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Markus Natina Gundiri & Anor Vs Rear Admiral Murtala H. Nyako & Ors (2012) LLJR-SC

Markus Natina Gundiri & Anor Vs Rear Admiral Murtala H. Nyako & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Yola, Adamawa State delivered on 22nd September, 2012 by which the court dismissed the appeal of the appellants against the judgment of the Governorship Election Petition Tribunal Yola, delivered on 25th day of July, 2012 which dismissed their petition. The judgment of the Court of Appeal is contained at pages 3882 to 3918 of vol. VIII of the records of appeal while the Notice of Appeal against the judgment is contained at pages 3941 to 3949. Apart from the appeal of the appellant herein against the said judgment of the Governorship Election Tribunal, Yola to the lower court, there was also another appeal No. CA/YL/EPT/GOV/7/2012 against the same judgment filed by the 7th Respondent herein. The lower court consolidated the two appeals for hearing on the application of the appellants counsel. The judgment of the lower court in respect of this second appeal is contained at pages 3918 to 3934. The Brief facts leading to this appeal is that on the 4th day of February 2012, the 4th respondent conducted in Adamawa State, an election to the office of Governor of Adamawa State. The 1st and 2nd appellants were the Governorship and Deputy Governorship candidates respectively of the 7th Respondent while the 1st and 2nd respondents were the Governorship and Deputy Governorship candidates respectively of the 3rd respondent at the election. At the end of the election, the 4th, 5th and 6th respondents declared the 1st respondent winner, having credited him with 302,953 votes against 241,023 votes credited to the 1st appellant. Dissatisfied with the return of the 1st respondent as winner of the election, the appellants and their political party, the 7th respondent filed a petition at the Governorship Election Petition Tribunal, Yola. The complaints of the appellants in the petition were limited to particular units and wards in 11 local governments out of the 21 local governments in Adamawa State. The eleven local governments are Mayo Belwa, Fufore, Yola South. Yola North, Demsa, Madagali, Toungo, Numan, Girei. Mubi North and Maiha.

On the perusal of the totality of the petition, it could be gathered that the grounds predicating the complaints of the appellants against the election in their opinion bordered on substantial non-compliance with the Electoral Act, 2011, irregularities as well as criminal allegations.

On the one hand and in proof of the petition, the petitioners front loaded 76 witnesses out of whom 66 were called to testify. On the other hand, the 1st and 2nd respondents front loaded 73 witnesses but called only 8 out of the lot. The 3rd respondent who had given notice of its intention to call 73 witnesses ended up calling only 1 while the 4th – 6th respondents called no witnesses out of the 200 witnesses in respect of which they got leave of the Tribunal to call. At the end of the trial, the tribunal by its considered judgment delivered on the 25th day of July, 2012 dismissed the petition and hence an appeal to the Court of Appeal which per its judgment delivered on the 2nd September, 2012 also dismissed the appeal. The notice of appeal before us, being a product of the lower court judgment, was filed on the 3rd October, 2012 and containing nine grounds of appeal with their particulars. In accordance with the practice in this court, parties filed and exchanged their respective briefs of arguments. The appellant’s brief was filed on the 18th October, 2012 and was settled by Akin Olujinmi, SAN, and upon being served with the various Respondents briefs the appellants filed two sets of reply briefs in response thereof.

In otherwords, while a joint reply brief was filed in respect of 1st, 2nd, 4th, 5th and 6th respondents brief, another was filed in respect of that of the 3rd respondent. The respective briefs were all relied upon and adopted at the hearing of the appeal with some amplifications by counsel by means of adumbration. In the brief of the appellants nine issues were formulated from the nine grounds of appeal. Seven issues were raised on behalf of the 1st and 2nd respondents and also same by the 3rd respondent. The 4th, 5th and 6th respondents joint brief of argument in the same vein like the other respondents formulated seven issues for consideration. For the determination of this appeal I will deem it appropriate to adopt the issues formulated by the 1st and 2nd respondents as it will serve sufficient and all inclusive of those raised by the appellants and the other respondents. The reproduction of the seven issues are as follows:-

“1. Whether their Lordships of the court below were right in upholding the decision of the Tribunal in refusing to give credence to the evidence of PW1 – PW 65 on the ground that the evidence of those witnesses constituted hearsay evidence in that the witnesses failed to distinguish between what they saw themselves and what they were told by their polling agents quite apart from the fact that some of the depositions made in Hausa language were translated into English language by unidentified persons who failed to sign the jurat to show that the makers of the depositions knew the contents thereof. (ARISING FROM GROUND 1 OF THE GROUND OF APPEAL).

  1. Whether their Lordships of the court below were right in upholding the decision of the Tribunal that there was no duty on the Respondents to call evidence in rebuttal of what had not been established by the Appellants since the non-compliance alleged was not proved and that the petition was predicated largely on criminal allegations which were not established beyond reasonable doubt apart from the fact that both civil and criminal allegations were so intertwined in the pleadings as to make the doctrine of severance inapplicable. (ARISING FROM GROUNDS 2, 3, AND 4 OF THE GROUNDS OF APPEAL).
  2. Whether their Lordships of the court below were right when they upheld the decision of the Tribunal rejecting the evidence of PW 66 and his report Exhibit 759 on the ground, amongst others, that he was not an expert, had not witnessed the election and had no expert knowledge or any knowledge superior to that of the judges of the Tribunal and that his evidence consumed inadmissible opinion evidence. (ARISING FROM GROUND 7 OF THE GROUNDS OF APPEAL).
  3. Whether their lordships of the court below were right when they ruled that appeals are founded on the ratio decidendi of the judgment and that the complaint that the learned judges of the Tribunal preferred the issues formulated by the 3rd Respondent to those formulated by the Appellant did not arise from any of the decidendi of the judgment of the tribunal and therefore upheld the decision of the tribunal to determine the petition on the basis of issues formulated by the 3rd Respondent as opposed to those formulated by the Appellant. (ARISING FROM GROUND 5 OF THE GROUNDS OF APPEAL).
  4. Whether their Lordships of the court below were right when they upheld the decision of the Tribunal to the effect that forms EC8AS, EC8BS, EC8CS, EC8Ds and voters registers and other electoral documents tendered from the bar by counsel to the Appellants had no evidential value on the ground that they were dumped on the Tribunal not having been tied or related to the Appellant’s case through witnesses. (ARISING FROM GROUND 8 OF THE GROUNDS OF APPEAL).
  5. Whether the learned justice of the court below erred in law when the dismissed the appeal on the ground that it was completely lacking in merit. (ARISING FROM GROUND 9 OF THE GROUNDS OF APPEAL).
  6. Whether the learned justices of the court below upheld without justification or due consideration the decision of the Tribunal refusing to give probative value to the evidence of PW1 – PW 65 or whether they did so after and due consideration.(ARISING FROM GROUND 6 OF THE GROUNDS OF APPEAL).”

Issues 1 and 7 taken together. The learned appellants counsel by raising these issues is questioning the failure by the lower court in giving consideration to the erroneous refusal of the trial tribunal in giving evidential value to the appellants 22 witnesses. The grouse of the appellants therefore relates to the failure of the tribunal to give evidential value to the evidence of 22 of the appellants witnesses on the ground that the illiterate jurat contained in the witness statement of the witnesses were not signed by the interpreter. The counsel therefore alleged serious error on the part of the lower court in failing to intervene therein. That it is not shown on the record that the lower court did consider the case made out by the appellants against the judgment of the trial tribunal. That the lower court just simply agreed with the tribunal without more and dismissed the issue. That the law is trite that a duty lies on a court to consider all the issues that have been joined by parties. Reference in support was made to the case of Paul Edem Vs. Cannon Balls Ltd & Anor. (2005) 12 NWLR 27 AT 54 – 56. That an illiterate protection law even if it applies is for the protection of an illiterate person who seeks to disown a document which had not complied with the law. That none of the 22 witnesses in question disowned his witness statement. The following authorities are again cited in buttress of the submission:- Edokpolo & Co. Ltd V. Ohenhen (1994) 7 NWLR (Pt. 358) p. 511; Wilson V. Oshin (2000) 6 SC Pt 111 page 1 and Udeagha V. Omegara (2010) 1 NWLR Pt 129 p. 168. The learned counsel listed all the affected witnesses and related in particular to the witnesses P. W 2 and P.W 3. whom counsel argued gave cogent and compelling evidence of irregularities and substantial non-compliance in Mayo Belwa Local Government Area. He also laid emphasis on the evidence of P.W. 10. P.W. 13, PAY. 15. P.W. 17 and P.W. 18 which were in relation to the corrupt practices perpetrated at various units of Yola South Local Government Area. That their evidence which was unshaken and uncontroverted by the Respondents, go to confirm the allegations of non- accreditation, arbitrary allocation of votes, thuggery, inducement of voters, multiple voting and the fact that no election took place in some of the units of the Local Governments. The learned counsel also emphasized that even the 1st and 2nd respondents witnesses R.W. 1 and R.W. 3 under cross examination did confirm the non-compliance and irregularities alleged by the appellants. In otherwords, that persons of the same name, identity, sex and age voted 8 different times in Biti ward of fufore LGA.

That the miscarriage of justice occasioned by the lower court in upholding the decision of the tribunal had put the appellants at a great disadvantage. That had the evidence of the witnesses been accorded their appropriate unimpeached evidential weight, the case of the appellants would have been different. That this court is therefore called upon to uphold the said issues raised in favour of the appellants. In response to the said issues, the learned 1st and 2nd respondents counsel submitted at great extent on the hearsay nature of the evidence of the appellants witnesses P.W1 – P.W 65. The counsel argued and reiterated the evidence by the witnesses wherein they confirmed that their testimonies were based on what they were told by the polling agents appointed by the appellants and also what they witnessed themselves. That they were neither specific as to what they were told by the agents nor were they specific as to what they personally witnessed. In other words, that they did not distinguish between what they were told as against what they saw themselves. That the absence of the polling agents to testify at the tribunal as to what took place in their respective units has greatly worked negatively against the appellants. The sum total of the submission is that no explanation was given as to why the polling agents who witnessed the elections were not called to testify. The absence of their reports, counsel submitted was also not explained to the tribunal.

That there would have been no method by which the tribunal would have distinguished between what the witnesses saw themselves and what they were told by the polling agents. The absence of tile reports did not also avail the tribunal of its contents. That no reason was therefore given by the appellants as to why credence should have been given to the evidence of the said witnesses. Furthermore, counsel submitted that the depositions of the witnesses P. W. 1 – P.W. 65 failed to comply with section 115 of the Evidence Act. That the appellants witnesses alleged several electoral malpractices and criminal offences against the respondents ranging from non-accreditation of voters, over voting, financial Inducement, multiple voting, ballot box stuffing to falsification of results. That all these were stated to have happened at different times and in different places under circumstances which made it impossible for the deponents to have witnessed what was happening at different polling units, at the same time. That the agents at the relevant polling units ought to have been called therefore. That all that was available to the tribunal was the oral reports of the agents which the appellants chose to rely thereon. That the tribunal had no option but to treat such reports as hearsay evidence because the law requires the deponent to disclose the source of his or her information. The learned counsel re-iterated further that the findings by the tribunal which were admitted by the appellants were upheld by the lower court and against which there is no appeal.

Counsel further submitted that in addition to the depositions all being identical, they were also presented in a language other than that in which they were made. That this was peculiar to the 22 witnesses out of the 66 witnesses called by the appellants. That there was no explanation offered as to how depositions which had been made in Hausa metamorphosed into English. That these were not matters that a court of justice could ignore. With further reference made to the witness depositions filed along with the petition, the learned counsel pointed out that they were all couched in the same form and style, with the same facts and circumstance repeating themselves. In the circumstance, that the inevitable conclusion is that the petition was not accompanied by valid depositions, thus rendering the petition incompetent and robs the tribunal of the jurisdiction to entertain same. See the case of Buhari V. INEC (2008) 4 NWLR (Pt. 1078) and Chukwuma V. Nwoye (2011) All FWLR (Pt 553) 1942 at 1967. That the failure of the appellants to accompany the petition with credible witness depositions was a fundamental breach which robbed the tribunal of jurisdiction to entertain the petition see the case of Okereke V. Yaradua (2008) 12 NWLR (Pt 1100) 95 at 118. The learned Senior Counsel urged that the court below was right in upholding the view held by the tribunal that the character of the depositions is unreliable. The learned counsel on behalf of the 3rd respondent on account of his submission can be rated as an additional spokesman for the 1st and 2nd respondents. This of course is expected especially with the existing party relationship. The counsel in his submission aligned himself in totality with the contention advanced by the 1st and 2nd respondents’ counsel. In other words and contrary to the submission by the appellants’ counsel the said 3rd respondent’s counsel argued that the court below gave due consideration to this issue and came to the conclusion that it had no merit. That it is on the record that the witnesses P.W. 1 – P.W. 65 failed to distinguish between what they saw and what they were told by their polling agents. That the lower court was in proper perspective in their conclusion that the decision of the tribunal not to place any probative value on the evidence of P.W. 1 -P.W 65 could not be faulted.

