Peoples Democratic Party & Anor Vs Timipre Sylva & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES VIVOUR, J.S.C. 

Sometime in 2010 INEC, the regulatory body charged with the conduct of elections in Nigeria announced that General Elections for the office of Governor of Bayelsa State would hold in April 2011. At the time Timipre Sylva, the 1st respondent was the Governor of Bayelsa State. He protested. He was of the view that his term of office which commenced in 2007 would expire in May, 2012. This according to him was that the elections in 2007 which he won as nullified by the court, which ordered a re-run, which he also won. So his term of office started to run from the date when he took a second oath of office. The 2nd respondent, INEC did not agree with the position taken by the 1st respondent. Elections for the office of Governor of Bayelsa State was to hold in April, 2011 and that was it. The appellant the Peoples Democratic Party, which the Governor (1st respondent) belonged to decided to hold its primaries in January 2011 with a view to producing its candidate for the election scheduled for April 2011. The 1st respondent contested the primary election and won, and his name was submitted by the appellant to INEC as its candidate for the election for the Office of Governor of Bayelsa State scheduled for April 2011. Meanwhile the 1st respondent filed suit No. FHC/ABJ/C5/65/10. Timipre Sylva v. INEC & Others at FHC. This suit was to determine whether the 1st respondent’s tenure would end on the 28th day of May 2011 or the 28th day of May, 2012, and that the 2nd respondent should not conduct elections into that office in April 2011. Finally he asked for an injunction to restrain the appellant from conducting primary election in Bayelsa State for the April 2011 General Election.

The 1st respondent succeeded in his suit, and so the 2nd respondent cancelled the elections fixed for April 2011. The 2nd respondents appeal to the Court of Appeal was dismissed. See INEC v. Nyako & Others 2011 12 NWLR Pt.1262 p.439.

In November of 2011 the 2nd respondent announced that elections for the office of Bayelsa State Governor would now hold on the 12th day of February 2012. The PDP, on being aware of the new date for the gubernatorial elections fixed its primaries for the 19th day of November 2011.

The 1st respondent applied to contest the primary elections. He was screened by a panel set up by his party, the PDP. At the end of the screening exercise he was not cleared to contest the primary election. His name was not among those cleared to contest the primary election fixed for the 19th day of November 2011.

Dissatisfied with the turn of events, the 1st respondent filed an originating summons on the 14th day of November 2011 at the FHC. A 10 paragraph affidavit deposed to by Imoh Udoh Tommy was filed in support of the originating summons.

The 1st respondent as plaintiff asked for the following reliefs:

DECLARATION that having submitted the name of the Plaintiff to the Independent National Electoral Commission as its candidate for the gubernatorial election of Bayelsa State, he remained the only candidate of PDP for the Governorship election of Bayelsa State following the victory of the plaintiff at the primary election conducted by the defendants for the purpose on 12th day of January, 2011 and the defendants are not entitled to change or substitute another candidate for the plaintiff who has not withdrawn his candidature.

DECLARATION that the right or interest of the plaintiff as the candidate of PDP in the forthcoming Governorship election of Bayelsa State became vested on the submission of the Plaintiffs name to the Independent National Electoral Commission following his victory at the primary election conducted for the purpose by the defendants on the 12th day of January, 2011.

DECLARATION that the Independent National Electoral Commission (INEC) is not entitled or equipped to jettison the name of the plaintiff which has been submitted to it by the National Headquarters of the Peoples Democratic Party as the candidate of the party for Governorship election in Bayelsa State when the Plaintiff has not withdrawn his candidacy and is still living.

DECLARATION that having conducted a primary election pursuant to section 87(1) (4)(b) of the Electoral Act, 2010 as amended at which the Plaintiff emerged as winner and his name having been forwarded to the Independent National Electoral Commission as the candidate of the PDP in the forthcoming gubernatorial election in Bayelsa State, it is not open to the defendants to conduct another primary election while the plaintiff has not withdrawn and has not been disqualified by any law or court order.

DECLARATION that the defendants cannot rely on any purported extensive consultation with stakeholders of Peoples Democratic Party (PDP) to remove and/or render ineffective the valid nomination/candidate of the plaintiff as the candidate of the PDP in the forthcoming Governorship election for Bayelsa State.

DECLARATION that the National Working Committee of Peoples Democratic Party (PDP) is not empowered under the Constitution of Peoples Democratic Party (PDP) to appoint, constitute and/or inaugurate as screening committee or screening appeal panel or by whatever named called to screen the plaintiff who has been validly nominated by PDP and whose name has been forwarded to INEC as her candidate for the forthcoming Governorship election in Bayelsa State.

AN ORDER setting aside all steps, actions and arrangements made by the defendants for the conduct of another primary election for the purpose of choosing a candidate for the forthcoming gubernatorial election of Bayelsa State.

INJUNCTION restraining the defendants from conducting another primary election to choose a candidate for the forthcoming gubernatorial election in Bayelsa State.

INJUNCTION restraining the 1st defendant from accepting and/or acquiring from the 2nd and 3rd defendants any fresh name or submission of new name as Peoples Democratic Party Governorship’s candidate for Bayelsa State, other than the name of the plaintiff submitted to it by the 2nd defendant in January 2011 as its candidate for the Governorship Election of Bayelsa State.

INJUNCTION restraining the defendants from changing or substituting another name for the name of the claimant already forwarded to the INEC as the Governorship candidate of the PDP in the forthcoming gubernatorial election of Bayelsa State.

ALTERNATIVELY

In the event that the court finds that the defendants can conduct a fresh or another primary election to choose a candidate for the said election, the plaintiff claims as follows:

DECLARATION that having paid all necessary levies to the PDP and having been duly nominated in accordance with Section 32 of the Electoral Act, 2010 as amended the Plaintiff is entitled to participate in the primary election of the PDP at which a candidate will be elected to contest the forthcoming gubernatorial election of Bayelsa State.

DECLARATION that any such primary election cannot be conducted by the defendant until all candidates for same have been given adequate campaign time and equal opportunities and facilities for participation in the primary election.

DECLARATION that under and by virtue of the Constitution of Nigeria 1999 (as amended) the Constitution and Guidelines of PDP question of security is not a factor to determine whether a person should be cleared to contest primary election of the political party.

DECLARATION that the decision of the National Working Committee of the Peoples Democratic Party to disqualify the plaintiff from participating at the Governorship primary election for Bayelsa State when the plaintiff or any other person never appealed to it and when there was no sitting of the body as an entity, is null void and of no effect whatsoever.

DECLARATION that the decision of the National Working Committee of the Peoples Party to issue a press statement disqualifying the plaintiff from contesting the Governorship primary election in Bayelsa State, without affording the plaintiff a hearing is null and void for violating the plaintiffs constitutional right to fair hearing guaranteed by section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as well as the African Charter on Human and Peoples Right.

INJUNCTION restraining the defendants, by themselves, their agents, servants and/or privies or otherwise howsoever from conducting any ward congress and from further embarking on activities leading to any primary election to the PDP for the said gubernatorial election any time earlier than four weeks from the date of judgment and after the name of the plaintiff/claimant would have been published as was done in respect of other candidates in the PDP primary election for the post of Governor of Bayelsa State.

A motion of Notice was filed along with the originating summons. Therein the Plaintiff/applicant asked for the following orders:

AN ORDER of Interlocutory Injunction restraining the defendants officers or otherwise and/or any other person however described from conducting, organizing or holding any meeting or ward congress and embarking on any activities leading to the holding of any fresh gubernatorial primary election for Bayelsa State on the 19th of November, 2011 or on any other day pending the determination of the substantive suit.

AN ORDER of Interlocutory Injunction restraining the 1st defendant whether by itself, servant, agents, privies or however called from accepting from the 2nd and 3rd defendants any fresh submission of name of Governorship aspirant from Bayelsa State to change/substitute the name of the plaintiff which has already been submitted to the 1st defendant after the primary election of January 2011, pending the hearing and determination of the substantive suit.

AN ORDER of Interlocutory injunction restraining the 2nd and 3rd defendants, whether by themselves, servants, agents, privies or howsoever called from forwarding a fresh name or governorship aspirant to the 1st defendant when the plaintiff is still alive and has not withdrawn his candidacy for the governorship election of Bayelsa State, pending the determination of the substantive suit.

AND/OR ALTERNATIVELY

AN ORDER of Interlocutory Injunction mandating the defendants whether by themselves, their servants, agents, privies or however, called to publish the name of the plaintiff as an aspirant for the 19th November, 2011 governorship primaries in Bayelsa State or any governorship primary election schedule for Bayelsa State, on any date which the defendants may choose pending the determination of the substantive suit.

The 1st respondent (INEC) filed an application exparte asking for the same reliefs. Kolawole J of the Federal High Court presided. His lordship heard the Motion exparte on the 15th of November 2011. The following orders were made:

That the instant motion exparte is not refused, but the defendants shall be put on Notice of same and they shall within 72 hours of being served with the said motion on Notice, show cause why the plaintiff shall not be entitled to the preservatory orders as the said prayers 1 – 3 on the motion exparte seek.

That in the event that the defendants when served with the originating summons, the motion on notice and the enrollment of these orders the 2nd and 3rd defendants in particular, were unable to show such reasonable and or just cause why the orders shall not be made, this court will have no hesitation in granting the said orders in the way and manner as couched or any grant prayer 4 as the alternative prayer couched in the motion exparte.

That in the event, perhaps, unlikely that the 2nd defendant in defiance of these orders, take steps which may be prejudicial perhaps subversive of those orders and of these proceedings before the return day, which I have fixed at 22/11/2011, this court will without much ado, proceed to making such necessary orders to nullify such steps or decisions taken once they are served with the processes and/or orders made therein order to uphold and protest the sanctity of the courts processes and to vindicate the integrity of the court as the established constitutional arbiter between the State and the citizens and between the citizens interse.

That the originating summons together with motion on Notice and the Certified True Copy of the Enrollment of these orders made herein shall be served on the defendants, the 2nd and 3rd defendants in particular shall within 72 hours of such service, show cause why the Plaintiff shall not be entitled to have the orders sought by this motion exparte dated and filed on 14/11/2011 granted in his favour.

That the said motion on Notice is adjourned to 22nd day of November, 2011 for hearing along with the orders made on the defendants, the 2nd and 3rd defendants in particular to show cause why the plaintiff shall not have the orders sought exparte granted in his favour.

That the further consideration of this matter is further adjourned to 22nd day of November, 2011.

Dissatisfied with these orders, the 2nd defendant (the PDP) filed an appeal to the Court of Appeal. The PDPs complaint was the Federal High Court had no jurisdiction to entertain the plaintiffs action and that the learned judge made prejudicial statements which disqualified him from hearing the Motion on Notice and the substantive suit (i.e. the Originating Summons).

In its judgment delivered on the 7th day of January, 2012 the Court of Appeal held that the Federal High Court had jurisdiction to entertain the 1st respondents action. The Court proceeded to order the suit remitted back to the Federal High Court for the hearing of the Originating Summons on the merit. The court also held that the presiding judge disqualified himself by statements made in the Ruling on the 15th of November, 2011. This appeal is against that judgment.

The plaintiff cross appealed. The cross-appeal is SC.9/2012.

I must observe that the suit Nos’ of the appeals are wrong. The appeal was filed on 7/1/12, while the cross-appeal was filed on 10/1/12. A cross appeal is filed after an appeal has been filed. It follows naturally that the appeal must have an earlier suit number than the cross appeal. It is clear that there has been some lapse in the Registry of this court by giving SC.28/2012 to the appeal and SC.9/2012 to the cross appeal. It should be the other way round.

Learned counsel for the appellant, Mr. Tayo Oyetibo SAN formulated three issues for determination for the appeal. They are:

Whether the Court of Appeal was right in Law, in holding that the Federal High Court has jurisdiction to entertain the 1st respondents action, when the reliefs being sought in the 1st respondents originating summons and the facts disclosed in the affidavit in support of the originating summons, show clearly that his action relates to pre-primary election affairs of the appellant which are not justiciable and therefore outside the jurisdiction of the Federal High Court.

Whether the Court of Appeal was right in law in restricting itself to the main claims being sought by the 1st respondent on his originating summons, in holding that the Federal High Court has jurisdiction to entertain the action, when it ought to have struck out the action on the ground that the Federal High Court has no jurisdiction to entertain both the main claims and the alternative claims contained in the originating summons.

Whether the Court of Appeal was right in Law, in holding that the Federal High Court has jurisdiction to entertain the 1st respondents action when the reliefs being sought in the 1st respondents originating summons and the facts disclosed in the affidavit in support of the originating summons, show clearly that this action relates to pre-primary election affairs of the appellant which are not justiciable, and therefore outside the jurisdiction of the Federal High Court.

Learned counsel for the 1st respondent Mr. L. O. Fagbemi, SAN formulated two issues. They are

Having regard to the nature of the claim of the plaintiff/1st respondent, whether the Court of Appeal was wrong in its conclusion that, the Federal High Court has jurisdiction.

Whether an alternative claim can be used to determine the jurisdiction of the court.

Learned counsel for the 2nd respondent, Mr. A. Sadauki did not file a brief, while learned counsel for the 3rd respondent, Chief F. T. Egele filed a brief on the 1st of February 2012 wherein he adopted the issues in the appellants brief.

I have examined the issues formulated by the appellant and the 1st respondent. To my mind they do not address the real issue in this appeal. When such is the case an appeal court has inherent power to adopt or formulate issues that in its view would determine the real points in controversy. See Ikegwuoha v. Ohawuchi 1996 3 NWLR pt.435 p.146;

Aduku v. Adejoh 1994 5 NWLR pt.346 p.582.

INEC fixed gubernatorial elections for Bayelsa State for April 2011. The 1st respondent contested his parties primaries (i.e PDP) for that election in January 2011 and won. His name was forwarded to INEC as the PDPs candidate for the gubernatorial election fixed for April, 2011. The 1st respondent, then filed suit No.FHC/ABJ/CS/651/10. The suit was to determine when the tenure of the 1st respondent would come to an end. Whether on 28/5/2011 or 28/5/12, INEC held the view that the 1st respondents tenure would come to an end on 28/5/11. That explains why it fixed gubernatorial elections for April, 2011. The 1st respondent was of the view that his term would end on 28/5/12. The Federal High Court agreed with the 1st respondents view, and the Court of Appeal affirmed that judgment. After the decision INEC fixed gubernatorial elections for Bayelsa State for 12/2/12 while the PDP fixed its primaries for 19/11/11. The 1st respondent went to court because he claims to be the authentic candidate of the PDP by virtue of winning the primaries held in January 2011 and his name sent to INEC as the PDP candidate. He also went to court because the PDP (his party) refused to allow him contest the primary elections which was held on 19/11/11. To my mind the real issues in this appeal are:

Whether after the 1st respondent won the primaries conducted in January 2011 and his name sent to INEC as the PDPs candidate for the gubernatorial elections fixed for April, 2011, he is still the PDP candidate for the gubernatorial elections which was held on 12/2/12.

Whether the PDP can stop or prevent the 1st respondent from contesting its primaries conducted on 19/11/11 to choose its candidate for the gubernatorial elections which was held on 12/2/12.

Whether the Federal High Court has jurisdiction to hear and determine the 1st respondents claims.

At the hearing of appeal on the 7th day of February 2012 learned counsel for the appellant and learned counsel for the 1st respondents made lengthy submissions.

I shall not reproduce the submission since they shall be well reproduced when considering the issues for determination of the appeal.

Learned counsel for the appellant adopted his brief filed on 27/1/12. He urged this court to allow the appeal and strike out the action.

Learned counsel for the 1st respondent adopted his brief filed on 1/2/12 and urged this court to dismiss the appeal.

Both counsel agreed that this appeal raises the issue of jurisdiction and that if it succeeds suit No. SC.9/2012 is dead. I also agree. Learned counsel for the 2nd respondent did not file a brief. He informed the court that he is neutral.

Learned counsel for 3rd respondent adopted his brief filed on 1/2/12 wherein he adopted the three issue and arguments in appellants brief. He urged this court to dismiss the cross-appeal and conceded the main appeal.

Learned counsel for the 1st respondent observed that on the 7th day of January, 2012 learned counsel for the appellant filed a Notice of Appeal and on the 13th day of January, 2012 he filed a Notice of Withdrawal of Appeal.

He submitted that by virtue of the provisions of Order 8 Rule 6 (5) of the Supreme Court Rules an appeal which has been withdrawn is deemed dismissed. He further submitted that the appellants appeal was dismissed from that day. Record of Appeal shows that the appellant filed two Notices of Appeal on the 7th of January 2012 and on the 13th of January 2012.

On the 7th of February when the appeal was heard learned counsel for the appellant informed the court that he was withdrawing his Notice of Appeal filed on 7/1/12 and that he would rely on the Notice of Appeal filed on 13/1/12. There was no objection. Notice of Appeal filed on 7/1/12 was struck out, it having been withdrawn. An appellant may file more than one Notice of Appeal. All he is required to do is to indicate to the court which of the Notices of Appeal he would be relying on. A Notice of Appeal withdrawn is struck out.

This appeal is heard on the Notice of Appeal filed on the 13th day of January 2012.

ISSUE NO. 1

Learned counsel for the appellant observed that, though the 1st respondent won the primary election conducted by the appellant in January 2011. He abandoned the result of that primary by applying to the appellant to contest the primary election scheduled for 19/11/11. Reference was made to paragraphs IV. V. XIV of the affidavit in support of the originating summons, contending that by abandoning the results of the primaries conducted in January 2011 he was no longer PDPs candidate for the elections.

Learned counsel for the 1st respondent observed that the 1st respondent won the primaries in January 2011 and his name was forwarded to INEC as PDP candidate for the gubernatorial election filed for April 2011. He submitted that by virtue of Section 33, 35 of the Electoral Act, there cannot be a second primary or substitution of name in which a prior primary was conducted, contending that another primaries can only be conducted if the events envisaged in Section 35 occur. Finally he submitted that the primaries conducted in January, 2011 are valid.

The following sections of the Electoral Act shall be examined to resolved this issue. Sections 31, 33 and 35.

Section 33 of the Electoral Act States that:

’33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of this act except in the case of death or withdrawal by the candidate.

While section 35 states that:

’35. A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.

The interpretation of section 33 and 35 of the Electoral Act is that after a candidate wins the primaries of his party, he can only be substituted by his party with another person if he dies or withdraws.

If he chooses to withdraw he must inform the party in writing, signed and delivered by him, and the party shall notify INEC not later than 45 days to the election. I will pause here before I consider section 31 of the Electoral Act.

Section 33 and 35 supra are irrelevant since the 1st respondent never withdrew his candidacy or died. This is a case where the elections fixed for April 2011 in which he was to be the PDPs candidate was cancelled by INEC. INEC has the sole responsibility to decide when, election are to be held.

Now, paragraphs IV, V, XIV of the affidavit in support of the 1st respondents originating summons read:

(IV) That inspite of his protest and complaint, officials of the 2nd defendant advised that he should obtain another expression of interest form and nomination form as the party – PDP would not allow him to stand as its candidate based upon the previous primary consequent upon which he, again paid the sum of N500, 000 and N 5,000,000 respectively totaling N5, 500,000.00 to express his interest and for the nomination respectively.

(V) That in further alternative to his position of maintaining his mandate as the party flag bearer as per exhibit H and M series he attended the screening by the gubernatorial screening Committee for the fresh primary under protest on 27th day of October, 2011

(XIV) That he continued to campaign for the said primary election without the publication of his name by the 2nd defendant

My lords, the 1st respondent payed N 5.5 M (five Million five hundred thousand), presented himself to the Screening Committee of his party, and campaigned extensively for the fresh primary elections fixed by his party for 19/1/11 to choose its candidate to stand for Governor of Bayelsa in elections fixed for 12/2/12.

These are clear acts indicative of the fact that the 1st respondent had abandoned the results of the primaries he won in January 2011. He was now interested in the primaries fixed for 19/11/11. Furthermore the primaries that the 1st respondent won in 2011 fades into significance since the elections for which the said primaries was conducted were cancelled.

The 1st respondent won the primaries conducted in January 2011 and his name forwarded to PDP as the PDPs candidate for the elections slated for April 2011. With the cancellation of the elections of April 2011 the primaries conducted in January 2011 is no more of any relevance. INEC has the sole responsibility to fix dates for elections and to my mind if INEC fixes a date for elections and for whatever reason, be it logistic, I do not think anyone has a cause of action against INEC for cancelling an election (not held) and rescheduling elections for another day. Furthermore INEC fixed the elections for April 2011 on its understanding that the 1st appellants term would end on 28/5/11, but with the courts judgments that 1st appellant tenure would end on 28/5/12 the need to cancel election for April 2011 was justified. In sum the 1st respondent is/was no longer the PDPs candidate for gubernatorial elections held on 12/2/12 simply because he did not take part in the primaries for that election which was held on 19/11/11.

Since the general elections fixed for April 2011 were cancelled by INEC, the provisions of sections 33 and 35 of the Electoral Act are no longer applicable. With the cancellation of the general elections, primaries held in January 2011 are irrelevant for determining PDPs candidate for Governor of Bayelsa State.

ISSUE 2

Learned counsel for the appellant observed that the PDP conducted two primaries, in January 2011 and in November 2011. He further observed that paragraph 7 of the 1st respondents pleadings show clearly that both he and the PDP had abandoned the primaries conducted in January 2011, contending that on disclosed facts in his pleadings the real issue in controversy was a preprimary election affair of the PDP, having abandoned primary of January 2011. He submitted that the court has no jurisdiction to entertain/interfere with pre primary affairs of a Political Party. Reliance was placed on

Onuoha v. Okafor 1983 2 SCNLR p.244

Dalhatu V. Turaki 2002 15 NWLR p.845 p.310

Senator Y.G. Lado & others v. Congress for Progressive Change & other (unreported consolidated appeals SC/157/2011 and SC334/2011 delivered on 16/12/2011.

Concluding he submitted that the 1st respondents claim is not justiciable as it remains within the realm of the internal affairs of the party.

Learned counsel for the 1st respondent observed that the appellant and the 2nd to 4th respondents have no jurisdiction to substitute him for someone else after he won the primaries conducted in January 2011, contending that the primaries conducted in January 2011 is valid and the 1st respondent is the authentic candidate of the PDP for the gubernatorial elections for Bayelsa State.

He observed that the case relied on by learned counsel for the appellant were wrongly cited, contending, that at the time the 1st respondent filed the suit there was only one primary election that was held on 11/1/2011. Submitting that the argument of the appellant that this suit raised pre-primary election affair is highly misconceived and the argument should be discountenanced. He urged the court to resolve the issue against the appellant.

In deciding this issue I shall examine the following cases. They were all decided by the full court (i.e. of the Supreme Court).

Onuoha v. Okafor 1983 Vol. 14 NSCC p. 494

Dalhatu v. Turaki 2003 15 NWLR pt. 843 p.310

Amaechi v. INEC 2008 1 SC pt.1 p.36

Ugwu v. Arerume 2007 12 NWLR pt.1048 p.365

Onuoha v. Okafor (supra) decided that nomination or sponsorship of a candidate for election is a political matter within the discretion of the party.

