The State Vs Nathaniel Okpala (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

This is an appeal by the State now appellant against the decision of the Court of Appeal, Enugu Division which on the 7th day of July, 2008 allowed the respondent’s appeal against his conviction and sentence to life imprisonment and discharged him by setting aside the judgment of the trial High court coram: Ijem Onwuamaegbu J. sitting at Aguata. It is against that judgment of the Court of Appeal, Enugu that the appellant has by a notice and grounds of appeal filed on 6th October, 2008 come before this court.

The respondent cross- appealed on the ground that the Court of Appeal had erroneously only discharged him instead of making an order of discharge and acquittal. That this court should dismiss the appeal and order a discharge and acquittal in favour of the respondent/cross-appellant.

The facts as briefly stated in this appeal are as follows:

After the initial trial was aborted as a result of the transfer of the trial Judge to another Judicial Division, the respondent/cross-appellant and his son, Chidozie Okpala were on 5/11/2003 arraigned before the Honourable Justice Ijem M. Onwuamaegbu of the High Court of Anambra State sitting at Ekwulobia for the murder of one Nkasiobi Ononamadu on 6/1/2001 contrary to section 274(1) of the Criminal Code Cap. 36, Vol. 11, Laws of Anambra State, 1991. The respondent/cross appellant and the 2nd accused “Not guilty” and their trial commenced.

The prosecution’s case was rendered through six witnesses including PW2 – Charles Ononamadu and PW6 – Sgt. Livinus Ofiaelu both of whose hearsay testimonies the trial court relied on to convict the respondent/cross-appellant. The substance of the PW2’s evidence was that the father of the respondent/cross-appellant one Okpalalisinkwo told him (PW2) that respondent/cross-appellant and 2nd accused person “Murdered” the deceased and that the said Okpalalisinkwo offered to atone for the murder of the deceased in accordance with their custom.

On his own part, PW6 testified that in the course of his investigation, he obtained statements from Okpalalisinkwo and PW4 to the effect that the respondent/cross-appellant and 2nd accused person killed the deceased. Okpalalisinkwo was not called as a witness at the trial and PW4 denied on oath her extra-judicial statements to the police. PW6 tendered the statements of the respondent/cross-appellant and the 2nd accused person to the police as Exhibit “E” and “F” and the prosecution closed its case. The respondent/cross-appellant and the 2nd accused person testified on their respective behalf and called no other witnesses.

After counsel’s final address, on 14/12/2005, the trial court discharged and acquitted the 2nd accused person but convicted the respondent/cross-appellant of manslaughter and imposed the maximum sentence for the offence on the basis that the provisions of section 279 of the Criminal Code, Cap 36 Vol. 11 Laws of Anambra State, 1991, are mandatory.

Being dissatisfied and aggrieved by the conviction and sentence, the respondent/cross appellant appealed to the Court of Appeal within time on five grounds of appeal. In a unanimous decision, the Court of Appeal allowed the appeal but in doing so, the said Court of Appeal merely discharged the respondent/cross-appellant rather than discharging and acquitting him despite holding that the prosecution had failed to prove the offence against the respondent/cross-appellant beyond reasonable doubt.

The appellant through counsel, Chief G. Oseloka Osuigwe settled the appellant’s brief of argument filed on 2/6/10 and a cross respondents brief filed on 24/10/2011.

Emeka Etiaba Esq had the respondent’s brief and that of cross-appellant filed on 5/10/2010 settled on his behalf.

The appellant framed a single issue for determination which is as follows:

Whether the learned Justices of the Court of Appeal were right to set aside the conviction and sentence of the respondent and discharged him on the ground that evidence relied upon by the trial court was hearsay evidence and the guilt of the respondent not proved beyond reasonable doubt.

The respondent couched a sole issue too but differently and that is thus:

Whether the learned justices of the Court of Appeal were wrong to have set aside the conviction and sentence of the respondent based on a thorough appreciation of the evidence adduced at the trial court.

In my view each of the issues is the same side of a coin being similar though stated in different forms, the bottom line being the rightness or not of the decision of the Court of Appeal in the light of the evidence proffered before the court below.

On the 27th day of October, 2011 date of hearing, learned counsel for the appellant adopted the briefs and argued that there was evidence before the trial court that the deceased was healthy when he came to the house of the respondent and he died in the compound of the respondent and was the last person to see him alive. That the PW3, Dr. Nwannedi Wilfred who performed the autopsy on the body of the deceased had testified and stated thus:

“The findings were swelling on the right side of the neck. The testes on the left side of his scrotum were found to be crushed and discoloured and there was blood in his scrotum. There was also caked blood on the right angle of the mouth, also on the left groin and the left scrotum.

“In my opinion the cause of death must have been shock as a result of trauma (sic) something that hit him on the scrotum must have caused shock and death.”

Learned counsel for the appellant stated on that since the respondent claimed in his evidence that he was the only person present when the deceased allegedly jumped up, fell down and died, he owed an explanation on how the deceased sustained the injuries of the magnitude described by the PW3, the doctor and which injuries led to his death. That the doctor’s evidence remained unchallenged and uncontradicted. He stated on that though it is trite that the burden of proving a charge against an accused person rested on the prosecution by virtue of sections 138(1) and 139 of the Evidence Act, that burden shifted in this instance to the accused person by virtue of sections 138(3) 139, 141 and 143 of the Evidence Act. He referred to the case of Nasiru v State (1999) 1 SCNJ 83 at 99.

It was again submitted for the appellant that the doctrine of last seen applied to this case and the inability of the respondent to proffer the needed explanation led to the irresistible conclusion that he was responsible. He cited the cases of Godwin Igabele v State (2006) 6 NWLR (Pt. 975) 100 at 105; Adeniji v The State (2001) 5 SCNJ 371 at 375.

For the respondent learned counsel on his behalf said the Court of Appeal was right in holding that the evidence relied upon by the trial judge to convict the respondent were mere hearsay which were inadmissible and could not ground a conviction in law. That as regarding to the time, place and cause of death of the deceased beyond the hearsay evidence adduced, every other evidence was mere speculation and conjecture. He said the pieces of evidence as to the time of death from the prosecution are in conflict and the lower court was right in resolving the doubt in favour of the respondent. That there was also a conflict as to where the deceased died and the matter of the cause of death left a lot to question. That the prosecution witnesses gave contradictory evidence on the time, place and cause of death and these contradictions were devastating to their case. He cited Aigbadion v State (2000) 7 NWLR (Pt.666) 686 at 699.

Learned counsel for the respondent said that reliance on circumstantial evidence cannot be without considering other co-existing circumstances that could weaken or destroy the inference. He cited

Tepper v Queen (1952) AC 480 at 489;

Lori and Anor v The State (1980) 8 – 11 SC 52 at 55;

Godwin Igabele v State (2006) 5 NWLR (Pt.975) 100 at page 105;

Adeniji v The state (2001) 5 SCNJ 371 at 375;

Nweke v State (2001) 4 NWLR (Pt.704) 588 at 603

The learned trial judge had held:

“The crucial question now is whether it is the act(s) or commission (sic) of the accused persons that caused the unnatural death of the deceased. In other words are the accused persons responsible for the injuries on the body of the deceased as stated by PW3 and shown in Exhibit A – the Medical Report. As stated earlier there is no direct evidence available to this court on how the deceased ended up with the injuries described by PW3 and contained in Exhibit A…. I am of the view that if Okpalalisinkwo the father of the accused person did not know that his children (the accused persons) were responsible for the death of deceased he would not have offered to atone for it and certainly would not have provided the items for atonement. I therefore infer from this uncontroverted evidence and have no doubt whatsoever that the accused person (s) were responsible for the injuries found on the corpse of the deceased by PW3, which injuries caused the death of the deceased… From the evidence before me I am satisfied that the acts of the 1st accused in inflicting injuries on the deceased caused the death of the deceased and I hold that the prosecution has proved this arm of this crime beyond reasonable doubts. However there is nothing before me to show that the 1st accused had the necessary mens rea (intent) therefore I find the 1st accused can be convicted of, even though he was not specifically charged with it.

…It is lesser offence than the offence of murder for which the 1st accused is charged and it is punishable under S.279 of the Criminal Code. It carries a term of Life Imprisonment. In the light of the foregoing I find the 1st accused guilty of the offence of manslaughter contrary to S.279 of the Criminal Code Cap.36 Laws of Anambra State. I find the 2nd accused not guilty. The 2nd accused is therefore discharged and acquitted.”

The Court of Appeal after reviewing what the trial court did, came to the following conclusion:

“Clearly the Police investigation of the case is less than adequate …..My lords, in the respondent’s brief, presumably of murder, in earlier case and in both cases the prosecution failed to prove the offence against the accused person of manslaughter and of the offence of murder that the accused was charged with unlawful homicide is a sum generis which covers the offence of murder and or manslaughter. To secure a conviction in both cases the offence must be proved beyond reasonable doubt…. It sometimes happens that the cause of an action in a death resulting in murder is commuted to manslaughter when it is found that no intention to kill or mens res can be proved. In both cases of murder and manslaughter prosecution (sic) made in such proof is conclusion… I have written above that the only cogent evidence before the court for the offence of murder of hearsay. It is not admissible to prove the offence consequently no offence is proved against the appellant. I am left in no doubt whatsoever that no offence should have been imposed to prove the offence against the accused beyond reasonable doubt. The accused person is discharged, but not acquitted.”

From what I have stated above there was no strong base upon which the trial Judge came to his conclusion of manslaughter and proceeded with the punishment and so the Court of Appeal was right in its own finding that whether the offence of murder or possible manslaughter the prosecution has not proved either beyond reasonable doubt as required by section 138 Evidence Act, Cap.112 Laws of the Federation 2004.

Also lacking was the circumstantial evidence which could lead irresistibly with the compelling and cogency to no other conclusion than that accused was responsible for the death of the deceased. This is because there were too many loose ends that could not just be ignored and there existed some other circumstances which did indeed weaken or destroyed the inference which unfortunately the learned trial Judge relied on. See

Lori and Anor v The State (1980) 8 – 11 SC 52 at 55;

Godwin Igabele v State (2006) 6 NWLR (Pt.975) 100 at page 105;

Adeniji v The State (2001) 5 SCNJ 371 at 375;

From the foregoing and except for the rather bizarre order of “discharge, but not acquitted” of the Court of Appeal, I dismiss this appeal and I uphold the finding and decision of that court. I also set aside the order of “discharge but not acquitted” of the court below and replace it with an order of discharge and acquittal of the respondent.