The learned 3rd respondents counsel in further firm support of the submission made by the 1st and 2nd respondents’ counsel also cited a number of authorities which all go to advance the course of the identical nature of the principles highlighted. The counsel on this issue urged that same be resolved in favour of the 1st and 2nd respondents, and against the appellants. On behalf of the 4th, 5t and 6th respondents, their learned counsel submitted in agreement with the learned friends on behalf of the 1st and 2nd as well as the 3rd respondents. The counsel to buttress his submission went further to accredit and emphasize the findings by the tribunal as self explanatory in that the appellants’ witnesses failed to distinguish between what they saw and observed personally as against that told to them by their polling agents. The learned counsel cited the cases of Bamaiyi V. State (2001) 8 NWLR PAGE| 7 (pt. 715) p. 270 at 290; Buhari V. Obasanjo All FWLR (PT 273) Page 154, and Itashidu VS. Goje (2003) 15 NWLR (Pt 843) p. 352 at 393. That the reason abound and which the tribunal considered for not attaching probative value to depositions of the respective petitioners witnesses which reason was also upheld by the Court of Appeal. The counsel therefore urged us to so hold. On behalf of the 7th respondent, its learned counsel Dr. Banire applied to withdraw their brief filed on 18/10/12 and same was accordingly struck out. There is therefore no brief or submission by the 7th respondent herein. In further response to the respondents briefs the two sets of reply briefs filed on behalf of the appellants are merely to fulfill all righteousness because they have nothing new added to the main brief. I have therefore perused and considered the said reply briefs and the totality of the submissions contained therein are not a departure from the main brief but are mere emphasis thereof. The confirmation of this is the statement made by the appellants’ learned counsel himself wherein he concluded the two reply briefs by emphatically stating that the respondents have urged nothing in their briefs to whittle down the cogent arguments of the appellants on all the issues raised in this appeal. The cumulative complaint or grouse by the appellants in the 1st set of issues borders on the allegation that the learned tribunal judges either refused or totally failed to evaluate or properly so to do the evidence of 22 of their witnesses. This therefore raises the question of evaluation of evidence which the law specifically gives the duty to the trial court. In other words it is trite law that the onus of evaluating evidence is stricto senso that of the trial court and the appellate court should not be seen to interfere therewith except where there is evidence of failure by the trial court to properly evaluate or where there is a miscarriage of justice. It is elementary to state that the trial court is a court of evidence and therefore has the advantage of seeing and assessing the credibility of witnesses and their demeanors.

The totality of the appellants’ submission on the issues is that the miscarriage of justice occasioned by the lower court in upholding the decision of the tribunal lies in the refusal to attach evidential weight to the evidence of the said witnesses. It is pertinent to restate that the question of evaluation of evidence presupposes a construction of an imaginary scale in the mind of trial court judge(s) where upon the evidence of both contenders are put on this scale with the purpose of determining on which side of the scale the pendulum of justice would tilt. The evaluation would not be based on the number of witnesses, but rather on the credibility and acceptability of the evidence. In otherwords, there are determinant factors that will necessitate an evidence being acceptable and credible. Such evidence must come from a witness who has the first hand knowledge of that which he testifies to. He must in otherwords be a witness who saw or heard or took part in the transaction upon which he was giving evidence. Where a witness gives an account of an information which is not within his personal knowledge, he would not be accredited as a competent witness.

At page 3909 of the record of appeal, for instance the lower court held thus and said:

“The lower Tribunal in its judgment made specific findings that those witnesses failed to distinguish between what they saw and what they were told by their polling agents. The tribunal also found that the witnesses P.W 1 – P.W 65 did not only fail to disclose even the names of those agents who told them what happened at the polling stations, but also failed to present to the Tribunal any written report from any of the agents of what happened at the polling stations. The decision of the lower Tribunal not to place any probative value on the evidence of P.W. 1 – P.W 65 cannot be faulted.” Also at page 216 of its judgment (see page 3655 of the record of appeal) the trial tribunal held and said:- Another irritatingly repetitive item most of the witnesses statement on oath of the petitioners’ witnesses is the illiterate jurat. Even witnesses who testified before us that they deposed to their witnesses statement in English language their depositions contain illiterate jurat (There are 22 of such witnesses) all the said jurat were not signed by the interpreter. Though the witnesses kept mentioning the name of Sunday Mathew who is a lawyer.” The learned appellants’ counsel submitted at great extent in defence of the illiterate jurat contained in the said witnesses’ depositions and the fact that non of the 22 witnesses in question disowned his witness statement. It is pertinent to state that out of the 66 witnesses called by the appellants, 22 of them stated under cross examination that they made their depositions in Hausa language. The record did not show that the depositions adopted were those made in Hausa language which is not the language of the court. With the depositions adopted being in English language, the question to pose is, were those depositions adopted the same as those made by the witnesses.

To my mind and from all indications, the witnesses were adopting to depositions which were not intact made by them since English language was foreign to their understanding.. The appellants owed a duty to the court to have presented the very depositions made by the witnesses. The adoption of a different deposition was very defective and it could not have been rectified by the use of an illiterate jurat. The learned tribunal judges on this score said thus at page 216 of their judgment, (i.e to say page 3655 of the record.)

“Even witnesses who testified before us that they deposed to their witness statement in English their depositions contained illiterate jurat. (There are 22 of those witnesses.) All the said jurats were not signed by the interpreter; though the witness kept mentioning the name of one Sunday Mathew who is a lawyer. This creates a distinct impression in our minds that the written depositions were haphazardly mass-produced and names of witnesses, units, wards and local governments were inserted. They lack the well – known individuality and distinction required of a legal deposition which affects the weight we attach to them and we so held.”

From the foregoing findings by the trial tribunal, the law desires that witness depositions are to be individually identified with the maker. It is not enough an identity that non of the witnesses in question disowned the statement. They could not in otherwords have claimed rightly a deposition which was made in English language since they spoke in Hausa. The mentioning of the name of one Sunday Mathew, an interpreter, was not enough an identity. The learned appellants’ counsel cited the case of Udeagha V. Omegora (2010) 11 NWLR (Pt 1204) page 168 wherein it was held that a witness can adopt an irregular written deposition. With all respect, the situation at hand is remarkably distinguishable from the case under reference because it has nothing to do with adopting an irregular deposition. It is rather to do with a different deposition made in a distinct and alien language and which is being sought for adoption. The authority under reference, cannot with all respect, be applied in this case. In the same vein and for further expatiation, I would wish to state that there was also no explanation offered as to how depositions which were made in Hausa language could metamorphosed, into English language, as rightly submitted by the 1st and 2nd respondents’ counsel. There was again no dispute that, the depositions of the 22 witnesses were made in Hausa language and that the jurat was not signed. In the circumstance, and contrary to the submission by the learned Senior Counsel for the appellants therefore, the court below was on the right footing in upholding the decision of the tribunal when it said thus:

“The deposition under consideration were said to be made in Hausa language and translated and written into English by unidentified persons who failed to sign, to show that the makers of the depositions knew the contents thereof. The implication or the conclusion to be derived from that is that the deponents did not know the contents of what they deposed to.”

The law is well settled that as a precondition to the exercise of jurisdiction, the witness statements are to accompany the petition to be filed. The consequential effect of the failure to comply is that the tribunal was on a firm ground when it declined to exercise jurisdiction over the 22 witness depositions which it held were incompetent. See the case of Okereke v. Yaradua (2008) 12 NWLR (Pt 1100) page 95. It is also the contention of the appellants that the court below refused to give any consideration to their ground of appeal which complained that the tribunal refused to give probative value to the evidence of P.W.I – P.W. 65.

At page 3910 of the lower court’s judgment, it held thus. “The lower Tribunal in its judgment made specific findings that those witnesses failed to distinguish between what they saw and what they were told by their polling agents. The tribunal also found that the witnesses P.W.1 – P. W. 65 did not only fail to disclose even the names of those agents who told them what happened at the polling stations, but also failed to present to the tribunal any written report from any of the agents of what happened at the polling station.” For the determination as to whether or not the lower court erred in not giving proper consideration as alleged, recourse must be had to the record of appeal in order to get the proper picture of what transpired. For instance, it is on record that the witnesses P.W.1 – P.W. 65 failed to distinguish between what they said they were told from what they alleged they witnessed themselves. There is also no dispute that not a single one of the witnesses furnished the names of the agents who were alleged to have made reports to the witnesses. Not also a single one of those witnesses tendered the written reports which they alleged were delivered to them by the polling agents. There is also no appeal by the appellants contending that the record of appeal is defective on the foregoing findings made by the trial tribunal. In the absence of any challenge therefore the findings are binding. It is also on record that the witnesses P.W 1 P.W 65 being supervisors, their testimonies were based on what they were told by the polling agents, appointed by the appellants, as well as what they did witness themselves. In their testimonies, they gave evidence as to what they alleged transpired at the polling stations and the evidence which did not distinguish between what they saw, which was within their knowledge as against that which was told to them by polling agents. By the provision of section 115 of the Evidence Act, the law treats facts derived from personal knowledge differently from those derived from information obtained from some other source(s). The implication is that a deponent ought not to lump facts derived from personal knowledge with those obtained from other sources without distinguishing between the two. The particulars of the person who supplied the information with the name, address, time, place and circumstance must be stated by the deponent. The deponent must also state his believe in the information to be true. The particulars of the sources of the facts derived from the polling agents were not stated in the case at hand. See the cases of FGN V. AIC Ltd. (2006) 4NWLR (Pt 970) 337 at 357 and Doma V. INEC (2012) ALL FWLR (Pt 628) 813 at 829. In the absence of any distinction, therefore, the deduction is to expect the tribunal to sort out which of the mixed up evidence was to be allocated to either the witness or the polling agents. This is not the duty of the tribunal to do in the comfort of their chambers. Hence the deduction arrived at by the tribunal therefore was in order. In otherwords, that the entire evidence constituted hearsay evidence and which was properly rejected. The findings of the tribunal in that respect was reproduced earlier in the course of this judgment. I will not therefore repeat same.

It is also relevant to mention that the burden of proof was on the appellants as the petitioners to prove their petition. They are therefore under a duly if they must succeed, to prove their case with all the available evidence they could find. It is intriguing I hold, that the polling agents of the appellants, although they were themselves appointed specifically to witness the elections and are recognized under the Electoral Act, were not however called as witnesses. At least there is no evidence of such on the record. At page 3655 of the record, the trial tribunal in that respect held and said:- “for some unexplained reason, the petitioners failed to call a single polling unit agent who was at the polling units and witnessed first hand, the entire election process at the said units from commencement of election to announcement of result.” The failure to call the polling agents was very detrimental to the appellants” case. There is also no appeal against the said findings. As rightly submitted by the learned 1st and 2nd respondents counsel therefore, the tribunal could not be expected to assume that their evidence would have been favourable to the case of the appellants had the polling agents testified. The law to the contrary would require the tribunal to presume that, had the polling agents been called their evidence would have been detrimental to the appellants’ case and hence their reason for refusing them to testify. As a corollary, a case in reference is INEC V. Anthony (2011) 7 NWLR (Pt. 1245) p. 22 – 23 wherein it was held thus:-

“By the provision of section 46(1) of the Electoral Act, 2006, each political part) may by notice in writing addressed to the Electoral Officer of the Local Government or Area Council appoint a person as a polling unit to attend at each polling unit in the Local Government Area Council for which it has candidate. Such polling agents by the provision of section 44(3) of the Electoral Act, 2006, shall be present at the distribution of Electoral Materials from the office to the polling booth. Therefore from the above the only persons who are entitled by law to testify as to whether or not election result sheets were distributed and the time of the arrival of electoral materials at the polling units are the polling units agents.” The significance of the polling units agents cannot therefore be underestimated in the case at hand if the appellants must have the facts to prove their case. The best evidence the appellants could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at an election. The consequence of shutting them out for whatever reason is very detrimental to the appellants’ case. See the case of Hashidn V. Goje (2003) 15 NWLR (PT 843) 352 and Buhari V. Obasanjo (2005) All FWLR (pt 273) 1 at 164 – 165 wherein Ejiwunmi JSC said amongst others:

“The evidence required to establish a crime must be evidence of a witness who saw or heard or took pail in the transaction upon which he was giving evidence. It is written law that hearsay evidence is not admissible for the purpose of establishing a crime. See section 77 of the Evidence Act.

” On the fatal effect of failing to call a polling agent, the case of Agballah V. Sullivan Chime (2009) 1 NWLR (Pt122) 373 at 433 -434 is relevant wherein it was held in part thus: “None of the appellant’s party agent that allegedly represented, signed and collected the election results forms from the numerous polling units was called to testify in the petition. A fortiori the failure of the appellant to call the party agent that represented and served as his representative at the various polling units to give evidence was fatal to the petition.”