Dalhatur v. Turaki (supra) followed Onooha v. Okafor (supra) Amaechi v. INEC (supra) decided that a person who contest and wins the primary election can only if barred from contesting the General Election, if and only if his political party gives congent and verifiable reasons for the substitution as required by the Election Act of 2006. If no such reason is given the candidate who won the primaries remains the recognized candidate of the party and would be declared the winner of the election (even if he did not contest the general election).

Ugwu v. Ararume (supra) explained section 34 of the Electoral Act 2000, thus. A political party intending to change the name of its candidate shall inform INEC in writing not later than 60 day to the election giving cogent/verifiable reasons. There shall be no substitution after 60 days.

Onuoha v. Okafor (supra) and Dalhatu v. Turaki (supra) are relevant in this appeal and I shall explain. Amaechi v. INEC (supra) is irrelevant because in that case Gov. Ameachi contested the primaries and won but was barred from contesting the General Elections. His party, the PDP was unable to give cogent and verifiable reasons why he was not allowed to contest the general elections.

In this case Gov. Sylva contested primaries in January 2011 for a general election fixed for April 2011. The general election was cancelled. Fresh primaries were fixed by this party, but he was not allowed to contest. There is thus no similarity in Ameachi case and this case. In Amaechis case he was barred from contesting the general election. In this case Gov. Sylva was barred from contesting primaries of his party.

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SC.9/2012

Jimoh Atanda V. Memudu Iliasu (2012)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The plaintiff’s claim at the trial High Court of Kwara State was for a declaration of title on a piece of land situate at Budo Isale Olooru village. The claims as stated in both the writ of summons and at paragraph 28 (1)-(5) of the Statement of Claim are as follows:-

“28 (1) A declaration that the plaintiff as the head of Abosede family has the customary right to sue for and on behalf of other members of the family.

(2) A declaration that the land situate at Budo Isale in Olooru village measuring 10.804 hectares belong to the Abosede family.

(3) An order of this court directing the defendant to pay the compensation of N200,000.00 to the plaintiff for the damages caused to the plaintiff’s land.

(4) An order directing the defendant, agents, servants and privies to vacate the land situate at Budo Isale Oloom village.

(5) An order of perpetual injunction restraining the defendants, agents, servants and privies acting or purporting to act in any manner as the customary owner of the land situate at Budo Isale Olooru village measuring 10.804 hectares.”

In response to the plaintiff’s claims, the defendant also filed their defence and Counter Claimed that:-

“they are the traditional owners of the land at Ehinkule/Budo Isale the subject matter of this litigation.

An order of perpetual injunction restraining the plaintiff’s family, agents, or privies from committing further act of trespass in the land in dispute. An order nullifying the customary right of occupancy purportedly issued by the Moro Local Government in favour of the plaintiff over the land in dispute.”

The brief facts of the plaintiff’s case are that he is of a direct lineage to one Mallam Abosede who founded Abosede in Olooru and who was the customary owner of a land measuring 10.804 hectares situate at Abosede area, Olooru village. He claimed that it was his forefather who was the 1st settler and that the Olooru village met his father already on the land. That Abosede is not within Olooru, but near Olooru. That the families known as Olooru are Tambaya, Ile-Alagbe, Ile Ojude and Ile Oju-Oja. That the defendants in this case are Tambaya and Ile alagbe families. That Abdullahi was a muslim, while the fore-father or the plaintiff was a traditionalist who worshipped Orisa-nla and that because of the difference in religions, Abdullahi gave Abosede the present place where his descendant (plaintiff’s family) now live called Budo Isale. It is in the evidence of the defendant in particular DW4 in chief that Budo-Isale Abosede and Ehinkule are one and the same place. The plaintiff alleged that the defendant trespassed onto their land measuring 10.804 hectares. The defendants on their part claimed that a parcel of land given to one Baba Olodo by the Abosede family falls within their land at Ehinkule Ile-Alagbe and deny liability.

In summary the defence case is that when the forefather of the plaintiff came, he met the defendant’s forefather called Abdullahi who founded Olooru, with his four children. That the plaintiff’s forefather was a guest of Abdullahi.

The plaintiff/appellant called six witnesses to substantiate their case, and also testified as PW7. On behalf of the defence, five witnesses were also called inclusive of the defendant. Relevant to state that the parties prosecuted the case in representative capacities. At page 50 of the record, the learned trial judge in a reserved judgment held thus and said:-

“Failure to identify the distinct area covered by this 10.804 hectares is vital to the case of the plaintiff and an injunction cannot be granted on an indefinite portion of land, the area must be distinct. For this reason the claims of the plaintiff at paragraph 28(2), (3), (4) and (5) must fail and it is hereby dismissed.”

Further still and in respect of the counter claim the learned trial judge also at the same page held and said:-

“The counter claim of the defendants also claiming the same portion for the same reason of uncertainty of area and a definite boundary, moreso that the defendants too have not put in any survey plan showing the area on which they desire an injunction to be granted, their counter claim too must fail and it is hereby dismissed.”

Against the foregoing decision, the appellant filed his Notice of appeal and sought for the following reliefs from the Court of Appeal, Ilorin Division:

“An order setting aside the judgment of the trial court and substituting therefrom judgment for the Appellant on all his heads of claim.”

The lower court on the 30th March, 2006 while not all agreeing on reasons, however reached a common conclusion that the appeal was devoid of any merit and dismissed the appeal thereof. It is against the dismissal by the Court of Appeal that the appellant has further appealed to this court. The notice of appeal at pages 155- 157 of the record of appeal was filed on the 29th June, 2006 and it contains four grounds of Appeal.

On the 25th September, 2012 when the appeal was fixed for hearing the learned counsel Messrs J. S. Bamgboye appeared with Y. S. Muhammed and represented the appellant while Messrs Adeboye Sobanjo with Wahab Ismaila also represented the respondent. The learned appellant’s counsel identified their brief filed 20th June, 2007; they adopted and also relied on same in urging that the appeal be allowed. In response, the learned respondent’s counsel, Mr. Sobanjo also adopted and relied on their brief of argument filed 20th August, 2007 and submitted in favour of dismissing the appeal as lacking in merit.

From the said four grounds of appeal, two issues were formulated on behalf of the appellant which same reproduced hereunder were also adopted by the respondent’s learned counsel. The issues are:-

“1. Whether the Appellant sufficiently proved the identity of the land in dispute and its Area as 10.804 Hectares to entitle him to judgment on all the heads of his claims.

2. Whether the findings by the Court of Appeal that the Appellant has title over land in Abosede is not a proof of exclusive ownership over the subject of dispute and entitles him to judgment.”

The learned appellant’s counsel in his submission to substantiate the 1st issue raised conclusively argued and delineated several reasons why the appeal should be allowed on this issue. The learned counsel conclusively re-iterated that in the absence of a specific issue raised as to the identity of the land in the pleadings and evidence led thereon, it cannot be correct to find that the identify of the land in dispute is put into question. That the parties have by consensus identified the land in dispute at the locus in quo and hence the court of Appeal was therefore grossly in error by conceding and allowing the mischief by the respondent on the issue of identity. Counsel further submitted that Exhibit C, the site plan covers the total area in dispute, that is to say 10.804 hectares. In other words, that the extent of the measurement is not meant to cover the whole of Abosede land as erroneously held by the Court of Appeal. Copious reference was therefore drawn to the pleadings at paragraphs 6 and 7 of the Respondent’s statement of defence at page 27 of the record of appeal to show that the identity of the land was very well known to the parties. Further reference was also made to the evidence by the appellant’s witnesses at pages 57-77 and that also by the respondent’s witnesses at pages 77-91 of the record of appeal. That the identity of the land was at the locus inquo clearly specified with all its features to the trial court, and that none of the parties disagreed on the location, situation and/or the area covered by the land. That the lower court also fell into the same error as did the trial court in holding that despite the avalanche of evidence at the trial the identity of the land was not proved. That technicality should not operate to circumvent the end of justice. Reference in support of the submission was relied on the decision in the case of Odofin v. Oni (2001) 1 SCN 130 at 144.

Furthermore the counsel submitted that the purpose of tendering the customary Right of Occupancy and a site plan admitted as exhibits ‘D’ and ‘C’ respectively was therefore only out of abundance of caution (ex cautila abundanti). That the findings by the Court of Appeal like the trial court on their conclusion that Exhibit C is more than an area of 10.804 Hectares and that it covers the whole of Abosede land is without basis for the following reasons:-

(1) Exhibit ‘C’ merely defines the area over which the Moro Local Government granted a customary Right of occupancy which is Exhibit ‘D’ and the area is 10.804 Hectares. It stands to reason that Exhibit ‘C’ which defines the area covered by exhibit ‘D’ could not have covered more than 10.804 Hectares, which is the Appellant’s claim as the land in dispute.

(2) It is clearly indicated on Exhibit ‘C’ that the area it covers is limited to 10.804 Hectares

(3) There is neither a composite plan showing the limit of 10.804 Hectares area of land as different from Exhibit ‘c’ nor is there any evidence, credible or incredible, that Exhibit ‘C’ is more than 10.804 Hectares.”

The learned counsel therefore subscribed to the findings and view held by the dissenting decision of Ogunwunmiju JCA that there was adequate and sufficient description of the land in dispute. That the court should therefore resolve this issue in favour of the appellant.

In response to the 1st issue raised the learned respondent’s counsel urged that this court should not disturb the findings and conclusions by the learned judges of the Court of Appeal as contained in the record of appeal. That Exhibits ‘C’ and ‘D’ tendered by the appellant covered the whole of Budo Isale and the area of land in dispute is put at 10.804 hectares per Exhibit ‘C’ tendered. That the area of land in question is not properly oriented on the plan and that neither is same drawn to scale and accurate nor did the boundary features reflected thereon. The learned counsel in support of his submission cited the case of Ijama Otika Odiche Vs. Oga Chibogwu (1994) 7-8 SCNJ 317 at 324-325 and also the view held in Samuel Okedare Vs. Oba Ahmadu Adebara & Ors. (1994) 6 SCNJ 254 at 267-268. In the circumstance, the counsel therefore urged that this court should uphold the finding arrived at by the trial judge and also affirmed by the lower court at page 137 lines 1-4 that the failure to identify the distinct area covered by 10.804 hectares is vital to the case of the plaintiff and that an injunction cannot as a matter of fact be granted on an indefinite portion of land without the area being distinct. Further reference in substantiation was also related to the case of Jinadu Ajao and Ors. Vs. Bello Adigun (1993) 3 SCNJ 1 at 7. That the findings in the case at hand are neither perverse nor have they led to a miscarriage of justice. Further reference was also drawn to the case of Engineer G. Agbi & ors. vs. Chief Audu Ogbe & ors (2004) 2 SCNJ 1 at 34-43. That the court should therefore discountenance the reference, made to the case of Moses Okhuarobo v. Chief Aigbe (2002) NWLR (Pt.771) 29 at 85.

The learned counsel also drew our attention to the decision in the case of Emily J. Bila Auta vs. Chief Wiley (2003) 7 SCNJ 159. A further call was also made that the following authorities which are not relevant should be discountenanced. The cases are:- Boniface B. Gwar v. S. O. Adole (2003) 3 NWLR (Pt.808) 546 and Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177.

That the combined effect of Exhibits ‘C’ and ‘D’ tendered by the appellant is over an uncertain and indefinite land. That this court should therefore uphold the findings by the trial court at pages 47-48 of the record to the effect that the respondents do not pay tribute to anybody on the land they are farming which also forms part of that now claimed by the appellant in this case. The case of Achibong vs. Ita (2004) All FWLR pages 930 cited by the learned trial judge is also commended to this court by the learned respondent’s counsel. In other words, that the identity of the land is very uncertain.

The appellant’s grouse on the 1st issue raised is simple and straight forward as it poses the question as to whether the appellant has established with sufficient and definite certainty that the land in dispute covers an area of 10.804 Hectares to entitle him to judgment on all heads of his claim. The issue squarely relates to the identity of the land which is the subject of contention.

The general principle of law governing the claim of title to land is trite and as laid down in plethora of decided authorities. In other words for a plaintiff to succeed in an action for declaration of title to land, the onus of proof lies on him to establish with certainty and precision the identity of the area of land to which he lays his claim. The plaintiff is herewith saddled with the responsibility of proving by evidence and otherwise as well as also describing with such degree of accuracy and aptitude that the identity of the area of land in respect of which he seeks its title is infact not in any doubt. The following authorities are relevant wherewith the identity is in question. Emily J. Binta Auta Vs. Chief Wiley Ibe cited supra; Emmanuel Ilona vs. Sunday Idakwo & ors. (supra), Jinadu Ajao and ors.v. Bello Adigun (1993) 3 NWLR (Pt 287) 389 at 397 and Simon Ojiakoko v. Obiawuchi Ewuru & ors. (1995) 12 SCNJ 79.

It is elementary to state therefore that the certainty of the identity of land in dispute is sine qua non a necessity as it was held in the case of Wahabi Maberi v. Oyeniyi Alade (1278) 4 SCNJ 102.

It is also trite that the mere mentioning of the area is not enough; the description and extent of the boundaries must be proved with exactitude. See the case of Ijama Otika Odicha v. Oga Chibogwu (1994) 7-8 SCNJ 317 at 324-325.

The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial court produce an accurate plan of such land. See again the cases of Mark Ugbo & ors. v. Anthony Aburime (1994) 9 SCNJ 23 at 34, and Ahwedjo Efetiroroje v. H.R.H. Okpalefe II (1991) 7 SCNJ 85 at 95.

I hasten to add at this point that the foregoing authorities which support the general principle of law are however relaxed and therefore do not apply in certain exceptional situational circumstances. In other words, the burden of proving identity will rest on the claimant only where it forms part of the subject matter, and has been put in issue. See the case of Fatuade v. Onwoamanam (1990) 2 NWLR (Pt 132) p.322. The determining factors that put an identity into question are the averments on the pleadings of the parties. It is the defendant therefore and by his statement of defence that can join issues with the plaintiff in that respect. Again see the case of Fatuade V. Onwoamanam supra.

With reference to the pleadings of the parties the plaintiff at paragraph 8 of his statement of claim pleaded thus and said:-

“8. The plaintiff avers that during the life time of the founder of their family (Mallam Sanni Iyanda Abosede) the landed property which is about 10.804 (Hects) which is approximately 10,804 square meters, situates at Abosede Area, Olooru village was happen to be the founder and customary owner without been the tenant of anybody, the plaintiff shall lead evidence to show how the founder came to settle on the land at the hearing of this matter.”

The defendant vide paragraph 6 of his Statement of Defence/Counter Claim at page 27 of the record of appeal, responded to the plaintiffs paragraph 7 of the statement of claim which preceded the foregoing paragraph 8.

It is also relevant to restate that, the said defendant did not however deem it necessary to respond to the plaintiff’s paragraph 8 reproduced supra. It is also pertinent to state that at paragraph 9 of the statement of Defence/counter claim, the defendant did vehemently deny plaintiffs paragraph 9 to 21 in the following terms:-

“9. The Defendants strictly deny paragraph 9 to 21 of the Statement of Claim and put the plaintiff to the strictest proof thereof.”

Having regard to the foregoing deposition of the statement of defence and counter claim, the paragraphs did not contradict the size of the area in dispute which the plaintiff by his paragraph 8 puts at 10.804 Hects. The statement of defence however specifically denied paragraphs 9 – 21 of the statement of claim. In the absence of a denial of the plaintiff’s averment at paragraph 8, it is in law deemed admitted by the defendant/respondent. For the defendant to have joined issue with the plaintiff thereon, he was expected to have clearly, specifically and outwardly registered his denial on the identity of area of the land in dispute. The authority of the case of Fatuade V. Onwoamanam supra is again relevant in point. See also the case of Owosho V. Adebowale Dada (1984) 7 S.C 149.

The law is therefore well settled and as laid down in plethora of authorities that facts admitted need no proof and the court is expected to act thereon.

Suffice it to say that the land in dispute is covered by a customary Right of Occupancy Exhibit ‘D’ and a survey plan Exhibit ‘C’. The fact upon which the exhibits are predicated have been pleaded at paragraphs 23, 24 and 25 of the Statement of Claim which reproduction are as follows:-

“23. The plaintiff avers that sometime in 1998 after a meeting with other members of the family agreed to apply to the authority of Moro local government for customary right of occupancy on the land for and on behalf of Abosede farnily, (sic) equally agreed to engage the services of surveyor for the side (sic) plan of the property.

24. The plaintiff further avers that I. K. Imam Eleshin-nla & co wrote a letter dated 30th of May, 2003 to the defendant family through the defendant and equally on the 5th day January, 1999 the authority of Moro local government issued a certificate of customary right of occupancy to the plaintiff for and on behalf of Abosede family, notice is hereby given to the defendant to produce the original copy of the letter written to him by the said I. K. Eleshin-nla & Co at the hearing of this suit.
25. The plaintiff avers that the customary right occupancy referred to in paragraph 24 above, and copy of the said side (sic) plans are hereby pleaded.”

In response to the foregoing paragraph 23 the defendant/respondent pleaded thus at paragraph 18 of the Statement of Defence and counterclaim:-

“The Defendant aver that paragraph 23 of the Statement of Claim is not consequential and hinding (sic) on the Defendant as the plaintiff does not have any title over which he could apply and obtain a customary right of occupancy as the traditional title has not been validly extinguished.”

Following from the foregoing paragraph 18 supra, the defendant/respondent is challenging the title and ownership of the plaintiff/appellant. There was however no response to paragraphs 24 and 25 of the statement of claim relating to the certificate of occupancy covering the land. In otherwords, the question of identity of the land was not therefore a problem to the defendants. The case of Owosho V. Adebowole Dada (supra) is hereby applicable wherein the principle of admissibility as to identity is called into operation.

Furthermore and at pages 46 and 47 of the record of appeal the learned trial judge arrived at the following deduction which is worth revisiting wherein he said thus:-

“The plaintiff gave the area of the land in dispute as 10.804 hectares and PW1 said it starts from Ehinkule to the primary school. A site plan of the whole of Abosede land was tendered and admitted in evidence. The defendants says (sic) the untarred road is the boundary that separates Ehinkule from Budo Isale but D.W.5 said the road was a later development and constructed by people of Onigaari to their village. On his part PW1 said the untarred road from the main road cut through Abosede land. From the above evidence the area of conflict is as to the boundary between plaintiff’s land and defendant’s land. Plaintiff believes that stepping out at the backyard of the Ile Alagbe, you step into plaintiff’s land which is called Ehinkule. PW6 said there is no specific place bearing Ehinkule, that the backyard of any house is Ehinkule in Yoruba Language. The court visited the locus in quo and saw that the land in dispute is behind Ile Alagbe compound. It was observed that the land between the Ile Alagbe and the primary school is a vacant land. The defence agrees that the land on the Primary school side belongs to the plaintiff. It was observed also that there is an untarred road leading to the primary School that cuts across the vacant land. D.W.3 also confirmed that this road was not there originally, it was constructed as a result of recent development. The issue then before the court is:-

Where is the boundary between plaintiff’s land at Ehinkule and defendant’s land. The road said to be a later development and constructed by the people of Onigarri to their village cannot be the original boundary between Olooru and Abosede”

I have stated earlier in the course of this judgment that the documents Exhibits ‘D’ and ‘C’ were pleaded at paragraphs 23 and 25 of the statement of claim and which ought to be read along side paragraph 8 of the same pleading which was deemed admitted by the defendant/respondent and related clearly to the area of land covering 10,804 hectares. Exhibits ‘D’ and ‘C’ issued in favour of the appellant therefore confirm that the land as stated in the customary Right of Occupancy is consistent with the appellant’s evidence that it is 10.804 hectares in size. By looking at Exhibit ‘C’ simpliciter and in the absence of any evidence to the contrary by the defendant, the plan is drawn to scale and shows the area covered as 10.804 hectares. This fact having been deemed admitted by the respondent needed no further proof. The peg nos at the boundaries as well as the accurate measurement from one boundary peg to another shown on Exhibit ‘C’, confirms that the land in dispute is not in doubt.

Furthermore, it is also in evidence that the learned trial Judge visited the locus in quo in company of the parties, their Counsel and also witnesses. The purpose and significance of such visit has been emphasized in the case of Oba E. A. Ipinlaiye II V. Chief Cornelius Oluhotun (1996) 6 MAC 146 wherein it was held at 157 thus:-

“The purpose of an inspection of a locus by a court of law is not to substitute the eye for the ear but rather to clear any doubt or ambiguities that may arise in the evidence or to resolve any conflict in the evidence as to physical features.”

In line with the foregoing view supra, the trial court as shown on the record of appeal at page 46 of its judgment found thus:-

“The court visited the locus in quo and saw that the land in dispute is behind Ile Alagbe compound. It was observed that the land between the Ile Alagbe and the primary school is a vacant land. The defence agrees that land on the primary school side belongs to the plaintiff. It was observed also that there is an untarred road leading to the primary school that cuts across the vacant land. D.W.3 also confirmed that this road was not there originally, it was constructed as a result of recent development.”

At page 47 of the judgment, the court also had this to say:-

“… the area of land in contention is limited to just the 10.804 Hectares between the Ile Alagbe and the Primary School; The said land is behind the compound of Ile Alagbe.”

The conclusion to be drawn from the above findings are threefold:- That

1. The land is dispute is a vacant plot of land lying between Ile Alagbe and the primary school.
2. The said vacant land in dispute lying between Ile Alagbe and the Primary school measures 10.804 Hectares.
3. A feature on the land in dispute is an untarred road leading to the primary school that cuts across the vacant land in dispute.

From the foregoing conclusions I hasten to ask the question, whether it would be correct to say that the land in dispute is unknown to the parties I will certainly answer this question in the negative. In otherwords, it is crystal clear to me that both the trial court and the parties are not in doubt as to the location of the land, the size thereof as well as the untarred feature distinguishing same. The foregoing conclusion in other words is sufficient to give the description of the land.

I would also wish to restate that with the analytical and detailed testimony of the evidence of witnesses coupled with the events that took place at the locus, there is sufficient and conclusive reason to presume that parties or the trial Judge were in no doubt as to the identity of the land in dispute. As a consequence I hold therefore that the conclusion arrived thereat by the learned trial Judge at page 49 of his judgment is with all respect a total misunderstanding of the land in dispute. This is what the judge had to say for instance:

“it is only where the disputed land is well known, the quantity, extent and area of land are known that a sketch plan can be dispensed with. Here the survey plan exh. C tendered cannot serve that purpose because only the survey plan of contested area is needed. There seems to be nobody out of the 12 witnesses called by the two parties who can say where the land at Ehinkule starts—————–. There is no clear cut of where the land of Abosede starts at the backyard of the Ile-Alagbe and Exh. C has not been of any help in this regard.”