CROSS-APPEAL

The respondent/cross appellant couched a single issue for the cross-appeal and that is:

Whether having held that no offence was proved against the respondent/cross-appellant and that the prosecution has failed to prove the offence against the respondent/cross-appellant beyond reasonable doubt the proper order the Court of Appeal ought to have made was an order discharging and acquitting the respondent/cross-appellant

The sole issue was adopted by the appellant/cross-respondent. For the cross-appellant was contended that on the Court of Appeal finding that the cross-appellant was not guilty of the offence charged the resultant order should have been a discharge and acquittal and not a mere discharge as that court had ordered. He referred to section 246 of the Criminal Procedure Act, Cap 43, Laws of the Federation, 2004, Bamaiyi v A G. Federation (2001) 12 NWLR (Pt.727) 468 at 497; Achineku v Ishagba (1988) 4 NWLR (Pt. 89) 411; section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria.

In the cross-respondent’s response, it was put forward a support for the view of the cross-appellant that if the court found the offence not proved beyond reasonable doubt, the proper order should be a discharge and acquittal and not a mere discharge as the Court of Appeal did. He cited section 246 of the Criminal Procedure Act and section 243A(2)(a) of the same Criminal Procedure Act Cap.41 Laws of the Federation, 2004.

This cross-appeal has no contest any way since it is a question on what the position should be if indeed the accused is found not guilty what the proper order should be as in the case in hand. I would have recourse to section 246 of the Criminal procedure Act, Cap 43, Laws of the Federation, 2004 which provides as follows:

“If the court finds the accused not guilty, the accused shall forthwith be discharged and an order of acquittal recorded.”

This court has had no difficulty in interpreting the word “shall” as provided for in statutes as in the present case to connote a mandate, a command that brook no watering down or denoting of any other meaning than that the command must be obeyed. Therefore when the Court of Appeal found and decided that the accused/cross-appellant was not guilty, it was duty bound to order and record that he was discharged and acquitted and not do what it did by saying discharged but not acquitted. It was not for that court to merely order a discharge and the accused not acquitted. The law, section 246 of the Criminal Procedure Act said the accused should be discharged forthwith and an order of acquittal recorded. Nothing less than that would suffice. That order or mandate or command of the law should have been carried out without dilution. See Bamaiyi v A – G. Federation (2001) 12 NWLR (Pt.727) 468 at 497; Achineku v Ishagba (1988) 4 NWLR (Pt. 89) 411.

In the circumstances therefore the cross-appeal is allowed and it is hereby ordered that the respondent/cross-appellant is discharged and acquitted forthwith of the charge against him.

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SC.66/2009

Olatinwo Nurudeen Bright V. The State (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C

The appellant and one Patrick Olufemi Kolawofe Ogedengbe were arraigned on a two-count charge before the criminal Division of the High court of Lagos state sitting at Ikeja. They were charged with conspiracy to commit murder contrary to S.324 of the criminal code Law and murder, contrary to S.319(1) of the criminal code Law cap 32 Laws of Lagos state 1994. The trial court found each of the appellant and his co-accused guilty as charged in each count and sentenced each to seven years imprisonment in count one and to death by hanging in Count Two.

The appeal to the court of Appeal, Lagos Division was dismissed and the judgment of the trial court was affirmed. The appellant further appealed to this court on six (6) grounds, hereunder reproduced, shorn of their particulars:

“GROUND 1: The learned Justices of the court of Appeal erred in law when they held at pages of the judgment as follows: ‘The learned trial Judge took all requisite procedural steps for the management of an allegation of inducement, threat or duress in the making of a confessional statement under investigation. A trial within trial was conducted. After the procedure the learned trial Judge found that the statements was voluntarily made. It was the learned trial Judge who had an opportunity of a visual of the appellants as they each testified and responded to the questions put to them. No compelling reason has been advanced for interfering with the decision of the trial court Judge.

The said extra judicial statements therefore stand admitted as exhibits.”‘

“GROUND 2: The learned Justices of the court of Appeal erred in law when they held that the prosecution proved the case against the Appellant beyond reasonable doubt when in actual fact there was no evidence to show that the appellant in fact committed the offence and thereby occasioning a miscarriage of justice.

GROUND 3: The Justices of the court of Appeal seriously erred in law when they failed to make a finding on the effect of failure by the Police (PW5) to interrogate vital witnesses especially one of the security guards (Wale) and other domestic staff that worked with the deceased in order to eliminate the likelihood of any other person other than the appellant, being responsible for the death of the deceased.

GROUND 4: The lower Court seriously erred in law in making a case for the prosecution instead of deciding issues as presented by the parties.

GROUND 5: The learned Justices of the Court of Appeal misdirected themselves on facts and drew and drew inferences which cumulatively occasioned a miscarriage of justice.

GROUND 6 OMINIBUS GROUND: The Judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial.”

From the (6) grounds of appeal, learned counsel for the Appellant formulated the following three issues for determination:

“(a) Whether the trial Court and indeed the lower Courts were both right in convicting and sentencing the appellants primarily on the uncorroborated and retracted extra-judicial statements of the Appellant.

(b) Whether the prosecution proved the necessary ingredient(s) of the offence of conspiracy and murder against the appellant beyond reasonable – doubt as required by the law.

(c) Whether the failure on the part of the prosecution to call vital witnesses circumstantially link the appellant with the murder of the deceased did not amount to a gross miscarriage of justice.”

In his own brief of argument, learned counsel for the appellants distilled the following two issues from the Appellant’s ground of appeal for determination:

“(1) whether the court of Appeal was right in affirming and or confirming the admission of the Appellant’s Extra Judicial Statement by the Trial Court.

(2) whether the court of Appeal was right in confirming the conviction of the Appellant for murder having regard to the evidence before the Court.”

Arguing issue one in his brief, learned Counsel for the Appellant referred to Sections 27(1) and 28 of the Evidence Act Cap E14 Laws of the Federation 2004 for the meaning of a confession and factors that render a confession inadmissible respectively. He said that a confession made as a result of inducement, threat or promise having reference to the charge against the accused is inadmissible in evidence against him. He relied on Egboghorome v. State (1993) 7 NWLR (Pt. 306) 38 2. He argued that before admitting the extra judicial statements of the appellant Exhibits D and E in the trial within trial (as confessional statements), the trial Court did not look for corroboration outside the statements, but erroneously relied heavily and solely on the evidence of the 1st witness at the trial within trial to determine the voluntariness vel non of Exhibits D and E. He relied on Alarape v. state (2001) 5 NWLR (Pt. 205) 29 at 98-99 paras. H-A and submitted that in determining the voluntariness or otherwise of the confessional statements Exhibits D and E, the trial court failed to determine:

(a) whether there is anything outside the confession to show that it is true;

(b) whether the statement is corroborated, no matter how slightly;

(c) whether the facts contained therein, so far as can be tested are true;

(d) whether the accused person had the opportunity of committing the offence;

(e) whether the confession of the accused person was possible;

(9) whether the confession was consistent with other facts which have been ascertained and proved in the matter.

He referred to and relied on Onochie v. The Republic (1966) NMLR 307; Ikpasa v. A.G. Bendel State (1981) 9 SC 7; Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 and Bature v. State (1994) 1 NWLR (Pt. 370) 267. He referred to the statement of PW1 to the Police at pages 9, 10 and 11 of the record and the testimony of the same witness at pages 61, 60 to 62 of the record and submitted that the statement made by the PW1 to the Police was in conflict with the witness’ testimony at the trial.

He impugned the testimony of PW5 which he said was predicated primarily on the flawed evidence of the PW1. He said that the evidence of PW1 and PW5 upon which the trial Court convicted the appellant and upon which the lower Court affirmed the conviction has no probative value and cannot sustain the conviction. Counsel said that the contradiction in the evidence of PW1 was not explained and it is not for the Court to choose which of the contradictory evidence to believe. He relied on Ahmed v. State (1999) 7 NWLR (Pt. 612) 641 at 672 paras D-E; Arebia v. The State (1982) 4 SC 78.

He argued further that even if the appellant knew the abode of the deceased that is not enough to link the appellant with the crime, more so in the absence of direct evidence of the case of death. He said that the chain of causation is broken and that the doubt thus created should be resolved in favour of the appellant.

He argued that the conviction of and sentence imposed on, the appellant is contrary to the intendment of s.138(1) of the Evidence Act (supra) and submitted that the trial Court convicted the appellant in error as the prosecution did not prove his guilt beyond reasonable doubt and that the lower Court was equally in error when it confirmed the judgment of the trial Court.

In Issue 2, learned Counsel relied on Gambo v. State (2009) 6- 7 SC 24 at 64-65 for the following ingredients of murder:

(a) That the deceased died.

(b) That the death of the deceased was caused by the accused.

(c) That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

He referred also to Adekunle v. State (2006) 14 NWLR (Pt.1000) 217 at 736-737 paras. G-A; Haruna v. State (1972) 8-9) SC 174; Archibong v. State (2004) 1 NWLR (Pt. 855) 488. He submitted that the three conditions listed above must co-exist before there can be a valid conviction on a charge of murder. He argued that the prosecution has failed to prove beyond reasonable doubt, the death or cause of death or that the death is attributable to an intentional act(s) or omission(s) of the appellant.

Counsel said both the trial Court and the lower Court were in error in their failure to draw a distinction from the facts laid, between the acts ascribable to the appellant and the DW1. Counsel conceded that the deceased is presumed death but added that there is nothing linking her death with the appellant. However, he argued that the prosecution cannot obtain a conviction in a case such as this for its failure to prove by direct or circumstantial evidence the cause of death. He retied on Oyo v. A.G. Bendel state (1986) 1 NWLR (pt.17) 418 at 419 and 420 rations 1 & 3; Akpan v. State (1992) 6 NWLR (Pt.248) 439 at 462 paras E-F. He contended that the evidence of PWs as to how the body of the deceased was disposed of was not credible as it was based on the flawed confessional statements Exhibits D and E.

He referred to the evidence PW3 the Medical Doctor and younger brother of the deceased and the PW5 as to the blood stain each of them said he saw, and contended that if what they saw was blood there is no proof that it was the blood of the deceased, especially as no DNA or any other test was conducted on the stain of blood allegedly seen by the PW3 and PW5.

Counsel emphasized that there was no eye witness and that for circumstantial evidence to ground a conviction, the following conditions must be met:

(a) It must irresistibly and unequivocally lead to the guilt of the appellant.

(b) No other reasonable inference could be drawn from it, and

(c) There must be no co-existing circumstances which could weaken the inference.

He relied on Idowu v. State (1998) 11 NWLR (Pt. 574) 354 at 370; Aigbodion v. State (2000) 7 NWLR (Pt. 666) 686.