It is pertinent to restate that from the evidence of all the witnesses called by the appellants they admitted that their polling agents signed all the result sheets and did so voluntarily on the instruction of their party, the 7th respondent. The implication is therefore obvious as it would have authenticated the validity of the documents, in otherwords, the results sheets. The agents, at law were all presumed to understand what they appended their signatures thereto. They could not in the circumstance have turned around to deny the contents of their signatures. See the case of Egbase V. Oriareghan (1985) 2 NWLR (Pt 10) 887 also that of Okoya V. Santili (1994) 4 NWLR (PT. 338) P. 280 -281. I also hasten to add that as a ward supervisor such person is a competent witness under the Evidence Act; the issue in this case however is the failure to distinguish the clear cut evidence between information which is within his personal knowledge as against the information given him by the polling agent, who ought to have been called as a witness, but was not. Where a petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove the non-compliance alleged based on polling unit by polling unit. See again the case of Ucha Anor. V. Elechi & 1774 Ors (2012) 3 SC (Pt 1) p 26. It is therefore physically impossible for one person to have supervised the election in ten polling units given the fact that witnesses are to be called from each polling unit. See the case of Senator Julius Ali Ucha V. Chief Martin Elechi & Ors.(supra) 2012 3 SC (Pt 1) p. 26. There is also no evidence indicating or giving the reason why they (agents) were not called or available. The reports by the agents in respect of which all the witnesses spoke so much about were also not tendered in evidence. One therefore wonders whether the appellants were really set out to prove their petition. Even if for some reasons the polling agents were not called to testify, the appellants should have foreseen that the agents’ reports are a necessity and therefore ought to have been laid before the tribunal. The witnesses P.W. 1 – P.W. 65 had their limitations and should not have been left to dabble through both what they saw and also that which was told to them by the polling agents. The appellants as architects of their case ought to have gone a step further. There was no way the tribunal would have known the contents of the reports without the makers identifying and placing them properly before them. The lower court and of course the tribunal could not be faulted in the conclusion arrived thereat page 3660 of the record wherein it held thus:-

“Unfortunately, they failed to distinguish between what they saw and what they were told by their polling unit agents. They also failed to disclose single name of their agents who not only told them what happened at their units but submitted to them a report. None of the reports by the polling agents was tendered in evidence even if to corroborate the testimonies of these wards supervisors this tribunal has no choice than to treat their entire evidence as hearsay evidence also.” There is no evidence that the appellants appealed against the foregoing findings of fact. They cannot now be heard to complain because they will have no justification since they are deemed to have admitted the facts so arrived at as being correct. The application of the law to the facts so arrived at cannot also be disputed as rightly held by the lower court wherein it affirmed that the trial tribunal was right when it refused to give credence to the evidence of P.W 1 – P.W 65. Issues 1 and 7 are therefore resolved against the appellants. The next set of issues to be considered are the earlier adopted 1st and 2nd respondents issues 2 and 6 which will also be taken together. The same I hold, also encapsulate the appellants’ issues 2, 3, 4, and 9. The said 1st and 2nd respondents issues 2 and 6 therefore read as follows:-

(2). Whether their Lordships of the court below were right in upholding the decision of the Tribunal that there was no duty on the Respondents to call evidence in rebuttal of what had not been established by the appellants since the non-compliance alleged was not proved and that the petition was predicated largely on criminal allegations which were not established beyond reasonable doubt apart from the fact that both civil and criminal allegations were so intertwined in the pleadings as to make the doctrine of severance inapplicable.

(6). Whether the learned justices of the Court below erred in law when they dismissed the appeal on the ground that it was completely lacking in merit. The appellants’ basic complaint in the foregoing issues squarely centres on the principle of the doctrine of severance and sought specifically to question the conclusion arrived at by the lower court wherein it held thus at pages 3897 to 3898 of the record in respect of the decision of the trial tribunal and said: The above conclusion by the lower tribunal was rightly arrived at and AD V. Fayose was applicable in the circumstances. Where both civil and criminal allegations are implicitly intertwined in the pleadings giving rise to the petition, the doctrine of severance is not applicable.” The learned counsel on the foregoing pronouncement submitted that the lower court merely confirmed the holding of the tribunal without any consideration of the arguments by the appellants. The counsel relied on the authorities of Omoborowo V. Ajasin (1984) 1 SCNLR page 108 and Fayemi V. Oni (2010)17 NWLR (Pt. 1222) P326 which were urged upon the tribunal to the effect that allegations that are civil in nature can be severed from the ones that are criminal in a pleading with a view to applying the appropriate standard of proof in each case. That it was on the basis of these authorities therefore, that the tribunal was urged to invoke the doctrine at the final address stage which fact counsel argued was acknowledged by the Tribunal in its judgment at pages 3655 – 3656 of vol. VIII of the record. That by the tribunal selecting certain sub-paragraphs of paragraph 18 which are criminal in nature and glossing over those sub paragraphs which are civil in nature, the appellants are clearly denied their right to fair hearing. The learned counsel heavily relied on the case of Omoborowo V. Ajasin (supra) and submitted as obvious from the record that the lower court, from the record did not give proper consideration to the appellants’ appeal and hence the erroneous confirmation by the trial tribunal in its judgment.

The further complaint by the appellants was against the holding by the tribunal that the hub of the petition was the several criminal allegations raised in the petition. Counsel again submitted the absence of consideration by the lower court and hence a further denial of fair hearing. That the summary of the appellants’ arguments at the lower court was to the effect that the petition raised both civil and criminal allegations. That since the lower court held at page 3901 that the petition raised both civil and criminal allegations, it was therefore clearly wrong for the lower court to uphold the decision of the tribunal that the hub of the petition was the several criminal allegations raised therein. In further submission, the learned appellants counsel also emphasized that in the absence of the 4th to 6th respondents failing to call any witness in support of their pleadings, the effect in law is that they are deemed to have totally abandoned their pleadings. The learned counsel in buttress of his submission cited the cases of Alhaji Muhammadu Maigari Dingyadi and Anor. V. AUyu Magatakarda Wamako (2008) 17 NWLR (Pt. 1116) 395 at 431. That the 4th – 6lh respondents are therefore deemed in law to have admitted all the evidence given by the appellants relating to non-compliance with the Electoral Act and irregularities in the conduct of the election. That by the 1st to 3rd respondents also having failed to lead evidence in support of also deemed to have abandoned their pleadings in respect of the averments. That had the lower court given proper consideration to the issues raised by the appellants, it would have found in their favour therein. The counsel therefore urged that this court should resolve the issues in favour of the appellants. The 1st and 2nd respondents issues 2 and 6 were taken together and same as I said earlier encompasses appellants issues 2, 3, 4 and 9. The learned counsel on behalf of the 1st and 2nd respondents on the foregoing issues therefore submitted at great extent in urging the court in the light of concurrent findings of facts by of both the court below and the trial tribunal to uphold the judgments in the absence of impeaching or faulting same in this appeal.

That with criminal allegations made in virtually every paragraph of the petition, once those paragraphs were struck out there would have been little or nothing left to go to trial. That it was only at the final address stage that it dawned on the appellants that they have not come anywhere near proving the several criminal allegations made by them in the petition and hence the application in urging the tribunal to sever the pleadings so that the petition could rest solely on civil allegations. That such an application cannot be made at such final address stage without affording respondents the opportunity to address on the issue. That the severance of pleadings was not an exercise which the tribunal could undertake in the privacy of the judges’ chambers behind the back of the respondents. That the appellants singled out 50 paragraphs of the petition which in their view supported the grounds of non compliance with the provisions of the Electoral Act and which contention was refused by the trial tribunal and was also upheld by the lower court. The learned counsel submitted further that the appellants on their part have not in this appeal shown that the criminal and civil allegations were not inextricably intertwined or that the allegations were severable. That the failure to do so is fatal to their appeal. On the pronouncement made by the tribunal on paragraphs 18(a) -(s) of the petition, the learned counsel re – emphasized that the appellants, in the absence of any complaint thereon cannot be heard at this stage that the allegations are not criminal in nature and which same were not proved. That the proof of allegations of corrupt practices and the other criminal allegations must be beyond reasonable doubt. Counsel related to the view which has been well settled in the case of Falae V. Obasanjo No. 1 (1999) 4 NWLR (Pt 599) 435 and Wali V. Bafarawa (2004) 16 NWLR (Pt 900) 6 & 7.

The learned counsel further argued that the appellants listed what they alleged to be the civil allegations made in the petition. This, counsel submitted were all mixed up with criminal allegations which were not proved. That the non compliance pleaded was not substantial having regard to the generality of the complaints in respect of the local government areas. The counsel analyzed the said local governments complained against and submitted in totality that the effect of the non compliance alleged was neither pleaded nor proved. Counsel also submitted that the failure to plead an alternative result by the appellant was detrimental to their case. That it was expected of them to have stated the official scores and thereafter state the scores which they believe are correct. That the results declared by INEC is, in law, presumed to be correct. Furthermore that the criminal allegations having not been proved by the appellants, there was no duty on the respondents to call evidence in rebuttal. On the question of abandonment of pleadings by the respondents as alleged by the appellants, learned counsel submitted that there was no evidence to be rebutted with the appellants failing to prove the allegation made in the petition. That evidence may also be led by way of a cross examination. Counsel therefore urged that the issues ought to be resolved against the appellants. The 3rd respondents’ counsel in respect of issues 2 and 6 submitted along the same line of arguments by the 1st and 2nd respondents. I will not therefore repeat his submission for purpose of avoiding monotony and also to save time.

The 4th, 5th and 6th respondents argued issues 2 and 6 in their issue 2, 4 and 7. In their submission on issue 2 relating the principle of the doctrine of severance, counsel argued the appellants’ misappreciation of the holdings by the trial tribunal which was affirmed by the court of appeal. That the paragraphs of the petition contained allegations of crime which were inextricably interwoven with civil allegations. That the appellants counsel in urging the tribunal to severe the civil allegation was rightly refused by the tribunal because it would have amounted to a counsel’s address taking the place of evidence. That the law is trite that where civil allegation is not severable from criminal allegation, the civil allegation cannot therefore succeed on its own. Counsel therefore urged us to hold that the appellants’ pleadings before the tribunal are not severable from the criminal allegations. That the said issue should be resolved against the appellants. On the question of abandonment of pleadings by the respondents, the learned senior counsel representing the 4th, 5th and 6th respondents again submitted the clear misappreciation of the position of the law by the appellants. That non-calling of witnesses did not amount to non calling of evidence. The appellants are to rely on the strength of their case and not on the weakness of the defence. See the case of Ucha V. Elechi (2012) All FWLR (Pt. 625) P 237 at 262. That this court should therefore affirm the judgment of the lower court. Learned counsel further argued that the appellants in the circumstance are only entitled to be granted the reliefs which they asked for subject however to the proof thereof by evidence. That in the absence of such proof the lower court was in order by affirming the decision of the trial tribunal. That the issues in the circumstance should be resolved against the appellants therefore. The determination of the said issues 2 and 6 are clearly predicated on the principle of the doctrine of severance. The law is trite and well settled that in situations where civil allegations are severable from criminal allegation, a party is entitled to succeed on his civil allegation if proved. The following authorities are in support. Nwobodo V. Onoh (1984) NSCC 1 at 16 – 17; Wuam Vs. Ako (1999) 5 NWLR (Pt 601) 150 at 163 and Agagu V. Mimiko (2009) 7 NWLR (Pt 1140) 342 at 401. I hasten to point out clearly that for the doctrine of severance to apply, there must be clear and distinctive compartmentalization or separation of criminal allegations from those which are civil in nature, in otherwords, while in the civil atmosphere there should be no allusion to criminal assertions, so does it also apply to civil assertions. The two cannot be interwoven or criss-crossing. See the case of AD V. Fayose (2005) 10 NWLR (Pt. 932) P 151 at 239.

The demarcations should also be clear cut and well defined in the pleadings. The duty to do so rests on the petitioner and it is not that of the court or tribunal as it will amount to taking over the responsibility of doing one party’s case to the detriment of the other party. The court is to be seen as an impartial umpire who should be adjudicating between parties. The law is also trite that in a claim for declaration, the onus is on the plaintiff/petitioner to establish his case on the strength of his evidence and not on the weakness of the case of the Defendant. The heavy weather made by the appellants in hammering on the respondents failure to call evidence in proof of their pleadings is a confirmation that the appellants are hiding behind one finger by abdicating their duty in proving the declaratory reliefs sought for. The proof is not determinant on whether or not the respondents called witnesses, but which squarely rests on the appellants by law. The case in reference is CPC V. INEC (2012) FWLR (Pt. 617) 605 at 633 – 634. The law is also well settled that it is the pleadings that determines the plaintiff’s claim. At this stage I will also seek to rely on the judgment of the tribunal wherein it held at page 3658 of the record of appeal and said;- “The hub of this petition upon which the wheel turns are the several allegations of crime made by the petitioner against the 1st, 3rd and 4th Respondents. The allegations include among others (1) Rigging (2) Snatching of ballot boxes (3) Stuffing of ballot boxes with thump print ballot papers in favour of the 1st and 3rd respondents (4) Underage voters and voting (5) allocation of results in favour of 1st and 3rd respondents (6) falsification of results (7) monetary inducement of voters (8) non accreditation of registered voters (9) preventing accredited voters from voting (10) diversion of ballot papers and ballot boxes (11) intimidation and harassment of voters (12) thuggery and violence etc. It is the contention of the petitioners that these criminal allegations rendered the entire election of 4th February, 2012 invalid. It is trite law that these criminal allegations need to be proved by the petitioners beyond reasonable doubt.”