In the review of his evidence earlier at page 46 of its judgment the trial court observed and said thus:

“As earlier said, the evidence of DW1 and DW4 is that Budo Isale, Abosede or Ehinkule is one and same place. DW1 said” Abosede also called Budo Isale” DW4 said “This place called Ehinkule is the same as Budo – Isale” DW5 said: “when Abosede came he first settled with our father but because of the difference in religion our father told him to settle at Ehinkule. Our father was a Muslim and Abosede worshipped Orisa-nla. It was our father that gave him Ehinkule which is the same as Budo Isale”

The foregoing serves to confirm that all the parties agreed that inspite of the various names given to the area of land in dispute, they were infact all referring to the same subject matter. The law is trite that ascribing different names to land by parties is immaterial for purpose of proving identity of land. See the case of J. A. Makanjuola v. Chief Oyelakin Balogun (1989) 5 SCNJ 42 and Onwuka v. Michael Ediala & Anor (1989) 1 SCNJ 102.

It is also significant and trite to state herewith that oral evidence of the description of the situation of a land in dispute will serve as sufficient proof of identity and which will dispence with the need to tender a site plan. This is especially where the court has visited the locus in quo. The view by this court in the regard has been well specified in the case of Odofin v. Oni (2001)1 SCN. Page 13 at 144.

On the nagging question of the identity of the land in dispute therefore, I am of the firm view that same had been proved by the plaintiff/appellant before the trial court which was grossly in error by holding the contrary or otherwise. I further hold that the justices of the court of Appeal on the majority decision also erroneously fell into the same trap as did the trial judge. In other words, the dissenting view held by Ogunwumiju JCA on this issue is upheld. The 1st issue is therefore resolved in favour of the appellant.

The second issue is whether the finding by the Court of Appeal that the appellant has title over the land in Abosede is not a proof of exclusive ownership over the subject matter of dispute and entitles him to judgment.

From the pleadings of the parties and evidence sought to be adduced by all the plaintiff’s seven witnesses as well as the five witnesses on behalf of the defendant, it is apparent that both parties are claiming the title and ownership over the land in dispute. It has also been found as a fact by the trial court that the land subject of contention is vacant and lying between Ile-Alagbe and the primary school. This in fact is the area measuring 10.804 Hectares. The genesis of the problem between parties had also been well highlighted in the judgment of the trial court at page 47 wherein it said:-

“It is to be noted that is was when a stranger was brought unto the land i.e. Baba Olodo being allotted a portion of land that brings(sic) about this dispute”

It is obvious therefore that the parties had always lived together in harmony before the alienation by the appellant to one Baba Olodo. The portion encroached upon forms part of the vacant land covering the area measuring 10.804 hectares and which from all indications is between the two locations of land held exclusively by each family. The land appears to be a common land between the parties and which both sides are free to make use of. The deduction therefore is, as long as the use of the land is by the two parties, there would be no resistance. It was the allocation made to one Baba Olodo a stranger that caused the problem and hence the claim by each party.

The general principle of law in a claim of this nature, that is to say for an order for declaration of title and injunction, the burden of proof is solely on the plaintiff who cannot rely on the weakness of the Defence.

See the case of Mrs. Hawa Gankon v. Ugochukwu Chemical Industries Ltd. (1993) 6SCNJ 263.

It was found as a fact at the trial court that the defendant/respondent is in possession of the subject matter.

The law is trite that for the plaintiff/appellant to succeed in dispossessing the defendant/respondent he must prove a better title. See the case of Madam Rianatu Shitu v. Alh Y. O. Egbeyemi and 2 others (1966) 7 MAC. P1.

In his submission the learned appellant’s counsel contended vehemently that the appellant had traced his root of title in an unbroken chain over the 10.804 Hectares of land called Abosede land in Exhibit C which is the subject matter of dispute. Counsel argued further that the chain comprising the founder, the heads of the Abosede family and Trustees of the land in order of succession are as follows:-

1. Mallam sanni Abosede (founder and Deceased)
2. Mallam Jimoh Akanbi (Deceased)
3. Mallam Subairu Ajao (Deceased and
4. Mallam Jimoh Atanda (current head)

Counsel re-iterated also that these facts were evaluated and found established by the trial court and affirmed by the Court of Appeal. That the descendants of Abosede continue to enjoy exclusive ownership and possession. The Counsel has called on us to specifically refer to exhibits D and C. and also take note of the dismissal of the Defendant’s counter claim by the trial court. Counsel also submitted as perverse the attempt purportedly made by the lower court in awarding to the Respondent a relief he claimed at the trial court and which was dismissed but without any appeal against same thereon. Reliance was anchored on the decision of this court in the case of Alhaji Abdul-salami Temiola vs Alhaji Mustapha Olohunkun (1999) 4 SCNJ 92 at 103. That the subsistence of the customary Right of occupancy, Exhibit D, by operation of law vests exclusive Right of the land in dispute in the Appellant. That payment of tribute is waiverable and not a sine quo non proof of exclusive ownership. That the findings by the Court of Appeal that the land in dispute was a free zone over which either party is entitled to farm is, with due respect unfounded. That there is no evidence whatsoever from which the lower court could reasonably have drawn such inference. The learned counsel submitted an error committed by the lower court and urged that the said issue be resolved in favour of the appellant.

In response to the said issue, the learned respondent’s counsel submitted briefly and urged this court to dismiss the issue as it is very presumptuous upon which no court of record is to rely thereon. That the court is only enjoined to act on factual evidence. That the appellant had failed to sufficiently identify the land over which the court is to give them title. That no court is to give judgment in facuo, or an order that cannot be enforced thereby making the court a toothless bulldog.

That an order of court is meant to be obeyed. That the appellant in the circumstance had failed to prove a better title than that of the Defendant/respondent who had proved by evidence to be in an undisturbed possession.

I have stated earlier in the course of this judgment that the learned trial Judge in his judgment found as a fact that the defendant/respondent is in actual possession of the subject matter in dispute. There is no appeal against this finding of fact. As rightly concluded by the trial court therefore, the onus lies on the plaintiff/appellant to prove absolute and exclusive ownership to the farmland being cultivated by the defendants/respondents before they can dispossess them of their right to continue. This was the view held by this court in the case of Madam Rianatu Shitu v. Alhaju Y. O. Egbeyemi & 2 ors. (supra) whereby the case of Amakor v Obiefuna (1974) 3 SC page 67 was referred to and followed with approval.

With further reference also made at pages 48-49 of the record of appeal the learned trial Judge proceeded with his judgment and said:

“Although the plaintiff claimed that their forefather Abosede was the 1st settler they did not say or categorical in their evidence that the defendants are their customary tenants in which case they would be required to be paying Isakole (tribute) to the plaintiff family.

The nature of customary tenancy is that a customary tenant is entitled to use and occupy the land subject to payment of rent and good behaviour;See Achibong vs. Ita (2004) All FWLR p.930. If the defendant had been farming for so long on the land without any challenge and without paying tribute to the plaintiff, the plaintiff needs more convincing evidence to show that they are the absolute owner of the land in dispute.”

The learned appellant’s counsel by his submission had challenged the lower court on its finding that the land in dispute is a free zone. It goes without saying that where an appellant fails to appeal on a finding of fact made by a court, it would not be allowed to submit thereon. I also hasten to say that from the two issues canvassed by the appellant’s counsel before us, the question relating free zone was not one of those raised. It is further relevant to restate that the appellant from all indication did not appeal against the finding by the trial court as contained at pages 48 and 49 supra. This is confirmed by the record of appeal at page 108 where it reveals that the two issues canvassed before the lower court were limited to the identity of the land in dispute and also the evidential effect of Exhibit D. The appellant in the circumstance cannot now be heard to complain against the “free zone” findings by the lower court therefore. It is not also sustainable as submitted by the learned appellant’s counsel that the lower court merely drew a wrong inference as to evidence of exclusive ownership and possession. Rather I hold the view that the conclusion was based on the findings of fact drawn by the learned trial Judge from the evidence adduced before him.

The learned appellant’s counsel further dwelt at great extent and relied on Exhibits D and C being the certificate of occupancy and the survey plan in favour of the appellant respectively.

Before the said documents could achieve the purpose desired by the appellant their legality must exceed the presumptive principle laid down that there was not in existence a holder of a better title. In other words, by mere being in possession of a certificate of occupancy is not ipso facto a conclusive evidence of title or ownership.

See the case of Chinye A. A. Ezeanah v. Alhaji Muhammed I. Attah (2004) 2 SCNJ 200 wherein this court at page 204 held and said:-

“A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however reputable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the court can revoke it.”

The Respondent as Defendant adduced evidence at the trial court that they inherited the land from their fore fathers and have since been staying thereon without any challenge from anybody except of course the allocation made to Baba Olodo which has triggered the suit, the subject matter of the case now on appeal. There is also an uncontraverted evidence as found by the trial court at pages 48 and, 49 of its judgment supra that the defendant/respondent have never paid “Ishakole” or tribute to anybody, not even the appellants. Even at the risk of repeating myself, I will again reproduce what the trial court said at page 48 of the record:-

“The plaintiff needs to prove absolute ownership of this farmland being cultivated by the Defendants before they can dispossess the Defendants of their right to continue their farming on the land in dispute.”

The law is trite again I say, and as rightly held by the trial court and affirmed by the lower court that where the defendant/respondent is in possession, the plaintiff/appellant to succeed must prove a better title then that of the former. See again: the authority in the case of Madam Rianatu Shittu v. Alh. Y. O. Egbeyemi and 2 others (supra).

From the foregoing deduction and as rightly arrived at by the lower court, I hold also that inspite of the Certificate of Customary right of occupancy Exhibit D, the plaintiff/appellant had failed to discharge the burden of proving that the family had exclusive possession and/or absolute ownership of the land in dispute. It has been held earlier in the course of this judgment that the appellant was unable to prove by evidence the existence of any official boundary erected physically or recognized traditionally by the two families and hence the finding by the lower court that the area in dispute was “apparently a no man’s land between the two portions of land held exclusively by each family.”

With all humility and respect, such finding cannot be faulted and I so hold. In the case of Awote v Owoduni (supra) the appellant failed prove within the land in dispute where their own boundary was.

The plaintiff/appellant as rightly held by the lower court was unable to prove exclusive possession and/or absolute ownership of any part or portion of the land in dispute. He cannot in the circumstance be granted a declaration of title as sought. The said issue is therefore resolved against the appellant.

On the totality of this appeal, while issue one on identity resolved in favour of the appellant issue two on the claim of title or ownership is resolved against him. In the result therefore, the appeal is hereby dismissed and I affirm the totality of the judgment of the Court of Appeal wherein the judgment of the trial High Court Kwara State delivered on the 11th February 2002 is hereby affirmed.

The appeal is dismissed with an order of N50,000.00 costs awarded in favour of the respondent against the appellant.

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SC.77/2007

Hon. Prof. Chudi Uwazurike & Anor V. Chief Austin Nwachukwu & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN J.S.C.

This is an appeal against the judgment of the Court of Appeal, Owerri Division in Appeal No.CA/OW/164/2011, delivered on the 28th day of May, 2012 in which the court dismissed the appeal of the appellants against the ruling of the Federal High Court in Suit No.FHC/OW/CS/75/2011 delivered on the 1st day of April, 2011 in which the court overruled the preliminary objection of the appellant against the jurisdiction of that court to hear and determine the matter.

On the 14th day of March, 2011, the 1st respondent caused a writ of summons to be issued against the appellants and 2nd respondent in which he claimed the following reliefs:-

“(a)An order of the court restraining the 2nd Defendant from submitting to the 1st Defendant, the name of the 3rd Defendant or any other name except the name of the Plaintiff as the PDP candidate at the forth coming election into the Federal House of Representatives for Ehime Mbano/Ihittee Uboma/Obowo aka Okigwe South Federal Constituency.

(b)An order of the Hon. (sic) restraining the 1st Defendant from recognising or accepting any other name from the 2nd Defendant as her candidate for the forth coming election into the Federal House of Assembly (sic) as representing Ehime Mbano/Ihitte Uboma/Obowo aka Okigwe South Federal constituency of Imo State accept (sic) the name of the plaintiff.

(c) A perpetual order restraining the Defendants, their agents, privies, assigns or other person acting for, through or by them however constituted from doing any act inimical to the position of the plaintiff as PDP candidate for Ehime Mbano/Obowa aka Okigwe South Federal Constituency House of Assembly (sic)”

It is the case of the 1st respondent who was the plaintiff in the trial court that he and the 1st appellant are members of the 2nd appellant and contested the party’s primary election to select the candidate for Ehime Mbano/Ihitte Uboma/Obowo, aka Okigwe, South Federal Constituency of Imo State election scheduled for 2nd April, 2011 which took place on 6th January, 2011, that he scored the highest number of votes cast at the said primary election but rather than forward his name as the duly elected candidate to Independent National Electoral Commission (INEC) (2nd respondent herein) 2nd appellant sent the name of 1st appellant who, according to the 1st respondent, was not qualified to contest the election.

On the other hand, the case of the appellants is that at the venue of the primary election on 6th January, 2011, 1st respondent, Dominic A. Nwachukwu, Emmanuel Okewulonu, Innocent Nwokorie stepped down, after accreditation of delegates and announced to the gathering that they had stepped down for the 1st appellant in the interest of the party and that the only candidate who did not withdraw and thus contested the primary election with the 1st appellant was Obe Francis C. Ibezim; that 1st appellant won the election with a landslide of 510 votes as against 10 votes scored by the opposing candidate; that as a result of the declaration of results, the name of 1st appellant was duly forwarded to the 2nd respondent as the candidate of the 2nd appellant for the election in question, on the 31st day of January 2011; that the appellants were surprised when they received court processes filed on 14th March, 2011 by the 1st respondent claiming the reliefs earlier reproduced in this judgment. The appellants are contesting the authenticity of the primary election documents which 1st respondent contends evidenced his participation and victory in the primary election.

However, on the 21st day of March, 2011, CHIEF C. EKOMARU, SAN for the 1st appellant filed a motion on notice praying the court to strike out the suit for want of jurisdiction on the following grounds:

“1. By the combined effect of section 31 (1), section 33 and section 35 of the Electoral Act, 2010 (as amended), this Honourable Court has no jurisdiction to entertain as a suit brought pursuant to section 87(9) of the Electoral Act, 2010 (As amended) or any matter or complaint relating to or arising from a Party Primary in view of the fact that the name of the 3rd Defendant/Respondent had already been submitted by the Peoples Democratic Party to the 1st Defendant/Respondent as a candidate.

2. The plaintiff having not taken part in the voting at the party primaries, have (sic) no locus standi to being in this suit, in the first stance.
3. This suit, filed on 14th March, 2011, is an abuse of court process in that the subject matter and the parties in (this suit are the same with suit NO. FHC/ABJ/CS/124/2011 Hon. Austin Nwachukwu vs INEC filed on 3rd February, 2011 pending before Hon. Justice Adamu Bello at Federal High Court, Abuja.
4. There is no political party in Nigeria known as the “People Democratic Party of Nigeria,” the 2nd Defendant in this suit.
5. The writ of summons was not properly issued as required by ORDER 3 Rule 4 of the Federal High Court (Civil Procedure) rules (sic), which gives a defendant 30 days to enter appearance and not 8 days as shown on the writ of summons in this case.”

The application was supported by an affidavit of 24 paragraphs on which the 1st appellant relied in moving the court. As stated earlier in this judgment, the trial court, in a considered ruling, overruled the objection resulting in an appeal to the lower court which was dismissed by that court giving rise to the instant further appeal. The issues for the determination of which have been formulated by Learned Senior Counsel for the 1st appellant, Chief Chukwuma Ekomaru, SAN in the 1st appellant’s brief filed on 13/8/12 as follows:-

“1. Whether by the combined effect of the provisions of sections 31 (1), 33 and 35 of the Electoral Act, 2010 (as amended) the lower court has jurisdiction to entertain a suit brought pursuant to section 87(9) of the Electoral Act, 2010 (as amended) or on any matter or complaint arising from a party primary Election in view of the fact that the name of the Appellant had already been submitted by the 2nd Appellant to the 2nd Respondent as a candidate before the suit challenging the party primary was instituted (Grounds 1, 2, 3, 4, of the Appeal).

ISSUE NO. 2

If the answer to issue No.1 is in the negative, whether this suit filed on 14th March, 2011, against the primary election held on 6th January, 2011 is maintainable against the Appellant whose name was submitted by the 2nd Appellant to the 2nd Respondent as a candidate on 31st January, 2011 or any other date whatsoever, in view of the provisions of sections 31 (1), 33 and 35 of the Electoral Act, 2011 (as amended) (Grounds 1, 2, 3, 4 of the appeal).”

Looking closely at the above issues, it is clear that there is only one issue for determination as what learned Senior Counsel calls issue No. 2 can only be considered in the alternative. It is only if that issue is considered as an alternative to issue No. 1 that it can be valid as the law is long settled that though an appellant or party may raise an issue for determination in an appeal from either a single ground or combination of grounds of appeal, he is not permitted to raise more than an issue from a ground or combination of the same grounds of appeal, as in the instant appeal where the same grounds 1, 2, 3, 4 of the grounds of appeal are said to support issues 1 and 2 formulated for determination. In the circumstance of this case only issue No. 1 can and will be considered in this judgment as I consider same to be the only valid issue arising for determination.

It should be noted that at page 463, the lower court held, on proliferation of issues as follows:-

“In the instant appeal, it is wrong for the Appellant to formulate two issues i.e. issues 1 and 2 both from Grounds 1, 2 and 3. It is also wrong to formulate issue No. 3 from Grounds 2 and 3 at the same time. The Appellant is not allowed to formulate several issues from one ground of appeal. This is clearly proliferation of issues which the court frowns at.

The consequences are that issues No. 2 and 3 having been formulated from grounds in respect of which issues have been raised are incompetent and are accordingly struck out along with argument canvassed thereunder…”

It is unfortunate that despite the above finding/holding on proliferation of issues, learned Senior Counsel without contesting that holding in this appeal, has repeated the same thing before this Court. This practice is not only contrary to law and practice but in very bad taste as it is settled law that a holding by a court which is not appealed against is binding on the party against whom it was made.

On the other hand however, learned counsel for 2nd appellant, JERRY E. EGEMBA ESQ in the appellant’s brief filed on 1/11/12 presented a single issue for determination to wit:

“Whether the lower court was right in holding that the trial court has jurisdiction to hear and determine the suit filed by the 1st Respondent (FHC/OWCS/75/2011) challenging the nomination and sponsorship of the 1st Appellant by the 2nd Appellant as its candidate in the April 26th, 2011 general election.”

On his part, learned counsel for 1st respondent K. C. NWUFO, ESQ, also raised an issue for the determination of the appeal, in the 1st respondent brief filed on 20/9/12 to wit:-

“Whether the court below was wrong when it held that the trial court’s jurisdiction to entertain suit No.FHC/OW/CS/75/2011 was not ousted merely because the 1st Appellant’s name had already been purportedly submitted to the 2nd Respondent”

It should be noted, however, that the 2nd respondent filed no brief of argument in this appeal.

In arguing the appeals, Counsel for the appellants referred the court to the provisions of sections 31(1), 33 and 35 of the Electoral Act, 2010, as amended and submitted that in the light of the said provisions, the lower court has no jurisdiction to entertain a suit brought pursuant to section 87(9) of the Electoral Act, 2010 (as amended) or any matter or complaint arising from a party’s primary in view of the fact that the name of 1st appellant had already been submitted by the 2nd appellant to the 2nd respondent as a candidate for the election in issue; that once an aspirant becomes a candidate of a political party, the Electoral Act, 2010, as amended protects the candidate from being changed or substituted for whatever reason by either INEC or the Political Party.

It is the further submission of Counsel that though by the provisions of section 87 of the Electoral Act, 2010, as amended, an aspirant can file an action against a party’s primary and a court of law can, pursuant to section 87(9) of the said Electoral Act, 2010 as amended, assume jurisdiction to entertain same, the court can only do so if the name of a successful aspirant has not been forwarded to INEC by the political party as its nominated candidate for an election; the case of Ehinlanwo vs Oke (2008) 16 NWLR (pt.1113) 357; Mohammed vs Resident Electoral Commissioner, Kaduna State (2009) All FWLR (Pt.468) 355, Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367; Onuoha v. Okafor (1983) 2 SCNLR. Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310 and Uzodinma v. Izunaso (2010) 17 NWLR (Pt.1275) 30 have been cited in support of the contention of the appellants; that the lower court failed to consider the effect of sections 31(1), 33 and 35 of the Electoral Act, 2010, as amended on the provisions of section 87(9) of the said Electoral Act, 2010 as amended, whether a suit brought pursuant to section 87(9) of the said Act can withstand the effects of sections 31(1), 33 and 35 thereof.

I have to note at this stage, that the brief of 1st appellant is full of repetition of the same point(s) over and over again. It has been said that repetition does not improve an argument. Learned senior counsel also raised very hypothetical sub-issues in his brief such as “The fine point to be decided in this appeal is whether, if a political party conducts a fresh primary election on the order of court, cancelling an earlier party primary, a political party can change or substitute the name of the former candidate in INEC with the new candidate that won at the fresh primaries in view of section 31(1), 33 and 135 of the Electoral Act, 2010 (as amended)

Another poser in this appeal is what is the effect of a court cancelling a primary election and ordering a fresh primary election, if the General Election has been won by another political party or by a political party…”

It is very difficult to see how these sub-issues can be said to relate to the main issue earlier reproduced in this judgment. They are clearly hypothetical as they do not have any relationship with the facts of this case.

In any event, Counsel for appellants urged the court to resolve the issue in favour of the appellants and allow the appeals.

On his part, learned Counsel for the 1st respondent submitted that the trial court has the jurisdiction to hear and determine the suit in question by operation of section 87(9) of the Electoral Act, 2010, as amended irrespective of the fact that the 1st appellant’s name was purportedly submitted to the 2nd respondent and that the 1st respondent’s case was not belated as same was filed prior to the holding of the National Assembly General Elections in question, and urged the court to so hold and dismiss the appeals, relying on Ehinlanwo vs Oke supra; Hassan vs Aliyu (2010) All FWLR (pt.539) 1007 at 1046; Uzodinma vs Izunaso (No 2) (2011) NWLR (Pt.1275) 30 at 60 and Ucha v. Onwe (2011) 4 NWLR (Pt.1237) 386 at 427.

It is very important to note that from the arguments of both counsel for appellants, the issue before this Court has been narrowed down as follows:-

Whether the courts have jurisdiction to hear and determine an issue arising from a Political party’s primary election under section 87(9) of the Electoral Act, 2010 after the name of the winner of the said primary election has been forwarded to INEC as its sponsored candidate for the general election in question.

It is not the case of the appellants that the courts have no jurisdiction to determine issues arising from primary elections under section 87(9) of the Electoral Act, 2010 as amended but that the courts can only do so before the name of the successful candidate at the primary election is forwarded to INEC by a political party as its sponsored candidate for an election.

However, we have not been referred to any authority for that proposition of the law by the appellants. The sections of the Electoral Act, 2010, as amended cited and relied upon by Counsel for appellants are sections 31(1), 33 and 35 and also section 87(9) thereof.

These provisions enact as follows:-

“31(1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections provided that the Commission shall not reject or disqualify candidates for any reason whatsoever…

33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of the Act, except in the case of death or withdrawal by the candidate.
34. A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election.”