He reviewed the evidence of PW1 and PW3 and Exhibits D and E and concluded that there was no sufficient evidence to found a conviction for murder. He submitted further that a finding of fact must be based on credible evidence or reasonable inference drawn from facts presented by the prosecution and not on speculations. He relied on Amadi v. State (1993) 8 NWLR (Pt. 314) 644 at 663-664 paras H-A; Ahmed v. State (1999) 7 NWLR (pt. 612) 641 at 673 paras C-D; Udedibia v. State (1976) 11 SC at 138-139.

On the facts of this case, he argued that there is nothing before the trial Court or the lower Court that could point exclusively to the guilt of the appellant, and that the evidence before the trial Court is not incompatible with the innocence of the appellant. He relied on the evidence of PW1 and PW3 that the deceased hired and fired her domestic staff at an alarming rate and contended that there is a very high likelihood that any of them could have killed her.

He argued that even if Exhibits D and E were voluntarily made by the appellant, the relationship between the appellant and one Kayode is vital to the veracity of the appellant’s extra judicial statements Exhibits D and E but the relationship was not investigated by the Police, He said that the lower Court erred for failure to distinguish between the roles of the appellant and those of the DW1. He said that the appellant never led the Police to the deceased’s car as found by the lower court and that it was the DW1 who led the Police to the car.

Counsel impugned the conviction of, and the sentence passed on, the appellant on charge of conspiracy as defined in S.518 of the criminal code for the absence of criminal purpose common to the appellant and DW1. He referred to (1973) NSCC 280. He urged the Court to find that, from his arguments; the guilt of the appellant was not established and urged the Court to resolve the issue in favour of the appellant.

In issue 3, learned Counsel argued that the failure to call vital witness whose evidence might have determined the case one way or the other is fatal to the case against the appellant. He relied on Onah v. The State (1985) 3 NWLR (Pt. 12) 236. He referred to the extra judicial statements of the appellant and DW1 and said that it is clear that Kayode was aware that it was the appellant who got DW1 for the deceased as her driver. He said it is clear from the testimony of the appellant at page 36 of the record that Kayode escorted both the appellant and the DW1 to the house of the deceased to secure the job as a driver for the deceased.

He referred to Omoyodo v. State (198 1) 12 NSCC 119 at 130, paras 40-50 and page 131 paras 1-12; State v. Nnolim (1994) 5 NWLR (Pt.345) 394 at page 406 para. D and argued that the failure of the prosecution to call Kayode to the stand to testify at the trial weakened the prosecution’s case. He urged the Court to invoke S.149(1)(d) of the Evidence Act, adding that failure to call Kayode led to a miscarriage of justice. He contended that the lower court found the charge against the appellant proved even before considering the defences he offered, contrary to S.36(5) of the constitution of the Federal Republic of Nigeria 1999 Cap C23 Laws of the Federation 2004.

In conclusion, he urged the court to take a critical look at Exhibits D & E, alleged confessional statements of the appellant, in the light of the totality of evidence adduced by the prosecution at the trial, He said the evidence of PW1 and PW5 which he said formed the basis of the circumstantial evidence upon which the appellant was convicted did not link the appellant with the offence charged. He urged the Court to allow the appeal, set aside the conviction of and sentence passed on, the appellant and make an order to discharge or acquit the appellant.

In his argument on Issue 1 in his brief, learned Counsel for the Respondent referred to s.27 (1) & (2) of the Evidence Act on confession and Saidu v. State (1976) 2 SC 41 and Onungwa v. State (1976) 2 SC 109 and submitted that Exhibits D & E were properly admitted in evidence and relied on by the trial Court. He said that the appellant contradicted himself when he claimed that his right hand which he claimed was wounded was the same hand he signed his statement with. He drew attention to the claim of the appellant that he signed the statement at gun point and that he was slapped with the heel of sandals as baseless as the appellant did not state the name of any officer who pointed a gun at him or slapped him. He relied on Sanyaolu v. The State (1976) NSCC in his argument that the verdict of the trial Court was based on proper evaluation of the evidence and, therefore not perverse as to warrant appellate Court interfering with it.

He referred to Achubua v. The State (1976) 12 SC 63; Obosi v. State (1965) NWLR 119; Osakwe v. A-G Bendel State (1991) 1 NWLR (Pt. 167) 315; Nwaebonyi v. The State (1994) 5 NWLR (pt.343) 138; and Yesufu Jomoh v. The State (1925) 6 SC 167 in support of his contention that a confession alone is sufficient to ground conviction without corroboration if the Court is satisfied of the truth of its contents.

He referred to Eshoghonome v. State (1993) 7 NWLR (pt. 308) 373 Queen v. Itule (1961) 2 SCNLR 183; Queen v. Obiasa (1962) 2 SCNLR 402; Kim v State (1992) 4 NWLR (Pt. 233) 19 among others in his contention that a confession will suffice to ground a conviction regardless of its retraction.

He referred to the evidence that the hands of the appellant were stained with blood, the evidence of the PW1 at page 62 of the record to the effect that the main gate was open and that as the witness was about to enter the appellant prevented her from doing so, the fact that the appellant and one Patrick Olufemi Kolawole Ogedengbe were in possession of the deceased’s C of O with the intention to dispose of the deceased’s property and contended that the trial Court did not base the conviction of the applicant solely on Exhibits D and E. He urged the Court not to disturb the findings of the two courts below in admitting Exhibits D and E.

In issue 2, learned Counsel referred to Olalekan v. The State (2002) 1 MJSC 159 at 163; Ogba v. The State (1992) 2 NWLR (pt.169) 198; Bakare v. The State (1987) 1 NWLR (Pt. 52) 582 for the ingredients that must be proved to secure a conviction in a charge of murder:

(a) That the deceased died.

(b) That the death resulted from the act of the appellant.

(c) That the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable – consequence

He argued that evidence showed that Navy Captain Yetunde Peters died, and that she was killed in her home and her body dumped in the Lagoon in Lagos. He referred to the evidence of pW1 at page 72, PW5 at page 153, statement of appellant to the police at p.31 of the record to show that there was a death, that of Navy Captain Yetunde Peters. He referred to the evidence of PW3 and PW5 and the extra-judicial statement of the appellant and said that the late Navy Captain Yetunde Peters was killed in her home and the body was dumped into the lagoon in Lagos State.

Learned Counsel argued that cause of death is a fact in issue herein which can be proved by either direct or circumstantial evidence where medical evidence is not available. He relied on Ahmed v. The State (2002) 1 MJSC (pages not supplied). Conceding the absence of eye-witness, learned Counsel relied on Exhibits D and E and the uncontroverted evidence of the prosecution witnesses for the 2nd and 3rd ingredients for the offence charged.

He said that the extra judicial statements reveal how the appellant and the Patrick Olufemi Kolawole Ogedengbe implicated, and no other, as the mastermind behind the gruesome murder of the late Navy Captain Yetunde Peters. He relied on S.8 of the Criminal Code Law, Laws of Lagos State of Nigeria, 2005. He urged the Court to find that the circumstantial evidence is direct, positive and compelling. He relied on Ijiofor v. The state (2001) 3 MJSC 61 at 64; Edim v. State (1972) 4 SC 160 at 162; Efe v. State (1926) 22 SC 75.

He urged the Court not to disturb the finding of fact of the trial Court as the same is not perverse or based on evidence not legally admissible. He relied on Ijiofor v. State (supra); Saidu v. The State (1982) 13 NSCC 70: Oguala v. The State (1991) 2 NWLR (pt.175) 509 in his argument that the prosecution is not bound to call a particular witness to secure a conviction.

In summary, learned Counsel stated that:

(1) That both Exhibits D and E were made voluntarily.

(2) That the learned trial Judge conducted a trial within trial to ascertain the veracity or truth of the appellant’s statement.

(3) The trial Judge did not base the conviction of the appellant solely on Exhibits D and E. There were other pieces of evidence outside the confessions.

He urged the Court to dismiss the appeal for lacking in merit. I have scrutinized the grounds of appeal and the issues distilled therefrom by learned counsel for each side. The two issues framed for determination by learned counsel for the Respondent are subsumed in the three issues presented in the appellant’s brief. I intend to determine the appeal on the three issues.

Issues 1 queries the conviction of and sentence passed on the appellant allegedly based primarily on the uncorroborated and retracted extra-judicial statements of the appellant. In framing the said issue, learned counsel for the Appellant intentionally or unintentionally failed to state the nature of the extra-judicial statements’ Exhibits D and E, the statements credited to the appellant, are not just extra-judicial statement. They are confessional statements within the intendment of S.27(1) of the Evidence Act which defines a confession as:

“… an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

If voluntarily made, a confession is deemed a relevant fact and admissible against the maker under s. 27(2) of the Act. A confession does not become inadmissible merely because the accused denies having made it. See R v. John Agariga Itule (1962) All NLR 462 SC and when the voluntariness of the confessional statement is an issue, the trial Court has a duty to conduct a trial within trial to determine the voluntariness vel non of the confession, as was done in this case.

Proof of the voluntariness is beyond reasonable doubt before the statement can be admitted. See Uche Obidiozo v. The State (1987) 4 NWLR (Pt. 67) 748 at 761; R v. Kass 5 WACA 154; Gbadamosi & Anor v. The State (1962) 9 NWLR (pt. 266) 465.In this case, the appellant claimed that the statements were written by the PW5 and he was forced to append his signature thereto. The trial Court dutifully held a trial within trial and found that Exhibits D and E were freely and voluntarily made by the appellant and admitted them in evidence against him.

– Appellant claimed he did not make Exhibits D and E and that he was forced to append his signature thereto after the PW5 had written them. I have stated earlier that a retraction of the statement per se does not render it inadmissible, though the fact that the denial was made timely may lend weight to it. See R. V. Sapele & Anor (1957) 2 of SC 24.

It is a settled principle of law that a Court can convict an accused on his uncorroborated confessional statement, provided the following conditions are satisfied.

(1) There is something outside the confession which shows that it may be true.

(2) The statements contained therein are likely to be true.

(3) The accused had the opportunity to have committed the offence, and

(4) – The facts stated by the accused are consistent with other facts which have been ascertained and established at the trial.

See R v. Itule (supra); R v. Sykes (1913) 8 CR App Report 233 Kanu v. The King 14 WACA 30; Akpan v. The State (1986) 3 NWLR (pt.27) 258.It is my view that for a Court to convict upon an uncorroborated confessional statement of the accused, the four conditions must be cumulatively satisfied.

Are the four conditions so satisfied in this case To answer this poser, I will take the conditions seriatim:

(1) The PW1 was prevented from getting into the premises of the deceased by the appellant who lied to her that the deceased had traveled to answer an urgent call at Abuja. This was a ploy to prevent the PW1 from discovering the facts stated in Exhibits D and E, i.e. the gory killing of the deceased, and the search for valuables in her house leading to the home being in disarray. It is independent and outside the confessions. The cover up speaks the truth of the contents of Exhibits D and E. (see page 62 of the record).

