claim. He averred that he had a series of business and other transactions with the Appellant. One of the transactions involved the sum of about N450.000 which the Appellant owed the Respondent and one Mr. Nwagba. This transaction is different from the subject matter of this suit according to the Respondent. On 30-8-96, the Appellant asked for an advance of the sum of N280,000 repayable within a month thereof. The Appellant was advanced the stated sum and he issued a Union Bank post-dated cheque, photocopy of which is Exhibit ‘A’ to the Respondent. Again, on 15-6-96, at the request of the Appellant, the Respondent was given another loan of N590,000. He issued another Union Bank post-dated cheque of N590.000. He issued another Union Bank post-dated cheque to the Respondent. Exhibit ‘B’ is a photocopy of the said cheque. The total sum contained in Exhibits ‘A’ and ‘B’ is N870,000. On 31-12-97, the Respondent’s counsel wrote a letter of demand Exhibit ‘C’ to the appellant. The letter was sent to the Appellant through NIPOST EMS speed post. Exhibit ‘D’ is the receipt issued thereof. The letter was not returned to Afam Akputa Esq, of counsel. The Appellant did not reply the letter from counsel. The Respondent finally averred that the Appellant had no defence whatsoever to his claim.

The Appellant at the trial court, filed the requisite notice of intention to defend the suit, dated 19-2-98, pursuant to order 24, Rule 9(2) of Anambra State High Court (Civil Procedure) Rules 1988 applicable to Enugu State as well as under the inherent jurisdiction of the trial court. He deposed to two separate affidavits to buttress his notice of intention to defend the suit.

In his first affidavit deposed to on 19-2-98, the Appellant averred that sometime in 1995, he took a loan of N200,000 from the Respondent for a short-term of two weeks. He issued the Plaintiff/Respondent a Progress Bank Enugu cheque, dated 20-10-95 for the sum of N280,000 to accommodate the principal and the interest of N80,000 thereon. The principal sum was obtained from one Chief S.M. Okeke at Awka. Before the end of 1995, he paid a total sum of N160,000 to the Respondent while presentation of cheque was suspended. By early 1996, he paid N100,000 cash. He did not collect any receipt for the stated cash payments. In his word, he never suspected any mischief. He said in March 1996, Chief S.M. Okeke mounted pressure on him under the pretext that the Respondent had not repaid any part of the loan to him. As a result of intimidation and pressure coupled with promise to douse the anger of Chief S.M. Okeke, he issued the plaintiff a Union Bank cheque for the sum of N590,000 postdated 15-7-96 making a total of N870,000 in cheques. About the same time, he replaced the Progress Bank cheque with Union Bank cheque because the Progress Bank had become distressed.

The appellant further averred that the amount borrowed was N200,000. Interest on the principal sum accounts for N670,000. About 9-9-96, he paid N50,000 in a Union Bank Draft to the respondent. It is Exhibit ‘A’ to his affidavit. He averred that despite his payments which amounted to N310,000, he was in October 1996 arrested and put behind the bars on the petition of Chief S.M. Okeke to police. The timely intervention of J.H.C. Okolo, Esq, SAN, saved him from prolonged incarceration. At the instance of J.H.C. Okolo, Esq, SAN, an arbitration meeting was held in Igwe Akputa’s office where it was resolved that he should pay N450,000 by March, 1997. Those in attendance, according to the appellant, were (1) Igwe Akputa, (2) J.H.C Okolo, Esq, (SAN) (3) Chief S.M. Okeke, (4) Chief Law Udechukwu, (5) Thomas Nwigwe (respondent) (6) Engr. Frank Muobike (a) (appellant). Pursuant to the arbitration, he paid N300,000 through J.H.C Okolo. Esq, (SAN) notwithstanding other payments earlier made to the respondent. The respondent, by a letter dated 26-10-97, clearly but subtly acknowledged that some payments had been made. Copy of the letter is Exhibit ‘B’. He denied owing the respondent the total amount claimed having paid the sum of N610,000 to him. He contended that he had triable issues including the issue of illegality.