On the other hand, section 87(9) of the said Act provides thus:-

“Notwithstanding the provisions of the Act or Rules of a Political Party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court or a High Court for redress.”

The question is whether a community reading of the above provisions of the Electoral Act, 2010 as amended could mean or it can be inferred therefrom that the jurisdiction conferred on the High Court by section 87(9) thereof is exercisable only when the name of the winner of the primary election in question has not been forwarded by the political party concerned to INEC (the Commission); or is there any time limit for exercise of the right of an aspirant to challenge the primary election under section 87(9) of the said Electoral Act, 2010 as amended The lower courts have concurrently held that the trial court has jurisdiction to entertain the matter as constituted.

It is settled law that jurisdiction is a peripheral matter which must be determined, when raised, by the court before proceeding to determine the matter on the merit if need be. Also trite, is the principle of law that it is the case of the plaintiff as stated in the writ of summons or statement of claim or any originating process that determines the jurisdiction of the court. In the instant case, I had earlier in this judgment reproduced the reliefs claimed by the 1st respondent as plaintiff before the trial court, it is clear from the said reliefs that the matter before the court has nothing to do with substitution of a nominated candidate by a political party neither does it call for cancellation of the party’s primary election for the nomination of the candidate for the election in question. The above being the case, it is very obvious that argument as to whether the court can cancel the result of a primary election and order a fresh primary election particularly after the conduct of a general election and declaration of result thereof do not arise at all. In any event, the jurisdiction conferred on the High Court under section 87(9) of the Act in question is limited to “an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election…..” to apply to or seek redress of his grievances from the High Court.

I hold the considered view that the jurisdiction conferred on the High Court by the above section of the Act is not limited to time, let alone circumscribed between the holding of the primary election and submission of the name of the nominated or sponsored candidate by the political party concerned. The provisions of section 87(9) supra is very clear and unambiguous and should be given its natural and plain meaning.

Learned Senior Counsel for 1st appellant has argued that the provisions of section 87(9) supra cannot derogate from those of sections 31(1), 33 and 35 thereof which submission I find not only strange but misconceived, particularly as the provisions of the said section 87(9) is not made subject to any provision of the Act. Rather it operates “Notwithstanding the provisions of the Act or Rules of a political party…..”

In other words, it overrides any other provision of the said Act, including sections 31(1), 33 and 35 thereof.

In dismissing the objection, the trial court held at pages 189 and 190 of the record of appeal as follows:-

“While there are provisions in the Electoral Act 2010 as amended which are similar to or in pari material with the provisions in the Electoral Act, 2006, there was no provision in the 2006 Act which resembles or is similar to S.87(9) of the 2010 Act (sic) as amended. S.87(9) having to come later in the said 2010 Act after sections 31, 33 and 35, and the said sub-section having commenced with the phrase “notwithstanding the provisions of the Act……” It has taken into cognizance the provisions of sections 1 and section 87(9) of the said Act and the intention of the legislature is that notwithstanding those section s(i.e S. 1-87(8), S.87(9) shall be applicable. In other words, the con of this suit particularly, notwithstanding sections 31 (1), 33 and 35, an aspirant may complain to the court if any of the provisions of the Electoral Act and the guidelines of a Political Party have not been complied with.”

It would, in my humble view be wrong and indeed perverse to take the position of learned Senior Counsel for the 3rd Defendant that “A court of law cannot assume jurisdiction to entertain a complaint arising from a party’s primary after the name of a candidate had been submitted to INEC”. EHINLANWO’S case (supra) on which he placed heavy reliance can be distinguished from this present suit since the 2006 Electoral Act did not contain a provision similar to S.87(9) of the 2010 Electoral Act as amended. Said decision of the Supreme Court is therefore not applicable in the peculiar circumstances of this suit.

The court has jurisdiction to entertain this suit pursuant to S.87(9) of the Electoral Act 2010 as amended. I so hold.”

The lower court agreed with above holding and rightly too, in my view, I therefore adopt the above holding as representing the statement of the law applicable to the facts of this case.

It is rather unfortunate that appellants have dragged this case, which is a pre-election matter all the way to this Court, not on any substantial point of law but purely, in my view, as a ploy to delay the hearing of the substantive matter by the trial court in a matter in which time is of the essence. The situation becomes more worrisome when we consider the fact that all the delay has been caused by very Senior Counsel, a Senior Advocate of Nigeria. It is clear that the term of office of the 1st appellant or any elected member of the House of Representatives is four years, which tenure cannot, being a Constitutional provision, be extended if 1st respondent, is at the end of trial, declared to be the nominated candidate for the election in question. In such a situation it is not only the 1st respondent who would be short changed but the constituency concerned. However, if it is 1st appellant who is the rightful candidate then it would be better if he continues to discharge his responsibilities to his constituency in the National Assembly in peace without the unnecessary detractions of a pending litigation. That is why the delay by appellants in the hearing and determination of the matter becomes very disturbing.

The above notwithstanding there are serious allegations from both sides bordering on fraud and/or forgery which must be looked into by the court and resolved. It will be very beneficial to the political system if the issues involved in this case are gone into and resolved expeditiously.

In conclusion, I hold the considered view that this is a most useless appeal I have ever had the opportunity to hear and determine as the same is completely uncalled for, unmeritorious and unfortunate. The appeal is consequently dismissed with costs, which I assess and fix at N100,000.00 against each appellant and in favour of the 1st respondent.

Appeals dismissed.

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SC.272/2012

Mr. Gabriel Jim-jaja V. Commissioner Of Police Rivers State & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division, delivered in Appeal No. CA/PH/313/2007 on 25th February, 2010.

Below is a summary of the relevant facts of the case. Appellant borrowed the sum of N1.4 million from the 3rd Respondent, a registered money lender. The loan granted on 15/2/2002 was to be repaid with the accruing interest on 15/3/2010. The loan was secured with a Certificate of Occupancy of the property – No.98, Egede Street, Mile 1, Diobu, Port Harcourt, Rivers State.

Appellant failed to repay the loan and the 3rd Respondent in his attempt to convert the security into cash, claimed that the Certificate of Occupancy was forged. He then wrote a petition to the Police and as a result the appellant was arrested but released on bail by the 1st and 2nd Respondents on his undertaking to repay the loan upon his release on bail. When he failed to honour his pledge to repay the loan, the 1st and 2nd Respondents arrested him again, but he was again released on bail, this time, at the instance of the 3rd Respondent.

Meanwhile, on his ex parte application, the High Court of Rivers State, presided over by Amadi, J, granted the appellant leave on 7/11/2002 to apply to enforce his fundamental right in terms of the reliefs set out in the Statement attached to the application for leave. The matter was adjourned for the motion on notice.

On 24/5/05, Kobani J, who heard the motion on notice held that the appellant’s fundamental rights have not been violated by the respondents, and accordingly dismissed the motion on notice. Aggrieved by the ruling, the appellant appealed to the Court of Appeal, Port Harcourt Division.

In its judgment delivered on 25/2/2010, the Court below held that “the 3rd respondent and the 1st and 2nd respondents worked in tandem at the peril of the appellant.” The Court vacated the ruling of the trial Court but went on to hold that damages could not be awarded as, according to the Court, the appellant did not pray for same.

The appellant appealed to this Court on the issue of award of damages. The lone ground of appeal is hereunder reproduced, shorn of its particulars:

“Ground of Appeal:

The learned Justices erred in law in holding as follows:… But in law it is not right for any Court of law to award a relief not sought as law Courts are neither charitable organisations not (sic) Father Christmas, Suffice it that the appeal is allowed…. I cannot award damages as none was asked.’ (See page 110-111 of the record).

In accordance with the rules and practice of the Court, the parties herein filed and exchanged briefs of arguments. In his brief filed on 12/4/2010, learned Counsel for the appellant formulated the following issue for determination:

“Was the Court of Appeal right to hold that Appellant as applicant did not seek or ask for damages and in any case from the available evidence on the records was the appellant entitled to be awarded exemplary damages”

In the joint brief of argument filed on behalf of the 1st and 2nd respondents, their learned Counsel raised a preliminary objection to the competence of the appeal. In the alternative, learned Counsel submitted the following issue for determination:

“Whether the Court below was right in refusing to award the Appellant damages on the ground that damages was not claimed.”

In his own brief of argument, learned Counsel for the 3rd Respondent also raised a preliminary objection to the competence of the lone ground of appeal and in the alternative urged the Court to determine:

“Whether the learned Justices of the Court of Appeal were right in law and upon the facts on record in not awarding exemplary or any damages of all to the Appellant after holding that his appeal was successful, upon the ground that he had not sought such damages from the Court.”

Learned Counsel for the appellant filed a reply to the preliminary objection and points of law in the 3rd Respondent’s brief. Arguing the lone issue in his brief, learned Counsel for the appellant referred to page 103 of the record and refuted the assertion by the Court below that the appellant did not ask for damages. He referred to s.6(6) (b)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 and the case of Federal Minister of Internal Affairs v. Shugaba (1982) 3 NCLR 915 at 954/6 and submitted that the appellant approached the Court on the principle of ubi jus ibi remedium to seek redress for the violation of his right by the respondents.

Learned Counsel referred to the Statement in Support of facts in the High Court and said that the appellant prayed for the sum of N2 million as damages against the respondents for unlawful and illegal detention. He referred to paragraph 4 of the Notice of Appeal in the Court below for the reliefs appellant sought in that Court.

Learned Counsel argued that since the evidence led in proof of damages was not challenged or controverted, the appellant ought to have been awarded the damages he claimed and proved. He relied on Incar Nig Ltd v. Adeboye (1985) 2 NWLR (Pt. 8) 453 at 454 ratio 1. With reference to page 102 lines 22-25 and page 103 lines 1 – 4 of the record, learned Counsel said that the Court below found as a fact that the respondents violated the right of the appellant but failed to award damages on the erroneous finding that the appellant did not ask for damages for violation of his rights. He referred to Federal Minister of Internal Affairs v. Shugaba (supra); John Folade v. AG Lagos State (1981) 2 ACLR 771 at 784.

He referred to s.35(6) and s.36(1) of the 1999 Constitution of the Federal Republic of Nigeria and argued that on proof of a violation of his rights, the appellant was entitled to compensation and public apology from the respondents. He referred to and relied on Etiochin Nie Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 4) p.47 and Odogu v. AG Federation (1996) 6 NWLR (Pt. 456) 508 at 519 (Paragraph f). Based on the above, learned Counsel for the appellant urged that Court to allow the appeal and award damages as claimed by the appellant.

Arguing his preliminary objection in his brief, learned Counsel for the 1st and 2nd respondents urged the Court to strike out the lone ground of appeal and ipso facto, the appeal, for being incompetent. He argued that the sole ground of appeal is of mixed law and fact and the appellant failed to seek leave of Court before filing same. He relied on s.233 of the 1999 Constitution.

In the alternative and in pursuit of the issue he framed for determination, he argued that the Court had no jurisdiction to determine an issue which did not arise from the judgment on appeal. He relied on Military Administrator of Akwa Ibom v. Obong (2001) FWLR (Pt. 60) 1456 at 1461; Ogbonnaya v. Adapalm Ltd (1993) 6 SCNJ 23; Oredoyin v. Arowolo (1889) 4 NWLR (Pt. 114) 172. He referred to the two grounds of appeal before the Court below and said that the award of damages was not an issue before that Court. He therefore submitted that the Court below was right to have declined to award damages to the appellant.

In his brief of argument, learned Counsel for the 3rd Respondent argued his preliminary objection, contending that the lone ground of appeal is of mixed law and fact and since it was filed without leave of Court, the same is incompetent. He relied on s.233(1)(a) and (g) of the 1999 Constitution as well as case law. He argued that since the sole ground of appeal is incompetent, the appeal itself is incompetent and ought to be struck out.

In the alternative, he argued the lone issue he formulated. He said that the Court is without authority to award what was not claimed. He relied on Oduwole & 3 Ors v. Prof. West (2010) 3-5 SC (Pt. 111) 183; Agip Nig Ltd & 3 Ors v. Ezendu & 9 Ors (2010) 1 SC (Pt. 11) 98; Balioli Nig Ltd v. Navcon Nig Ltd (2010) 5-7 SC (Pt. 11) 1.

Learned Counsel conceded that the appellant had sought N2 million damages against the Respondents for wrongful and illegal detention but added that the appellant did not complain about the refusal of the trial Judge to award damages and therefore the said refusal was not an issue before the Court below. He said that the appellant having been shown to have been fraudulent in his dealing with the 3rd respondent is not entitled to damages. He urged the Court to strike out the appeal as incompetent or in the alternative to dismiss same with costs as lacking in merit.

In his reply to the preliminary objection, learned Counsel for the appellant described same as misconceived. He referred to Ehinlanwo v. Oke & Ors (2008) 6-7 SC (Pt. 11) page 123 at 159 relied on by the 3rd respondent in his preliminary objection and argued that the case clearly established that an appeal on a ground of law arises where the ground of appeal shows that the trial Court or the appellate Court misunderstood the law or misapplied the law to the proved or admitted facts.

He submitted that the sole ground of appeal did not call for investigation the existence or otherwise of facts upon which the claim for damages is based. It neither challenged the finding of fact nor did it c all in question the evaluation of evidence by the trial Court. He invoked the provision of s.35(1) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. He urged the Court to dismiss the preliminary objection for want of merit. This reply relates also to the similar objection of the 1st and 2nd Respondents.

In reply to the 3rd Respondent’s argument on the merit of the appeal he relied on Asemota v.Yesufu (1932) 3 WCLR 419 at 421 and Ransome-Kuti & Ors v. Attorney-General of the Federation & Ors (1985) 2 NSCC 879 at 893, 895 and 896 and argued that a remedy for violation of fundamental rights is outside the purview of ordinary action seeking damages within the province of common law and that the appellant’s claim to damages is based on the principle ubi jus ibi remedium. He argued that appellant’s claim for N2 million and evidence adduced went unchallenged.

He urged the Court to allow the appeal and invoke its powers under s.22 of the Supreme Court Act and Order 8 R.12 of the Supreme Court Rules to grant the relief sought by the appellant.

The respondents’ preliminary objections were taken along with the substantive appeal. A preliminary objection is a pre-emptive strike and its resolution will determine whether or not the appeal will be determined on the merit.

A ground of law, as distinct from a ground of mixed law and fact and a ground of fact, was clearly explained by Onnoghen, JSC in Ehinlanwo v. Oke & Ors (supra), an authority cited and relied on by both the 3rd Respondent and the appellant. In the said case, His Lordship held, inter alia that:

“A ground of law arises where the ground of appeal shows that the Court of trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts.”

Where the substance of a ground of appeal reveals a misapplication of law to facts proved or admitted at the trial the ground of appeal is a ground of law and not of mixed law and fact or a ground of fact. See Ogbechie v. Onochie (supra) another authority relied on by the parties cited with approval in the later case of Osundele v. Agiri (2009) 12 MJSC (Pt. 1) 126 at 150. The facts are not in dispute. The purport of the sole ground of appeal and issue distilled therefrom is that in a proper application of the applicable law – s.35(6) of the Constitution (supra), the lower Court, having found as a fact that the respondents violated the fundamental right of the appellant ought to have awarded him damages.

I hold that the lone ground of appeal is a ground of law and not a ground of mixed law and fact as argued by the Respondents. The preliminary objection raised and argued in the 3rd Respondent’s brief and the similar objection raised and argued in the 1st and 2nd Respondents’ joint brief are devoid of merit and are hereby dismissed.

I have considered the three issues distilled, one each, by the appellant, 1st and 2nd Respondents and the 3rd Respondent, from the appellant’s lone ground of appeal. The issues are similar and I think the sub-issue in the appellant’s brief is more appropriate. It is hereunder reproduced as amended:

“… from the available evidence on the records and the finding of the lower Court was the Appellant entitled to be awarded exemplary damages…”

Be that as it may, I will restrict the issue to whether or not the appellant is entitled to award of damages. The single issue in this appeal falls within a narrow compass.

In the Statement of Facts in Support of his application, the appellant, as applicant in the trial Court, claimed inter alia:

”N2 million against the Respondents for unlawful and illegal detention.”

The claim was predicated on the fact that:

“Appellant’s arrest and detention since 23rd September, 2002 without any bail or charge is unlawful, illegal and ultra vires the powers of the Respondents.” (See pages 19-20 of the record)

The above facts were not disputed nor can it be said that the appellant was arrested and detained on the allegation of forged Certificate of Occupancy. His arrest and detention was predicated on his failure to repay the loan he obtained from the 3rd Respondent. If the appellant’s arrest and detention resulted from the allegation of forgery, which is a crime, the appellant could not have been released on bail on a mere undertaking to repay the loan, a civil matter.

This claim by the 3rd respondent is in conflict with the fact as stated in the 3rd Respondent’s brief. The criminal allegation of forgery was a ploy by the respondents to settle a purely civil matter – the recovery of the loan obtained from the 3rd Respondent by the appellant. It is unfortunate that the 1st and 2nd respondents at the instance of the 3rd respondent, on the pre of investigating a case of forgery, converted their office into a debt recovery outfit. There is no appeal against the finding of the lower Court that the Appellant’s right was violated by the Respondents thereby setting aside the contrary decision of the trial Court. In any case, the 3rd Respondent who did not cross-appeal nor did he file a Respondent’s notice cannot raise the issue of fraud which did not arise from the ground of appeal.

However, the Court below erred when it refused to award damages on the ground that the appellant did not claim damages for two reasons:

(1) Appellant claimed the sum of N2 million as damages against the respondents for unlawful arrest and detention. That claim, verified on affidavit evidence was not really contested. It is the law that evidence that is relevant to the issue in controversy and is admissible, admitted and not successfully challenged, contradicted or discredited is good and reliable evidence to which probative value ought to be ascribed and which ought to influence the Court in the determination of the dispute before it. See Chabasaya v. Anwasi (2010) 3-5 SC 208. Though the appellant did not specifically ask for exemplary damages for the violation of his right by the respondent, the Court below ought to have awarded him the damages he claimed and proved.

(2) Section 46 of the Constitution of the Federal Republic of Nigeria confers on a High Court special jurisdiction to deal with cases of violation of fundamental right of any person within the borders of this country. Section 46(2) provides:

“S.46(2): Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provision of this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.” (Underlining mine for emphasis).

The Chapter referred to in the provision reproduced above is Chapter IV dealing with Fundamental Rights. Section 35(1) guarantees to every person his/her personal liberty. The appellant’s case does not fall within the exceptions numbered (a)-(f) in section 44(2) of the Constitution. The respondents did not attempt to bring their case within any of the exceptions. Section 35(6) provides:

“s.35 (6): Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person….”

A community reading of section 36(6) and 46(2).of the Constitution (supra) will give effect to the principle of ubi jus ibi remedium. By section 35 and 46 of the Constitution, Fundamental right matters are placed on a higher pedestal than ordinary civil matters in which a claim for damages resulting from a proven injury has to be made specifically and proved. Once the appellant proved the violation of his fundamental right by the respondents damages in form of compensation and even apology should have followed.

In my view and with profound respect to their Lordships, the Justices of Appeal, erred when, having determined that the respondents violated the fundamental right of the appellant, they declined to award damages because none was claimed. I have demonstrated that the appellant claimed N2 million as damages and even if the appellant did not so claim, he is entitled to compensation on proof of violation of his right by the respondent pursuant to s.35(6) of the Constitution.

Having rightly held that the appellant’s fundamental right was violated by the Respondents the court below was wrong to have denied him damages by relegating him to the status of a panhandler approaching the Court for a handout.

In conclusion, I allow the appeal and pursuant to s.22 of the Supreme Court Act and Order 8 r.12 of the Supreme Court Rules, I order the Respondents, jointly and severally to pay to the appellant the sum of N2 million as damages/compensation for a violation of his fundamental right in arresting and detaining him unlawfully. No order as to costs.

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SC.97/2010

Alhaji Ganiyu Martins Vs Commissioner Of Police (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C.

The Appellant, Alhaji Ganiyu Martins, was arraigned before the Chief Magistrate Court Grade 1, Kano for the offence of Criminal breach of trust by servant and cheating contrary to Section 314 and 322 of the Panel Code. At conclusion the trial the appellant was found guilty of criminal breach of trust by servant. In conclusion the Trial chief Magistrate ordered as follows:-

“The accused is hereby sentenced to 2 years imprisonment or pay a fine of five thousand naira. I will not order the accused to pay N2.5million naira, rather I will ask him to pay the sum of N753,075.85 which he agreed between himself and the company”.

The facts of the case are quite clear. The appellant was an employee of NECCO Sweet Company as its imports Manager. In that company, the appellant was charged with the responsibility of procuring of raw materials for the use in production line of the company. In the course of the discharge of his responsibilities the company allegedly suffered a loss of the sum of N2.5 million. The matter was reported to the police. It is in the course of investigation that the appellant owned up the liability to the tune of N753,078.85. Out of the alleged sum missing as the result of the transaction handled by him on behalf of the company. The appellant then agreed to settle this amount by the payment of N30,000.00, N40,000.00 monthly instalments. A written agreement to this effect was signed by the appellant and the company.

On failing to honour the undertaking in the agreement to refund the amount to the company, the appellant was then arraigned before the Chief Magistrate Grade I and subsequently charged as follows:-

“I, Mohammed Nasir Abubakar, Chief Magistrate I Gyadi-Gyadi Kano charge you Ganiyu Martins as follows:- That you between the year January 1993 and September 1995 being a servant in the employment of NECCO Sweets Nigeria Ltd and in your capacity as import manager committed criminal breach of trust in respect of the purchase to the tune of N2.5 million naira over the said properties and that you thereby committed an offence punishable under Section 314 of the penal code” see p.39 of the record.

At the end of the trial, the appellant was found guilty and convicted as earlier stated above see p.65 of the record. The appellant was sentenced to 2 years imprisonment with the option of the fine of five thousand naira. The appellant then paid the fine but declined to pay the compensation ordered by the Chief Magistrate. He then appealed against his conviction and sentence to the State High Court of Justice in its appellate jurisdiction. The High Court after hearing the appeal dismissed it for lack of merit.

The High Court in its judgment held as follows PP 8 – 18 See especially pp 18.

“We are Satisfied that the order of compensation in the sum of N753,076.86 was properly made under both Sections 365 of the Criminal procedure code and Section 78 of the Penal Code. This amount was the one admitted by the appellant in Exhibit 1 and his statement made to the Police on 21/11/95. The learned Trial Chief Magistrate did not exceed his jurisdiction when he made the said order of compensation as same was properly fortified by the provisions of Section 365 C.P.C. and Section 78 of the penal code”.

The appellant was dissatisfied with the judgment of the High Court of Justice Kano and un-successfully appealed to the Court of Appeal, Kaduna Division hereinafter called the lower court.

After the hearing of the appeal the lower court in a unanimous decision dismissed the appeal of the appellant and affirmed the judgment of the High Court of Justice Kano. In its judgment the lower court on pp.114 – 115 held as follows: Per Mahmud Mohammed JCA as he then was.