The appellant lied to the PW4 that his friend lost his mother a few years back and wanted to sell his late mother’s property. The property put on sale is that of the deceased whose property document the appellant and his co-accused stole after killing the deceased and disposing her body. None of them – the appellant and his co-accused – is a blood relation of the deceased, not to talk of being the late woman’s son. (see page 76 of the record).

PWs swore that the house of the deceased was “scattered”.

He found a trace of blood on the stair case of the deceased’s house.

He recovered the original Certificate of Occupancy of the deceased’s property from PW4 who got same from the appellant and his co-accused.

The fact that only traces of blood were found in the house of the deceased whose throat was slip after a struggle for her life demonstrates the truth of the confession that the body was wrapped in her rug and disposed of. There is no doubt that her blood was collected on the rug on which she was killed.

(2) My Lords, the graphic accounts in Exhibits D and E of who held what part of the deceased’s body during the struggle to kill her, who struck the fatal blow and the events following thereafter can only be given by a participant in the inhuman act. There is no way the police who are not magicians, and even if magicians, can recall the horrors of the devil at work as contained in Exhibits D and E. only a participant could have given such account

(3) There is no suggestion during the investigation of the crime and subsequent trial and appeal through the lower Court to this Court that the appellant was not within the vicinity of the crime scene and so could not have been involved in the commission of the offence charged. He did not plead alibi.

(4) The fact that the house of the deceased was “scattered” after the murder, that only traces of blood were seen at the scene of crime that the appellant and his co-accused stole the property of their victim some of which were recovered from them and the fact that the appellant deliberately lied to the PW1 that the deceased traveled to Abuja to answer an urgent call are facts established and not controverted at the trial.

In my view, the conditions laid down by the authorities cited above were conclusively established in this case. Based on the above, I resolve issue 1 against the appellant and in favour of the Respondent.

Issue 2 queries the proof of the necessary ingredients of conspiracy and murder. I will take conspiracy first, proof of the offence of conspiracy is generally a matter of inference. The involvement of the appellant can be inferred from all the collateral circumstances of the case. See R. v. Aspinall (1976) 2 QBD 48 at 58-59. The circumstances of this case as testified to by the witnesses for the prosecution and in particular the confessional statements of the appellant Exhibit D and E, show clearly that the appellant had foreknowledge of the crime and consented to everything done to execute the plan to murder the deceased. The appellant and his co-conspirator acted in pursuance of their preconceived agreement or meeting of the minds upon the criminal purpose common between them. See Erim v. State (1994) 5 NWLR (Pt. 346) 522 at 538.

The offence of conspiracy is complete upon meeting of the minds and in order to complete the offence, it is not necessary that any one thing should be done beyond the agreement. See R. v. Aspinall (supra), page 45 at pages 58-59. In my view, the collateral circumstances of the case and Exhibits D and E constitute facts from which the ingredients of conspiracy can be inferred In a charge of murder, the prosecution is required by law to prove the following:

(a) that the death of a human being actually occurred;

(b) that such death was caused by the accused;

(c) that the accused person’s act resulting in the death of the human being was done with the intention of causing death or grievous bodily harm;

(d) – that the accused knew that death would be a probable, not just likely, consequence of his act.

See The State v. Danjumma (1996) 8 NWLR (pt. 469) 660 at 668;

Kada v. The State (1991) 22 NSCC (pt. 11) 592 at 598.The fact of death of a human being is not an issue in the case.

The cause of death, a medical question is generally determined from medical report. However, medical evidence is not essential in all cases. see Adamu v. Kano N.A. (1956) 1 FSC 25; Bakori v. State (1980) 8-11 SC 81; Eric Uyo v. A-G Bendel State (2000) 12 NWLR (Pt. 681) 415 at 430.

In this case, the appellant himself provided not only the cause of death but also the manner of death. See Exhibits D and E. There is no iota of doubt that the appellant and his partner in crime knew, intended and appreciated the probable consequence of their act. I resolve Issue 2 against the appellant.

Issue 3 is “whether the failure on the part of the prosecution to call vital witnesses to circumstantially link the appellant with the murder of the deceased did not amount to gross miscarriage of justice.” The prosecution has a duty to prove its case beyond reasonable doubt. See S.135(1) of the Evidence Act;; Albert Ikem v. The State (1985) 4 SC 30, John Nwankwo v. The state (1990) 2 NWLR (Pt. 134) 627 at 639; Esangbedo v. State (1989) 4 NWLR (pt. 113) 57; Egbe v. The King 14 WACA 105.

A conviction in a criminal trial is not a function of the number of witnesses called by the prosecution. What is material is the quality of the evidence adduced. In the case at hand, the appellant who knows the facts better than anyone other than his partner in crime convicted himself without any prompting by anyone. See Exhibits D and E. He offered the best evidence of his involvement in the crime. The prosecution has no business calling any witness “to circumstantially link the appellant” with the murder of the deceased when there is direct evidence by the appellant linking him with the crime. The issue is resolved against the appellant.

My noble Lords, this is a case of reality playing fiction. The macabre facts could have been lifted from a horror film, unfortunately, it is a real life play. The deceased, Navy captain Yetunde peters, a lady who spent her productive years serving in the Armed Forces of her fatherland, was not only denied her well-earned rest, she was deliberately butchered in her own home like a common animal. Her body was consigned to a watery grave. They are ferocious beasts who walk the streets in the guise of human beings.

Having resolved all the three issues in the appellant’s brief against him, I hold that the appeal is devoid of merit. Consequently, I dismiss the appeal and affirm the judgment of the lower Court which had affirmed the judgment of the trial court.

Appeal dismissed.

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SC.396/2010

Mr. David I. Karinga Stowe & Anor V. Godswill T. Benstowe & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

This is an appeal from the judgment of the Court of Appeal, Port Harcourt Division delivered on the 11th of July, 2000 wherein that court set aside the judgment of the High Court and struck out the suit for non compliance with the provisions of Order 33 Rule 7 High Court (Civil Procedure) Rules, Cap 61. Laws of Eastern Nigeria, 1963. The facts are these:

The appellants as plaintiffs sued the respondents as defendants on a writ of Summons and Statement of claim. The endorsement on the Writ of summons is as follows:

“The plaintiffs claim as against the Defendants is for:

1. A declaration that:

(a) The installation of the 1st defendant as Chief Godswill Tamunobaraimi Ben Stowe without the knowledge and consent of the Banigo House of Bonny and the Stowe House of Bonny under the Bonny native Law and custom is null and void.

(b) No such sub-House as Ben Stowe House in the STOWE HOUSE of the Banigo group Houses in Bonny exists under Bonny custom and tradition.

(c) The creation of Ben Stowe Chieftaincy Unit and the recognition by the Bonny Chiefs Council of Godswill Tamunobaraimi Ben Stowe as Chief of Ben Stowe House on July 22nd, 1978 are ultra vires and void.

(d) The only associate Chieftaincy unit in the Banigo group of Houses of Bonny established in Bonny history with the relevant appellation is the Stowe House.

(e) The incumbent of Stowe House is Chief Emmanuel Diepiri (Ihanifieresi) Stowe, the first plaintiff.

2. An injunction:

(a) Restraining the first dependant from parading himself as chief Godswill Tamunobaraimi Ben stowe House of the Banigo group of Houses of Bonny.

(b) Restraining the second defendant and his successors-in office as secretary of the Bonny Chiefs Council from creating a Ben Stowe sub-House without the consent and initiative of the STOWE HOUSE and the BANIGO HOUSE of Bonny.

These reliefs were not endorsed in the Amended statement of claim. Paragraph 19 of the Amended statement of claim reads:

“19 wherefore the plaintiff claim as per writ”

The learned trial judge heard evidence and entered judgment for the plaintiff. On appeal the judgment of the trial court was set aside and the suit struck out. This appeal is against that judgment.

In accordance with rules of this court, briefs were filed and exchanged. The appellants brief was filed on the 3rd of November, 2004 while the respondents brief was deemed filed on the 29th of March 2006.

Two issues were formulated in the appellants brief.

1. Whether the learned justices of the Court of Appeal were right in striking out the plaintiffs claim when they came to the conclusion that reliefs 3, 4, and 7 (out of 7 reliefs granted by the court) were granted gratis by the trial court because they were not claimed by the plaintiffs.
2. Whether the learned justices of the Court of Appeal were right when they held that by not repeating the reliefs endorsed on the Writ of Summons in the Amended Statement of claim, the plaintiffs abandoned all reliefs without regard to the endorsement on the Writ, even though the Writ of summons is referred to in paragraph 19 of the Amended Statement of claim.

And for the respondents, a lone issue was presented for determination of this appeal. It reads:

1. Whether the Court of Appeal rightly struck out the plaintiffs suit/claims having found that reliefs Nos. 3, 4, 7, were granted gratis and in the absence of specific endorsement of the said substantive reliefs in the Amended Statement of claim.

On a careful examination of the three issues in the briefs of argument I am of the firm view that the appellants’ second issue is more than adequate for the consideration of this appeal.

At the hearing of the appeal or the 21st October 2011 learned counsel, for the appellants E. Peter Kio Esq. adopted his brief and urged us to set aside the judgment of the Court of Appeal and restore the judgment of the High Court.

Learned counsel for the respondents A. B. Anachebe, SAN adopted his brief and urged us to dismiss the appeal.

Learned counsel for the appellant observed that the ideal thing is to state in the statement of claim all the reliefs sought but failure to do so does not make the action fail where the statement of claim refers to the Writ of Summons. Reliance was placed on Keshinro v Bakare 1967 1 ALL N.L.R. p.280.

He further observed that in paragraph 19 of the Amended Statement of claim the plaintiff claimed as per writ, contending that the Writ of summons is not superceded. Referring to Owena Bank Ltd v. N.S.C.C. Ltd 1993 4 NWLR Pt.290 p.698- Okonu Oil Palm Co Ltd v. Isehienrehien 2001 6 NWLR Pt.710 p.660

He submitted that striking out the plaintiffs’ case on the issue of not pleading the reliefs in extenso in the statement of claim cannot be valid and this court is urged to allow the appeal.

Replying, learned counsel for the respondents observed that Order 33 rule 7 of the High Court (Civil Procedure) Rules of Eastern Nigeria is mandatory.

He submitted that if a plaintiff, as in the instant case, fails to endorse his reliefs in the statement of claim though endorsed on the Writ or particulars of claim, he is deemed to have abandoned such reliefs. Reliance was placed on: Cargil v. Bower 1879 10 Ch.D. p.502, Lahan v. Lajoyetan 1972 6 SC p.190, Udechukwu v Onwuka 1956 1 FSC p.70

Bullen and Leak and Jabob’s Precedents of pleadings 12th edition at pages 62 and 63; Practice and Procedure of Supreme Court, Court of Appeal and High Court by Hon. T. A. Aguda (1980 Edition) at page 247. He urged this court to dismiss this appeal together with the judgment of the trial judge.