It is further very significant to restate that their Lordships of the court below after they had reviewed the record relating the petition and the evidence in respect thereof, came to the following deductions at pages 3901 – 3902 of the record of this appeal and comprehensively said thus:-

“Having perused the contents of the petition contained at pages 1 – 69 of volume 1 of the records of appeal, it is evident that of the 152 paragraphs thereof, 129 paragraphs were devoted to both criminal and civil allegations against the 1st – 3rd respondents whilst 86 of the paragraphs are express criminal allegations. See paragraphs 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 52, 54, 55, 56, 57, 58, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 89, 90,91,92, 93, 94, 96, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 113, 114, 115, 116, 117, 118, 119, 120, 121, 125, 126, 127, 130, 131, 132, 133, 134, 137, 140, 141, 143, 144, 145, 146, and 147 of the petition. The criminal allegations contained in the above mentioned paragraphs of the petition ranged from multiple thumb-printing of ballot papers, arbitrary allocation of figures, multiple voting, intimidation and harassment of voters over voting, snatching of ballot boxes, financial inducement, bribery, thuggery, falsification of voters, kidnapping of ACN agents, etc. Undoubtedly, these were criminal acts which needed to have been proved beyond reasonable doubt as required under section 135 (1) and (2) of the Evidence Act 2011, and there seems to be no contention by the appellants on that position of the law, on the authorities relied upon by-all counsel herein. I agree with them too. It is preposterous to suggest that an act of falsification can be weaned of its criminality.” In the light of the above deductions arrived at by the lower court, their Lordships of that court therefore upheld the findings of the tribunal in the following terms at pages 3903 to 3904 of the record:- “I fail to see any error in the opinion of the learned trial lower Tribunal stated above. This is because of the fact that having earlier declined the invitation by the petitioners/appellants to severe/separate the criminal allegations from the civil allegations of non-compliance with the electoral act, 2010 (as amended because they inextricably intertwined, and had further found that the civil allegations of non-compliance with the electoral act, 2010 (as amended) was not proved by the appellants the fate of the petition remained only on the prove (sic) or otherwise of the several criminal allegations contained in the said petition. I am satisfied that this issue is lacking in merit and it is therefore resolved against the appellants.” From the collective deduction of the concurrent findings of fact by the two lower courts, the following conclusion is very apt. In otherwords, the following phrase in the judgment of the tribunal at page 3658 which was earlier reproduced supra is very crucial; I will deem it necessary to again make reference thereto even at the risk of repetition. This is what it said:-

“It is the contention of the petitioners that these criminal allegations rendered the entire election of the 4th February, 2012 invalid. It is trite law that these criminal allegations need to be proved by the petitioners beyond reasonable doubt.” It is not surprising therefore that the 4th, 5th and 6th respondents counsel in their submission argued that the appellants counsel on his argument failed to appreciate the holdings of the Tribunal which was affirmed by the lower court. This, learned counsel submitted because on a perusal of the paragraphs of the petitions, they contain allegations of crime which are inextricably interwoven with the civil allegations. The case of AD V. Fayose (supra) is also well applied that if the civil allegation is not severable from criminal allegations, then the civil allegations cannot succeed on its own. The two will become like Siamese twins. I hasten to add also that the appellants did not deem it necessary to appeal against the foregoing findings. They are therefore deemed to have admitted same. Also, that with the allegations being criminal in nature, they knew and have conceded that the allegations needed to be proved beyond reasonable doubt. It is also on record that the appellants invited the tribunal judges to sever the criminal allegations from the civil allegations because they were inextricably intertwined. The learned counsel for the 4th, 5 and 6th respondents on their brief submitted in great detail that such invitation by the appellants at an address stage was meant to overreach the respondents, who would not have had the opportunity to put in their response, if the act of severance was to be done in the comfort of the tribunal judges chambers. I wish to point out also that the inextricably interwined nature of the criminal and civil allegations was found by the tribunal as inbuilt in the pleadings. I seek to emphasize that there is no appeal against the findings.

In otherwords, if the criminal allegation had penetrated the entire election of the 4th February, 2012 as per the tribunal’s findings, it is then only reasonable to draw a conclusion that there is nothing left upon which the appellants are to contest on a platform of civil allegations. The appellants for all intent and purpose have to contend with proving criminal allegations. This, I hold especially on the confirmation by the lower court in its findings at page 3904 of the record reproduced earlier in the course of this judgment wherein it held that:- “the fate of the petition remained only on the prove (sic) or otherwise of the several criminal allegations contained in the said petition.”

The dilemma in which the appellants have found themselves is very critical and unwinding. In otherwords, the appellants by their appeal are fighting tooth and nail that the principle of the doctrine of severance ought to have applied to their petition. They are also contending that having failed to prove the criminal allegations, they could still anchor on the civil alternative claim. It is obvious that the appellants are not resting their appeal on criminal allegations, which they have found to be a very hard nut to crack. The truth is also obvious and staring in the appellants’ faces that they have completely shut out themselves from relying on civil allegations. The confirmation is on the record wherein both the lower court and also the tribunal had found on the intertwined nature of the appellants’ petitions and concluded that they are criminal in nature. The appellants in the circumstance have found themselves at a crossroad since they are neither here nor there. While the criminal aspect is no longer open to them, they are not also availed the civil alternative having been long shut out. The said issues 2 and 6 are therefore resolved against the appellants. At this point and with the conclusion arrived thereat on issues 2 and 6 supra, it will only amount to an academic exercise to consider the rest of the issues 3, 4 and 5 herein which by implication are also all resolved against the appellants. On the totality of this appeal and with all issues resolved against the appellants, I hold the firm view that the appeal is devoid of any merit and is hereby dismissed. In otherwords, the judgment of the lower court which upheld that of the trial Tribunal is also affirmed. In the final result therefore, the election and return of the 1st and 2nd respondents as the Governor and Deputy Governor of Adamawa State respectively, is further upheld. I make no order as to costs.


UpC.410/2012

Action Congress Of Nigeria (Acn) Vs Real Admiral Murtala H. Nyako & Ors (2012) LLJR-SC

Action Congress Of Nigeria (Acn) Vs Real Admiral Murtala H. Nyako & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

Aggrieved by the return of the 1st and 2nd Respondents herein as the Governor and Deputy Governor of Adamawa State respectively by the 4th Respondent at the end of the Gubernatorial Election the latter conducted on the 4th of February 2012, the Appellant, whose candidates in the election were the 6th and 7th Respondents, by its petition dated 24th February, challenged the return on the grounds that:-

(a) The 1st and 2nd Respondents did not score the majority of lawful votes cast at the election and

(b) That the election was vitiated by corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2010 as amended.

Respondents filed their respective replies. At the conclusion of the pre-trial conference, the Appellant in establishing its case called Sixty Six (66) witnesses. It also tendered many Exhibits largely from the bar. While the 1st and 2nd Respondents called eight witnesses, the 3rd Respondent called One with the 4th and 5th Respondents calling none. At the end of trial including address of counsel, the tribunal by its judgment delivered on 25th July, 2012, dismissed Appellants petition.

Dissatisfied with the tribunals judgment, the Appellant appealed to the Court of Appeal. The court, on 22rd September 2012, dismissed Appellants appeal. The Appellant has further appealed to this court on a Notice containing sixteen grounds filed on 3rd October, 2012.

Parties have filed and exchanged their briefs of argument including the Appellants joint reply brief. At the Hearing of the appeal, parties respective counsel in addition to adopting and relying on these briefs also orally emphasized on the arguments contained in their briefs.

Eight issues have been distilled in the Appellants brief as having arisen for the determination of the Appeal. The issues read:-

“1 Whether their lordships of the Court of Appeal were right when they held at pages 3955 – 3958 of Vol. VIII of the Record that the Appellant neither sought to compel the attendance of the subpoenaed witness through legal process or apply for the certification of the secondary electoral documents in order to prove their case by tendering same through witnesses or commencing proceedings against the 5th Respondent under section 77(1) and (2) of the Electoral-Act, 2010 (as amended), – Ground 1 of the Notice of Appeal

Whether the Court of Appeal did not misdirect itself when, at pages 3916- 3917 of Vol. VIII of the Record, it endorsed the decision of the Tribunal castigating the evidence of the Appellants witnesses based on three particular paragraphs of their witnesss statement and the inclusion of the illiterate jurat and, therefore, rejected the evidence of the said witnesses. – Grounds 2 and 3 of the Notice of Appeal

Whether the Court of Appeal did not err in law and occasion a miscarriage of justice when, at pages 3921 -3923 of Vol. VI11 of the Record, it endorsed the Tribunals open abdication of its responsibility to go through more than 50 paragraphs of the Petition to which its attention were directed before concluding that the civil and criminal allegations contained in the Petition were not severable and that the Appellant did not prove the criminal allegations contained in the Petition. – Grounds 4 and 5 of the Notice of Appeal

Whether the testimonies of the Appellants witnesses who were ward supervisors could he regarded as hearsay simply because they did not mention the names of their polling agents and because they did not distinguish between what they saw and what their polling agents told them more so that the witnesses testified that what they saw and what their agents later related to them were one and the same thing against which evidence the Respondents did not call any evidence to challenge. – Grounds 6 and 7 of the Notice of Appeal

Whether the Court of Appeal was right when it held at pages 3937 and 3938 of Vol. VIII of the Record that PW66 admitted in cross-examination that he was not an expert when there was no such admission on record and concluded that the evidence of PW66 on the documents he analysed is an opinion evidence simply because PW66 did not participate in or witness the conduct of the election and that multiple voting can only he proved by biometric evidence. -Grounds 8, 9, 10 and 11 of the Notice of Appeal

Whether the Court of Appeal did not err in law and occasion a miscarriage of justice when, at pages 3939 -3940 of the judgment it held that PW66 was not a proper witness under Section 77 of the Evidence Act to testify in election matters and that despite the evidence of PW66, the Appellant could still be regarded as having dumped the documents tendered on the Tribunal. – Grounds 12 and 13 of the Notice of Appeal.

Whether the Court of Appeal did not err in law and, thereby occasion a miscarriage of justice, when it failed to pronounce on the impropriety of the Tribunals decision expunging the chart contained in the Appellants final address by which only the lawful votes could be deducted from the unlawful votes and the Tribunals decision refusing to attach any weight to the evidence elicited by the Appellant in cross-examination of the few witnesses called by the Respondents on the ground that the witnesses were not makers of the documents with which they were confronted. – Grounds 14 and 15 of the Notice of Appeal

Whether the Court of Appeal was not wrong when it failed to make a finding that the Appellant was elected and ought to have been returned as elected in the Adamawa State Governorship election held on 4 February, 2012. – Ground 16 of the Notice of Appeal. ‘

The seven issues formulated in the 1st and 2nd Respondents joint brief are as follows:-

‘1. Whether their Lordships of the court below were right in upholding the decision of the Tribunal in refusing to give credence to the evidence of PW1 – PW65 on the ground that the evidence of those witnesses constituted hearsay evidence in that the witnesses jailed to distinguish between what they saw themselves and what they were told by their polling agents quite apart from the fact that some of the depositions made in Hausa language were translated into English language by unidentified persons who failed to sign the jurat to show that the makers of the depositions knew the contents thereof (ARISING FROM GROUNDS 2 AND 3 OF THE GROUNDS OF APPEAL)

Whether their Lordships of the court below were right in upholding the decision of the Tribunal that there was no duty on the Respondents to call evidence in rebuttal of what had not been established by the Appellant since the non–compliance alleged was not proved and that the petition was predicated largely on criminal allegations which were not established beyond reasonable doubt apart from the fact that both civil and criminal allegations were so intertwined in the pleadings as to make the doctrine of severance inapplicable. (ARISING FROM GROUNDS 4, 5, 6 AND 15 OF THE GROUNDS OF APPEAL)

Whether their Lordships of the court below were right when they upheld the decision of the Tribunal rejecting the evidence of PW66 and his report Exhibit 759 on the ground, amongst others, that he was not an expert, had not witnessed the election and had no expert knowledge or ac-knowledge superior to that of the judges of the Tribunal and that his evidence constituted inadmissible opinion evidence. (ARISING FROM GROUNDS 8, 9, 10, 11, 12 AND 14 OF THE GROUNDS OF APPEAL)

Whether their Lordships of the court below were right in upholding the decision of the Tribunal that the appellant could have compelled the attendance of the subpoenaed witnesses through legal process or apply for the certification of the secondary electoral documents in order to prove their case by tendering same through witnesses as provided under section 105 of the Evidence Act, 2011 and that their failure to do so could not avail them any advantage. (ARISING FROM GROUND 1 OF THE GROUNDS OF APPEAL).