In his further affidavit, the appellant further stressed the issue of illegality. He averred that he travelled with the respondent to Awka the country home of Chief S.M. Okeke along with Mr. Nwagba for the loan. He stated that he had no transaction involving N450,000 or any other transaction at all with either the plaintiff or with Mr. Nwagba or with both of them jointly. He attached a copy of Chief S.M. Okeke’s petition to police as Exhibit ‘A’. The same was made available to the appellant by the respondent under a covering letter- Exhibit ‘B’. He, as well, attached copies of receipts for payments made through the chambers of J.H.C Okolo, Esq, (SAN). Appellant stated that it dawned on him that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He attached Exhibits “E’ and ‘F’ which he said have to do with payment of the sum of N300,000 through J.H.C Okolo, Esq. (SAN) to the respondent.

It can be gleaned from page 31 of the transcript record of appeal that on 18-3-98, the suit was heard. The parties were present and duly represented by counsel. None of the counsel uttered a word. The trial CJ then entered his judgment as follows:-

“I have gone through the affidavit of the defendant dated 19-2-98 particularly paragraphs 3 and 7 and it to quite clearly (sic) that these paragraphs are no defence to the action but they instead admitted the claim of the plaintiff of N870,000.00. Accordingly, the defendant has no defence to this action.

Judgment is therefore entered in favour of the plaintiff as follows:-

1. The defendant is to pay to the plaintiff the sum of N870,000.00 which are the value of two cheques dated 30/6/96 and 15/7/96 respectively which the defendant issued to the plaintiff but were dishonoured.
2. The defendant is to pay the plaintiff the sum of N1,000 as costs including out of pocket expenses.
3. The defendant is also to pay 5% interest on the judgment debt from today and not 15/7/96 until the whole judgment is liquidated.”

The appellant felt dissatisfied and filed his notice cum grounds of appeal against the judgment on 19-3-98 being next day to the judgment of the trial CJ. The appellant had axe to grind with the whole decision. The attendant four grounds of appeal read as follows with their particulars:-

“i. Error in Law

The trial court erred in law in refusing the appellant to defend the action when the materials placed before the trial court disclosed triable issues.

Particulars of Error in Law

(a) The proceeding before the trial court (the subject matter of the ruling/judgment now being challenged on appeal) arose from suit placed on the undefended list. The defendant/appellant filed and served a notice of intention to defend together with the supporting affidavit setting out grounds of defence which raised triable issues. A further affidavit was also filed and served to strengthen the defendant’s case.

(b) The plaintiff/respondent filed no counter-affidavit to controvert or challenge any of the averments in the defendant/appellant’s affidavit and further affidavit.

(c) It is a common ground that there was a loan transaction between the appellant and the respondent but the amount of the loan is in issue. While the appellant averred that the amount of the loan was N200,000 only, the excess of N670,000 being interest on the said loan, the respondent averred that the total amount of the loan he granted to the defendant was N870,000 citing the cheques issued by the appellant.

(d) Besides the appellant averred that he had repaid the loan including part of the interest element.

(e) The trial court erred in law by not accepting the uncontroverted depositions or the appellant in exercising his discretion whether or not to let the appellant in to defend the suit.

(ii) Error in Law

The trial court erred in law in entering judgment for the plaintiff/respondent when there was enough supportive evidence that the appellant had made some payments to the plaintiff/respondent.

(a) Copy of the draft with which payment of N50,000.00 was effected was annexed as Exhibit. (b) Copies of receipts from the Chambers of J.H.C. Okolo, SAN, for the payment made through the chambers were exhibited.

(c) Copy of letter from the plaintiff/respondent to appellant acknowledging some payment and asking for the balance was exhibited.

(iii) Error in Law

The learned trial court erred in law by entering judgment in favour of the plaintiff/respondent against the defendant/appellant, then on the facts relied on in the affidavit and further affidavit, a clear case of the illegality striking at the root of the transaction was disclosed.

Particulars of Error

(a) Paragraph 8 of the affidavit in conjunction with the depositions in the further affidavit in support of the application to defend show that the principal sum loaned to the defendant/appellant was N200,000.00 only.

(b) The sum of N570,000.00 claimed and on which the judgment of the court is based represents continued additions of interest on the said principal sum from the date of the transaction to the filing of the suit.

(c) The plaintiff/respondent is not and has never been held Money Lender Certificate (sic) as will enable him to charge interest on the loan.

(d) There is fundamental illegality disclosed on the parties’ transaction.