Order 33 rule 7 of the High Court Civil Procedure Rules applicable in Rivers State at the time the cause of action arose in this case reads:

“Every statement of claim shall state specifically the relief which the plaintiff claims either simply or in the alternative and may ask for general relief and the same shall apply to any counterclaim made or relief claimed by the defendant in his defence.”

The above is a mandatory procedural requirement founded on the position of the Law that the statement of claim supercedes the Writ of Summons.

The learned authors of Bullen and Leak and Jacobs precedents of pleadings, an ‘A’ publication i.e. the final authority on how to draft pleadings says:

“when all the material facts have been alleged, the statement of claim concludes with the relief or remedy claimed. The statement of claim must state specifically the relief or remedy which the plaintiff claims. This is called the prayer and the practice is for the prayer…to set out separately and distinctly in numbered (or lettered) paragraphs each head of relief or remedy which is claimed…If the plaintiff omits to ask for any relief or remedy claimed in the writ he will be deemed to have abandoned that claim.”

Hon. Justice T. A. Aguda in his book “Practice and Procedure of Supreme Court, Court of Appeal, and High court, (1980 Edition) at page 247 said:

“Apart from the Statement of facts…it must also state specifically the relief which the plaintiff claim either simply or in the alternative it may also ask for general relief”

It is important I examine the attitude of the courts to this issue. In Enigbokan v. A.I.I.Co. Nig. Ltd. 1994 6 N.WLB Pt 348 p.1 Iguh JSC said: “It seems to me plain from the plaintiffs’ fourth amended statement of claim that the first relief he originally claimed as per his writ of summons was subsequently abandoned. This is because the law is settled that a statement of claim supercedes the writ and any relief claimed on the writ but not contained in the statement of claim will be deemed to have been abandoned…” In Lahan and ors v. Lajoyetan and Ors 1972 NSCC p.460, The Supreme Court held that a statement of claim supercedes a writ and that if a special relief is deemed in the writ which is not claimed in the statement of claim, it will be deemed that the special relief has been abandoned.

In Otanioku v Alli 1977 NSCC p.452

Order 13 rule 7 of the relevant High Court (Civil Procedure) Rules provided that:

“Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may ask for general relief, and the same rule shall apply to any counterclaim made or relief claimed by the defendant in his defence”

Learned counsel for the respondent conceded that no reliefs were claimed in the amended statement of claim. The action was struck out. See also on these: Udechukwu v. Okwuka 1956 IFSC p.71, Ajagungbade III and Ors v Laniyi & Ors 1999 13 NWLR Pt.633 p.92

Having explained the settled principle that a statement of claim supercedes the Writ of summons, I must observe that the plaintiffs claims endorsed in the writ of summons were not repeated in the statement of claim: Paragraph 19 of the Amended statement of claim simply pleaded: “19 whereof the plaintiffs claim as per writ”

This is bad. Having not pleaded any relief or remedy in his pleadings, (statement of claim) the plaintiff has abandoned all his reliefs. The statement of claim is naked as regards reliefs claimed. Consequently there is no claim upon which the trial court could adjudicate or grant relief in this suit before it. The correct practice is to conclude the plaintiff’s pleadings by making a claim on each item on the Writ of Summons. The statement of claim supercedes the Writ of Summons and if reliefs’ claimed are only in the Writ of Summons and not in the statement of claim then the statement of claim no longer supercedes the Writ of Summons and the reliefs claimed are abandoned. I must observe that the Court of Appeal was correct to hear the appeal on its merits when it was aware that it had no jurisdiction to hear the appeal. When an appeal is pending before the Court of Appeal and issue of jurisdiction is raised and the Court of Appeal has no jurisdiction to hear the appeal, the Court of Appeal as the penultimate court should proceed to hear the appeal on its merits notwithstanding the fact that it has no jurisdiction. Hearing the appeal gives the Supreme Court the benefit of its opinion. The reasoning is simple, if the Supreme Court finds both courts below had jurisdiction, the suit would have to be sent back to the Court of Appeal with great costs to the litigant and waste of judicial time.

The Court of Appeal was correct to set aside the judgment and strike out the suit. There shall be costs of N50,000.00 in favour of the respondents.

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SC.11/2003

National Union Of Road Transport Workers & Anor Vs Road Transport Employers Association Of Nigeria & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

J. A. FABIYI, JSC

This is an appeal against the judgment of the Court of Appeal, Ilorin Division (the court below for short) which found in favour of the 1st and 2nd respondents herein that the trial court lacked jurisdiction to entertain the action and struck out the claim before the trial Federal High Court, Akure (the trial court for short).

The 1st and 2nd appellants herein, as plaintiffs at the trial court, filed their originating summons on 23rd August, 1999 by which they prayed for the determination of the question-

‘Whether by Decree No 4 of 1996 Trade Union (Amendment) Decree 1996 the plaintiffs are the rightful parties to engage in the transportation of passengers and goods by road at the motor-parks in the various towns and villages in Ekiti State of Nigeria.’

If the answer to the question is in the affirmative, then the plaintiffs claim:-

‘1. Declaration that the members of the 1st plaintiff Union including the other plaintiff are the rightful persons by law to engage in the transportation of passengers and goods by road in various motor- parks in Ekiti State.

2. Perpetual injunction restraining any other Unions, Association and / or groups of persons not authorised by law to engage in transportation of passenger and goods by road from operating, interfering and / or disturbing the plaintiffs and /or their agents, servants or members at the various motor parks in Ekiti State, where they are lawfully engaged.
3. Perpetual injunction restraining the 2nd defendant and the Ekiti State House of Assembly under his authority from entertaining, considering or making any resolution tantamount to amending Decree 4 of 1996 by allowing or permitting a non-authorised Union, Association or group(s) of persons to operate at the motor-parks in the State to engage in the transportation of passengers and goods by road in various motor-parks in Ekiti State.

.An order directing the 1st, 3rd and 4th defendants to enforce Decree 4 of 1996 by seeing to the EXIT of NON-AUTHORISED UNIONS and non-registered or non-recognized

Union or Associations from various motor parks in Ekiti State.’

The 1st and 2nd respondents herein were not made parties by the plaintiffs at the trial court. They applied to be joined thereat as defendants. On 23rd November, 1999 they were found to be necessary parties so that all issues in dispute as placed before the court could be properly pronounced upon and to obviate being accused of standing by. The 1st respondent was a party who should have been joined by the plaintiffs in the first instance. It was a party whose presence before the court as a defendant was apt to enable the court to effectually and completely adjudicate or settle all the questions involved in the matter. It was not right for the plaintiffs to keep it out of the game and attempt to steal the show behind the back of a deserving defendant. After all, any judgment made with an order against a necessary and desirable party behind its back will be to no avail. It cannot be allowed to stand. See: Chief Abusi David Green v. Dr. E. T. Dublin Green (1987) 3 NWLR (Pt. 60) 480; Uku v. Okumagba (1974) 1 ALL NLR 475. In short, the learned trial judge acted in the right direction on this point.

A preliminary objection was raised to the jurisdiction of the trial court to entertain the matter. This, he overruled on 12th October, 2000. Thereafter, the trial judge heard arguments on the originating summons. In his reserved judgment handed out on 26th September, 2000, he held as follows:-

‘But by Decree No 1 of 1999 Trade Union (Amendment) Decree No 1 of 1999 the Third Schedule of the Principal Act (Trade Unions Act Cap. 437) was amended by the addition of Part C which contains the Senior Staff Employers Association. In this new Part C the 5th defendant was recognised. It is important to note that although the name of the 5th defendant was recognized it has not been given any specific area or jurisdictional operation. Section 6 of Decree No 4 of 1996 has not been repealed so also Part B of the Third Schedule which contains the Trade Unions and their jurisdictional scope. It is therefore my view that the 5th defendants name has only been inserted for the sake of it. If the legislature intended to give it any jurisdictional scope having provided by the relevant enactment (sic). I will answer the question posed for determination in this originating summons in favour of the plaintiff.’

The 1st and 2nd respondents herein, felt unhappy with the above stance of the trial judge and appealed to the court below where issue of jurisdiction of the trial court was again raised along with other issues. The court below, in its own judgment handed out on 7th May, 2004 decided to only treat the issue of jurisdiction. It held as follows:-

‘The name of the Road Transport Employers Association of Nigeria (1st appellant) is listed as No 29 under the Third Schedule Part C thereof. It is therefore a trade union. Being a trade Union, the dispute between it and the 1st respondent cannot be heard by the lower court.’

On point of jurisdiction, the court below allowed the appeal and declared the trial as null and void. The appellants herein have decided to appeal to this court.

Three (3) issues formulated in the appellants brief of argument read as follows:-

‘(a) Whether the lower court was right by refusing to consider the appellants complaint and argument that the issue formulated by the 1st and 2nd respondents at the lower court did not arise in the Notice and Ground of Appeal filed at the lower court.

(b) Whether the claim of the appellants at the trial court is a trade union dispute.

(c) Whether the trial court was clothed with jurisdiction to hear and determine the subject matter of this appeal.’

On behalf of the 3rd – 6th respondents three similar issues were also formulated. They read as follows:-‘

(a) Whether the claim of the appellants at the court of trial is a trade union dispute.

(b) Whether the trial court was clothed with jurisdiction to hear and determine the subject matter of this appeal,

(c) Whether the lower court was right by refusing to consider the appellants objection that issues B and D formulated before the lower court by the 1st and 2nd respondents did not arise in the Notice of Appeal filed by the 1st and 2nd respondents, as appellants at the lower court.’

Issue (c) formulated by the appellant is similar to issue (b) couched on behalf of the 3rd – 6th respondent. It is an issue which touches on jurisdiction of the trial court to determine the subject matter of this appeal.

It has been pronounced by this court several times that jurisdiction is very fundamental. It is the live wire of a case which should be determined at the earliest opportunity. If a court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) SCNLR 341; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.

Consequently, I now at this point proceed to determine the issue touching on the jurisdiction of the trial court to determine the subject matter of this appeal.

On behalf of the appellants, it was submitted that the court below was wrong when it held that the trial court lacked jurisdiction to entertain the matter and subsequently declared the judgment of the trial court as null and void. Learned counsel contended that it is not the duty of any court to go on an expedition to find or garner facts to support the position of the 1st and 2nd respondents that the issue in dispute is a trade dispute. He observed that it has been held by this court that what a court should examine in determining whether or not it has jurisdiction to entertain an action is the claim as contained in the plaintiffs claim; in this case, the appellants originating summons. Learned counsel cited the case of Ladoja v. INEC & Ors. (2007) 4 WRN 1 at 37-38; 42-43, 66.