“The record of this appeal speaks for itself. It shows that this appeal arose out of the decision of the trial Chief Magistrate court Kano convicting the appellant of the offence of criminal breach of trust by a servant under Section 314 of the Penal Code. The appellant was sentenced to a term of imprisonment of 2 years or fine of five thousand naira in the alternative. In addition to sentence, the appellant was ordered to pay the sum of N753,075.85 as compensation to the victim of crime for which he was convicted. These proceedings were clearly in exercise of the criminal jurisdiction of the trial Chief Magistrate Court. Therefore the provisions of Section 13 of the Chief Magistrate Court Law of Kano State which deals with the limit of the civil jurisdiction of such courts, is certainly not applicable to the proceedings now on appeal. The relevant provisions of the law which governed the power of the trial Chief Magistrate Court in exercise of its criminal jurisdiction to award compensation in addition to any sentence imposed on an accused person convicted and sentenced by it, is the one applicable. The relevant provisions of the law in this respect is partly contained in Section 78 of the Penal Code which states –

78. Any person who is convicted of an offence under this penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition or in substitute for any other punishment”

From this provision of the Law any court in exercise of its criminal jurisdiction in trying an accused person in Kano State for any offence under the penal Code, provided the trial ended in a conviction of the accused person, that court may also award compensation to the victim of the offence without any limit in addition to or in substitution for any other punishment for the convicted”.

The appellant was again dissatisfied with the judgment of the lower court and thus appealed to this Honourable Court. Parties filed and exchanged their respective briefs of argument as provided by the Rules of this Court. The appellant adopted his Brief of Argument before us on 20th September, 2012. The appellant in his Brief of Argument formulated two issues for determination thus:-

1. Whether or not the trial Magistrate can validly award compensation after conviction under Section 365(1) of the criminal procedure code and section 78 of the Penal Code without reference to the limit of its Civil Jurisdiction as affirmed by the Court of Appeal.
2. Whether or not the trial magistrate can validly award compensation after conviction under section 365(1) of the criminal procedure code and Section 78 of the Penal Code without reference to the limit of its criminal jurisdiction to impose fine”.

The respondent criticized the issues as formulated by the appellant and reframed this issues as follows:-

“Whether the Court of Appeal was right in affirming the decision of the High Court upholding the Order of the learned Chief Magistrate compelling the appellant to pay compensation in the sum of N753,075.85”.

At the hearing of the appeal on 20/9/12, the learned counsel to the appellant adopted its brief of argument and urged this court to allow the appeal. The two issues formulated by the appellant were argued together. It was the submission of the learned counsel to the appellant that by virtue of the provisions of Section 13 of the Magistrates Court law of Kano State the monetary jurisdiction of Chief Magistrates Court Grade I was limited to N30,000.00. It was therefore submitted that though Section 78 of the Penal Code and Section 365(1) of the Criminal Procedure code which was relied upon to make the Order of compensation in the sum of N753.075.85k did not place any limit to the amount to be awarded as compensation, the power to award compensation was not being mandatory but discretionary, a court of inferior and limited jurisdiction, like the Chief Magistrate Grade I must be guided by the limit of its monetary jurisdiction and cannot exceed same. It was contended that the award of compensation was civil in nature, thus the clear intention of Section 365(1) of C.P.C. is that award of compensation should be limited to the monetary jurisdiction of the Chief Magistrates Court. The case of NPA Plc v. Lotus Plastic Ltd. (2005) 12 SC. (Pt.1) 19 at 30 – 31 was cited.

It was further submitted that the combined provisions of section 78 of the Panel Code and 365(1) (b) of the C.P.C. by the use of the word may clearly shows that the Order for payment of compensation to the victim of a crime is not mandatory but discretionary of the option of the court because of the obvious civil nature of the Order, hence the trial court when making such an order, ought to be guided by the limit of its monetary jurisdiction on award of damages. Learned counsel further submitted that section 13 of the Magistrate Court Laws should be given its clear interpretation and read together with Section 78 of the Penal Code and Section 365(1) of the CPC in order to arrive at a just decision. Counsel relies on NPA Plc v. Lotus Plastic Ltd (supra) at 25, and Federal Ministry of Health and Anor v. Comet Shipping Agencies Ltd. (2009) 4-5 SC 110 at 128. It was further contended that the judgment of the lower court amounted to expanding the monetary jurisdiction of the Chief Magistrates Court I far and above the provisions of Section 13(2)(a) of the Magistrates Court Law instead of expounding it; he cited the case of Gafar v. Government of Kwara State and 2 Ors. (2007) 1 – 2 SC 189 at 25. The provisions of Section 78 of the Penal Code and Section 365(1) of the CPC are never intended to increase the civil and criminal jurisdiction of the Magistrates Courts.

Learned Counsel to the respondent Sa’eda, Esq. also adopted his brief of argument and urged the Supreme Court to dismiss the appeal. He criticised the manner the appellant formulated the issues for determination. It was his contention that the manner the issues were framed gives the impression as if this court is sitting on appeal against the judgment of the Magistrates Court instead of the Court of Appeal. He cited the case of Fasoro vs. Beyioku (1988) 2 NWLR (Pt.76) 265 and contended that this Court (Supreme Court) has no jurisdiction to sit on appeal against the judgment of the Chief Magistrate.

On the issue for determination distilled by him, learned counsel submitted that the Chief Magistrate had a civil jurisdiction limited to the tune of N30,000.00 by virtue of Section 13 of the Magistrates Court Law Cap 89 Laws of Kano State 1991 and that this limitation only applies to Civil causes or matter.

He referred to the provisions of section 13 of the Magistrates Court Law and contended that the law by itself is made subject to any other enactment which, according to him, include the penal code and criminal proceedings section 13 of the Magistrates Court Law does not apply. He therefore contended that the order of compensation made by the learned trial magistrate was in pursuance of his powers under Section 78 of the penal code and section 365(1) of the CPC. The said provisions of penal code and CPC do not give ceiling as to the amount of compensation that the Chief Magistrate was empowered to order, and this is the only plain and natural interpretation that could be give to these provisions. Counsel referred to the case of Nyame vs. F.R.C.N. (2010) 7 NWLR (Pt.1193) 344 at 399. Therefore to limit the amount a Magistrate can order as compensation under Section 365 of CPC would amount to doing violence to the plain provisions of the sections of the laws.

I have carefully and closely too considered the criticism of the respondent vis-a-vis the way and manner the appellant formulated his two issues for determination. The issues were formulated in such a way that suggests that this court was sitting on appeal against the judgment of the chief Magistrate Grade I. Far from it, this court has no jurisdiction to sit on appeal against the judgment of the chief Magistrate court. The court can only entertain an appeal against the judgment of the Court of Appeal. Therefore, any appeal to this court must be challenging the judgment of the court of Appeal: Any issue thus formulated for determination must not only arise from the grounds of appeal but also relate to issues determined by the court of Appeal which correctness or otherwise is put before us for determination. The only exception however, is where an application is brought and granted by this court for a party to raise an issue not raised before the Court of Appeal, such an issue must not only be substantial but there must be evidence on it in the record of appeal in order to enable this court determine it. However the respondent did not raise this issue as a preliminary objection as required by the rules and as such I would, in the interest of justice, consider the issues as formulated particularly when the two issues were argued together.

The gist of this appeal is the determination of whether the compensation of N753,075.85 awarded by the Chief Magistrate Grade I pursuant to the provisions of Section 78 of the penal code and section 365(1) of the CPC was validly made. The High Court of Justice Kano State sitting on its appellate jurisdiction agreed with the Chief Magistrate and on further appeal to the Court of Appeal, Kaduna Division, the judgment of the High Court of Justice Kano was affirmed, hence a further appeal to the Supreme Court. Section 13 of the Magistrates Court Law of Kano State (supra) provides thus:-

“S.13 – Subject to the provisions of the constitution, thus edict and any other enactment, a Chief Magistrate Grade I shall have and exercise jurisdiction in any civil cause or matter:-

In all actions for the recovery of any penalty, rates, expenses, contribution or other like demand, which is recoverable by virtue of any law for the time being in force: –

(i) It is not expressly provided by that or any other law that the demand shall be recoverable only in some other court; and

(ii) The amount claimed in the action does not exceed thirty thousand Naira. Provided that for the purpose of this paragraph the expression “penalty” shall not include a time in which any person is liable on conviction for a criminal offence”

While section 365(i)(b) of the Criminal procedure Code provides as follows: –

“Whenever under any law in force for the time being a criminal court imposes a fine, the court may when passing judgment order that in addition to fine, a convicted person shall pay a sum in compensation in whole or in part for the injury caused by the offence committed where substantial compensation is in the opinion of the court recoverable by civil suit”.

Section 78 of the Penal Code similarly provides as follows:-

“Any person who is convicted of an offence under this penal code may be adjudged to make compensation to any person injured by his offence and such compensation be either in addition to in substitution for any other punishment”.

At this juncture I must point out that the words of these enactments are not only clear but also un-ambiguous. The rule of interpretation of statutes enjoins courts to give such words their natural literal and ordinary meaning. See N.P.A. Plc v. Lotus Plastic Ltd (supra) at 30, Nyame v. FRN (supra) at 399. Looking at this provision of section 13 of the Magistrate Court Law Kano, it is clear that it only applies to “Civil cause or matter”. Thus a Chief Magistrate Grade I Kano does not have jurisdiction to entertain any “civil cause or matter” whose claim is in excess of N30,000.00 while sections 78 of the panel code and 365(1) of the Criminal Procedure Code relate to the criminal jurisdiction of the Chief Magistrates Court or any criminal court that have jurisdiction to hear and determine criminal cause or matter.

In my considered view for a Chief Magistrate or a criminal court to validly exercise the powers conferred by the provisions of sections 78 Penal Code and Section 365(1) of the C.P.C respectively it must be shown that: –

(a) The offence for which the accused person was charged is within the jurisdiction of the court:

(b) The accused person must have been convicted of the said offence;

(c) There must be evidence before the court which evidence must be such that, in the opinion of the court, would be capable of making the amount of compensation to be awarded recoverable by civil suit.

Hence the Sections (supra) do not give room to any criminal court to arbitrarily award compensation to any victim of an offence, when there is no sufficient evidence to such amount of compensation. In the instant case the appellant had on its own volution admitted the sum of N753,075.85k as the amount fraudulently gained from the assignment give to him by its employers.

Finally, this is an appeal against the triple decision of the three lower courts. The attitude of this court against concurrent decisions of lower courts is settled. It is that this court will not interfere with the concurrent findings of the lower courts except there is establishment mis-carriage of justice of a violation of some principles of law or procedure or the judgment is perverse. I refer to:-

a. National Insurance Corporation of Nigeria v. Power and Industrial Engineering Company Ltd (1986) 1 NWLR (pt.14) 1 at 36.

b. Enang v. Adiu (1981) 11 – 12 SC. 25 at 42.

c. Nwagwu v. Okonkwo (1987) 3 NWLR (Pt.60) 314 at 325; and

d. Igwego v. Ezendo (1992) 6 NWLR (Pt.249) 561 at 574.

In the appeal at hand, there is no slightest suggestion that there was any miscarriage of justice or a violation of substantive law or of any procedure to warrant any interference with the judgment of the court below now on appeal.

My lords, on the whole and in the light of The foregoing therefore I hold that this criminal appeal lacks merit and is hereby dismissed the judgment of the lower court affirming the conviction, sentence and order of compensation against the appellant by the Chief Magistrates Court are hereby further affirmed.

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SC.92/2009

Bona V. Textile Ltd. & Anor.v. Asaba Textile Mill Plc (2012)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA J.S.C.

The action that finally led to this appeal emanated from the High Court of Justice of Delta State in the Asaba Division, holden at Asaba. The action was initiated by the Asaba Textile Mill Plc as Plaintiff, hereinafter referred to as the Appellant while the Respondents herein were the Defendants at the trial court.

The action was commenced by a Writ of Summons under the undefended List Procedure. The plaintiff had claimed by the endorsement on its Writ of Summons as follows:

“(a) The sum of Five million, five hundred and sixty two thousand, eight hundred and seventy five naira, seventy two kobo (N5,562,875.72) being the defendants’ indebtedness to the plaintiff which sum the defendants refused to refund despite repeated demands.

(b) Interest on the said N5,562,875.72 at the rate of 20% until the entire sum is liquidated.”

In support of the claim was an affidavit of 19 paragraphs to which various documents were attached and marked Exhibits A to E respectively. By paragraph 17 of the supporting affidavit, the defendants were said to have no defence to the action. But on the 4th day of December,2003 upon being served with the processes, the Defendants filed their “Notice of Intention to Defend” the action. Attached to the said Notice was an affidavit of 26 paragraphs to which various documents were attached as Exhibits.

In its ruling of the 5th of February, 2004, the trial court having considered all the processes filed, granted the defendants leave to defend the action and thereby transferred the suit “from the Undefended List to the General Cause List for hearing and determination”

Thereafter, by a Notice of Motion dated 6th February,2004 the Respondent sought the following order from the trial court;

“To enter judgment for the plaintiff for the sum of N1,415,050.01 being the amount admitted by the defendants as their indebtedness to the plaintiff and so found by the court.”

To the Notice of Motion, the Appellants filed a counter affidavit of 9 paragraphs.

In its considered ruling on the said application, the trial court held inter alia, thus:

“This court having ruled and transferred this case to the General cause List and cannot go back and by whatever means or name or rule try to reopen that which is closed. It would however have been different if pleadings have settled and this issue were to arise out of the pleadings filed as a result of the transfer of this suit to the General Cause List.”

The refusal of the trial court to enter judgment summarily as sought led to an appeal to the court below on two Grounds of appeal as follows, bereft of the particulars:

“(a) Error in Law

The learned trial judge erred in law by refusing to enter judgment on the admissions made by the respondents in their affidavit evidence.

(b) Error in Law

The Learned trial judge erred in law in holding that he was functus officio thereby denying him jurisdiction to consider the appellant’s case”,

Before the Court below in the said appeal, the Appellant sought the following relief:

“That the ruling of the High court be set aside and judgment entered on the admitted sum of N1,415,040.01 (One million, four hundred and fifteen thousand,fifty Naira, one kobo) by the Respondents in favour of the Appellant.”

In its considered judgment on pages 73-105 of the record, the court below allowed the appeal and finally held as follows:

“I hold that there was an admission of indebtedness of the Respondents to the Appellants to the tune of N1,415.050.01 and that the trial Judge was wrong in his finding that there was no such admission and therefore resolved the sole issue in favour of the Appellants.”

The Respondents were dissatisfied with the decision of the court below leading to the instant appeal to this court.

Upon being served with the record of appeal, parties filed their respective brief of argument and exchanged same accordingly.

On the 9th of October, 2012 when this matter came up for hearing, Mr. Ejike Ezenwa, Counsel for the appellants identified his brief of argument for the appellants. He sought leave of court to abandon issue No.2 formulated on page 2 of the brief with the arguments on page 17-20 of the brief of argument, excluding the conclusion on that page. He sought not to rely on the said argument any longer. Havingnbeen abandoned, the second issue formulated on page 3 and the argument of counsel on the said issue on pages 17 to 20 were accordingly struck out.

Learned counsel, thereafter referred to the brief of argument he filed on 10/10/2007 but which was deemed properly filed and served on 17/06/2008. He adopted the said brief of argument and sought to rely on the submissions therein to pray the court to allow the appeal and set aside the decision of the court below.

Learned appellants’ counsel referred to the Preliminary Objection of the respondent and contended that not having been argued by the Respondent its brief of argument, it was of no moment and should be discountenanced.

Mr. C. O. Erondu of Counsel for the Respondent referred to the Notice of Preliminary Objection he filed on 19th September, 2008 though dated 2nd September, 2008. Also referred to the Respondent’s brief of argument which was filed on the same 19/09/2008 attached to the Notice of Preliminary Objection. He adopted the said brief of argument. He referred to the argument of the Preliminary Objection on the first part of the brief of argument with the second part containing the argument on the appeal. He moved his Preliminary Objection and finally urged the court to uphold the Preliminary Objection and then dismiss the appeal in its entirety.

Before I proceed further to consider the appeal, I have considered the Preliminary Objection raised by the Respondent to the appeal. I found no substance in the said Preliminary Objection and therefore without any further ado, being of no moment and lacking in substance and merit the said Preliminary Objection is overruled and dismissed.

Now to the merit of the appeal. The appellants relied on only one issue for determination distilled as follows:

“Whether there was clear and unequivocal admission or indebtedness of the sum of N1,415,050.01 by the appellants to the Respondent and whether the Court of Appeal Justices was (sic) right to have entered judgment for the respondent.”

The Respondent in its own brief of argument also distilled a sole issue for determination of this appeal. The said issue was couched as follows:

“Whether the court of Appeal was right to allow the respondent’s appeal and grant its application for part judgment on the admission of the Appellants.”

As shown above, it is clear that the sole issue distilled by both the Appellants and the Respondent respectively are the same though couched differently. The issue is:

“Whether the Court below was right in allowing the appeal based on an alleged admission of indebtedness by the Appellants to the Respondent in their affidavit in support of their Notice of Intention to defend an action earlier brought under the Undefended List procedure.”

In arguing this issue, the appellants contended that the court below was wrong in setting aside the ruling of the trial court which dismissed the respondent’s Motion for Part judgment based on alleged admission as there was no admission of any indebtedness by the appellants. They contended further that the court below was in error in entering judgment in favour of the Respondent for the sum of N1,415,050.01.

They referred to the background of the case from the filing of Writ of Summons under the undefended List Procedure until the case was transferred to the General Cause List having found that there was need to try the case on pleadings.

Learned appellants’ counsel submitted that the Order or decision of the trial court transferring the matter to General Cause List is an order directing parties to file pleadings and an order directing that trial shall be by pleadings and calling of witnesses.

The appellants contended that the Respondent did not comply with the order for pleadings to be filed and trial conducted. Instead the Respondent filed a Notice of Motion for Judgment for the sum of N1,415,050.01-claiming same to have been admitted by the Appellants out of the Respondent’s claim of N5,562,875.72 under undefended List, a claim which had been transferred to the General Cause List.

Learned Appellants’ counsel submitted that the appeal by the Respondent to the Court below was an indirect appeal against the order of the trial court which directed trial by pleading. He submitted further that there is no right of appeal against an order of court transferring a suit from the undefended list to the general cause list. He referred to Section 241(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the learned Justices of the Court below failed to appreciate that the Respondent by failing to file pleadings as ordered by the trial court had consciously circumvented the decision and Order of the trial court and by awarding judgment to the Respondent based on the Respondent’s application for part judgment has tactfully encouraged the violation of the Constitution bar imposed by Section 241(2)(a)(i) of the 1999 Constitution (as amended).

Learned counsel referred to the controversial paragraph 18 of the appellant’s affidavit support of their Notice of Intention to defend the action. He referred also to the preceding paragraphs 1-17 and the succeeding paragraphs 19-20 of paragraph 18 of the said Affidavit and contended that it is the totality of affidavit in support of the Notice of Intention to defend that will be construed to determine whether or not indeed there was an admission of indebtedness by the appellants.

The appellants referred to the further affidavit filed by the respondent in reply to the affidavit of the Appellants in support of their Notice of Intention to defend the action. They contended that it was in fact the obvious contradictions and facts that made the trial Judge hold that the affidavit evidence has not helped the court in resolving the difference, hence oral evidence should be adduced by both parties upon pleadings. He submitted that that was the reason for the transfer of the suit from the Undefended List to the General Cause List.

The Appellants referred to paragraph 5, 6, 7, 8, 9 and 10 of the affidavit in support of the Notice of Intention to defend to the effect that the plaintiff dumped its low quality goods with the defendants to sell. In other words, that the 1st Appellant was merely assisting the plaintiff to market low quality or sub-standard goods and contended that there is nowhere in the entire 7 paragraph further affidavit filed by the Respondent that the averments were denied. He submitted that where a material fact in an affidavit is not controverted by the opposing party, then the facts are deemed admitted. He relied on Ejikeme vs. Ibekwe (1997) 7 NWLR (Pt. 514) 592 at 598.

Learned counsel referred to Order 30 Rules 1 & 3(1) of the Bendel State of Nigeria High Court (Civil procedure) Rules, 1988 applicable to Delta State and submitted that for an averment or statement to be considered as an admission of fact by the court, it must be solemn and unequivocal as to the exact details of what is being admitted.

Learned counsel submitted further that an admission against interest envisages a conscious act, a direct and unequivocal acceptance of the state of facts put forward by the other party. It must be clear and definite acceptance of facts stated. If there is possibility of doubt or uncertainty or discrepancy, it definitely cannot amount to an admission. The appellants contended that the appellants’ affidavit as well as the Respondent’s further affidavit obviously raised triable issues in the action which led the trial court to transfer the suit from Undefended list to the general cause list.

The appellants referred to the mutually agreed method of off-setting the balance of the old outstanding in their account, based on the 80:20 formula. They contended that the Respondent breached this agreement, and this is deposed to in their affidavit in support of their intention to defend the action.

The appellants further contended that the fair and just resolution of the issue at stake must necessitate the proper construction of the said 80:20 formula agreement and whether or not the contract has been determined by the act of the Respondent. They submitted that this can only be done by full trial evidence but not on affidavit evidence.

Learned appellants’ counsel submitted that the court below was duty bound to consider and determine all issues placed before it for determination in order to find out whether there was clear and unequivocal admission. And by failing to consider other paragraphs of the Appellants’ affidavit, the court below failed to consider and determine whether paragraph 18 amounts to an admission and that even if it does, whether there was a defence disclosed in support of the notice of intention to defend. They relied on Efownornu Vs Ewdok Eter Mandilas Ltd. (1986) 2 NSCC 1184 at 1209 – 1215, per Aniagolu, JSC, Kotoye Vs Saraki (1994) 7-8 SCNJ 524 at 560, per Onu, JSC

In the final analysis, the Appellants urged the court to set aside the decision of the court below and to restore the decision of the trial court transferring the matter to the general cause List for hearing and determination.

On this issue as formulated by the Respondent, it was submitted that the Respondent properly invoked the jurisdiction of the trial court to request for part judgment on the admitted sum after the transfer of the substantive matter to the general cause list. Reliance was placed on Chrisdon Ind Co. Ltd Vs AIB Ltd (2002) 8 NWLR (Pt.768) 152 at 187. The rule of court referred to in the said case was impari material with Order 30 Rule 1 of the Bendel State High Court (Civil Procedure) Rules 1988 applicable to Delta State which the Respondent invoked under the general cause List. Learned counsel to the Respondent contended that the trial Judge was not functus officio as the court believed, after having transferred the matter to the General cause list. He submitted that indeed the General cause list gave the trial judge the jurisdiction to entertain the said application. He cited Mosheshe General Merchant Ltd Vs. Nigeria Steel Productions Ltd. (1987) A; NLR 309 at 319 Per Aniagolu, JSC.

Learned Counsel conceded and submitted that it is settled law that an Order granting unconditional leave to defend or transferring the undefended list to the general cause list is not appellable. He referred to Section 241(2)(a) of the 1999 Constitution (as amended). He however contended that this was not an issue before the two courts below.