Whether their Lordships of the court below were right when they upheld the decision of the Tribunal to the effect that forms EC8As, EC8Bs, EC8Cs, EC8Ds and voters registers and other electoral documents tendered from the bar by counsel to the Appellant had no evidential value on the ground that they were dumped on the Tribunal not having been tied or related to the Appellants case through witnesses. (ARISING FROM GROUND 13 OF THE GROUNDS OF APPEAL)

Whether the learned justices of the court below erred in law when they dismissed the appeal on the ground that it was completely lacking in merit. (ARISING FROM GROUND 16 OF THE GROUNDS OF APPEAL).

Whether the learned justices of the court below upheld without justification or due consideration the decision of the Tribunal refusing to give probative value to the evidence of PW1 – PW65 or whether they did not after and due consideration. (ARISING FROM GROUND 7 OF THE GOUNDS OF APPEAL) ‘

The eight issues distilled in the 3rd Respondents brief for the determination of the appeal are thus:-

‘1) Whether their Lordship of the Court of Appeal were right in holding that the Applicant (sic) could have compelled the attendance of the subpoenaed witnesses through Legal process or apply for the Certification of the Secondary electoral documents in order to prove its case by tendering same through witnesses as provided under Section lot of the Evidence Act 2011. (Ground of the Notice of Appeal.

2) Whether the written deposits (sic) filed by the appellant witnesses constituted hearsay evidence in that the Appellants witnesses did not distinguish between what they saw themselves and what they alleged they were told by the polling agents or to call them as witnesses affected the weight to be attached to the depositions as held by the learned Judges/Justices of the tribunal and the Court of Appeal respectively. (Ground 2, 3 and 7 of the Notice of Appeal).

3) Whether the learned Justice (sic) of the Court of Appeal were right in rejecting the Evidence of PWBB(sic) and the other electoral documents, tended (sic) from the bar by counsel to the Appellant on ground that they were dumped to the Tribunal (Ground 13).

4) Whether their Lordship (sic) of the Court of Appeal were right when they held that it is only when the Appellant prove the allegations made in the petition that the respondents are entitle to call evidence in rebuttal (Ground 6 of the Notice of Appeal).

5) Whether the learned Justices of the Court of Appeal were right when they upheld the decision of the trial count that the Evidence of irregularities or acts of non-compliance alleged in the petition and whether the exhibit P760-771 tendered through the PW66 are inadmissible in Law. (Grounds 8, 9, 10, 11 and 12 of the Notice of Appeal.

6) Whether their Lordships of the Court of Appeal were right in holding that the allegations contains (sic) in the petition were Criminal in nature and are implicitly intertwined thereby holding that the doctrine of Severance is not applicable to the appellants petition. (Grounds 4 & 5 of the Notice of Appeal.)

7) Whether the alleged Failure by the learned Justices of the Court of Appeal to declare the Appellant Elected and returned in the Election occasioned a failure of Justice. (Ground 16 of the Notice of Appeal).

8) Whether the alleged Failure by the learned Justices of the Court of Appeal to make pronouncement on the chart in the final Address of the Appellant and or evidence elicited during cross-examination of the respondents witness (sic) occasioned a failure of justice. (Grounds 14 and 15 of the Notice of Appeal).’

Appellants first issue has been responded to by the 1st and 2nd Respondent under their 4th while the 3rd Respondents reply is under its 1st issue.

On Appellants first issue, its counsel Dr. Banire contends that the lower courts finding at pages 3955 – 3958 affirming the tribunals holding is wrong. It is incorrect for the tribunal and the court below to hold that the Appellant has failed to ensure that the 5th Respondent who has been subpoenaed to produce the original of the documents has so complied and that the Appellant has further failed to tender the certified true copies of the electoral documents. The record available to the two clearly shows otherwise as the Appellant has tendered the said documents from the bar. The documents, Exhibits P1 to P773, learned counsel submits, include all the voters registers, Forms EC8A, ballot papers and all others in respect of which the Appellant obtained an order to inspect and which PW66 inspected and testified upon after adopting his statement in court.

Concluding, learned counsel submits that rather than wrongly castigate the Appellant, the tribunal and the court below should have invoked Section 167 (d) of the Evidence Act 2011 to weigh 5th Respondents refusal against the Respondents. The learned counsel urges that the issue be resolved in their favour.

Responding, learned Senior Counsel to the 1st and 2nd Respondents relies on Buhari Vs Obasanjo (2003 17 NWLR (part 850) 587 at 635 and submits that Appellants first issue as well as the ground of Appeal from which the issue arises are incompetent and same should be discountenanced. The statement of the tribunal the Appellant seeks to attack by its first issue is an orbiter which cannot be appealed against. Further relying on Buliari Vs Obasanjo (2005) ALL FWLR (273) 1 at 76 and Uzoho Vs Jask Force, Hospitals Mgt (2004) 5 NWLR (part S67) 627 at 642, learned senior counsel contends that the tribunals observation the lower courts affirmation of the observation being attacked under Appellants first issue cannot be faulted as it correctly reflects the state of the law. Appellants failure to take the option available to it in proving its case is evidently fatal as the tribunal and the court below rightly observed. The issue, learned senior counsel submits, does not avail the Appellant.

Similar arguments have been advanced by learned counsel to the 3rd Respondent in urging that Appellants first issue be resolved against the Appellant.

Appellant has made a very feeble suggestion in its reply that we discountenance Respondents argument on the competence of its first issue and the ground of Appeal from which it has arisen. It is urged that since learned Respondents counsel have failed to demonstrate what makes the issue and the ground of Appeal from which the issue arises incompetent, their submission in that regard should be ignored. Beyond this plea, further arguments in the reply brief tend to reargue Appellants first issue which the law does not allow.

Now, Section 246 (1) (c) (ii) of the 1999 Constitution (as amended) which creates Appellants right of appeal and confers the court below the jurisdiction to determine the appeal provide as follows:-

‘246 (1) An appeal to the Court of Appeal shall lie as of right from

(c) Decisions of the Governorship Election Tribunals, on any question as to whether –

(ii) any person has been validly elected to the office of a Governor or Deputy Governor. ‘

The forgoing Section confers the Appellant the right to appeal to the court below only against the ‘decisions’ of the tribunal in respect of issues raised in its petition. Section 318 of the same Constitution defines the word ‘decision’ ‘unless it is expressly provided or the context otherwise requires’, to mean in relation to a court:

“any determination of that court and includes judgment, decrees, Order, Conviction or recommendation ‘

Learned Respondents counsel particularly rely on a passage in Buhari V Obasanjo (supra) where this Court per Belgore JSC (as he then was) defines an orbiter dicta to insist that the Appellants first ground of Appeal and the first issue that arises from the ground are incompetent. His take is that the right of appeal against an orbiter dicta does not enure to a party.

The part of the decision of the tribunal considered by the court below at page 3955 – 3958 of Vol. VIII of the instant appeal is to be found at page 3652 – 3653 of the same volume hereunder reproduced for ease of reference:-

‘We digress here to express our total sympathy with the Petitioners particularly as it relates to the conduct of the 5th Respondent, whom we subpoenaed twice to produce original electoral materials and to testify on behalf of the petitioners hut who failed to turn up

Be that as it may the Petitioners are not without a remedy as suggested by learned senior counsel to the 4th , 5th and 6th Respondent. They can compel the attendance of the subpoenaed witness through legal process or apply for the certification of the secondary electoral documents in order to prove their case by tendering same through witnesses as provided by Section 105 of the Evidence Act. Surprisingly, the Petitioners did not pursue either of the two remedies. We also note the fact that the Petitioners could have also commenced proceedings against the 5th Respondent under section 77 (1) and (2) of the Electoral Act. 2010 (as amended)… ‘ (Underlining supplied for emphasis).

The question to answer is whether the court below has the jurisdiction to entertain and pronounce on Appellants complaint in respect of the foregoing aspect of the tribunals judgment. I agree with learned counsel for the Respondents that the aspect of the tribunals judgment the Appellant purports to appeal against in ground 1 of its Notice of Appeal and articulated in its first issue, not being the ‘decision’ of the tribunal, by the combined operation of Sections 246 and 318 of the 1999 Constitution (as amended), is not appealable. Certainly the tribunals dicta given at the judgment stage could not have been a recommendation as Appellant was not in the position to implement the recommendation at that late stage with proceedings having already closed. Learned counsels reliance on the decision of this court in Buhari V Obasanjo (supra) is apposite. The lower courts determination of the issue put before it by the Appellant having proceeded in the absence of the necessary jurisdiction being a nullity cannot create a further right of appeal to this Court. See Salami V Mohammed (2000) 9 NWLR (part 469 and Adesonoye V. Adewole (2000) 9 NWLR (part 671) 127

Learned counsel to the Respondents are equally right that were Appellants 1st ground and the issue distilled from it to be competent, both the tribunal and the court below have correctly stated the options available to the Appellant in law, following the refusal of the 5th Respondent, inspite of the tribunals subpoena on him, to produce the documents the Appellant relies upon to prove its case. It is for the Appellant to move the tribunal to compel the 5th Respondent to comply with the tribunals order or, in the alternative, tender the certified copies of the very documents the 5th Respondent refused to produce. See Buhari V Obasanjo (2005) ALL FWLR (part 273) 1 at 76, and Uzoho V Tsk Force, Hospitals Mgt (supra) at 642 – 643.

One remains at a loss what the Appellant in the instant case which asserts that it has tendered from the bar all the documents the 5th Respondent refused to produce, seeks to attain by its incompetent grudges anyway. Assuming without conceding that these grudges are competent and the Appellant has not exploited the options the tribunal and the court below rightly state are open to it, 1st and 2nd Respondents election cannot, on the authorities, be nullified on the basis of 5th Respondents failure to produce the required documents. See Buhari V Obasanjo (supra).

Having found Appellants Ground 1, the issue distilled from it as well as the arguments proffered on the issue incompetent, all are hereby struck out.

I take the liberty to now consider Parties fortunes under Appellants 2nd and 4 issues.

Appellants grouse under its 2nd issue for the determination of the appeal is on the probative value ascribed on the statements of PW1 – PW65, by the tribunal at page 3916 to 3917 of Vol. VIII of the record of appeal as further affirmed by the court below in its judgment at pages 3654 – 3656 of the same volume. The submissions of counsel under the issue may be summarised as follows:-

(I) that the rejection of the sworn statements of the particularly of twenty two of witnesses because of the uniformity in the content of the three paragraphs therein is enthronement of technicality by the tribunal as well as the court below in a period when the emphasis is on doing substantial justice: the courts placed emphasis on form rather than the substance of the depositions in rejecting them;

(II) that the witnesses having performed the same function as Ward Supervisors of the Appellant on election day, each of them deposed to activities at the polling units under his ward and to that extent their statement would not have been the same.

(III) that the tribunal and the Court below failed to make allowance for the fact that one person recorded the depositions of all the witnesses.

(IV) that the tribunal and the court below misconceived the essence of a Jurat in rejecting the statements because the person who recorded the statements did not sign them as such;

(V) that the two lower courts employed extraneous issues to conclude that the truth of the statements have been compromised.

Relying on Fatumbi V Olunloye (2004) 6 – 7 SC 68. Edokpululu and Co. Ltd V Ohenhen (1994) 7 NWLR (part 358) 511 at 525; Djukpan V Ororuyorbe (1967) 1 ALL NLR 134 at 140 and Anyabunsi V Ugwunze (1995) 6 NWLR (part 401) 225 at 272, learned Appellant counsel prays that this Court interferes with the lower courts wrong affirmation of the ascription of probative value on the statements of PW1 – PW65 by the tribunal.

Particularly arguing their 4 issue, learned Appellant counsel Dr. Banire contends that the testimony of PW1 – PW65 are direct evidence of what they saw, heard or perceived in the course of supervising the polling agents at the various units where the malpractices the Appellant alleges in its petition took place. Their testimonies cannot be regarded as hearsay as defined by this Court in FRN V Usman (2012) 8 NWLR (part 1301) 141 at 160.

The fact that they are ward supervisors, counsel further contends, does not, on the authorities, disqualify them from giving evidence. The exclusion of these witnesses and the further insistence by the court below that only polling agents are helpful to the Appellant works injustice for the Appellant. Learned counsel refers to the decisions in Ngige V Obi (2006) 14 NWLR (part 999) 233; Contract Resources Nig Ltd V Wendcr (1998) 5 NWLR (part 549) 243; Omorinbola II V Mil Governor Ondo State (1995) 9 NWLR (part 418) 201 at 221 and Lasun V Awoyemi (2009) 16 NWLR (part 1168) 513 at 553 and insists that PWI -PW65 are competent witnesses and the quality of their evidence is as high as the one deposed to by polling agents can possibly be. Once the witnesses are seen to be at the scene of events their evidence does not require corroboration for it to be acted upon. Further relying on Aregbesola V Oyinlola (2011) 9 NWLR (part 1253) 458 at 57; Akingboye V Salisu (1999) 7 NWLR (part 611) 434; Jolayemi V Alaoye (2004) 12 NWLR (part S87) 322 learned counsel submits that the two lower courts have erred in their findings on PW1 – PW65.