(iv) Omnibus

The decision of the trial court is against the weight of evidence”

It is pertinent to state here that the relief sought from this court by the Appellant is to allow the appeal, set aside the decision of the lower court, place the matter on the general cause list and remit same to another judge of the High Court of Enugu State for a formal hearing and proper determination of the suit.

As usual, briefs of argument were exchanged by the parties. It is desirable to set out the issues formulated in each brief. The three issues formulated on behalf of the appellant for determination are as follows:-

“1. Whether the learned trial Judge was not in error in holding that the defendant has no defence to the action.

2. Whether the learned trial Judge was not in error to have entered judgment for the plaintiff as claimed in the writ of summons and the claim attached thereto.
3. Whether the entire decision of the court below was not against the weight of evidence disclosed by the uncontradicted and unchallenged affidavit and further-affidavit in support of the appellant’s notice of intention to defend the suit.

Two issues were formulated for determination on behalf of the respondent in his own brief. They read as follows:-

“1. Did the appellant’s affidavit and further affidavit in support of his notice of intention to defend disclose any triable issue in this case?

2. Is there any illegality in the transaction between the parties the subject matter of the suit?”

On 29-9-99, when the appeal fell due for hearing, Mr. J.H.C. Okolo, SAN, who appeared for the appellant adopted the appellant’s brief dated 14-7-98 and filed on 15-7-98. The Senior Counsel, in further expatiation, observed that materials were placed before the trial CJ who brushed them aside and said there was no defence to the suit. He contended that such a stance was wrong in law. He observed that there is the issue as to the exact sum owed by the appellant. He opined that there is the issue of illegality which was not investigated. He maintained that the subsequent mediation and new sum of N450,000 created new legal relationship between the parties constraining the respondent to the said sum rather than N870,000 in judgment. He referred to the case of Festus Obayuwana v. Oscar Ede (1998) 1 NWLR (Pt.535) 670.

Afam Akputa, Esq, of counsel for the respondent, adopted the respondent’s amended brief dated and filed on 1-7-99. He referred to page 21 of the record of appeal as well as paragraph 7 of the further affidavit. He observed that there are intra contradictions in the defence put up by the appellant.

The above observations and submissions by each counsel on behalf of his client only represent the tip of the iceberg when joined with ruthless arguments contained in the parties’ respective briefs of argument.

Obi Onukwili, Esq, former counsel for the appellant, submitted on the appellant’s issue No. 1 that the learned trial CJ was wrong when he held that appellant’s notice of intention to defend the suit did not disclose any defence. He contended that enough materials to emphasize triable issues were clearly placed before him by the uncontradicted and unchallenged affidavit and further affidavit setting out the ground of defence. He observed that even if, in paragraphs 3 and 7 of the affidavit in support of the notice of intention to defend, the appellant admitted issuing the said cheques, the circumstances leading thereto were fully explained.

Learned counsel submitted that the court of appeal will interfere with findings of fact of the trial court where such is not properly made or not based on evidence before the court. He referred to Nwokedi v. Orakposim (1992) 4 NWLR (Pt.233) 120; Gbadamosi Adegoke v. Chief Nathaniel Adibi (1992) 5NWLR (Pt.242) 410.

Learned counsel further submitted that when findings of fact are not supported by evidence, such findings are perverse and will be set aside. He referred to Union Bank of Nigeria Ltd. v. Ifeatu Augustine Okoye (1996) 3 NWLR (Pt.435) 135. Learned counsel submitted that there has been a wrongful exercise of discretion through misconception of facts as the trial CJ omitted to take into account matters that are relevant. The exercise of discretion was based on wrong or inadequate materials. He referred further to Shittu v. Osibanjo & anor. (1988) 7 SCNJ 37 at 44: (1988) 3 NWLR (Pt.83) 483: Irewole L.G. v. Oyeyemi (1993) 1 NWLR (Pt.270) 462: (1993) 1 SCNJ 127 at 137: Wayne (West Africa) Limited v. Ekwunife (1989) 12 SCNJ 99 at 128: (1989) 5 NWLR (Pt. 122) 422

On issue No.2, learned counsel submitted that it was wrong for the trial CJ to have entered summary judgment without calling for oral evidence in the face of appellant’s uncontroverted depositions in his affidavit and further affidavit. He submitted that uncontroverted evidence should be deemed as admitted. He referred to Lewis Peat v. Akhimien (1976) 7 S.C. 157 at 164: Ajomale v. Yaduat (1991) 5 SCNJ 170: (1991) 5 NWLR (Pt.191) 266 and Egbunta v. Egbuna (1989) 2 NWLR (Pt. 106) 773.