Learned counsel referred to paragraph 18 of the appellants’ affidavit support of the Notice of intention to defend the action of the Respondent at the trial court and submitted that the court below was right to hold that paragraph 18 amounts to a clear and unequivocal admission of indebtedness by the appellants to the respondent.

He referred to the 80:20 formula alluded to by the appellants as a mode of repayment but contended that it does not derogate from the admission. He cited Ken Frank (Nig) Ltd Vs UBN Plc (2002) NWLR (Pt.789) 46 at 73. He submitted that the court below was right to allow the Respondent’s appeal and grant its prayers. He urged the court to dismiss the appeal and affirm the decision of the court below.

As earlier indicated, the Respondent, as Plaintiff commenced the action under the Undefended List Procedure pursuant to Order 23 of the High Court (Civil Procedure) Rules, 1988 of old Bendel State which Rules were applicable to Delta State. The Plaintiff filed a Writ of Summons to which an affidavit of 10 paragraphs was attached with various documents annexed as Exhibits. In other words, the Procedure under the Undefended List, commences with the plaintiff’s application for the issuance of a Writ of Summons for a claim for liquidated money demand which application is to be accompanied by an affidavit setting forth the grounds upon which the claim is predicated and stating that in the belief of the plaintiff or deponent to the affidavit, the defendant does not have any defence to the action. It is entirely the duty of the High Court to which the application is made to consider same ex parte without hearing the argument as to whether to hear the matter under the Undefended List or transfer same to the General Cause List to be so dealt with accordingly. Where the court is satisfied, and this is subjective, if I may say so, that there are good grounds for believing that there is actually no defence to the plaintiff’s claim, enters the suit for hearing in the Undefended List. The Writ of Summons will then be marked as such and a date for hearing entered thereon. Thereafter, the entire processes are to be served on the defendant who if he desires to defend the action, must deliver to the Registrar of the court a Notice in writing of his intention to defend the claim. The Notice must have attached to it, an affidavit disclosing defence on the merit.

However, after considering the affidavit support of the defendants’ notice of intention to defend the action, the court may on the basis of the facts, disclose the affidavit of the defendant, grant leave to defend the action upon such terms as the court may think fit. Where leave to defend is granted by the court, the action is automatically removed from the Undefended List to the General Cause List, bringing an end to the procedure for summary judgment. See; Ekulo Farms Ltd.& Anor Vs. Union Bank of Nigeria Plc (2006) 6 SCM 78 at 100; (2006) 4 SCNJ 1641 (2006) All FWLR (Pt.319) 895; Dange, Shuni Local Government Council Vs Stephen Okonkwo (2008) All FWLR (Pt.415) 1757 at 1775.)

It is note worthy that upon deciding to retain the action on the Undefended List or transfer same to the Ordinary or General Cause List, as a matter of fact, both parties are taken to have been heard by virtue of the affidavits filed along with various annexures, if need be, in compliance with the rules of court which were considered by the court before taking such decision either way.

In the instant case, after the defendants were served with the specially endorsed Writ of Summons of the Plaintiff along with the supporting affidavit and other annexures, indicating that the claim against them was to be heard as Undefended, the defendants filed a Notice of Intention to defend the suit with an affidavit of 26 paragraphs to which couple of documents were attached and marked as Exhibits. The Plaintiff in turn filed a further affidavit in reply.

The trial court after considering the processes filed by both parties came to the following conclusion.

“The question for my determination is whether the affidavit and exhibits attached to the Notice of Intention to defend disclosed a prima facie defence and not whether the defence will succeed at this stage. I must point out here that the defendant admits in paragraph 18 of the affidavit in support of his application that the balance outstanding in his account is N1,415.050.01 and not N5,562,875.72 which is the claim of the plaintiff. The affidavit evidence has not helped the court in resolving the difference. Oral evidence should be adduced by the plaintiff and the defendant hence the need to transfer the suit from the Undefended List to the General Cause List.

Consequently, the defendant is granted leave to defend this action and this suit is transferred from the Undefended List to the General Cause List for hearing and determination.”

There is no doubt, by the Order of the trial court transferring the suit from the Undefended List to the General Cause List, that Order has brought an end to the procedure for summary judgment. See, Ekalo Farms Ltd & Anor Vs. Union Bank of Nigeria Plc (supra).

Summary judgment is a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the mover is entitled to prevail as a matter of law. For summary judgment, the court considers the contents of the pleadings, the motions, and additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law. This procedural device allows the speedy disposition of a controversy without the need for trial. See; Black’s Law Dictionary, Ninth Edition, page 1573.

It was after the trial court ordered the transfer of the suit from the Undefended List to the General Cause List having been satisfied that there was a good reason from the processes filed by the defendant for the court to believe that there was a prima facie defence to the plaintiff’s claim, though not necessarily a valid defence on the merit, that the plaintiff filed a Notice of Motion for an order of the trial court as follows:

“to enter judgment for the plaintiff for the sum of N1,415,050.01 being the amount admitted by the defendants as their indebtedness to the plaintiff and so found by the court”

It is necessary to point out here that before the trial court took a decision on the defendants’ Notice of Intention to defend, the plaintiff filed a further affidavit of 7 paragraphs to the affidavit in support of the Notice of Intention to defend the claim. The facts and affidavit evidence contained therein were considered by the court along with those deposed to in the affidavit of the Defendant. It is noteworthy, that the issue of admission of part of the claim by the defendants was not raised. I am therefore of the view that the trial court can no longer try the same case on the affidavit evidence it had earlier considered and ruled upon to transfer the action from the Undefended List to the General Cause List to give a partial summary judgment to the plaintiff. This is a summary judgment that is limited to certain issues in a case and that disposes of only a portion of the whole case” See; Black’s Law Dictionary, Ninth Edition, P.1573. As I stated earlier, the transfer of the action to the general cause List from Undefended List has brought an end to the procedure for summary judgment and any application for such is incompetent and should be so dealt with.

After due consideration of the plaintiff’s application for judgment, the trial court came to the conclusion, inter alia, as follows:-

“This court having ruled, and transferred this case to the General Cause List,cannot go back and by whatever means or name or rule try to reopen that which is closed.”

In my respectful view, the trial court was right to have declined jurisdiction or competence and dismissed the application for judgment.

It was the dismissal order or the application that led to the appeal to the court below, which held differently. The court below relied on the case of Mosheshe General Merchant Ltd. vs. Nigeria Steel Productions Ltd. (1987) All NLR 309 at 319.

Rightly relying on the above, the court below opined that that is the position of the law. And held further as follows:

“The learned trial Judge having transferred this suit from the undefended list to the General Cause List, the appellant was at liberty to ask for part payment of the amount claimed in the Summons if there was an admission by the Respondents of indebtedness of part of the sum so claimed.”

However, the situation in the above case is not the same with the case on hand. That case was fought on pleadings. The narrow issue in the appeal was as to the binding nature of a solemn admission made by counsel on behalf of his client, before pleadings were served. The court had ordered parties to file pleadings. The plaintiff filed its statement of claim but this had not been served on the defendant when its counsel admitted on behalf of his client to be owing part of the amount claimed but that a part had also been paid by cheque. The statement of claim filed did not contain the admission and the Statement of defence subsequently filed did not contain the admission. The trial court dismissed the case in its entirety and the court below reversed the decision. On appeal to this court, the court held as follows:

“(1) Where as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant admits owing part of this sum, no difficulty should arise in the court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the court provided that the court on its own discretion, may, having regard to the circumstances of the case grant the application and enter judgment there and then, or order the Applicant to formally move the court. Yet the admission in such a case is a solemn declaration of indebtedness of the defendant to the plaintiff in the sum admitted, for the purpose of the remainder of the trial of that action.”

It is interesting to note in the instant appeal, that in the application for judgment by the plaintiff after the suit was transferred to the General Cause List from the Undefended List, the affidavit in which the alleged or purported admission of indebtedness by the Defendant was made was not annexed to the application. Reference was only made to a paragraph 18 of an affidavit which had concluded its own assignment to show that the defendant intended to defend the action.

The application for judgment was said to have been predicated on Order 30 Rule 3(1) & (2) of the High Court (Civil Procedure) Rules but not on Order 23 of the High Court (Civil Procedure) Rules meant for Undefended List Procedure matters. The said Order 30 Rule 3(1) reads thus:

“Where admission of fact are made by a party either by his pleadings or otherwise, any other party may apply to the court for such judgment or order as upon those admissions he may be entitled to without waiting for the judgment or make such order on the application as it thinks fit.”

The court below had agreed with the Respondent that ordinarily there was no right of appeal against the decision of the trial court transferring the suit from the Undefended List to the General cause List, hence the reason for predicating the application for part judgment on a different Rule of Court, – Order 30 Rule 3(1) of the High Court (Civil Rules (Supra),

There is indeed no right of appeal against the Order of the trial court which transferred the suit from the Undefended List to the General Cause List, by whatever means or ways.

Section 241(2)(a) of the 1999 Constitution (as amended) is very clear on this and it reads thus:

“Nothing in this section shall confer any right of appeal-

(a) From a decision of the Federal High Court or any High court granting unconditional leave to defend an action.”

With the Order of the trial court transferring the action from the Undefended List to the General Cause List, both parties had been heard on their affidavits evidence before the court. The only option opened to them therefore was to proceed to file their pleadings. See; Ekulo Farms & Anor Vs UBN Plc (Supra ) at pages 101 and 106. By the order of the trial Judge the defendants had been granted leave to defend the action which can only be done by filing and exchange pleadings. To have proceeded to file yet another application for summary judgment based on the processes earlier filed which had become spent without the order of the trial court, was, to say the least, a way of circumventing the order of transfer and order that the case be heard on pleadings and by calling witnesses. I am therefore with utmost respect to the Justices of the court below, of the view that they were wrong to have held differently. The subsequent application of the Respondent brought pursuant to Order 30 rule 3(1) of the High Court (Civil Procedure) Rules was brought in bad faith and the court below should have so found and held.

In the case of National Bank of Nigeria Ltd. vs. Weide & Co. Nigeria Ltd 8 NWLR (Pt.465) 150, the Appellant therein had filed an action at the Lagos High Court claiming monetary reliefs against the Respondents therein, pursuant to the relevant Rules of Court. The Writ of Summons was therefore specially endorsed and had a Statement of Claim attached thereto and served on the 1st -3rd Defendants who thereafter entered an unconditional appearance. The 4th Defendant could not be served with the processes.

The Appellant later applied to the trial court for summary judgment pursuant to Order 10 rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1972. The Respondents filed their counter-affidavit to oppose the summons for judgment and annexed a Statement of Defence. On the other hand, the 3rd Defendant filed a Motion praying the court to strike out his name from the proceedings. The applications were taken together by the trial court which dismissed both applications and granted the Respondent’s unconditional leave to defend the action.

The appellant was dissatisfied with the Ruling and appealed to the Court of Appeal which dismissed the appeal.

Upon a further appeal to this court, the court raised suo motu, the issue whether the appellant has a right of appeal to the Court of Appeal from the decision of the High Court and invited counsel to address it. In resolving the issue, the Supreme Court held that the wordings of Section 220(2) of the 1979 Constitution (now Section 241(2) of 1999 Constitution (as amended), are very clear, in that the sub-section bars a right of appeal, whether as of right or with leave in two cases listed in paragraphs (a) and (b) and that there is no right of appeal to the Court of Appeal from a decision of any High Court granting unconditional leave to defend an action. In that case, this court went further lo hold that the decision of the Court of Appeal was a nullity since the appellant had no right of appeal it purportedly exercised.

In Ekulo Farm & Anor Vs. U B.N Plc (supra) this court when considering the same Section 220(2)(a) of 1979 Constitution (now Section 241(2)(a) of 1999 Constitution, as amended) held that the trial Judge was right in proceeding to order pleadings after considering the affidavit evidence before him and coming to the conclusion that the affidavit of the appellant disclosed a defence on the merit and thereby granted him unconditional leave to defend. And that the decision so reached by the trial Judge was by virtue of the provisions of sections 220(2)(a) of the 1989 Constitution not subject to any appeal by either party.

In the instant case, the court below assumed the jurisdiction it does not have entertaining the appeal of the Respondent. This issue on Section 241(2)(a) of the 1999 Constitution arose from the decisions of the Court below to assume jurisdiction, hence it cannot be said to have been taken suo motu by this court requiring the invitation of Counsel’s addresses.

In effect, the sole issue whether the court below has right in allowing the appeal based on an alleged admission of indebtedness by the Appellants to the Respondent in their affidavit in support of their Notice of Intention to defend an action earlier brought under the Undefended List Procedure is resolved in favour of the Appellants.

The court below was wrong, to say the least, and I so hold.

In the final analysis, this appeal is meritorious and ought to be allowed. Accordingly, the appeal is allowed. The judgment of the court below delivered on 30th day of May, 2006 is hereby set aside being a nullity. The decision of the trial court in transferring the suit from Undefended List to the General Cause List and granting leave to the defendants to defend the action is restored and affirmed. The suit is hereby remitted to the Chief Judge of Delta State for the matter to be heard on the merit by another Judge of the state.

As costs follow events, there shall be costs of N100,000.00 in favour of the appellants against the Respondent.

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SC.11/2007

Hon. Abubakar Bala Vs Mr. Musa Dikko & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C. 

On 21/11/2009, the People’s Democratic Party (PDP) conducted primaries for the nomination of its candidates for the Federal Capital Territory Chairmanship election into Area Councils within the Territory. At the end of the exercise Mr. Peter Yohanna, the 2nd Respondent in this appeal, emerged as the candidate of the People’s Democratic Party (PDP) having polled the highest number of votes at the primaries for Bwari Area Council. As required by law, the 2nd Respondent nominated Hon. Abubakar Baia, the Appellant in this Court who was the applicant in the Court below, as his running mate for the Bwari Area Council

Chairmanship/Vice Chairmanship election slated for 10/4/2010. However less than 60 days to the date of the Federal Capital Territory Area Council election, the 3rd Respondent in this Court, Independent National Electoral Commission (INEC), on 8/3/2010 published a list of candidates for the said election for various Political Parties but omitted Mr. Yohannas name as the Peoples Democratic Party (PDP) Chairmanship candidate for Bwari Area Council and attempt was made to substitute his name with that of the 1st Respondent Mr. Musa Dikko who, following this development filed an action at the Federal High Court for the resolution of the dispute by Judicial review of the action of the 3r Respondent. At the end of the hearing of the case, the trial Court found for the Plaintiff now 2nd Respondent who was affirmed as the Chairmanship candidate for the P.D.P. for Bwari Area Council in the election slated for 10/4/2010.

On the basis of the judgment of the trial Court, the 2nd Respondent Mr. Yohanna and the Appellant Hon. Abubakar Bala contested the election held on 10/4/2010 and emerged winners as Chairman and Vice Chairman respectively of Bwari Area Council and were duly returned accordingly by the 3rd and 4th Respondents in this Court and subsequently, were sworn to serve in their respective offices.

The 1st Respondent, Mr. Musa Dikko who was not satisfied with the Judgment of the trial federal High Court, appealed against it to the Court of Appeal urging the Court to allow his appeal, nullify the election of the 2nd Respondent as Chairman and affirm him as the candidate of the Peoples Democratic Party (PDP) and winner of the election as Chairman of Bwari Area Council. Believing that Mr. Yohanna, the 2nd Respondent and the appellant as Chairman and Vice Chairman of the Council respectively have a joint interest in the pending appeal at the Court of Appeal where Mr. Yohanna is the 1st Respondent, the appellant applied to be joined in that appeal as the 4th Respondent. The application dated 22/3/2011 was filed on 23/3/2011. This Motion was heard on 24/5/2011 and in its Ruling delivered on 30/6/2011, the Court of Appeal dismissed the applicant, now appellants application to give rise to the present appeal.

When this appeal was taken on 11/10/2012, 1st, 3rd and 4th Respondents were absent and not represented but have been duly served with hearing notices for the hearing of the appeal on that date. The 2nd Respondent on his part though represented by Counsel, filed no Respondent brief of argument on being served with the Appellants brief of argument. Thus, pursuant to the provision of Order 6 Rule 8(6) of the Rules of this Court, the 1st, 3rd and 4th Respondents whose briefs of argument were already in place, were deemed to have adopted their respective briefs of argument at the hearing of the appeal.

The two issues identified in the Appellants brief of argument are –

‘1. Whether the Court of Appeal was right in holding that the Appellants Motion for joinder was incompetent on ground that same was signed for the Appellants lead Counsel by another person.

2. whether the Court below was correct in refusing to join the Appellant as a

Respondent in the appeal before it.’

In the 1st Respondents brief of argument similar issues as raised in the Appellants brief but differently worded, were formulated as follows:-

‘1. Whether or not the Motion filed by Appellant before the lower Court was competent having been signed on behalf of the legal Practitioner by an anonymous person.

whether or not the Appellant had disclosed sufficient interest in the

subject matter of the suit to warrant his being joined on appeal as a co-respondent before the lower Court.’

On their part, the 3 and 4 Respondents in their joint brief of argument, have chosen to adopt the issues as raised in the appellants brief of argument.

In support of the first issue, learned Counsel to the Appellant has argued that taking into consideration that the learned Counsel Isaac Adebowale Aderogba who deposed and signed the affidavit in support of the Appellants Motion filed at the Court below on 23/3/2011 on behalf and with the consent of the applicant, as one of the Counsel representing the applicant, the Court below was wrong in refusing to compare the signature on the affidavit with that on the Motion paper to arrive at the decision that it was signed by the same Aderogba on behalf of the leading Counsel Mr. M.A. Ebute. Relying on a number of cases including INEC VS ADAMS OSHIOMHOLE (2009) 4 NWLR (Pt. 1132) 607 at 633 – 637 and EDET VS CHIEF OF AIR STAFF (1994) 2 NWLR (Pt.324) 41 at 65-66, the Appellant/Applicants Counsel concluded that the Motion filed on 23/3/2011 was quite competent.

Learned Counsel for the 1st Respondent in his own submission on this issue, is of the view the Appellants Motion in question was clearly signed by an unidentified person and that by the decision of this Court in ADEWUNMl VS OKETADE (2010) 3 SCNJ 368 AT 373-374, where it was held that the issue of signature of a party on a Court process is not a mere technicality that can be brushed aside the Motion was incompetent. That in the present case where Aderogba deposed to the affidavit in support of the application but failed to disclose his identity in signing the Motion over the name of M.A. Ebute who prepared the Motion papers, had resulted in making the motion incomplete.

The 3rd and 4th Respondents in their joint brief of argument on this issue, agreed with the lower Court in its finding that it was not the duty of a Court of law to be comparing signatures in a process with one in the affidavit so as to ascertain that it was signed by a Counsel.

On the face of the motion by the appellant filed on 23/3/2011, it is quite plain that it was prepared by a Counsel whose name was shown as M.A. Ebute but for reasons which have not been disclosed, the Motion was not signed by him. Not only that it was signed by a person whose identity is not apparent on the face of the motion. Although learned Counsel to the Appellant claimed that the motion was signed by Aderogba of Counsel who also deposed and signed the affidavit in support of the motion, there is no evidence from any paragraph of the affidavit supporting the claim of the learned Counsel. In any case even if that were the position, it would have been unethical and quite contrary the Rules of Professional Conduct in the Legal Profession for Aderogba of counsel to have filed the Motion and also at the time pose as a vital witness in the affidavit in support of the case of his client, the applicant now Appellant. Consequently pursuant to the decision of this Court in ADEWUNM1 VS OKETADE (2010) 3 SCNJ 368 at 373-374, the Motion paper being a Court initiating process not having been signed by the Appellant/Applicant and in the absence of cogent and credible evidence that it was signed by a Legal Practitioner acting as Counsel of the Appellant/Applicant, the Court below was right in holding that the Motion was incompetent. In this respect therefore, striking out the same Motion was quite in order.

Under the rides of the Court below, after striking out the Motion filed on 23/3/2011| there was nothing left before that Court for determination on the merit. However, not being a final Court in the land, the Court below was alert to its duties to proceed and determine the Motion on the merit just in case its decision on the competence or otherwise of the motion, could be faulted on appeal. See CENTRAL BANK OF NIGERIA VS KATTO (1994) 4 NWLR (Pt.339) 446.

The second issue in this appeal is whether or not the appellant as applicant in the Court below had disclosed sufficient interest in the subject matter of the suit/appeal now pending at the Court below to warrant his being joined on the appeal on the part of the respondents, as the 4th respondent. In support of this issue, learned Counsel to the Appellant identified the sole reason why the Court below refused the Appellant/Applicants application to be joined as 4th Respondent in the pending appeal as being that the Appellant/Applicant did not participate in the primaries at which the 2nd Respondent, to whom the appellant/Applicant was a running mate, took part and emerged as the candidate of the Peoples Democratic Party (PDP). Learned Counsel argued that the Appellant/Applicant having satisfied the requirement in his application that he was to be affected by the decision of the Court below after hearing the appeal on the relief sought in the appeal, the application ought to have been granted if cases such as ODUOLA VS COKER_ (1981) 5SC 197 at 227 and DIKKO VS YUSUF (2004) 7 MJSC 1 at 52, are taken into consideration. Learned Counsel finally argued that since the candidacy of the 2nd Respondent and the Appellant to contest the Federal Capital Territory (F.C.T.) Area Council election of 10/4/2010 was affirmed as the result of which the two parties contested and won the Chairmanship election together, the application ought to have been granted by the Court below.

The view taken by the 1st Respondent on this second issue is that the appellant having conceded that the proceedings at the trial Court did not affect him in any way, the only reason for his wanting to join the appeal was that he did not want to run on the same ticket with the Appellant at the Court below who is the 2nd Respondent in this Court in the event that the Appellant at the Court below is adjudged the legitimate candidate of the Peoples Democratic Party (PDP). This, according to the learned Counsel, made the application for joinder rather speculative and that the applicant not having disclosed any justifiable interest in the subject matter of the suit, did not meet the criteria for an applicant seeking to be joined as a party in an appeal as Respondent by virtue of the decision of this Court in YAKUBU VS GOVERNOR OF KOGI STATE (1995) 8 NWLR (Pt.414) 386 at 404.

The 3rd and 4th Respondents did not present any argument on this issue leaving it to the Court to arrive at the appropriate decision without their input. The two Respondents are on good course having regard to their status and role in the conduct of elections under the 1999 Constitution and the Electoral Act 2006 which was on force at the time (he dispute between the parties arose. The observations of this Court in the case of ATTORNEY GENERAL OF THE FEDERATION VS ABUBAKAR (2007) 10 NWLR Pt. 10411, is quite instructive.

The Appellant/Applicants Motion filed at the Court below on 23/3/2011, prayed for the order of that Court granting him leave to be joined in the pending appeal as the 4th Respondent. The law is trite that a party seeking to be joined in an appeal particularly as a respondent, must disclose sufficient interest in the subject matter of the dispute between the parties in the pending appeal. See YAKUBU VS GOVERNOR, KOG1 STATE (1995) 8 NWLR (Pt. 414) 386 at 404. In trying to identify the nature of the interest of the Appellant in the appeal, the Court below slated as follows in its ruling now on appeal –

‘ The 1st Respondents case at the lower Court was that he was the winner of the primary that was conducted on 21/11/2009. From the deposition which I have reproduced here in above, the Applicant did not participate in the said primary. It was after victory of the 1st Respondent in that Primary that he Nominated the Applicant as his Running mate.