Learned counsel referred to the case of Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (2004) 7 WRN 58 at 85 where this court affirmed that section 15 of the Trade Dispute Act, 1976 which conferred jurisdiction on the National Industrial Court in respect of certain specie of cases did not include jurisdiction to make declarations and to order injunctions as in this case. He observed that all matters within the competence of the National Industrial Court must be referred to it by the Minister as prescribed by section 10 of the Trade Dispute Act, 1976. He felt that the necessary implication of this is that no individual union can directly approach the National Industrial Court except through the Minister after a trade dispute must have arisen which is not the situation in the subject matter of this appeal.

He observed that the request of the appellants at the trial court is a declaration of right and its enforcement by the appropriate government authorities.

Learned counsel further reiterated that the relief being claimed are declaratory and injunctive. He felt that no trade dispute existed and none was declared as provided by sections 1 to 6 of the Trade Dispute Act as between the parties in this appeal and the reliefs being claimed are not within the jurisdictional competence of the National Industrial Court.

Learned counsel submitted that the trial court, by virtue of section 231 of the Constitution of the Federal Republic of Nigeria, 1999 has jurisdiction to the exclusion of the National Industrial Court to entertain the appellants claim as constituted. Learned counsel further submitted that the provision of the section of Decree 47 of 1992 (now Act) cannot infract or take away the jurisdiction conferred by section 251 of the 1999 Constitution of the Federal Republic of Nigeria on the trial court and if it is in conflict, as it seems to be, with the Constitution, it is void to the extent of the inconsistency. He referred to section 1 (3) of the 1999 Constitution. Learned counsel urged this court to hold that the trial court was right to assume jurisdiction over the subject matter of the appellants suit.

On behalf of the 3rd – 6th respondents, it was submitted that a court is only competent to entertain a case when the subject matter of the action is within its jurisdiction. Learned counsel cited the cases of Madukolu v. Nkemdilim (1962) 1 SCNLR 341; Akeem v. University of Ibadan (2001) 15 NWLR (PL 736) 352 at 369.

Learned counsel submitted that the claim of the appellants determines the jurisdiction of the court; and in this case, the Originating summons of the appellants before the trial court. He cited the cases of Shittu v. Nigeria Agric & Coop Bank Ltd. (2001) 3 NWLR (Pt. 647) 25; Adeyemi v. Opeyemi (1976) 9-10 SC. 31; and Savannah Bank Ltd. v. Pan Atlantic (1987) NWLR (Pt. 29) 212.) Learned counsel submitted that the Originating Summons of the appellants and the reliefs sought therein before the trial court disclosed trade dispute, jurisdiction upon which is exclusively conferred on the National Industrial Court. Learned counsel cited the cases of National Union of Road Transport Workers v. Ogbodo (1995) 6 NWLR (No part) 56, Index Nig. Ltd. v. Maskau (1998) 3 NWLR (Pt. 542) 404 at 422.

Learned counsel urged that the issue be resolved in favour of the respondents.

It is basic and not in contention that a court is only competent to entertain a case when, inter alia, the subject matter of the action is within its jurisdiction and the action is initiated by due process of law. See: Madukolu v. Nkemdilim (supra); Akeem v. University of Ibadan (supra).

It is now trite that the claim of the plaintiffs (herein appellants) determines the jurisdiction of the court. In this matter, same is the originating summons of the appellants as initiated at the trial court. The cases of Adeyemi v. Opeyemi (supra) and Savannah Bank Ltd. v. Pan Atlantic (supra) are clearly in point.

I need to state it here that the law which is applicable to a case is the law as at the time when the cause of action arose and the suit was initiated. See: Mustapha v. Governor, Lagos State (1987) 2 NWLR (Pt. 58) 539 at 591.

It is of moment to reiterate it that the suit of the appellants was initiated at the trial Federal High Court on 23rd August, 1999. I note it that the 1999 Constitution of the Federal Republic of Nigeria came on board effectively as from 29th May, 1999. Section 251 (1) (r) of same imbued the Federal High Court with jurisdiction to determine –

‘any action or proceeding for declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

The suit of the appellants at the trial court, as earlier set out in this judgment, relates to declaratory and injunctive reliefs against the defendants thereat that include the Commissioner of Police of the Nigerian Police Force, no doubt, an agency of the Federal Government. It is incontestable that the subject matter of this suit, as constituted, is within the jurisdiction of the trial court as at 23rd August, 1999 when the cause of action emanated.

It is the claim of the plaintiffs as in this case, the appellants Originating Summons that a court should examine to determine whether or not it has jurisdiction to entertain the action. In the case of Ladoja v. INEC & Ors. (supra) this court at pages 37-38, in a similar circumstance, pronounced as follows per Mohammed, JSC –

‘This law is indeed trite that in a situation that arose at the court below regarding the determination of whether or not the trial Federal High Court has jurisdiction to entertain the claim of the appellant as contained in the Originating Summons, it is that claim that needed to have been examined—- Looking at the appellants Originating Summons—- I am of the view that the declaratory and injunctive reliefs sought therein are squarely within the jurisdiction of the Federal High Court as prescribed under section 251 (1) (q) and (r) of the 1999 Constitution.’

And Aderemi, JSC at page 66 further pronounced the same point that –

‘Generally it is the claim of the plaintiff that determines the jurisdiction of a court that is invited to adjudicate in the matter.’

Let me now depict the side of this matter as it relates to the National Industrial Court. It is well settled by this court in the case of Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (supra) that section 15 of the Trade Dispute Act, 1976 conferring jurisdiction on the National Industrial Court in respect of certain specie of cases did not include jurisdiction to make declarations and to order injunctions as in this case.

Apart from the above, as at the time this action was initiated, all matters within the competence of the National Industrial Court must be referred to it (National Industrial Court) by the appropriate Minister of Labour as prescribed by section 10 of the Trade Dispute Act, 1978. In this matter, no trade dispute was set in motion and none was referable by the Minister to the National Industrial Court.

By implication, no individual Union could directly approach the National Industrial Court except through the Minister after a trade dispute must have arisen. Same is not the situation in the subject matter of this appeal. This is so since the request of the appellants at the trial court is a declaration of right and its enforcement by injunctive orders by appropriate government authorities including the States Commissioner of Police.

The claim/reliefs of the appellants, I repeat are declaratory and injunctive in nature and purport. No trade dispute existed and none was declared as provided by sections 1 to 6 of the Trade Dispute Act as between the parties in this appeal. The utmost of it all is that the reliefs being claimed were not within the jurisdictional competence of the National Industrial Court. On the other hand, they were within the jurisdictional competence of the trial Federal High Court as at 23rd August, 1999 when the suit was rightly initiated before that court

I have tried to depict it clearly that jurisdiction in this matter rightly inheres in the Federal High Court as at the time the suit was initiated before it. The court below took a narrow and rather simplistic view that since the 1st appellant and the 1st respondent are trade Unions, the matter must per force go before the National Industrial Court. With due diffidence, as at that time, that view was erroneous.

In short, the order of the court below in which the trial by the trial court was declared null and void was ill tuned and same is hereby set aside. I pronounce that the inherent jurisdiction imbued in the trial court at the material time was without blemish.

The above is not the end of this matter. The court below after treating the issue relating to jurisdiction left the other issues before it undetermined for reasons best known to it.

After finding that the trial court was imbued with jurisdiction, I am of the opinion that issue B before the court below which was formulated from Ground 2 of the Grounds of Appeal thereat is of moment here. Stricto sensu, the issue relates to a crucial point of law. The arguments of parties are extant in the transcript record of appeal. I am of the opinion that vides section 22 of the Supreme Court Act, Cap. S.15, LFN, 2004 same should be determined by this court right away. See: Federal Airports Authority of Nigeria v. Wamal Express Services (Nig.) Ltd. (2011) 1-2 SC (Pt. 11) 93 at 112. And, I so embark on it. The issue reads as follows:-

‘B. Whether the lower court is right in holding that the Road Transport Employers Association was only inserted for the sake of it without jurisdictional scope. (Appeal Ground 2).’

On page 250 of the record of appeal, the trial court, in respect of the above quoted issue stated as follows:-

‘But by Decree No 1 1999 (Trade Unions [Amendment] Decree No 1 of 1999) the Third Schedule of the Principal Act (Trade Unions Act Cap 437) was amended by the addition of Part C which contains the Senior Staff and Employers Association. In this new Part C the 5lh defendant was recognized. It is important to note that although the name of the 5th defendant was recognized it has not been given any specific area or jurisdictional operation. Section 6 of Decree No 4 of 1996 has not been repealed so also Part B of the Third Schedule which contains the Trade Unions and their jurisdictional scope. It is therefore my view that the 5th defendants name has only been inserted for the sake of it.’

The brief of argument of the 1st and 2nd appellants at the court below who are 1st and 2nd respondents in this appeal was settled by A. O. Akanle, SAN (of blessed Memory). Arguments in respect of the issue thereat as contained on pages 264-266 of the record should be recapitulated as follows:-

(a) The trial court held that :-

‘It is therefore my view that the 5th defendants name has only been inserted for the sake of it.’

(b) It is curious that a High Court can hold that a Decree could be made for fun and that a Trade Union is registered for mere sake, yet it is recognized.

(c) If only by its name the 5th defendant (1st defendant -appellant) is registered for transportation the implied hope is transportation by road and not by air or water.

(d) Article 4 (g) of the government made

Constitution of first defendant -appellant (fifth Defendant) says –

‘The Association shall have absolute control and authority, subject to the law or by-law of the land, over all motor-park activities orderliness and secure complete welfare of the passengers and the safety of their luggages.

(e) The quotation above is the jurisdictional scope which the lower court says does not exist.

(f) It was plainly established before the court that the great omission was made in

Decree 4 of 1996 and it is only understandable that the scope cannot be given in respect of a Trade Union whose name is omitted.

(g) But even then Decree 1 of 1999 does supersede Decree 4 of 1996 and the former (sic) (Decree 1 of 1999) does not give any scope to either first plaintiff (first plaintiff-respondent) or fifth defendant (1st defendant-respondent).

(h) It was hence wrong to go back to the 1999 (sic) Decree which has been superseded to fish out the jurisdictional scope of first plaintiff-respondent.

(j) The 1978 Trade Unions Decree listed both Trade Unions as Numbers 54 and 55.

(k) It is wrong for the lower court to have given a negative interpretation to Decree 1 of 1999: such an act is against the canon of interpretation of laws.