Not unexpectedly, learned senior counsel Agabi for the 1st and 2nd Respondents and Egwuonwu for the 3rd Respondent have vehemently opposed Appellant counsels contentions in their individual responses. Whereas the 1st and 2nd Respondents argued their 1st and 7th issues, the 3rd Respondent argued their 2nd and 4 issues in response to the Appellants arguments pertaining its 2nd and 4th issues.

Both counsel defend the resolve of the two courts not to ascribe any probative value to the uniform statements of PW1 – PW65 which, it is argued, were given in languages other than the one in which the statements are recorded. Some of the witnesses in adopting their statements at the tribunal, orally told the court also that though they only spoke and understood Hausa language, their statements were recorded in English language without any indication that after the recording the statements had been read to them and that they understood. Most surprisingly, even those who could read and speak English, learned counsel contend, were not allowed to record their own statements themselves. The lower courts, it is argued, giving these fundamental defects in the statements, are right in the inferences they drew from and the probative value they ascribed to the statements.

The inferences cannot, on the authority of Yusuf V Obasanjo (2003) 6 SC (part II) 156; Okereke V Yaradua (2008) 12 NWLR (part 1100) 95 AT 118; Ojukwu V Yaradua (2009) 12 NWLR (part 1154) 50 at 114, counsel submit, be faulted. Further relying on the foregoing authorities and Adesoye V Adewole (2006) 27 NSCQR783 at 800-801, Jadola V Regd Trustee of Land SCM (2006) 4 NWLR (part 968) 159 at 168 – 169 and Chukwuma V Nwoye (2011) ALL KWLR (part 553) 1942 at 1947, learned Respondents counsel submit that by allowing Appellants petition take off at all, the two lower courts have been too lenient. The statements of PW1-PW65 and indeed PW66 are defective. The electoral Act requires that the petition be filed along with valid statements. Where the Statements filed along with the petition are detective, counsel insist, the tribunal and the court below with such a pre-condition not being met would be without the necessary jurisdiction to take cognizance of the petition.

Finally on the issues, learned Respondents counsel submit that PW1-PW65 are ward supervisors yet Appellants Petition centres on activities at the designated polling units. PWI-PW65 were hardly at these polling units and indeed, all of them, both in their statements and under cross-examination told the courts that they got the facts they are testifying to from the various hilling Agents. The court below is right, submit counsel, in its affirmation of the tribunals rejection of the evidence of these witnesses when the polling agents, the source of the facts the witnesses are testifying to, have neither further testified nor are the reports the agents allegedly made to the witnesses placed before the courts. Learned counsel rely on Hasidu V Goje (2003)15 NWLR (pt.843) 352, Buhari V Obasanjo (supra) and Agballah V Sullivan Chime (2009) 1 NWLR (part 1122) 373 at 433 – 434 in support of their submissions. In urging that the issues be resolved against the Appellant.

Now, ones immediate reaction to the arguments proffered by both sides to the appeal, for now, on Appellants 2nd issue for the determination of the appeal, is to ask what brought about the tribunals findings complained about and affirmed by the court below. The question the tribunal asks itself and in the bid to answer which it makes the findings the Appellant contends erroneous under the issue is at page 3654 – thus:-

‘The question begging for answer is, has the petitioner satisfied the tribunal that the non-compliance has so affected the result of the election to warrant us nullify same? ‘

It is in answering the forgoing, that the tribunal supposedly erred firstly thus:-

‘All the 65 witnesses who testified on various allegations of malpractices resulting in non-compliance are ward supervisors. We noted one common feature in their entire witnesses statements on oath. That is, the 3 paragraphs that are repeated in all 65 depositions, which are: 1. my responsibility as ward collation agents is to supervise and coordinate ail the activities of the polling agents in the polling units and ward and monitor election results at the polling units and wards level during collations.

The second paragraph that is the recurring decimal in the petitioners witness deposition reads:

On the aforesaid day of the election I moved from one polling unit to another to coordinate and monitor the polling units. Also, each polling unit in my ward has a polling agent who reported to me accurately.

The third paragraph ‘A-part from my personal knowledge of these events when I visited the polling units in the ward I also received written reports from the polling agents in all the polling units in the ward. Based on the event I personally witnessed and the reports of the polling agents forwarded to me, the election under contest in these units were not free and fair. ‘

And then thus:

‘Another irritatingly repetitive item most, of the witnesses statement on oath of petitioners witnesses is the illiterate jurat. Even witnesses who testified before us that they deposed to their witness statement in English language their deposition contain illiterate jurat. (There are 22 of such witnesses) all the said jurat were not signed by the interpreter. Though the witnesses kept mentioning the name of one Sunday Mathew who is a lawyer.

Regarding the effect of the foregoing inherent defects in the statements of the sixty five witnesses on the Appellants bid to prove its case, the tribunal states as follows:-

‘This creates a distinct impression on our minds that the written deposition(s) were haphazardly mass-produced and names of witnesses, units, wards, and local government inserted.’

And because of this, the tribunal concludes at pp 3655 that the statements:-

“…Lack the well known individuality and distinction required of a legal deposition, which affects the weight we attach to them and we so hold’ (Underlining for emphasis).


SC. 409/ 2012

Lovleen Toys Industries Limited Vs Femi Adewale Komolafe (2012) LLJR-SC

Lovleen Toys Industries Limited Vs Femi Adewale Komolafe (2012)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C. 

The

appeal before us is against the refusal of the Court of Appeal Ibadan Division herein after referred to as ‘the court below,’ to grant extension of time within which to file Notice of Appeal on the decision of the Federal High Court, Abeokuta, Ogun State which is hereafter referred to as ‘the trial court.’

Briefly, the rundown facts of this case are that the Respondent who was an employee of the appellant had caused the action to be filed at the trial court in August, 2003 wherein he claimed various compensations ranging from injuries sustained while working in the appellants factory at Ota, Ogun State, some alleged debts arrears of salary and damages for negligence. The fourfold reliefs sought by the Respondent at the trial court which are spelt out at page 9 of the record of appeal per the particulars of claim are as follows:

i. The sum of N195,403.75 being outstanding balance due from the defendant (now appellant) to the Plaintiff (now Respondent) plus interest on the said sum at the rate of 45% per annum from 1/6/2001 to date of judgment and final liquidation.

ii. The sum of N151, 844.00 being arrears of salary from August 2001 to August 2003, and a further sum of N3,988.00 per month until judgment and full liquidation being the arrears of salary due to plaintiff from the defendant plus interest on the said sum at the rate of 45% per annum from August 2002 till date of judgment and final liquidation thereof.

iii. The sum of N500,000.00 being the total cost payable by the defendant for the two (2) Endoskeletal Right W.D. Prosthesis recommended for the management of the plaintiffs condition by the Defendants appointed medical centre which the Defendant had neglected and/or defaulted to pay.

The sum of N10,000.00 (Ten thousand naira) as special and/or general damages and/or compensation for the Defendants negligence.

Cost of the action.

Upon service of the originating process on the Defendant (now appellant) it raised an objection against the suit by challenging the competence of the trial court to determine same. The plaintiff (now Respondent before us) also filed a notice of preliminary objection against the hearing of the said defendants objection and also filed a motion praying the trial court for a transfer of the suit before an appropriate Division of the High Court of Ogun State.

When the matter came up before the trial court on the 23rd January, 2003 for hearing of all pending applications, the said court, without hearing arguments on the plaintiff’s application for transfer, struck out the suit and directed that the plaintiff go to the appropriate court. The said proceedings are all evidenced at page 23 of the record of appeal.

Sequel to the trial courts ruling aforesaid, the Respondent now before us filed a motion on notice before the trial court and prayed for an order setting aside the ruling striking out the suit and for a further order relisting the suit and all pending applications.

The prayers were on the 23rd March, 2003 granted as evidenced at page 26 of the record of appeal. Being dissatisfied with the decision, the appellant/applicant pursuant to an application before the Court of Appeal Ibadan Division (the lower court) vide a motion on notice dated the 30th May, 2003 and filed on the 24th September, 2003 prayed the court for the following two reliefs:

‘(i) An order enlarging the time within which to file a Notice of Appeal from the decision of the Federal High Court holden at Abeokuta (as per the Ruling of Hon. Justice (mrs.) R.O. Olomojobi) given on the 25th of March, 2003).

(ii) An order staying further proceedings in this suit in the Federal High Court or any other High Court pending the determination of this motion and the Appeal to this appellate court from the said decision of Hon. Justice (mrs.) R.O. Olomojobi and for such further or other order (s) as the court may deem fit to make in the circumstances in the interest of justice.’

The four grounds predicating the application are hereby reproduced as follows:-

(a) The right of the Appellant to appeal from the decision complained about without leave is guaranteed under section 241(1) of the constitution of the Federal Republic of Nigeria 1999.

(b) Section 25(2) of the Court of Appeal Act limits the time within which to file an Appeal from the decision complained about to 14 (fourteen) days.

(c) With the decision complained about having been given on the 25th of March, 2003, the normal time allowed within which to file the Notice of Appeal, had expired since the 8th of April, 2003.

(d) Order 3 Rule 4 (1) of the Court of Appeal Rules 2002 permits this court to enlarge the time within which an appeal may be brought.

The applicant in support of the application deposed to an affidavit of 29 paragraphs stating the facts which would aid the court below in the exercise of its discretion in the determination of the application.

By its ruling delivered on the 17th day of February, 2005, the lower court unanimously adjudged the application as incompetent and therefore struck out same. This was sequel to the reason that the grounds of appeal contained in the notice of Appeal were held as grounds of mixed law and facts which in the absence of the applicant failing to first seek and obtain leave of court before filing, the notice, was held incompetent.

It is the foregoing ruling delivered on the 17th February, 2005 that forms the reason of this appeal now before us wherein the appellant by notice of Appeal dated and filed on the 1st March, 2005 raised three grounds of Appeal. The grounds without their particulars are as follows:

GROUND 1

The learned justices of the Court of Appeal erred in law when they held that the 1st ground of Appeal in the proposed Notice of Appeal (Exh. TOY 3 before them) was a ground of Mixed law and fact and therefore incompetent because leave was not sought to file the Appeal.

Particulars of Error a, b and c are supplied

GROUND 2

The learned justices of the Court of Appeal erred in law when they held that the 2nd ground of Appeal in the proposed Notice of Appeal (Exhibit TOYS 3 before them) was incompetent for being a ground of mixed law and fact when the ground of appeal has to do with application of a part of Constitution of the Federal Republic of Nigeria, 1999.

Particulars of Error a, b and c are supplied

GROUND 3

The learned justices of the Court of Appeal erred in law when they did not grant the application for extension of time within which to appeal before them on the grand that the grounds of appeal are grounds of mixed law and fact, when at least one of the grounds of appeal proposed is a ground of law.

Particulars of Error a and b are supplied

The appellant in the circumstance is therefore seeking for the following relief from this court:

An order setting aside the decision of the Court of Appeal by striking out the application and hence to restore the application before the Supreme Court, conduct and grant the same by assuming the powers of the Court of Appeal.

From the three grounds of appeal the appellant distilled a lone issue for determination which same was also adopted by the respondent and reproduced as follows:-

‘Whether leave was required to file the Notice of Appeal or to appeal on the Grounds of Appeal contained in the Notice of Appeal for which extension of time was sought before the Court of Appeal.’

The appellant in substantiating his appeal and grounding firm his position urged this court to uphold his argument especially having regard in particular to grounds one and two advanced in the proposed Notice of appeal. Submitting on the first ground of appeal, the learned appellants counsel argued that it is a pure ground of law having to do with the jurisdiction of the Federal High Court to sit over its own previous decision on appeal and setting the same aside. This learned counsel submitted is a matter of understanding or mis-understanding of the law whether substantive or procedural. The authority in the case of Ogbechie & ors. V. Onichie & ors (1986) INSCC 443 at page 445-446 was cited in support.

Also on the second ground of appeal the learned appellants counsel further re-iterated that the ground is based on an allegation of the absence of fair hearing and hence raises a question that the provision (section 36 of chapter IV) of the Constitution has been contravened in relation to the appellant. That the nature of couching a ground of appeal as to misdirection of facts did not ipso facto make it a ground of mixed law and fact as wrongly interpreted by the lower court. In otherwords that a ground of law would not cease to be thus simply because it has been pronounced as ground of fact. Cited also in support of the proposition is the case of Akeredolu V. Akinremi (1986) 1 NS CC 581 at 600.

Learned counsel therefore urged this court to set aside the ruling of the lower court the subject of appeal on the premise that the application was incompetent since leave was not sought and obtained before filing the ground of appeal contained in the proposed Notice of Appeal.