Since the Applicant did not take part in the primary the subject matter of

litigation at the lower Court where then is his interest in the matter which he wants to defend before this Court?

I have also read through the Judgment of the lower Court at pages 393 – 446 of

the printed record of this appeal, and I have failed to see where the judgment has affected the applicant in any material particular.’

It is indeed not difficult to see from the findings of the Court below quoted above, that the action that was brought before the trial Federal High Court arose from the conduct of Peoples Democratic Party primaries for aspirants to the elective positions of Chairmen of Area Council in the Federal Capital Territory. It is also not disputed at all that the Appellant who was picked as a running mate for the then coming Area Council election on 10/4/2010 by the 2nd Respondent in this appeal, did not take part in the said primaries which produced the 2nd Respondent as the declared winner of the primaries which is the subject matter of the dispute or litigation between the parties at the trial Federal High Court and the appeal now pending at the Court below, which the Appellant had applied to join as the 4th Respondent. The Judgment of the trial Court which is on appeal to the Court of appeal merely affirmed the 2nd Respondent as the winner of the primaries conducted on 21/11/2009. In the circumstances of this case and on the undisputed facts on record, I completely agree with the Court below that the Appellant had not disclosed sufficient interest in the 2nd Respondents suit that was determined at the trial Court and consequently, in the appeal now pending at the Court below by the 1st Respondent who lost at the trial Court. The situation would have been quite different if the subject matter of the suit at the trial Court and the Court of Appeal relates or pertains to any dispute arising from the conduct of the election for the Chairman/Vice Chairman of Bwari Area Council of the Federal Capital Territory, which the Appellant contested with the 1st Respondent and won. That election into the Area Council that was conducted on 10/4/2010, not being the subject of the dispute or suit at the trial Court nor in the appeal now pending at the Court of Appeal, certainly the Appellant has no business in seeking to be joined in the appeal and the Court below was on firm ground in dismissing his application as lacking in merit. This is because for a party wishing to join or be joined in an existing action he must have a direct or legal interest in order to take advantage of the requirement of the law. It is not enough for such a party to show that he has indirect interest in the pending case. See IKONNE VS COMMISSIONER OF POLICE (1986 4 NWLR (Pt.36) 473.

For the foregoing reasons, 1 see no merit at all in this interlocutory appeal that had been given accelerated hearing by this Court in order to facilitate the prompt hearing and determination of the appeal now pending at the Court below. Accordingly, the appeal is hereby dismissed. The Ruling of the Court of Appeal delivered on 30/6/201 1 is hereby affirmed. 1 am not making any order on costs.

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SC. 339/2011

Dr. Tunji Braithwaite Vs Skye Bank Plc (2012)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

By its Notice of preliminary objection filed on 19th October 2011, the Respondent challenges the competence of the instant appeal on the ground that the appeal being a continuation of the original suit which brought it about, and the suit, suit No. LD/1850/2005 was commenced by a defective Writ of Summons and Statement of Claim, both dated and filed on 25th October 2005, the appeal is incurably defective thereby robbing the court of the jurisdiction to hear and determine the appeal.

A six paragraph affidavit and four Exhibits, SKYE 1, 2, 3 and 4 support the preliminary objection. These Exhibits are the Writ of Summons, statement of claim and the official receipts issued at the trial court, Lagos State High Court, for payments in respect of the two originating processes.

In opposing the preliminary objection, the Appellant relies on the fifteen paragraph counter-affidavit deposed to by one Ismail Shaib Usman a legal practitioner in the Appellant/Respondent’s Law firm: Tunji Braithwaite and Co.

Both sides adopted and relied on their written addresses as their arguments for and against the preliminary objection.

Learned counsel to the Respondent/Objector, in their written address and orally, submits that the non-signing of the originating Writ of Summons and Statement of Claim by the claimant or his counsel as required by the mandatory provisions of Order 6 Rule 2 (3) and Order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 respectively, has deprived the trial court the jurisdiction over the suit in the first place. It is further submitted that neither the court below nor this court can, by extension, assume jurisdiction on the basis of the defective originating processes.

The Appellant, it is further contended, sues through the law firm of Oluyede and Oluyede which is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act Cap. 207 Laws of the Federation of Nigeria 1990. Originating processes signed by the law firm instead of a Legal Practitioner, learned counsel stresses, cannot be the basis of the claimant’s action at the trial court and subsequent appeals arising from same. Relying on Madukolu v. Nkemdilim (1962) 2 NSCC 374 at 379-380; State v. Onagoruwa (1992) 2 NWLR (Pt.229) 33; Funduk Engineering Ltd. v. Mcarthur (1995) 4 NWLR (Pt.392) 640 and Ma’aji Galadima v. Alhaji Adamu Tambai (2000) 11 NWLR (Pt.677) 15, learned counsel insists that the point he raises is a jurisdictional one and same can be raised for the first time even in this court. Further and particularly relying on Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, and SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 336, counsel urges us to uphold the preliminary objection and strike out the incompetent appeal.

Paragraphs 9-11 of the Appellant/Respondent’s counter-affidavit are hereunder reproduced for their significance in Appellant’s opposition to the preliminary objection.

“9. That Exhibits SKYE 1, 2, 3 and 4 respectively attached to the Affidavit in Support are in the nature of additional evidence which are unrelated to the narrow issue involved in the Interlocutory Appeal in this Honourable Court.

10. That the Writ of Summons and Statement of Claim and associated processes in Suit No. LD/1850/2005 are not incurably defective as alleged.
11. That the name of the Legal Practitioner who settled the Originating Processes in Suit No. LD/1850/2005 was stated in the Writ of Summons as Ajibola Oluyede of Oluyede & Oluyede, a registered firm of legal practitioners.”

Respondent to the objector’s arguments, learned Appellant’s counsel submits that the grounds of the Respondent’s objection consist of fresh issues that were not raised at the trial High Court or the court below, the Court of Appeal. Though the Respondent/Objector is entitled to raise a jurisdictional issues any time and even for the first time at the Apex Court, learned Appellant/Respondent counsel concedes, the issue, however, must be raised on the basis of a ground of Appeal. The Respondent having failed to raise the issue either at the trial court or the court below, it is contended, cannot raise the issue now. Learned Appellant/Respondent counsel supports his contention with the decisions in Anyoha v. Chukwu (2008) 4 NWLR (Pt.1076) 31 at 47, Usman Dan Fodio University v. Kraus Thompson, Organization (Nig.) Ltd. (2001) 15 NWLR (Pt. 736) 305, Ezomo v. Oyakhire (1985) 2 SC 260 and Shobogun v. Sanni & Ors. (1974) 1 ALL NRL (Pt. 2) 311 at 316.

On the merit of the preliminary objection, learned Appellant’s counsel while conceding that Order 6 rule 2(3) and Order 15 rule (1) of the Lagos State High Court (civil procedure) require the two originating processes to be signed by a legal practitioner where the litigant does not sue in person, the same rules of court, counsel contends, provide that non-compliance with any of its provision must be raised timeously otherwise it would be deemed waived by the complainant.

Besides, learned counsel argues, it is not every non-compliance with the rules that is capable of vitiating proceedings. The practice has grown, it is submitted, for courts to treat most non-compliance as irregularities incapable of nullifying proceedings.

In the instant case, it is further submitted, the mistakes is that of the counsel engaged by the Appellant and such mistakes, on a plethora of authorities, is never visited on the litigant. The provision of S.2 (1) of the Legal Practitioners Act, it is insisted by counsel, must not be read in isolation. The provision if read in the light of the rules of the trial court will be understanding to be an elastic one. The Respondent’s objection is over-reaching and to uphold same at this stage, learned Appellant counsel argues, will be inequitable. He urges that the decisions of this court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 and SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (1252) 317, given the peculiar facts in the case at hand, should not be applied. Relying on BBN Ltd. v. S. Olayiwola & Sons Ltd. and Anor. (2005) 1 SC (Pt. 11) 1, Adefawasin v. Dayekh (2007) ALL FWLR (Pt. 348) 911 at 930, NDP v. INEC (2001) ALL FWLR (Pt. 358) 1124 at 1144 – 1145, Abubakar v. Yar’adua (2008) ALL FWLR (Pt. 404) 1409 at 1449, Famfa Oil Ltd. v. A.G. Federation (2003) 9-10 SC 31. Appellant’s counsel finally urges that the objection be dismissed as being unmeritorious.

The issue that arises from the Respondent’s preliminary objection is whether the Writ of Summons and the Statement of Claim, Exhibits SKYE 1 and 3 annexed to the affidavit in support of the preliminary objection, not being signed by a legal practitioner, are by virtue of that defect incapable of maintaining suit No. LD/1850/2005 and by extension the instant appeal.

Learned Respondent/Objector’s counsel, Osinaike Esq., insists that Exhibits 1 and 3 being fundamentally defective have affected the validity of the suit the Appellant purportedly commenced with then as well as the two appeals which evolved from the incompetent suit.

On the other hand, learned Appellant/Respondent’s counsel Okesiji Esq. counters that the defect in Exhibits SKYE 1 and 3 being procedural and which the Respondent/Objector did not raise timeously, are deemed to have been waived. It is overreaching, learned counsel contends, to allow the Respondent raise his objection now which objection the rules of the trial court provides must be treated as merely irregularity.

Now, a perusal of Exhibits SKYE 1 and 3 certainly leaves one in no doubt that the two have not been signed by a Legal Practitioner. Whereas Exhibit SKYE 1 is not signed at all, Exhibit SKYE 3 carries a signature on top of the same of the claimant’s firm of solicitors, Oluyede and Oluyede.

I agree with learned counsel to the Respondent/Objector that this court has consistently held that the validity of the originating processes in a proceeding before a court is fundamental and a necessary requirement for the competence of the suit and proceeding the processes set out to commence. Failure to commence a suit with a valid Writ and/or Statement of Claim goes to the root of the action since the conditions precedent to the exercise of the court’s jurisdiction would not have been met to duly place the suit before the court. See Madukolu v. Nkemdilim (supra) and Mohammed Mari Kida v. A. D. Ogunmola (2006) 13 NWLR (Pt. 997).

I am unable to agree with Learned Appellant/Respondent counsel that the defect in Exhibits SKYE 1 and 3 are procedural and having not been made an issue timeously the Respondent/Objector is deemed to have waived his right. Being procedural mistakes, Appeallant/Respondent counsel further urges, the defects in the Exhibits should, given the adjectival rules of the trial court, be treated as mere irregularities.

Learned counsel must be reminded that Respondent’s preliminary objection is not founded on order 6 rule 2 (3) and order 15 rule 2 of the High Court of Lagos State (civil procedure) rules 2004 applicable to the trial court alone, non-compliance with which adjectival provisions of the same rules of court consider to be mere irregularity. Beyond that, the preliminary objection is also founded on S.2(1) and S.24 of the legal practitioners Act CAP Laws of the Federation 2004.

Again, learned Appellant/Respondent counsel in asking us to ignore the decisions of this court in Okafor v. Nweke (supra) and SLB Consortium Ltd. v. NNPC (supra) because of the peculiar facts of the instant case seem to be requesting the impossible. The court remains bound by its previous decisions where the facts and the laws considered in the earlier cases are the same or similar in the cases being subsequently determined. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 SC and Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530.

The resolution of the issue that arises from Respondent’s preliminary objection in the case at hand, Learned Appellant counsel is to be reminded, also requires the application of the provisions of Section 2 (1) and 24 of the Legal Practitioner’s Act, Laws of the Federation of Nigeria the application of which provisions, to similar facts, informed the decisions of this court in Okafor v. Nweke (supra) and SLB Consortium Ltd. v. NNPC (supra).

I hasten to note that sitting as a full court, this court has further applied the principle it enunciated in the two earlier cases the Appellant/Respondent asked us to deviate from in its unreported decision in First Bank of Nigeria Plc and another v. Alhaji Salmanu Maiwada in Appeal No. SC.204/2002 delivered on 25th May, 2012.

At page 12 of the judgment, the court per my learned brother Fabiyi JSC succinctly restated the principle thus:-

“The purpose of sections 2(1) and 24 of the act is to ensure that only legal practitioner whose name is on the roll of this court sign court processes…

In my considered opinion, the words employed in drafting sections 2 (1) and 24 of the Act are simple and straight forward. The literal construction of the law is that Legal Practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this court.”

Further addressing the collateral issue similarly raised in the case at hand as it was earlier raised in Okafor v. Nweke before then, His lordship Fabiyi, JSC proceeded at page 21 of the judgment thus:

“The decision Okafor v. Nweke was based on a substantive law – an Act of the National Assembly i.e. the legal Practitioners act. It is not based on Rules of court. According to Oguntade, JSC, at page 534 of the judgment on Okafor v. Nweke, ‘It would have been quite another matter it what is in issue is a mere compliance with court rules.’ Let me say bluntly that where the provisions of an act like the legal Practitioners Act is at play, as herein, provisions of rules of court which are subject to the law must take the sideline.”

His lordship had earlier in his judgment opined thus:-

“The provisions S.2(2) and 24 of the Act as reproduced above remain in law and shall continue to be so until when same is repealed or amended. For now, I see nothing amiss about the law.”

Learned Appellant/Respondent’s counsel has made similar suggestions considered by this court that since the non-signing of Exhibits SKYE 1 and 3 are lapses on the part of counsel, the latter’s sin should not be visited on the litigant; that to allow adjectival provisions stultify proceedings is to enthrone technicality and that finding merit in Respondent’s objection that has not been raised timeously will occasion miscarriage of justice. The decision of this court in First Bank Plc and Anor. v. Alhaji Salmanu Maiwada, shown in the passages of the judgment deliberately reproduced earlier in this has addressed all these questions.

Learned Appellant’s/Respondent’s Counsel who has not shown to us that the earlier decisions he urges us not to apply in the instant case were reached per incuriam that the decisions are clearly wrong, erroneous in law or that public policy considerations will necessitate the departure cannot be indulged along the lines he canvasses. We are bound by these earlier decisions of ours.

Having found that Exhibits SKYE 1 and 3 have not been signed by a Legal Practitioner as required by both the rules of the trial court and extant provisions of the legal Practitioners Act, the two originating processes are on the authorities fundamentally defective and incapable of initiating any competent action. Suit No. LD/1850/2005 purportedly commenced by the defective originating processes being incompetent is incapable of giving rise to a competent appeal. In the result, I find merit in the Respondent’s preliminary objection and strike out the incompetent Appeal No. SC.325/2010. Parties should bear their respective costs.

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SC. 325/2010

Suleiman Atago Vs Mr. Ibiso Nwuche (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal emanated from the Judgment of the Court of Appeal Port Harcourt Division in a pre-election matter, delivered on the 7th day of December, 2011. The case that led to this Judgment was with respect to an appeal from the Federal High Court and the originating summons filed by the Appellant against the Respondents in the said pre-election matter.

The conclusion of the Judgment of the court below that prompted this further appeal to this Court was as follows:-

“The conflict in the affidavits of parties which disentitled the lower court from determining the appellant’s claim persist. The same conflict equally disentitle (sic) us from proceeding as well … In Chairman NPC V. Chairman Ikere Local Government (2001) 13 NWLR (Pt. 731) 540 E.O. Ayoola JSC opined at P. 559 of the report that inspite of the clear and violent (sic) in the opposing affidavits the trial tribunal had proceeded on an originating summons. It was held that the procedure adopted by the tribunal was contrary to well established principles and not in accord with the spirit of the rules of procedure contained in the enabling law. In the instant case the lower court avoided that mistake. Its decision is unassailable…”

The facts of this case, as can be gleaned from the record of appeal are that the appellant filed an originating summons at the Federal High Court in Port Harcourt in a pre-election matter claiming, inter alia, thus:

“1. A declaration that the 1st Defendant is not a qualified registered member of the PDP as required by the Constitution of the party and its guidelines for the conduct of the primary election into the Rivers State House of Assembly notwithstanding his purported registration as such.

2. A declaration that the 1st Defendant by the combined effect of the provisions of the 1999 Constitution of the Federal Republic of Nigeria as Amended, the Constitution and guidelines of the Peoples Democratic Party (PDP) and enabling Laws, Rules and Regulations in Nigeria, was not qualified to contest the primaries election in PDP in Ahoada East Local Government of Rivers State of Nigeria on the 4th January, 2011 not being a qualified registered member of the party to contest the party primary election as required by the party Constitution and guidelines.
3. A declaration that the participation of the 1st Defendant in the PDP Primary Election held on the 4th January, 2011 at Ahoada Town in Rivers state to elect the PDP flag bearer for the Ahoada East Local Government Constituency Two (2) seat into the Rivers State House of Assembly is illegal, unlawful and unconstitutional and therefore null and void and of no effect whatsoever.
4. A declaration that the subsequent inclusion and forwarding of the name of the 1st Defendant in the list of candidates of the PDP in Rivers state by the 2nd Defendant to the 3rd Defendant as the party’s flag bearer and as the party’s candidate to be sponsored by the party to contest the Ahoada East Local Government Constituency Two (2) seat for the Rivers State House of Assembly in the 2011 is illegal, unlawful and unconstitutional and therefore null and void of no effect whatsoever.
5. An order of court setting aside and or expunging the name of the 1st Defendant from the list of candidates of the PDP in Rivers state forwarded to the 3rd Defendant to be sponsored to contest the House of Assembly Election in 2011 and in its place enlist, replace and or substitute the name of the 1st Defendant with the name of the Plaintiff as winner of the primary Election of the PDP on the 4th of January, 2011 at Ahoada Town to be sponsored by the PDP as its candidate to contest the Rivers State House of Assembly Constituency Two (2) seat in the 2011 general election having won the highest number of votes cast amongst the other qualified and registered PDP candidates.”

The 1st Respondent filed a counter-affidavit of 24 paragraphs. After the respective parties have addressed the court, the learned trial Judge proceeded to strike out the Appellant case for being incompetent. As stated above the court below upheld that Judgment.

The three issues identified by the Appellant as arising from his three grounds of appeal are stated as follows:-

“1. Whether the learned Justices of the Court of Appeal were right in law to have upheld the decision of the Federal High Court which struck out the Appellant’s case This issue was distilled from ground 1 of the grounds of Appeal.

2. Whether the Learned Justices of the Court of Appeal were right in law to have held that there exist conflict in the affidavit evidence before them as far as the Appellant’s originating summons was concerned This issue was distilled from ground 2 of the grounds of Appeal.
3. Whether the Learned Justices of the Court of Appeal were right in law in refusing to hear the case of the Appellant on the merit This issue was distilled from ground 3 of the grounds of Appeal.”

On his own part the 1st Respondent submitted the following two issues for determination:

(a) Whether the Learned Justices of the Court of Appeal, were not right in law in upholding the decision of the Federal High Court that the Appellant’s case was wrongly commenced by way of originating summons

(b) Whether the Learned Justices of the Court of Appeal were not right in law to have held that there exists no legal reason for the Court of Appeal to interfere with the trial court’s refusal to try and determine Appellant’s suit as commenced and constituted by way of originating summons”

The 2nd Respondent has deemed it expedient to adopt the issues formulated by the appellant. The Appellant has deemed it necessary to file Reply briefs to the 1st and 2nd Respondent’s briefs of argument.

The 3rd Respondent in its brief identified two issues for determination as follows:-

“1. Whether the Honourable Court of Appeal was right in affirming the Judgment and consequential order of the trial court. (Grounds 1 & 2)

2. Whether the Honourable Court of Appeal was right when it declined to invoke Section 15 of the Court of Appeal Act. (Ground 3).”

On 20th September 2012 when this appeal was heard, learned counsel for the parties identified their respective briefs. They adopted and relied on them. 2nd Respondent drew the attention of this Court to Notice of Preliminary objection filed on 02/04/2012.

I shall determine the preliminary objection raised by the 2nd Respondent first. The grounds of objection is that grounds 2 and 3 of the Notice of Appeal being grounds of mixed law and facts, for which the Appellant failed to seek and obtain leave before filing, are incompetent and therefore issues 1, 2, and 3 raised by the Appellant are incompetent.

Before proceeding further with the appeal there is need to look into the preliminary objection raised by the 2nd Respondent. This court is urged to strike out all or any of issues 1, 2 and 3 predicated on the three grounds of appeal which are incompetent for failure to seek and obtain leave. This is an assumption that the grounds are of mixed law and facts.

With due respect, the submission of the learned counsel is preposterous and completely unreasonable. It has not been shown by reference to a particular conflict or disputed facts or mixed law and facts upon which the court below based its decision. In other words, the two lower courts did not reach any decision one way or the other based on their evaluation of facts. A ground of appeal can only be of facts or mixed law and facts if it is based on a decision of lower court derived from disputed facts. Since none of the appellant’s ground of appeal raises an issue of law which is derived from disputed facts, they cannot be regarded as grounds of mixed law and fact.

This Court has in a number of cases clearly categorized and recognized errors which in a ground of appeal could be regarded as ground of law. This includes: where an adjudicating tribunal or court, in reaching its decision took into account some wrong criteria; where the issues raised on the grounds of appeal are based on legal interpretation of deeds, documents, terms, words and phrases (and inference drawn from them); and where the complaint is about misunderstanding of the law or misapplication of the law by the adjudicating tribunal or court etc. See BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 6 SCNJ 295 at 302. ECSC LTD V. N.M.B. LTD (2006) 14 WRN 45 at 51.

In the instant case the grounds of appeal are centred on wrong interpretation and application of Order 3 Rule 8 of the Federal High Court Civil Procedure Rules 2009. The case of OPULAYO & ORS V. OMONI WARI & ANOR (2007) 6 SC 35 cited and relied by the 2nd Respondent is not relevant. The issues involved in the instant case has nothing to do with the evaluation of evidence neither was it based on disputed facts. None of the grounds of appeal falls within the province of S.233(3) of the 1999 constitution (as amended). The appellant therefore did not require leave of the court below or this court. I am therefore of the view that the objection of the 2nd Respondent lacks merit and same is accordingly overruled. The issues as formulated by the appellant are not incompetent. Hence the appeal is to be considered on the issues raised.

Now to the consideration of the issues distilled by the appellant from the three grounds of appeal as adopted by the 2nd respondent in their brief of argument.

ISSUE NUMBER ONE:

“Whether the learned Justices of the Court of Appeal were right in law, to have upheld the decision of the Court which struck out the Appellant’s case”

The issue is said to have been distilled from ground 1 of the appellant’s grounds of appeal challenging the finding of the court below to the effect that the court was wrong in upholding the decision of the trial Federal High Court. It is submitted that what is meant by that decision is that once a party files a case under originating summons instead of through the normal writ of summons, no matter how reasonable and good the case may be, it must not be heard any longer and no provision of fair hearing under the constitution should be applicable.