(i) Ibrahim v. Barde 1996 9 NWLR (Pt. 474) 513at 582 F-G

(ii) U. A. . Ventures v. FCNB 1998 4 NWLR (Pt. 547) 546 at 559 E.G.

(1) this court is prayed to resolve the issue here in favour of the appellants.

In respect of this issue before the court below learned counsel for the 1st and 2nd respondents thereat who are appellants in this court merely opined that the ground upon which the issue was grafted did not arise in the proceedings at the lower court. I should state it right away that in view of the findings of the trial court as quoted above, the stance of counsel herein failed to stand the test of time. The point made is in direct confrontation with the finding of the trial court. It cannot stand as it fails to hit the target.

The learned counsel for the 3rd-6th respondents thereat was more pragmatic and down to earth. He asked a pertinent question – If the 1st appellant was not given any area or jurisdictional scope of operation, then what was it registered and recognized to do?

He submitted that the 1st appellant was not and could not have been inserted in Decree 1 of 1999 just for the sake of it as the whole purport and objective of same was to cater and provide for Senior Staff and Employers Associations as shown on the explanatory note to the Decree. He further submitted that the trial court gave a negative interpretation to Decree 1 of 1999 instead of giving it a holistic interpretation as required by law. He cited the case of Mobil Oil (Nig) Plc v. ML 36 Inc. (2000) 6 NWLR (Pt. 659) 146 at 168 D-E.

Learned counsel urged that the issue be resolved in favour of the appellants and allow the appeal before the court below.

It is basic that one of the vital canons of interpretation of statutes is that a court of record should be minded to make broad interpretation or what is sometimes referred to as giving same a liberal approach. See: Rabiu v. The State (1980) 8-11 SC 130 at 151, 195. A court should give a holistic interpretation to a statute as required by law. See: Mobil Oil (Nig) Plc v. IAL 36 Inc. (supra). A court should aim at giving a statute purposeful interpretation; I dare say.

It sounds ludicrous that the trial court could say that the of a name of the 1st respondent herein was only inserted in Decree No 1 of 1999 for the sake of it. The legislator does not act in vain. The 1st respondent was registered for transportation by road; not by air or water. Article 4 (g) of the 1st respondents constitution as quoted above by the counsel at the court below supports same.

It is clear that the 1st respondent was not inserted in Decree 1 of 1999 just for the sake of it. The objective and purport of same was to cater and provide for Senior Staff Employers Association as extant in the explanatory note to the Decree.

Learned trial judge failed to appreciate that he should not have made a restrictive, negative and purposeless interpretation of the law. In my opinion, he should have made a holistic, broad and liberal interpretation which encapsulates the inescapable point that the 1st respondent having been registered and recognized has, by implication, jurisdictional scope to operate in Ekiti State motor-parks and roads just like the 1st appellant herein. I hereby pronounce in this respect as 1 set aside the erroneous pronouncement of the trial court. I dismiss the claim of the appellant before the trial court in its totality as same is ill-tuned.

One word more and I shall be done. The perennial hegemony between the 1st appellant and the 1st respondent should come to an end. Both of them have come to stay as transporters on land. One cannot disappear into the thin air for the other. After all, it is often said that the sky is wide enough for two birds to fly without colliding with each other.

I come to the conclusion that the appeal should be dismissed and I order accordingly. I make no order as to costs.

---

SC. 22/2005

Chief Dr. Felix Amadi & Anor V. Independent National Electoral Commission & Ors (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 Holden at Port Harcourt, delivered on 7th December, 2011, in which the court struck out appeal No.CA/PH/EPT/36/2011 for want of jurisdiction.

Following the Governorship Election conducted by the 1st respondent into the Office of Governor of Rivers State, on the 26th day of April, 2011, the 2nd respondent was returned as winner of the said election, haven pulled the highest number of votes cast at the election.

The 1st appellant was a candidate of the 2nd appellant for the said election and complained that they were unlawfully excluded from the election by the 1st respondent not including the name and logo of the 2nd appellant in the ballot papers used for the said Rivers State Governorship Election, as a result of which appellants filed petition no. EPT/GOV/3/2011 at the Governorship Election Tribunal sitting at Port Harcourt challenging the return of the 2nd respondent.

The grounds for the petition are that:-

1. That the 1st respondent was validly nominated by the 2nd appellant as its candidate but unlawfully excluded by the 1st respondent from contesting the 2011 Governorship Election in Rivers State held on the 26th April, 2011.
2. That the 2nd appellant, a duly registered political party was unlawfully excluded from contesting the 2011 Governorship Election in Rivers State held on the 26th April, 2011.

Appellants then claimed the following reliefs:-

a. A. declaration that the 1st appellant was validly nominated and sponsored by the 2nd appellant but was unlawfully excluded by the 1st respondent from the Rivers State Governorship Election held on 26th April, 2011

b. A declaration that the Rivers State Governorship Election conducted on 26th April, 2011 is invalid, null and void by reason of the unlawful exclusion of the 1st and 2nd appellants from the said election by the 1st respondent.

c. A declaration that the 2nd respondent was not duly elected or returned and his declaration as winner of the said election for the Rivers State Governorship Election is void and should be accordingly nullified by reason of the unlawful exclusion of the 1st and 2nd appellants from the election for the governorship of Rivers State conducted by the 1st respondent on 26th April, 2011.

d. A declaration that a re-run or fresh Governorship Election be conducted by the 1st respondent in Rivers State with the names and symbols of the appellants respectively duly included in the ballot papers and all relevant electoral materials.

e. An order nullifying the 2011 Rivers State Governorship Election held on 26th April, 2011 by reason of unlawful exclusion of the 1st and 2nd appellant’s names, symbol and logo from the ballot papers and other electoral materials including the result sheet by the 1st respondent.

f. An order cancelling, revoking and or withdrawing the certificate of returns issued by the 1st respondent in favour of the 2nd respondent.

g. An order restraining the 2nd respondent from being sworn in or otherwise acting as the Governor of Rivers State and from performing any function as the Governor of Rivers State based on his purported return as the winner of the Governorship election of the 26th April, 2011 wherein the 1st and 2nd appellants were unlawfully excluded from the said 2011 election by the 1st respondent.

At the conclusion of trial, the tribunal dismissed the petition of appellants in a judgment delivered on the 7th day of October, 2011.

Consequent upon the dismissal, appellants filed appeal No.CA/PH/EPT/36/2011 at the Court of Appeal holden at Port Harcourt on the 28th day of October, 2011.

Upon the completion of the processes, the appeal was fixed for hearing on the 7th day of December, 2011, on which day, the appeal was struck out for haven lapsed resulting in the instant appeal.

The issues for determination, as identified by learned counsel for appellants, AHAM EKE, EJELAM, ESQ in the appellants brief filed on 20th December, 2011 are as follows:-

”(i) whether the Court of Appeal was under a statutory obligation and duty to hear and determine the appellants’ appeal before it within the time prescribed by the constitution of the Federal republic of Nigeria, 1999 as amended.

(ii) if the answer to issue (1) above is in the affirmative, whether the failure of the Court of Appeal to hear and determine the appeal within the prescribed time and whether the absence of any fault on the part of the appellants such failure by the Court of Appeal does not amount to o denial of appellants’ right to fair hearing which entities them to a remedy for an order remitting it to the lower court for hearing on the merits”.

On his part, learned counsel for the 1st respondent JERRY ELUMEZE, Esq identified the following sole issue for determination in the brief filed on the 18th day of January, 2012:

“Whether the inability of the Court of Appeal to hear the appeal within sixty (60) days prescribed by Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 as amended amounted to a denial of the appellants’ right to fair hearing.”

On the other hand, the sole issue formulated by learned senior counsel for 2nd respondent, L. O FAGBEMI, SAN is:

“Whether or not the Court of Appeal was right in striking out the appellants’ appeal for affluxion of time”.

Learned senior counsel for the 3rd respondent, I. IMADEGBELO, SAN, puts the issue as follows:-

“Whether or not the Court of Appeal has jurisdiction to entertain or determine an appeal in an election petition matter that has lapsed under Section 285(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”

From the facts of the case and the grounds of appeal raised in this appeal, it is my view that the single issue formulated by learned counsel for the 1st respondent and reproduced supra best represents the issue in contention in this appeal.

It should be mentioned that learned counsel for the said 1st respondent has raised objection to the notice of appeal contending that the same is incompetent as the three grounds need leave of the court as they do not arise from nor relate to the decision appealed against.

In arguing the objection learned counsel cited and relied on Sections 233(2)(e) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereafter referred to as the 1999 Constitution as amended) in submitting that not all decisions of the Court of Appeal in Governorship Election appeal are appealable to this court as of right; that appeals as of right are limited to decisions on whether any person was validly elected to the Office of Governor; whether the terms of office of a Governor has ceased; whether any person has been validly erected to office of Governor, and whether the office of Governor has become vacant; that all other decisions are appealable by leave of court under Section 233(3) of the 1999 Constitution, (as amended); that the order striking out the appeal did not determine any of the questions under section 233(2)(e) of the 1999 Constitution (as amended).

It is the further submission of learned counsel that the implication of section 233(2)(e) is that matters excluded in the list therein are not appealable as of right, including an order striking out an appear; that appellants needed leave to appeal against the said order, which they failed to do.

It is also the contention of learned counsel that the grounds of appeal do not disclose a complaint against the decision of the lower court, relying on CCB Plc v. Eperi (2007) 3 NWLR (Pt.1022); Ikaro vs. Izunaso (2009) 4 NWLR (Pt.1130) 45 at 59; Ede v. Omeke (1992) 2 NWLR Pt.242 428 at 435; Aderounmu vs. Olowu 2000 4 NWLR Pt. 652) 253 at 265 -266, that the grounds of appeal do not attack the decision of the court but the court itself for not hearing the appeal before 7th December, 2011; that this court has jurisdiction to hear complaints against decisions of the lower court not to hear complaints against the conduct of the Court of Appeal; that the lower court is not in a position, not being a party to the appeal, to explain why the appeal was not heard within the stipulated time.

Learned counsel then urged the court to uphold the preliminary objection and strike out the appeal for being incompetent. In the reply brief filed on 24th January, 2012 learned counsel for the appellants submitted that under Section 233(e)(a) and (b) of the 1999 Constitution, (as amended), appellants have a right of appeal where the grounds of appeal involve allegations or complaints of breach of Chapter iv of the 1999 Constitution; that the provisions of Section 233(e) do not derogate from nor limit or exclude Section 233(a-b) of the 1999 Constitution; that the objection is misconceived and should be overruled.

I have carefully gone through the submissions of both counsels for the respective parties as well as the record of proceedings.