On his part and in urging for the dismissal of this appeal as lacking in merit, the learned respondents counsel submitted infavour of upholding the ruling of the lower court. This, counsel predicated because the grounds of the appellants notice of appeal are at best mixed law and fact and that the appellant ought to have first sought for and obtained the leave of the trial court or that of the lower court to appeal against the decision of the trial court.

In further submission, the learned counsel opined that the failure by the appellant to obtain the requisite leave to appeal was fatal to its case and that the consequential effect was to render the appeal incompetent. That the lower court was therefore within reason and right in dismissing the appellants application on the ground that it was incompetent.

The determination of this appeal calls for a careful and calculated consideration of sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999. On the one hand, the provision of Section 241(1) which relates to appeal as of right states thus:-

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

(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;

(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this constitution has been, is being or is likely to be contravened in relation to any person.

On the other hand, section 242 (1) of the same Constitution which provides for appeals with leave states thus:-

‘242 (1): Subject to the provisions of Section 241 of this constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that Court or the Court of Appeal.’

The phrase ‘subject to the provisions of section 241’ presupposes and affirms the authoritative nature of section 241(1) wherein appeals falling there within the preview needed no leave but are of right.

Various judicial pronouncements avail and have laid down certain settled principles of law or conditions that will qualify situational circumstances for appeal to lie either as of right or with leave as the case may be. The availing nature which will distinguish the foregoing compartmentalizing components is whether the question is of law, fact or mixed law and facts to qualify respectively.

In the case of Nwadike & Ors. V. Ibekwe & Ors. (1987) 2 N.S.C.C. page 1219 at 1235 – 1234 Nnaemeka-Agu JSC laid down the following proposition as a general guide when a ground of appeal is that of law:-

‘when then is a ground of appeal that of law? I shall deal with five particular classes although by its very nature the categories of errors of law are not closed

It is an error of law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant actors;

Several issues that can be raised on legal interpretation of deeds, documents, terms of act, words or phrases, and inferences drawn from there from are grounds of law;

iii. Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts …………………. For many years, it has been recognized that inferences to be drawn from a set of proved facts or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the court of trial.

Where a tribunal states the law on a point wrongly, it commits an error in law.

Lastly, I should mention one class of ground of law which have the deceptive appearance of ground of fact where the complaint is that there was no evidence or an admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury.’

On the same principle, Eso JSC in the case of Ogbechie & Ors. V. Onochie & Ors. (1986) 1 N.S.C.C. 443 at pages 445 – 446 also had this to say:-

‘There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine.’

The learned respondents counsel copiously relied on the authority in the case of Kashadadi Vs Noma (2007) 15 NWLR (Pt.1052) p 570 at pages 522 and 530 wherein this court re emphasized that:-

‘It is the total package of the ground of appeal and the particulars therein that complete the exercise leading to the conclusion whether a ground of appeal is one of law or one of mixed law and fact, or one of facts simpliciter’.

In otherwords and from all deductions, the said authority is not contradictory to but is in strict congruent or consonance with the case of Abidoye V. Alawode supra.

On a careful perusal of the notice of Appeal subject of contention which was deposed to at paragraph 18 of the affidavit in support of the motion, the same was struck out as incompetent by the lower court. The supplementary record at pages 42-46 is in reference. The exhibited notice of appeal to the affidavit was marked Exhibit TOYS 4 and contains two grounds of appeal, which reproduction without the particulars read thus:

‘1. The learned trial judge erred in law by setting aside His Lordships decision made on the 23rd of January, 2003 (to strike out the suit) when decision was made without jurisdiction of His Lordship; and

  1. The learned Trial judge erred in law or otherwise mis-directed himself on the facts when his Lordship failed to give fair hearing to the Defendant/Appellant on the 11th of March, 2003 when the application to relist the case was heard.’

While particular (a) to the 1st ground of appeal alleges that the case was outside the jurisdiction of the Federal High Court, particular (c) to ground two alleges that the appellant was not given an opportunity to explain his absence in the court when the application to re-list was eventually heard and in his absence.

The two proposed grounds of appeal centred the complaints on absence of jurisdiction and denial of fair hearing. The question is, can it be said that the foregoing complains border on mixed law and facts? In other words, by the appellant using the phrase ‘misdirected himself on the facts,’ did it operate to alter the nature of the ground of appeal which infact is a question of fair hearing? This, I will answer in the negative and certainly hold a misconception by the learned respondents counsel. In the case of Abidoye V. Alawode (2001) 2 M.J.S.C. page 49 at 59 this court per Onu JSC for instance had this to say:-

‘What is important in determining whether a ground of appeal involved questions of law or fact or mixed law and fact is not its cognomen or its designation as. ‘Error of Law’ it is rather the essence of the ground, the reality of the complaints embedded in that name that determines what any particular ground involves.’

It is significant to re-echo that the trial court in its ruling at page 10 of the record of appeal pronounced the inability of the court to sit on two previous occasions at which a counsel for the appellant was present but on the 3rd occasion when the counsel was absent, the court sat and the pending applications were heard. The reality of ground two of the proposed ground of appeal therefore is that it is complaining of lack of fair hearing, which is a cardinal principle of natural justice, which is well enshrined in section 36 part IV of our Constitution of the Federal Republic of Nigeria 1999. The use of the phrase ‘misdirected himself on the facts’ cannot therefore operate to alter the nature of the ground of appeal from being ground of law. It is the content that is the overriding factor and not the use of language especially when it is misapplied.

The constitutional right of appeal has been stated earlier in the judgment as provided under section 241 (1). Relevant although supplementary to also restate is to say that section 25 (2) of the Court of Appeal Act under which the application was brought before the lower court provides for 14 days limit within which to file an application from the nature of the decision complained against. In other words with the decision complained of made on the 25th March 2003, the 14 days allowed by law within which to file the notice of appeal had expired on the 8th April, 2003. Order 3 rule 4(1) of the Court of Appeal Rules 2002 applicable and governing the application permits the lower court to enlarge the time within which appeal may be brought.

I have earlier held in this judgment that with the nature of the two proposed grounds of appeal being jurisdictional and raising question of fair hearing, the governing provision is section 241(1) of the Constitution. In otherwords the nature of the appeal is of right and no leave was required as it did not come within section 242 (1) of the Constitution. What was however required was an order for extension of time within which to file the notice of appeal from the decision complained of. The application and the relief (i) sought as stated on the face of the motion paper at page 15 of the record of appeal could not have been more precise and appropriate. All that was required of the applicant/appellant was to have satisfied the court as to why he had failed to file his notice and grounds of appeal within the time permitted by the law. He must in other words advance good and substantial reasons for coming outside the time and also show by his proposed notice and grounds of appeal that they are arguable. This did not however require that he stood the likelihood of success on the appeal.

In the case at hand, it is very informative and revealing on the facts deposed to that an earlier notice of appeal was attempted but same turned out to be incompetent. The evidence of indolence in the prosecution of his appeal cannot therefore be imputed on the applicant/appellant.

The second consideration in the exercise of discretion, whether to grant the application or not, is the requirement that the grounds of Appeal must be arguable. The two proposed grounds of appeal, I have resolved are arguable with same raising questions of jurisdiction and the absence of fair hearing. Justice will in the circumstance demand that the applicant/appellant be given time to file his notice of appeal with the ultimate purpose of being heard. Shutting him out at this stage by refusing the application would not uphold the tenant of fair play and justice. The application I hold ought to have been granted. In the result I therefore hereby grant same and extend the time within which the applicant/appellant is to file its notice and grounds of appeal from the decision of the Federal High Court holden at Abeokuta per the Ruling of Hon. Justice (Mrs) R. O. Olomojobi given on the 25th of March 2003.

In respect of the second relief sought on the motion paper for ‘an order staying further proceedings,’ same was sought for without a subsisting and competent notice of appeal on ground. While the aspect seeking ‘an order pending the determination of this motion’ had been overtaken on the granting of the 1st relief, the second leg of prayer seeking for stay ‘pending the determination of the appeal’ was pre-emptive upon non existing appeal. The order cannot therefore be made.

On the totality of this appeal same I hold succeeds as it has merit. The orders made by the Court of Appeal on the 17th day of February, 2005 and striking out the application filed 24/9/2003 is hereby set aside. The applicant/appellant in the circumstance is given 14 days extension of time from today within which to file its notice and grounds of appeal per the Notice of Appeal deposed to at paragraph 18 of the affidavit in support of the motion which same is marked Exhibit ‘TOYS 4’ at pages 17, 27 and 28 of the record of Appeal. I make a further order that parties are each to bear their costs. Appeal succeeds and I make no order as to costs.


SC. 33/2005

Michael Uzoagba & Anor Vs Commissioner Of Police (2012) LLJR-SC

Michael Uzoagba & Anor Vs Commissioner Of Police (2012)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, ,J.S.C.

This Judgment relates to appeals No.SC.109/2010 and SC.109A/2010 pursuant to the Appellants respective Notices dated and filed on the 21st January 2010 containing two grounds each.

The Appellants were arraigned before a Magistrate Court in the Federal Capital Territory, Abuja sitting at Jabi for offences of Criminal breach of trust and cheating contrary to sections 312 and 322 of the Penal Code. The prosecution called three witnesses at the end of whose evidence a no case submission was made by counsel on behalf of the Appellants. The submission was overruled by the trial court. Being dissatisfied, the Accused appealed to the High Court of the Federal Capital Territory, Abuja whereat their appeals were allowed. They were also discharged. Not satisfied by the High Court decision, the Respondent herein appealed to the Court of Appeal hereinafter referred to as the court below, in allowing the appeals, the court below see pages 133 – 134 of the records of the instant appeals, held thus:

‘In fact the more considered from the summation of the Appellate High Court the evidence proffered the more inclined I am of the need to have the version of the respondents stated so that their side of the story and allegations are equally considered and evaluated. What I am trying to put across is that the prosecution threw up questions which deserve answers from the Respondents and that cannot be wished away. That is, clearly a prima facie case was made out as rightly found by the trial magistrate and I see no foundation on which the High court in its appellate jurisdiction could and did rule otherwise. I place reliance on Aminu v State (2005) All FWLR (pt. 224) 936; Ubantu v COP (2000) FWLR (pt.1) 138; Ajidagba v I.G.P. (1958) 3 FSC 5; Duru v Nwosu (1989) 1 NWLR (pt. 113) 24; Ibeziako v COP (1963)1 SCNLR 99.

‘On the above stated this appeal is meritorious and I allow it. I set aside the judgment and orders of the High court of the FCT in its appellate jurisdiction of 23/10/07. This case is to be sent back to the trial Magistrate of Jabi to conclude the proceedings.’

The two appeals under consideration are against the foregoing decision. Each Appellant has distilled a lone and not dissimilar issue for the determination of his/her appeals in his/her brief of argument filed on 3/6/10 and 20/5/10 respectively. In Appeal No. SC.109/2010, the Appellant, Michael Uzoagba, has distilled the following issue as arising for the determination of his appeal.

‘Whether the court below was right to have held that the prosecution has established a prima facie case against the 1st Appellant which deserves explanation from the 1st Appellant.’

The issue proposed in Caroline Michaels brief for the determination of her Appeal No. SC.109A/2010 reads:-

‘Whether having regard to the evidence adduced the lower court was right in holding that a prima facie case of criminal breach of trust and cheating has been established against the 2nd Appellant ‘

In addition to adopting the issues formulated in the Appellants brief for the determination of the respective Appeals, the Respondent has distilled a second issue he considers equally important for the determination of the Appeals. The further issue reads:-

“Whether the state is precluded from prosecuting a Criminal matter which emanated from a transaction which is purely contractual and civil in nature.’

It is an elementary principle that issues for the determination of appeals must not only draw from the grounds of appeal in the Appellants Notice, the issues must also relate to the decision appealed against. Where an issue proposed for the determination of an appeal does not relate or attack the decision appealed against, it must, being incompetent, necessarily be discountenanced.

The identical grounds in each of the Notices of the Appellants herein are hereunder reproduced for ease of reference.

‘GROUNDS OF APPEAL

GROUND ONE

The Court of Appeal erred in law by holding that the Respondent established a prima facie case against the 2nd Appellant thereby setting aside the judgment of the Appellate High Court.

PARTICULARS OF ERROR

i) The evidence of PW1 and PW2 did not establish or make out a prima facie case against the 2nd Appellant.

ii) The transaction between the 2nd Appellant and the nominal complainants that gave rise to the criminal proceeding was contractual and purely civil in nature.

GROUND TWO

The Court of Appeal erred in law by dismissing the Appellants no case submission when the fundamental elements of criminal breach of trust and cheating contrary to sections 312 and 322 of the Penal Code Law respectively were not proved.

PARTICULARS OF ERROR

The basic ingredients of the offences of criminal breach of trust and cheating was not established by the Respondent against the 1st Appellant

The evidence adduced before the trial magistrate court fell far below the standard required to establish the offences complained about.’