Learned counsel further submitted that the learned trial CJ was in a very serious error when he entered judgment for the respondent as claimed inspite of the assemblage of enough supportive evidence before him to wit:- photocopy of N50,000 bank draft with which payment was effected to the respondent; photocopies of receipts from the chambers of J.H.C. Okolo, Esq, SAN, for payments made through that chambers sequel to arbitration as well as photo-copy of an acknowledgement letter from the respondent urging the appellant to expedite action with the payment of the balance.

Learned counsel submitted that the judgment entered by the learned trial CJ was rather hasty as he did not consider allegation of fundamental illegality in the transaction between the parties. He opined that whether pleaded or not, the court would not close its eyes against illegally once properly established as it is the duty of the court to refuse to enforce such transaction. He referred to Sodipo v. Lemminkainem OY & anr (1986) 1 S.C. 197 at 212 and 214: (1986) 1 NWLR (Pt.15) 220.

Learned counsel further submitted that discretion must be exercised according to common sense and according to justice. He referred to Odusote v. Odusote (1971) 1 All NLR 219, He urged the court to interfere and set the trial court’s judgment aside as one given without sufficient circumspection. He referred to Enekebe v. Enekebe (1964) 1 All NLR 102 at p. 106; Demuren v. Asuni (1967) All NLR 329: Solanke v. Ajibola (1968) 1 All NLR 46: Mobil Oil (Nig.) Ltd. v. Federal Board of Internal Revenue (1977) 3 S.C. 97 at p. 141; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at pages 148-149.

On issue No. 3, learned counsel submitted that the decision of the trial CJ was against the weight of evidence placed before him and such occasioned a miscarriage of justice. He finally urged us to allow the appeal.

Afam Akputa, Esq., learned counsel for the respondent, on issue 1 in his client’s brief, at the on-set observed that there is authentic documentary evidence in support of respondent’s affidavit. He said such tilted the balance in favour of respondent’s affidavit. He referred to Nwosu v. I.S.E.S.A. (1990) 2 NWLR (Pt. 135) 688 at 718: Magnusson v. Koiki (1991) 4 NWLR (Pt.183) 119.

The learned counsel observed that appellant’s affidavit and further affidavit contain intra-contradictions. He urged that the entire defence of the appellant should not be believed on account of the contradictions. He referred to Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7)393; N.E.C. v. Wodi (1989) 2 NWLR (Pt.104) 444.

Learned counsel submitted that the allegation of the appellant that he was threatened, blackmailed and intimidated into drawing the two Union Bank cheque -Exhibits ‘A’ and ‘B’ to respondent’s affidavit in support of the claim cannot stand since the transaction between the parties is contractual. It is his submission that interpretation of contracts excludes moral questions unless they are part of it. He referred to Wejin v. Ashaka Cement Co. Ltd. (1991) 8 NWLR (Pt.211) 615. On point relating to illegality, learned counsel opined that the conduct of the appellant estopped him from raising such a defence. He referred to Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98.

On bank draft payment of the sum of N50,000 by the appellant, learned counsel contended that the value might have not been paid to the respondent and that the appellant has to show in fact that the respondent received the draft’s value for the real transaction.

On issue No.2 formulated on behalf of the respondent, learned counsel contended that the debt has no interest element as the appellant did not state interest rate. The debt herein is certain according to learned counsel. He submitted that the transaction is not tainted with any illegality. He finally submitted that the appellant, by conduct, waived any illegality. He referred to Odua Investment Ltd. v. Talabi (1995) 2 LRCN 2107 at 2183 and 2184. Learned counsel finally urged that the appeal be dismissed.

At this juncture, I should note it that the appellant complied with the provisions of Order 24 Rule 9(2) of the High Court (Civil Procedure) Rules, 1988. He filed notice in writing that he intended to defend the action five clear days to the return date. There is no furore about this point.