It is submitted that the court below ought to have ordered for the trial of the Appellant’s case by ordering that the pleadings should be filed at the trial court to allow the case to be heard on the merit. Learned counsel for the Appellant further submitted that a pre-election matter on a primary election that was filed before the main election, remains a pre-election matter even after the main election and it is maintainable as such, but once the matter is struck out after the election as incompetent for failure to comply with a particular procedure under the Rules of court, any new case filed would on its own become incompetent since election is now over.

Referring to Order 3 Rules 1, 6, 8 and Order 13 Rule 27; Order 51 Rules 1, and 2 of the Federal High Court Civil Procedure Rules 2009…. the Appellant submitted that their combined reading and applying them, his case ought not to have been struck out.

Further referring to the case of CHAIRMAN NPC VS CHAIRMAN IKERE LOCAL GOVEFNMENT (supra), the Appellant submitted that the case is distinguishable from instant case. He contended that this Court did not say in the case that the claim be struck out because originating summons was used or that it contained disputed facts. It is explained that in this case relied upon by the court below, the court ordered for oral evidence and that the trial to be conducted on the merit.

In response to issue No. 1, the 1st Respondent submitted that the court below was right, in law in affirming the decision of the trial Federal High Court. That it is very glaring that the affidavit in support of Appellants’ originating summons has been sufficiently challenged by the Counter-affidavit of the opposing parties. The Learned counsel for the 1st Respondent submitted that a close look at the question raised by the Appellant and the facts deposed to by him, in the affidavit in support of the proceeding in the lower court, there are serious facts which cannot be resolved solely on affidavit evidence. It is contended that there are dispute of facts that tend to establish the cause of action in which the trial court was asked to grant declaratory reliefs sought. Therefore, real likelihood of dispute on facts has turned the proceedings into a hostile one for which the originating summons is inappropriate. He relied on DOHERTY V. DOHERTY 1968 NMLR 241, DAGOGO V. ATTORNEY-GENERAL OF RIVER STATE (2000) FWLR (Pt.140) 196 and OMOJOLA V. OYATEME (2009) All FWLR (Pt.453) 134.

In response to issue No. 1 the 2nd Respondent’s Learned Counsel submitted that since the concurrent findings of the lower courts are not perverse, their decisions in the circumstance cannot be set aside. Relying on EMEZI V. OSUAGWU (2005) 12 NWLR (pt. 939) 340 at 367, learned counsel contended that a court will be justified to decline ordering pleadings after findings that a case was wrongly commenced by originating summon, if nothing useful will be achieved by an order for exchange of pleadings. It is submitted that the Order 3 Rule 8 of the Federal High Court (Civil Procedure) Rules vested the court with the power of discretion in the circumstance of this case, not to order pleadings but instead struck out the case.

In response to the first issue, the learned counsel for the 3rd Respondent submitted that the contention of the Appellant that pleadings ought to have been ordered instead of striking out the case has not taken in cognizance the power conferred on the Federal High Court by Order 3 Rule 8 of the Federal High Court Rules, 2009. The principles enunciated in the two cases of EMEZI V. OSUAGWU (supra), UKPATA V. TORONTO HOSPITAL (NIG.) LTD (2010) All FWLR (Pt.532) 1709, and JOHNSON V. MOBIL PRODUCING (NIG.) UNLIMITED (2010) All FWLR (Pt.530) 1337 at 1361 were further heavily relied on by the 3rd respondent.

Furthermore although the Respondent put up plausible argument, but he was stingy with the peculiar circumstance of this case. The argument is that since the appellant is challenging the primary election conducted by the 2nd respondent and has asked the court to declare him the candidate of the 2nd Respondent for the election into the Rivers State House of Assembly and since the concurrent findings by the two courts is based on the lack of jurisdiction to adjudicate on the matter, therefore, the ordering of pleadings was unnecessary as this would not have changed the colouration of the suit, whatsoever.

Now to the consideration of the all-embracing issue No. 1. The part of the judgment of the trial court which gave rise to the appeal to the court below by the appellant reads thus:

“From the facts and circumstances of this case as presented by the plaintiff, in his affidavit, I am of the view that the proceeding is hostile as facts are substantially in dispute and cannot be resolved vide this originating summons. Having come to the conclusion, I am now to consider the appropriate order to be made in the circumstances of this case. The General Principle of Law as I understand it is that where the court comes to the conclusion that the action ought not to have been commenced by originating summons, it shall proceed to order pleadings. Where however nothing will be achieved by an order for exchange of pleadings, an order for pleadings will not be made. This is the current judicial thinking as stated by the Supreme Court in Emezi V. Osuagwu (2005) 12 NWLR (Pt.939) pg. 340 at 347.”

The Learned Justice of the Court of Appeal in affirming the Judgment of trial court held thus:

“Ordinarily, the Lower court ought to have called for oral evidence and proceed thereon to determine the cause before it, See FALOBI V. FALOBI (1967) 9 – 10 SC 1, AKINSETE V. AKINDUTIRE (1966) 1 SC NLR 389 AND GENERAL-AVIATION SERVICE LTD. V. THAHAL (2004) 10 NWLR (Pt. 885) 50 at 96.

But this is not an ordinary proceedings, it is a pre-election matter where both time and greater diligence are of essence of proceedings. The Appellant has argued at the tribunal and still persists that his cause is determinable notwithstanding the strong conflict in the contents of the affidavits of both sides. The tribunal is right to have held otherwise.”

At page 813 lines 11 – 16 the court below held further thus:

“The procedure the Appellant resorted to does not satisfy the requirements of Order 3 Rules 6 and 7 of the lower court and the Judge by virtue of Rule 8 of the same Order is not bound to determine any such question of Constitution if in his opinion it ought not to be determined through that procedure. The very rule empowers the court to make such orders as, the Judge deems fit … In the instant case the lower court has avoided that mistake. Its decision is unassailable.”

From the foregoing passages of the Judgment of the court below, it undoubtedly upheld the procedure utilized by the trial court, when it struck out the Appellant’s case. With due respect to the learned Justices of the court below they erred in law. They ought to have ordered for the trial of the Appellant’s case by ordering that pleadings should be filed at the trial court. This would have brought about justice as the case would have been heard on the merit as it would have equally given the parties the opportunity of fair hearing. See DAPIALONG V. LALONG (2007) 5 NWLR (Pt.1026) 99. OSUNBADE V. OYEWUNMI (2007) 4 – 5 SC FALOBI V. FALOBI (supra) EJURA V. IDRIS & ORS (2006) 4 NWLR (Pt. 971) 538.

The form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action was begun by writ of summons or by originating summons. What is most important is the question of justice of the case. See FAMFA OIL LTD. V. ATTORNEY-GENERAL OF THE FEDERATION (2003) 18 NWLR (pt. 852) 453. PEOPLES DEMOCRATIC PARTY v. ABUKAR (NO. 2) (2007) 3 NWLR (pt. 1022) 515 at 544 – 545.

On the point that the Appellant’s case contains no live issue because the main election has already taken place and that a pre-election matter cannot serve any useful purpose any longer, I am of the opinion that the Appellant’s case as contained in his reliefs contains five issue. This is because the appellant grouse is that the Respondent is not qualified to contest the primary election. The case of MOROHUNFADE V. ADEOTI (1997) 6 NWLR (Pt. 508) 326 cited by the 1st Respondent counsel is inapplicable because the declaration being sought by the appellant has not ceased to be justiciable and maintainable by the appellant who has alleged that his mandate has been “stolen”.

ISSUE NO. TWO:

“Whether the learned Justices of the Court of Appeal were right in law to have held that there exist conflicts in the affidavit evidence before them as far as the appellant’ originating summons was concerned.”

By this issue the appellant seeks to question the decision of the two courts below that the proceedings were hostile and therefore not fit for originating summons. From the affidavit in support of the originating summons filed by the appellant as well as the nature of the claims, which was meant to determine who, between the appellant and the 1st respondent, was the eligible candidate of the 2nd respondent to contest the primary elections conducted to select who would represent the party in the election into the Rivers State House of Assembly, it is not in doubt, that by the nature of the claims and the depositions in the affidavits of the parties there was every likelihood of substantial dispute between the parties.

The Appellant has rightly contended that pleadings ought to have been ordered instead of striking out the case. Order 3 Rule 8 of the Federal High Court confer on the learned trial Judge to make the appropriate order, if in his opinion the appellant’s cause ought not to be determined on originating summons. This is clear. However, the instant case when the court below found that the suit been wrongly commenced through originating summons, pleadings should have been ordered, given the peculiar nature of this case, I do not agree with the learned counsel for the Respondents that nothing useful would have been achieved, if pleadings were ordered. It is wrong to have struck out the Appellant’s suit given the facts and peculiar circumstances, of this case.

The court below rightly declined to hear the matter because of the conflicting affidavit. Therefore since the issue in controversy pertains to determination of who was lawfully nominated candidate of the 2nd Respondent at the primary election, the trial court lacked the jurisdiction to entertain the appellant’s claim without pleadings. However, as a trial court, it has the jurisdiction to convert an Originating Summon and order pleadings in the matter since the originating summon is found to be an improper procedure of commencing the instant case. The Learned trial Judge failed to do exactly that on seeing that the affidavits of the parties were conflicting and irreconcilable: See further P.D.P V. ABUBAKAR (No.2) 2007 3 NWLR (Pt.1022) 815 at 544 – 545 DAPIALONG V. LALONG (supra) and FAMFA OIL LTD. V. ATTORNEY-GENERAL OF THE FEDERATION (supra).

Consequently the court below could not have had jurisdiction to entertain the Appellant’s claims by invoking section 15 of the Court of Appeal Act.

The Appellant has urged this court not to remit the case to the court below for retrial as this is a pre-election matter which deserves urgent attention. I have equally taken note of this but in the peculiar circumstance of this matter, it is only appropriate to remit the case to the trial Federal High Court, Port Harcourt before another judge for trial on pleadings duly filed and exchanged by the parties and I so order. I do not make order as to costs in the circumstance of the case. Parties are to bear their respective costs.

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SC.460/2011

Musa Ikaria Vs The State (2012)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is a further appeal against the judgment of the Ogun State High Court, hereinafter referred to as the trial court, before which the appellant, Godwin Awin and others then at large were tried for conspiracy to commit robbery and armed robbery contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Fire Arms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential Amendments Etc) Act 1999.

Aggrieved by his conviction and sentence by the trial court, the appellant appealed to the Ibadan Division of the Appeal Court. The court, hereinafter referred to as the court below, in its judgment dated 28th October, 2010, affirmed appellant’s conviction by the trial court but reduced the sentence imposed on him from death to life imprisonment.

The appeal before us, on a Notice containing two grounds, arises out of appellant’s dissatisfaction with the judgment of the court below.

Parties have filed and exchanged their briefs of argument. At the hearing, they adopted and relied on these briefs as their arguments for and against the appeal and urged that the appeal be allowed or dismissed.

The appellant has identified two issues in his brief for the determination of the appeal. The issues read:-

“1. Whether the prosecutor proved its case beyond reasonable doubt to warrant the affirmation of the conviction of the appellant by the Court of Appeal.

2. Whether the learned justices of the Court of Appeal were right in law to hold that the testimonies of PW1 and PW2 were not hearsay and therefore inadmissible.”

Respondent’s sole issue for the determination of the appeal which is not dissimilar to appellant’s 1st issue reads:-

“Whether the learned justices of the Court of Appeal were wrong in law to hold that the prosecution had proved the charge of robbery against the appellant beyond all reasonable doubt.”

It is argued in the appellant’s brief that the respondent, by Section 138 of the Evidence Act, has the onus of proving its case against the appellant beyond reasonable doubt. Reliance is placed on Bagudu V State (1996) 7 NWLR (part 460) 279; Onugbogu V State (1974) 9 SC 1; Chia v State (1996) 6 NWLR (part 455) 465 and Morka v State (1998) 2 NWLR (Part 537) 294 at 307 by learned appellant’s counsel in submitting that the respondent has not discharged the burden the law places on it. The court below, therefore, argues learned counsel, erred by affirming the wrong finding of the trial court in that regard.

The evidence of PW1 and PW2 and indeed PW4, learned appellant counsel contends, are inadmissible in law and cannot form the basis of the conviction of the appellant. The testimonies of PW1 and PW2 submits learned counsel, are hearsay while the testimony of PW4 who has not been cross examined is equally unavailable to the respondent.

This leaves the trial court and indeed the court below with the testimony of PW3. The finding of the court below at page 126 lines 4 – 14 fixing the appellant as a participant in the robbery is a serious error that has occasioned miscarriage of justice. The testimony of PW3, it is further argued, is incoherent not only on the vital issue of the identity of the appellant but also his presence at the scene of the crime. Such evidence being unreliable is incapable of sustaining a conviction for the grave offence of robbery. Relying on Chukwu V State (1996) 7 NWLR (Part 463) 686 at 702; Alabi V State (1993) 7 NWLR (part 307) 511 at 533; Orimoloye V the State (1984) NSCC 654; Okosi V State (1989) NWLR (part 100) 642 at 665 and Nwabueze V the State (1988) NWLR (part 86) 16 at 30, learned appellant’s counsel urges that the sole issue the appeal raises be resolved in appellant’s favour. Learned counsel to the respondent strongly supports the judgment of the court below. He refers to the findings of the trial court at pages 51 and 52 of the record and submits that the evidence that pw3 was robbed at about 9:00 pm on 1st February, 1999 and the appellant being one of the armed robbers remains uncontroverted. The court below cannot lawfully interfere with the trial court’s findings from such evidence.

Relying on the decision in Afolalu v State (2010) 16 NWLR (part 1220) 584, learned counsel argues that what is in issue here is the credibility of respondent’s witnesses which in law the appellate court is not empowered to interfere with. It is entirely within the province of the trial court to appraise evidence led by the respondent and ascribe probative value to them. The lower court can only interfere where the trial court’s decision is perverse. The court’s finding at page 126 of the record of appeal, on the appellant’s participation in the robbery is clearly attested to by respondent’s witnesses except as to whether the appellant was upstairs or not when PW3 was being robbed.

This court, learned counsel finally submits, does not usually interfere with concurrent findings of the two lower courts. He urges that the court keeps to this practice by further affirming the lower court’s decision that has not been shown to be perverse. Learned respondent’s counsel supports his submissions with the decisions in Igwe V State (1982) 9 SC (Reprint) 87; Ogbodu V State (1987) 2 NWLR (part 54) 20 at 29; Afolalu V State (supra) and Archibong V State (2004) 1 NWLR (part 855) 488 in urging that the unmeritorious appeal be dismissed.

The only issue that arises for the determination of the appeal is appellant’s first issue which clearly subsumes his 2nd issue.

Respondent’s lone issue is similar to appellant’s first too. The appeal accordingly deserves to be determined on the basis of appellant’s first issue alone.

It is trite that the law requires the respondent to prove its case against the appellant beyond reasonable doubt. This Court’s decisions in Onugbogu V the State (supra) and Morka V State (supra) restate this principle of great antiquity. The quality of evidence the respondent adduces invariably determines if that burden has been discharged. Once the burden has not been discharged, concurrent findings holding otherwise, being perverse, on review on a further appeal would be interfered with and set-aside. See Iyaro v. State (1988) 1 NWLR (Pt.69) 256; Sugh V. State (1988) 2 NWLR (pt.77) 475 and Ekwunife V. Wayne (W.A.) Ltd (1989) 5 NWLR (Pt.122) 422.

In the instant case the respondent relied on four witnesses to establish its case. It does appear that of these witnesses only one, PW3, the victim of the offences for which the appellant is convicted, testified directly.

At page 9 line 19-21 of the record of proceedings, PW1 under cross examination stated as follows:

“I was not there when the offence alleged was committed. I confirm that I was told what I told the court about the fact that the accused person committed the offence” (underlining supplied for emphasis).

With the foregoing testimony, learned appellant’s counsel cannot be wrong in his submission that PW1’s evidence being hearsay is unhelpful to the respondent. See Pharmacist Board of Nigeria V Adegbesole (1986) 5 NWLR (Part 44) 707 and Management Enterprises Ltd V Otunsanya (1987) 2 NWLR (part 55) 179.

Under cross examination, PW2, like PW1 testified as follows:-

“The 1st defendant was alone when I saw him. Apart from the fact that I saw the accused running away, I was never a witness to any robbery. “(underlining supplied for emphasis).

The foregoing makes PW2’s testimony similarly worthless.

The trial court, and correctly too, discountenanced, the evidence of PW4 that was untested.

Now, the question to answer is whether the court below is right to have affirmed the finding of the trial court on the basis of the evidence led before it that the respondent has discharged the burden of proof the law saddles it with. Put differently, has the respondent proved its case against the appellant beyond reasonable doubt I think not.

It seems to me that the crucial issue the two lower courts failed to adequately consider is if indeed the appellant was one of the persons that robbed PW3 on the 1st of February, 1999 at her residence. It is not in doubt that neither PW1 nor PW2 witnessed the commission of the very robbery the appellant has been convicted for. They were not at the scene when the robbery took place. Whether or not the appellant was a member of the gang and had participated in the robbery, only PW3 can testify to that fact. As rightly asked by learned appellant’s counsel, is PW3’s testimony devoid of doubt on this vital issue of the identity of the appellant and his participation in the robbery

I agree with learned appellant’s counsel that a careful examination of the evidence of PW3 reveals serious lacuna regarding the identity and presence of the appellant at PW3’s residence where and when the robbery took place. PW3’s evidence it is that it was appellant’s gang that robbed her on that fateful day. By her testimony, appellant was not the person who met her in the shop, pointed a gun at her and requested money from her. It is also evident from her testimony that she ceased to be composed on her being pointed a gun at by the person who approached her in the shop. She said she was “shaking” on her being pointed the gun. In the house where she was subsequently led to, it would appear, she never regained that composure. She was glaringly distressed. PW3 is ambivalent in her evidence on whether the appellant was one of the persons that went with her upstairs to retrieve some further loot. She ended up, under cross examination, stating that appellant was not one of the two that went with her upstairs to collect the remaining money she had and her jewellery. Appellant was left down stairs when the other two went upstairs with her.

Again, throughout her evidence, PW3 never described how the appellant dressed on the fateful day or the particular features that gave him out as being a member of the gang that robbed her. The robbery in her house was still ongoing when the alarm she told the court raised by PW2 forced the robbers to flee. She told the trial court that she identified the appellant as being one of those that robbed her after PW2 had raised alarm as to the presence of thieves in the vicinity and apprehended the appellant. She identified the appellant at the stake he was tied to.

The principle must be restated here that where the quality of the evidence of identification of the accused in the commission of the offence with which he is charged is poor, the accused, on the authorities, should be acquitted unless other evidence abounds in support of the identification. In the case at hand it is clear that respondent’s case depends solely on the identification of the appellant as one of those who robbed PW3. The glance PW3 had of the appellant accured under very intimidating and difficult circumstances. Respondent’s evidence on the identity of the appellant as one of the robbers, from the record, is manifestly weak. The circumstances for which respondent’s witnesses associate the appellant with the offences he has been convicted for are doubtful and suspect. The trial court should have applied caution in convicting the appellant. See Olalekan V State (2001) 18 NWLR (Part 746) 796; Abudu V State (1985) 1 NWLR (part 55; and Ajibade V State (1987) 1 NWLR (part 48) 205.

In Alabi v State (1993) 7 NWLR (part 307) 511 at 537 has stated the position thus:-

“In a case where the witness had a fleeting glance of the accused, during which he could not even identify the dress the accused was wearing, it calls for caution before the trial court could convict. It is relevant to establish how long did the witness have the accused under observation and whether the distressed condition of the witness during the commission of the crime would be an impediment to clear identification of the accused. The angle where the witness was standing during the commission of the crime, which facilitated his perception of the scene, should also be considered.” (underlining supplied for emphasis).

An impartial view of the evidence before the trial court certainly induces some doubt in appellant’s identification the benefit of which the court below in its affirmation of the trial court’s decision denied him. In Bozin V State (1985) 2 NSCC 1087 at 1091 this court held:-

“… When, as in this case, the evidence of the identity of the appellant is punctured with improbabilities and so many questions remain unanswered and unexplained, the trial court should have hesitated a lot before being satisfied and if it were in doubt, (a doubt which any impartial view of the evidence in this case should induce), it was its duty to give the benefit of that doubt to the appellant.”

See also Bashaya V State (1998) 4 SCMJ 202 and Chukwu V State (1996) 7 NWLR (part 63) 686.

Furthermore, the trial court appears to have considered appellant’s story unworthy of its attention. And the court below endorsed that stance. It is however very glaring from the record of appeal that appellant has totally denied being at the scene of the robbery or having had anything to do with the offences. He stated where he was coming from his abode, the purpose of his being to Ifo and whom he was visiting on that fateful day. He neither knew PW3 nor belonged to the gang that robbed her. Appellant said he was not at PW3’s house at the time of the robbery. He said he was arrested at the Ifo motor park by 6:00 pm and held by the people who accused him of the robbery he is convicted for. In his circumstance, the appellant is perfectly entitled to the alibi he raises. The respondent did not investigate appellant’s assertion let alone make the outcome of such investigation available to the trial court. The respondent has a duty to investigate appellant’s alibi and its failure in doing so and providing the trial court any evidence to prefer and rely on in place of appellant’s version remains fatal to its case. The trial court’s decision on appellant’s guilt in total disregard of the alibi he raises and in the absence of any evidence of rebuttal as well as the lower court’s affirmation of that decision is perverse. See Nwosisi v State (1976) 6 SC 109; Odidika v state (1977) 2 SC 21; Njovens v State (1975) 5 SC 17 and Ikemson v State (1989) 3 NWLR (Part 110) 455 at 481.

The trial court found that it is appellant’s burden to prove the truth of what he told the court. It cannot be!

The burden of proving the guilt of an accused person beyond reasonable doubt is always on the prosecution. The burden never shifts being the ultimate burden. Admittedly, evidential burden in criminal cases, being the burden of introducing, adducing or producing evidence on any particular issue at the trial court could be placed on either the prosecution or the accused depending on the issue and, where the burden is not discharged the issue can be resolved against the party. In the instant case, however, appellant has discharged the evidential burden of introducing evidence of his alibi. The onus of disproving it as well as the general one of proving appellant’s guilt beyond reasonable doubt remains that of the respondent. In the absence of any evidence of rebuttal of the alibi the appellant raises, the court below is wrong to have affirmed the trial court’s conviction of the appellant for the offences the respondent failed to establish beyond reasonable doubt. See Umani V State (1988) 1 NWLR (Pt.70) 274 at 284; Nwosisi v. State (1976) 6 SC 109 and Okosun V A.G. Bendel State (1985) 3 NWLR (part 12) 283.

Finally, this Court held in Ikemson V the State (supra), a case relied upon by the trial court which decision the court below affirmed, that it is not enough for the prosecution to prove that there was armed robbery it must further establish beyond reasonable doubt that the appellant had participated in the robbery. In the instant case the respondent cannot be said to have proved appellant’s participation in the robbery beyond reasonable doubt.

I resolve the issue raised for determination by the appellant in favour of the appellant. The appeal being meritorious is hereby allowed. The judgment of the lower court affirming the conviction of the appellant by the trial court and imposing a sentence of life imprisonment is hereby set-aside. Appellant is discharged and acquitted.

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SC.48/2011