An examination of the 2nd issue proposed by the Respondent for the determination of the two appeals under consideration against the background of the foregoing grounds of appeal as well as the decision the issue purports to challenge readily belies the respondents claim of any nexus between the issue and the grounds of appeal and/or the decision. The issue glaringly neither draws from the grounds of appeal nor attacks the judgment appealed against. It remains the law that such an issue and the arguments proffered on it must be, and are hereby ignored. See Osahon v FRN (2003) 16 NWLR (pt 845) 89 at 114, Registered Trustees Pentecostal Assemblies of the World Inc. v The Registered Trustees of the African Apostolic Christ Church (2002) 15 NWLR (pt. 700) 424 at 450; Adelusola v Akinde (2004) 12 NWLR (pt.887) 295 and Asahi v Dakart (2006). In any event, since Appellants are the ones aggrieved by the lower courts judgment, the lone identical issue proposed by each of them aptly encapsulates the grievance of each Appellant and shall, for that overriding purpose, form the basis of the determination of the two appeals.

Learned Counsel to the Appellant in Appeal No. SC.109/2010 Mr. Zibiri adopted and relied on the Appellants brief at the hearing of the Appeal. Mr. Obla did same in respect of the Appellants brief in Appeal No. SC.109A/2010. Whereas the Appellants brief in Appeal No. SC.109/2010 was filed on 3/6/2010, the Appellants brief in Appeal No.109A/2010 was filed on 20/6/2010. The Respondents briefs in the two appeals settled by Adewale Olawoyin of counsel and filed on the 14/6/2010 were similarly adopted and relied upon by counsel in opposing the two appeals.

Learned Counsel to the Appellants attacked the lower courts finding at pages 133 – 134 of the record of Appeal common to both appeals. Both counsel argue that since the Respondent has failed, by the testimonies of all its three witnesses, to produce evidence in proof of all the ingredients of the two offences for which Appellants are arraigned, the no case submission made on Appellants behalf having succeeded should have been upheld. Indeed, counsel further contend, the evidence led by the prosecution being afflicted by material contradiction is incapable of disclosing any prima facie case against the Appellants. The testimony of PW3, it is submitted, stands in violent conflict with the evidence of PW1 and PW2 who transacted with the Appellants and the court below was in no position to pick between the testimonies in arriving at the decision being appealed against.

In particular, learned counsel in Appeal No. SC.109/2010 contends that the evidence of PW1 under cross examination, at page 10 of the record of appeal, clearly absolves the Appellant.

On his part, learned counsel for the Appellant in Appeal No. SC.109A/2010 contends in relation to the Appellant therein that the entire transaction that led to the arraignment of the Appellants being contractual and civil is incapable of sustaining any criminal charges against them.

The lower courts decision which failed to draw from the evidence available to the court, it is argued, is perverse. Counsel variously rely inter alia on the decisions in Tongo v COP (2007) 12 NWLR (pt.1049) 525 at 540 -541, Ubanatu v COP (2000) 2 NWRL (pt. 643) 101 at 136; Nasiru v State (1999) 2 NWLR (pt.589) 87 at 102 and Atano v Attorney General of Bendel State (1988)2 NWLR (pt.75) 201 in urging that the appeals be allowed.

Arguing the appeals in Respondents two briefs, Mr. Olawoyin agrees with learned Appellants counsel that a court or tribunal can only dismiss a no case submission where the prosecution provides evidence in proof of all the ingredients of the offences for which the accused persons are arraigned. In the case at hand, learned counsel contends, Respondent has led evidence on all the ingredients of the offences of criminal breach of trust and cheating contrary to Sections 312 and 322 of the Penal Code respectively the Appellants are arraigned for. Relying on Ubanatu v Commissioner of Police supra and the definition of a prima facie case at page 259 Osbornes Concise Law Dictionary, 8th Edition by Rutherford and Bone, learned counsel submits that Appellants arguments in their appeals are misconceived. The aggregate ofmthe evidence led by the Respondent, counsel contends, discloses questions, which the lower court rightly held, the Appellants must necessarily answer.

From the evidence of PW1 and PW2, it is argued, facts abound showing that the Appellants had intentionally induced the two to part with their money under the pretence that they had the authority to let out the shop, which authority the Appellants clearly knew they did not have. Further relying on Chianugu v State (2002) 2 NWLR (part750) 225 at 233-234, Duru v Nwosu (1989) 1 NWLR (part 113) 24 at 43, Ikomi v State (1986) 3 NWLR (part 28) 340, Ajidagba v Inspector General of Police (1958) SCNLR 60, Adeyimi v State (1991) 6 NWLR (part 195) 1 at 35 and Aminu v State (2007) 7 NWLR (part 1032) 152, learned counsel urges us to take into account Section 79 of the Penal Code in appreciating and affirming the decision of the court below. The unmeritorious Appeals, learned counsel concludes, should be dismissed.

Counsel on both sides and in the two appeals being determined are one, and rightly too, that the question to be answered in the appeals is whether indeed the court below is right in its finding that from the evidence proffered by the respondent against the Appellants the need has arisen to have the Appellants state their version so that their side of the story is equally heard and evaluated. For short, is the court below right to have concluded that a prima facie case has been made out against each of the Appellants and in the result overruling the Appellants no case submission.

It is settled by a seemingly endless chain of authorities, including those alluded to by counsel, that a prima facie case may rightly be found to have been established and no case submission properly overruled where the prosecution has:

(a) led evidence to prove all the essential elements of the offence alleged either directly, circumstantially or inferentially and

(b) the evidence as so adduced by the prosecution has neither been so discredited consequent upon cross examination nor is so ex facie unreliable that no reasonable tribunal can safely convict on it. See Ibeziakor v Commissioners of Police supra; Ikomi v State supra, Ubantu v COP supra; Ajidagba v IGP supra andAdeyemi v State (1991) 6 NWLR (pt.195) 1.

In Ajiboye v The State (1995)NWLR (pt.414) 408 at 413, this court per Kutigi JSC, as he then was, has further stated as follows:

‘It must be recognized that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage therefore, the court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the courts discretion. The court should again at this stage make no observation on the facts. (See for example R v Ekanem (1950) 13 WACA 108, Chief Odofin Bella v The State (1967) NMLR 1, R. v Coker & Ors 20 NLR 62).’

The court had earlier in Ajidagba & Ors v IGP (1958) Vol 1 NSCC 20 at 21 cited with approval the decision in the Indian case of Sher Singh v Jitendranathsen (1931)1 L.R 59 Calc 25 to the effect that a prima facie case only means that there.is a ground for proceeding and not the same as proof of the guilt of the accused which comes later when the trial court would be entitled to believe that the uncontradicted evidence before it is sufficient proof of the case against the accused.

In the instant case, both Appellants are arraigned for the offences of criminal breach of trust and cheating contrary to sections 311 and 322 of the Penal Code Law CAP 89. The elements of the offence of criminal breach of trust are:

(i) that the Accused person was entrusted with property or dominion over it.

(ii) that he misappropriated it, converted it to his own use or disposes of the said property.

(iii) that the Accused did so in violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract express or implied which he had made concerning the trust or that he intentionally allowed some other persons to do so and

(iv) that he acted dishonestly.

The elements of cheating are:-

(i) That the person deceived delivered to someone or consented that some person shall retain certain property;

(ii) That the person deceived was induced by the accused to part with the property;

(iii) That the person acted upon the inducement of the Accused;

(iv) That the Accused had acted fraudulently or dishonestly when inducing that person.”

In leading evidence to prove the foregoing elements of the two offences against the Appellants, the Respondent called three witnesses. Testifying in chief, PW1 stated firstly on page 4 of the record thus:

“It was December 2006. So we went to pay for shop. We went to see the 2nd Accused for shop at Utako market. We paid the sum of N130,000.00 to the 2nd Accused person who issued a receipt and on the receipt was Equity Ventures Public Convenience No. 2 Utako Modern Market. My husband drew her attention that the receipt the 2nd Accused person gave has nothing to do with the shop and the 2nd Accused person said the receipt she gave is to show she collected the money from us. My husband said he would like to have the receipt in respect of the shop. The 2nd Accused person said they will take my husband to the owner in two days as they are not the owner. When my husband got there in two days time, she said that the owner of the shop travelled.’

The 2nd Accused referred to by PWI is the Appellant in appeal No. 109A/2010 whose failure to ‘take’ PWI and PWII to the owner of the shop and the latters discovery that the very shop having already been rented out was no longer available, made the two to ask the 2nd Accused for the refund of the money they paid to her. By May, 2007 and inspite of 2nd Accused persons repeated promise to refund the entire sum, PWI and her husband PW2, recovered only N50, 000.00 (Fifty Thousand Naira) from the N130,000 the Appellant allegedly collected from them. PWI maintained her stance under cross examination and concluded her testimony at page 6 of the record thus:-

‘We did not start business because we were waiting for the original receipt. No one came in respect of the shop to say that the money for the shop was not given to me (sic). Yes, they gave N50,000.00 as part payment for the N130,000.00. Yes I collected the money after demolition of the market. Yes the shop in question was demolished…’

Even though PW2s evidence in chief was substantially the same as that of PW1, he spoke in greater details. Part of the details, see page 9 of the record, is to the effect that PWI, his wife, was assaulted by both Appellants on the 7th of July, 2007 when they went in a further effort to collect the balance of the money they paid to the Appellants. Under cross examination however, PW2 particularly stated at page 10 of the record as follows:-

‘Yes, the transaction is specifically between the 2nd Accused person and myself. The 1st Accused was a witness to the documents. Yes my wife was a witness in this transaction.’

PW3 a police officer was detailed to investigate the case against the Appellants following the report lodged by PW1 and PW2. He interrogated both Appellants in the course of his investigation. Testifying in chief, he affirmed what PW1 and PW2 told the court in respect of the Appellant in Appeal No. 109A/2010, Caroline Michael. At pages 13 – 14 of the record, PW3 in respect of the Appellant in Appeal No. 109/2010 states in chief as follows:-

‘In the afternoon the same day, the 2nd accused person (sic) came to the police station and asked of his wife then he was questioned by my D.C.O and the 2nd Accused answered that it was true they collected the sum of N130,000.00 which he admitted before my D.C.O. that they have started paying the money……_The 2nd accused person still admitted before my D.C.O that the 2nd accused person collected the money from nominal complainant and handed it over to his wife – 1st accused person which his wife now issued receipt to the 2nd accused person. I personally asked the 2nd accused person about the additional N10,000 which he said the N10,000 is for the tenancy agreement and his own commission is N5,000.

At page 22 of the record of appeal are some very vital questions counsel to the Appellants asked PW3 while cross examining him and the seemingly revealing answers the witness gave. Please read them:

‘Question: You inform the court that it was the 1st accused person that collected this money.

Answer: Yes.

Question: Did you find out if the 1st accused person was a party to the transaction.

Answer: Yes, the 1st accused person is a party to the transaction.

Question: The nominal complainant Mr. Goodman told court that the 1st accused person was not a party to transaction but only a witness, are you the one telling falsehood, who is telling the court the correct position you or nominal complainant

Answer: Actually he the 1st accused person is a party to the offence because he admitted before me he collected the money from the nominal complainant and handed over the money to his wife who is the 2nd accused person, from there the 2nd accused person write a receipt of collection of that money because the 1st accused person cannot write anything.” (Underling mine for emphasis).

Now, applying the principles regarding a no case submission earlier recounted in this judgment to the foregoing evidence led by the Respondent, can it be said that the lower court is right in its judgment that a prima facie case has been made out against the Appellants in the two Appeals to justify calling on them to state their own side of the case. In my considered view, the question must be answered affirmatively.

It is evident from the case being made out against both Appellants that the three witnesses led by the Respondent collectively testified on facts in respect of all the ingredients of the two offences the Appellants are arraigned for. Their trial remains on-going and this is neither the stage to pronounce on the credibility of these witnesses nor comment on the facts they testified to. By the combined effect of Section 158 and Section 159 of the Criminal Procedure Code applicable to criminal trials in the trial court, since the evidence adduced against the Appellants subsists and if uncontradicted would warrant their conviction, the trial magistrate courts finding that a prima facie case has been made out against the Appellants and the restoration of that finding by the lower court are beyond reproach. The lone identical issue raised in the two appeals is hereby resolved in favour of the Respondent in. each of the two appeals and both appeals being unmeritorious, are accordingly dismissed. The case is remitted to the trial magistrate court at Jabi for the trial thereat to be concluded.


SC.109/2010 SC.109A/2010

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

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.


SC.9/2012

Jimoh Atanda V. Memudu Iliasu (2012) LLJR-SC

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.

  1. 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.

  1. 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.
  2. 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.


SC.77/2007

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

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.

  1. 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.
  2. 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.
  3. There is no political party in Nigeria known as the “People Democratic Party of Nigeria,” the 2nd Defendant in this suit.
  4. 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…

  1. 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.
  2. 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.


SC.272/2012

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

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.


SC.97/2010

Alhaji Ganiyu Martins Vs Commissioner Of Police (2012) LLJR-SC

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 –

  1. 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.


SC.92/2009

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

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.


SC.11/2007