The law is now settled that judgment can only be entered if there is no notice filed within the prescribed period with an affidavit clearly depicting triable issue or issues that will warrant transferring the suit to the general cause list for further investigation. Refer to Diamond Bank Nigeria Ltd. v. GSM Agro Allied Ind. Ltd. (1999) 8 NWLR (Pt.616) 558 at p. 565; Chief BC Agueze v. Pan African Bank Ltd. (1992) 4 NWLR (Pt.233) 76 at p. 87; Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.123) 523 at p. 532; Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 S.C. 51; Bendel Construction Co. Ltd. v. Anglocan Development Co. (Nig.) Ltd. (1972) 3 S.C. 37.

So, it is now beyond debate that for an action to be transferred to the general cause list from the undefended list, there must be a defence on the merit. It must not be a half-hearted defence. Refer to Franchal Nig. Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt.412) 176 at p. 188.

Shorn of all irrelevances, the real issue upon which this appeal will stand or fall, in my considered view, is whether or not the appellant’s affidavit and further affidavit in support of his notice to defend, disclose triable issue or issues to warrant the case being transferred to the general cause list for further investigation, in other words, the above may be reframed as whether or not the appellant has shown a real defence to the action; not an imagined or feigned one.

The pertinent question which cries for an answer at this stage is-what is a triable issue in relation to an action filed in the undefended list? I strongly feel that a triable issue is an uncontroverted and uncontradicted material allegation contained in the affidavit in support of notice of intention to defend an action filed in the undefended list. Such material allegation requires further investigation by the court to unearth the veracity or otherwise of the same. Such must portray a strong defence which cannot and should not just be given a wave of the back-hand. The facts deposed to by the appellant in his affidavit and Further affidavit in support of his notice of intention to defend the suit at the trial court remain uncontroverted and uncontradicted, Such affidavit evidence must be, prima facie, taken as admitted. See Ajomale v. Yaduat (supra) at p.170; Egbuna v. Egbuna (supra) 773.

The first triable issue which the appellant tried to show in his affidavit and further affidavit in support relates to the exact sum owed by the appellant to the respondent. He said he paid the sum of N260,000 cash which were not backed by receipts. He paid the sum of N50,000 by bank draft to the respondent. He asserted that he paid the sum of N300.000 through the chambers of J.H.C. Okolo, Esq., SAN, to the respondent with attendant receipt. Bank draft and receipt were attached to the affidavit and further affidavit of the appellant. The trial CJ did not consider both in his judgment. On page 27, lines 7-9 of respondent’s lengthy brief, learned counsel for the respondent stated as follows on the draft – “Do you know, my Lords, that a bank draft may be drawn up in my favour but may be lost or destroyed while in transit to me and it never got to me,” I was tempted to say I don’t know. The submission sounds ludicrous. In any event, there was no counter affidavit to show that the bank draft got lost or was not cashed. No doubt, it is a triable issue that requires further investigation. So also, payment made through the chambers of J.H.C. Okolo, Esq, SAN, to the respondent needs further consideration at the appropriate time.

In Exhibit ‘B’ attached to the affidavit in support of his notice, it is clear that the respondent asked for the balance of the outstanding money from the appellant. This document was not considered by the trial CJ. In a local environment where ‘business transaction’ is the order of the day, it is imperative to explore the meaning and the usual purport of the common word usually invoked in business circles to wit-balance, Black’s Law Dictionary, Fifth Edition at page 130 defines the word ‘balance’ as-

“An equality between the sums total of the two sides of an account, or the excess on either side. The difference between the sum of debit entries minus the sum of credit entries in an account. If positive, the difference is called a debit balance; if negative, a credit balance. Often used in the sense of residue or remainder and, in a general sense, may be defined as what remains or is left over.”

By asking for the balance from the appellant, a triable issue arises as regards what remains to be paid to the respondent. The respondent says there are some other transactions he had with the appellant who denied same and stated that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He said he had only one transaction with the respondent.

Another issue which was clearly presented before the trial CJ relates to issue of arbitration which pegged the amount to be paid at N450,000 as at March, 1997. Those in attendance were stated to be 1. H.R.H. Igwe Akputa 2. J.H.C. Okolo, Esq. (SAN) 3. Chief S.M. Okeke 4. Chief Law Udechukwu 5. Thomas Nwigwe (respondent) and 6. Engr Frank Muobike (appellant). Appellant said pursuant to the arbitration, he paid the sum of N300,000 through the chambers of the said Senior Advocate to the respondent. The appellant said the initial loan of N200,000 was taken from Chief S.M. Okeke at Awka. The said Chief reported appellant to the police. Appelalnt was incarcerated as a result. The Chief was part of the arbitration. The role of the trio of Chief S.M. Okeke, the respondent and one Nwagba should be unearthed at the appropriate lime. For the meantime, I think a triable issue has been made out as regards arbitration.

The other vital issue made out by the appellant in his affidavit and further affidavit in support of notice relates to illegality. He said the initial loan, was N200,000. The sum of N670,000 represents interest elements. Neither Chief S.M. Okeke nor the respondent is a licenced money lender according to the appellant. The respondent, on his part, says the whole sum of N870,000 is loan with no interest at all. For now, no one is saying that there is outright illegality. But one can comfortably say that the appellant made out a prima facie case of illegality which requires further investigation. A transaction which is on its face shown to be tainted with illegality ought to be further investigated properly. No doubt, it is a triable issue.

I must confess that the brief of argument filed on behalf of the respondent was not helpful as it complicated the matter. Briefs are principally designed to assist the court in arriving at the justice of the matter. A brief must be pungent and to the point. It should not be unnecessarily lengthy. Submissions must be laced with relevant authorities – statutory cum procedural and case law. Counsel must avoid winding and ludicrous submissions having the semblance of those associated with the Law School Moot trials. Submissions by counsel must not take the place of evidence. Under the guise of submissions, counsel should not attempt to call black white or vice-versa. Submissions must not be geared at propping the indefensible.

The appellant’s counsel strongly urged us to reverse the exercise of discretion by the trial CJ. To succeed in reversing the exercise of discretion by a lower court, the appellant must show that in exercising its discretion, the lower court took irrelevant matters into consideration or omitted to take relevant matters into consideration. See Abeki v. Amboro (1961) All NLR 368 at p. 370. Where exercise of discretion is perverse, such can be reversed. See University of Lagos v. Aigoro (supra) at pages 148-149. Discretion must be exercised not only judicially but judiciously as well. See Saffiddine v. C.O.P. (1965) 1 All NLR 54 at p.58; Ugboma v. Olise (1971) 1 All NLR 8. Where relevant points are brushed aside or it is in the interest of justice, this court can interfere. See Enekebe v. Enekebe (1964) 1 All NLR 102 at 106: Denmuren v.Asuni (1967) 1 All NLR 94 at p.101: Solanke v. Ajibola (1968) 1 All NLR 46 at p. 152; Mobil Oil v. F.B.I.R. (supra) at p. 141. Discretion must be exercised according to justice and in consonance with common sense. See Odusote v. Odusote (supra) 219.With due deference to the learned trial CJ, it is clear beyond peradventure that he brushed aside relevant materials placed before him. He failed to take into consideration relevant matters. The discretion, as exercised by the trial court is no doubt, perverse. The discretion was not properly exercised judicially and judiciously. Appellant’s counsel maintained that he did not act with sufficient circumspection. I do not go as far as that and so I am not at one with him on that point.

I only need to further make the point that the rules of procedure relating to actions in the undefended list are designed for easy dispensation of justice in liquidated money demands where there is palpably no defence disclosed to the action. It is not designed for a short-cut to cover up fraud or illegality. It is also not meant for hasty judgments. ‘Much haste, less speed’ should he avoided in all cases.

All said and done, it is clear that the appellant had triable issues. He disclosed a defence to the action. He showed a bonafide defence. See Franchal Nigeria Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt.412) 176 at p. 188. it will be an eye wash to find otherwise.

The appellant’s relief is that the appeal be allowed, suit transferred to the general cause list and remitted to another Judge of Enugu High Court for determination. I think the purport of remitting a case of this nature to another judge in the same jurisdiction for hearing and determination is to make it possible for a clear mind to try the suit afresh and to put the parties on a level ground devoid of any misgiving.

I come to the conclusion that this appeal is meritorious. And I hereby allow the same. The judgment of the trial CJ handed out on 18-3-98 is hereby set aside. The suit is accordingly transferred to the general cause list and remitted to another Judge of Enugu High Court for a dispassionate appraisal of all issues and final determination. The respondent shall pay N2,000 costs to the appellant.

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Other Citations: (1999)LCN/0506(CA)