It is not in dispute that the decision of the lower court on appeal and reached on 7th December, 2011, is contained in a single sentence as follows:-

“The appeal has lapsed, it is accordingly struck out”. – see page 863 of the record.

The grounds of appeal against the above decision are in the notice of appeal filed on 15th December, 2011 and complain thus:-

”GROUND ONE

The lower court erred in law by not giving the appellants fair hearing when it failed to hear and determine the appeal filed by the appellants within the time prescribed by law.

PARTICULARS OF ERROR

(i) By virtue of Section 285(7) of the 1999 Constitution of Nigeria as amended, any appeal from a decision of an Election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within sixty (60) days from the date of delivery of judgment of the Tribunal or Court of Appeal.

(ii) The Election Tribunal in the instant case delivered its judgment on the 7th day of October, 2011 against the appellants.

(iii) The appellants herein on the 28th day of October, 2011 filed their Notice of Appeal to the Court of Appeal against the decision of the Election tribunal.

(iv) The appellants subsequently filed their appellants’ Brief of Argument within ten (10) days of being served with the Appeal of Records as prescribed by the Election tribunal and Court Practice Directions, 2011.

(v) The 1st and 3rd respondents filed their respondent’s briefs on 2nd day of December, 2011 and served some on the appellants’ counsel.

(vi) The 2nd respondent did not file any respondent’s brief.

(vii) The sixty (60) days of the appeal was the 5th day of December, 2011 calculating from the date of judgment of the Election tribunal (7th October, 2011).

(viii) The schedule and fixing of the appeal for hearing on the 7th of December, 2011, by the Court of Appeal which was a day after the expiration of the sixty (60) days stipulated by the low for hearing and determination of such appeals and striking out of the appeal some day (7th December, 2011) is a manifest denial of the appellants’ right to fair hearing.

(ix) The Court of Appeal had on obligatory judicial duty to ensure that the appeal was heard and determined within the sixty (60) days stipulated by law particularly when it had the liberty to give its decision and reserve the reasons therefore to a later date as permissible to it under Section 285(8) of the Constitution of the Federal Republic of Nigeria as amended.

GROUND TWO

The lower court erred in law by not exercising its judicial power in accordance with the law when it fixed the appeal for hearing on, a day after it statutory life span of sixty (60) days had extinguished thereby denying the appellants their rights to fair hearing.

PARTICULARS OF ERRORS

(i) The appellants filed their appellants’ brief within the ten (10) days as prescribed by the Election Tribunal and Court Practice Direction, 2011.

(ii) The duty of fixture and scheduling of hearing of appeals is within the discretion of the lower court which must be exercised and discharged judicially and judiciously with a view to deteriorating() The appeal which breached the constitutional right of the appellants to fair hearing in accordance with the law.

(iii) The lower court is quite aware that being an Election Petition, it is obligatory in law for it to be heard and determined within the sixty (60) days prescribed by the constitution but it rather allowed the time to lapse and fixed some for hearing a day thereafter.

GROUND THREE

The lower court erred in law by not determining the appellants’ appeal on merit but rather allowed the appeal to be caught up by effluxion of time and thereby occasioned a breach of appellants’ right to fair hearing and constitutional right to appeal.

PARTICULARS OF ERROR

(i) The lower court failed to fix the appeal on or before the 6th day of December, 2011 being the sixty (60) days for hearing and determining such on appeal which judgment being appealed against was delivered on the 7th day of October, 2011.

(ii) The appeal was fixed in the cause list for hearing on the 7th day of December, 2011, a day after the appeal had lapsed.

(iii) The lower court on the said 7th day of December, 2011 when the appeal come up for hearing, agreed that the appeal lapsed on the 6th day of December, 2011 and proceeded to strike it out.

(iv) The fixture of the appeal on the day after it lapsed is a manifest denial and breach of the appellants’ right to fair hearing as enshrined in the constitution of the Federal Republic of Nigeria 1999 as amended.”

The question to be answered is whether from the ruling of the lower court on appeal and the grounds of appeal thereon – supra-appellants’ appeal is of right or with leave of the court first had and obtained To answer the question we need to look at the law relating to the issue. These are Sections 233(2) (a)(b) and (c), and 233(2)(e)(3) of the 1999 Constitution as amended.

Section 233(2) (a – c) of the 1999 Constitution provided as follows:-

(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases-

(a) where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.

(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution,

(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of the Constitution has been, is being or is likely to be, contravened in relation to any person”.

In addition to the above, Section 233 (2)(e) provided thus:

“decisions on any question:

(iv) Whether any person has been validly elected to the Office of Governor or Deputy Governor under this constitution”.

Finally Section 233 (3) provides that:

“Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court”.

From the above provisions, it is clear that a right of appeal enures to an appellant who appeals against the decision of the Court of Appeal on questions of law alone or where this complaint is that any of the provisions of chapter iv of the 1999 Constitution as amended (dealing with the fundamental rights) has been or is being threatened to be breached in relation to him or whether any person has been validly elected to the Office of Governor or Deputy Governor etc, etc, etc and as relevant to the facts of this case.

Can it be said, from the above provisions, that appellants’ appeal can only be competent if preceded by leave of court I have reproduced the ruling of the lower court and the grounds of appeal against it earlier in the judgment and l am of the view that the appellants have the right to appeal to this court particularly as the grounds of appeal are of law; involve interpretation or application of the constitution and breach of appellants’ right to fair hearing as contained in Chapter iv of the 1999 Constitution as amended.

Though the appeal cannot be said to be one that questions whether any person has been validly elected to the Office of Governor or Deputy Governor under the constitution it certainly involves the interpretation or application of the provisions of Section 285(7) of the 1999 Constitution as amended in so far as it deals with the issue of determination of election appeals within sixty (60) days of the judgment appealed against.

In short, it is my considered view that the appeal is competent as the same was filed as of right under the constitution. The preliminary objection of the 1st respondent is therefore overruled being misconceived and of no merit.

Turning now to the appeal, it is the submission of learned counsel for appellants that by the provisions of Section 285(7) and (8) of the 1999 Constitution, as amended, an appeal from the decision of an election tribunal shall be heard and disposed off within sixty (60) days from the date of the delivery of the judgment of the tribunal; that where a party’s case is not heard, it means his right to fair hearing has been breached, relying on Mains Ventures vs. Petroplast Ind. Ltd (2000) 4 NWLR (Pt.651) 151 at 167; that appellants did all that was required of them to have appeal heard within the sixty (60) days and that the lower court had between the 2nd and 6th December, 2011 within which to hear and determine the appeal – a period of four (4) days but failed to do so, thereby breaching the fundamental right of appellants to fair hearing; that appellants were denied opportunity to be heard and that the right to be heard cannot be waived nor taken away by statute, relying on Bamgboye vs Unilorin (1999) 10 NWLR (pt. 622) 290 at 355.

Finally, counsel urged the court to remit the case to the lower court to be heard and determined by another panel.

On his part, learned counsel for the 1st respondent submitted that the lower court did not fail to hear the appeal on 7th December, 2011 but was deprived of the jurisdiction to do so by the provisions of Section 285(7) of the 1999 Constitution as amended; that it was not the court that denied appellants the right to fair hearing, if any but Section 285(7) of the 1999 Constitution as amended and that appellants must first impugn the provisions of the said Section 285(7) before they can successfully contest their inability to be heard by the lower court; that the appeal haven lapsed cannot be resurrected by order of this court that it be heard by another panel of the court below and urged the court to dismiss the appeal.

On his part, learned senior counsel for the 2nd appellant referred to the provisions of section 285(7) of the 1999 constitution, as a mended and stated that it is not in dispute that the sixty (60) days allowed an appeal to be heard and determined had lapsed as at the time the appeal was struck out; that the above provision being in the nature of a statute of limitation, the fact that appellants had no hand/fault in the delay is immaterial, relying on SC/272/2011 and SC/276/2011, appeals between Peoples Democratic Party (PDP) vs. Congress for Progressive Change (CPC) and 41 Ors delivered on 31st October, 2011; that the issue of breach of the right of fair hearing does not arise this case; that appellants were responsible for the delay that resulted the appeal being statute barred that between the filing of the Notice of Appeal and appellants’ brief, appellant took almost fifty-one (51) days out of the sixty (60) days allotted for the hearing and determination of the appeal and urged the court to dismiss the appeal.

On his part, learned senior counsel for the 3rd respondent submitted that after the expiration of sixty (60) days the jurisdiction of the Court of Appeal is extinguished and the only appropriate order is one striking out the appeal as made by the lower court and urged the court to dismiss the appeal.

The main issue in the instant appeal centres on the effect of the provisions of Section 285(7) of the 1999 Constitution (as amended) on an appeal not determined within sixty (60) days particularly when the fault or inability to hear and determine same is not traceable to the appellant. The sub-issue is whether if such an appeal is struck out for haven lapsed the right of fair hearing of the appellant is thereby breached.

What then does Section 285(7) of the 1999 Constitution as amended provide It enacts thus:-

”(7) An appeal from a decision of an election tribunal or Court of Appeal in on election matter shall be heard and disposed of within sixty (60) days from the date of the delivery of judgment of the tribunal or Court of Appeal”.

The above provision is very clear and unambiguous and therefore needs no interpretation. It simply means what it says; that an appeal against the decision of an election tribunal or Court of Appeal in an election matter must be heard and determined within sixty (60) days of the date of the delivery of the judgment in question. The above is a constitutional provision and the words employed in crafting same commands mandatory compliance. There is no room for the exercise of any discretion in relation to the allotted time. Everything needed to deliver the judgment must be done and the judgment delivered “within” sixty (60) days of the date of the delivery of the judgment on appeal.The provisions of Section 285 (7) supra therefore must be applied to the facts of any given case as it admits of no interpretation whatsoever.

In the instant case, both parties by which I mean the appellants and respondents – are agreed that the appeal in question had lapsed by one day as at 7th December, 2011 when same was listed for hearing. That means that as at that date, the appeal had ceased to exist in law and could therefore not have been heard – it was dead in the eyes of the law and constitution.

It is very important to note that appellants are not challenging the constitutionality of the provisions of Section 235(7) of the 1999 Constitution, as amended but its application by the lower court to their appeal. In the circumstance, it is clear that the provision in question is valid and subsisting and binds all and sundry in this nation.

The question is whether the application of the provisions of Section 285(7) of the 1999 Constitution, as amended to the facts of this case, or any other case for that matter, can be said to amount to a denial of the right to fair hearing by the court

It is very clear that the provisions of Section 285(7) supra are in the mould of a statute of limitation but with a constitutional flavour. Does an application of a statute of limitation to a given factual situation rob the aggrieved party of the right to fair hearing I do not think so neither has learned counsel for appellants cited any authority in support of that contention.

This court has held that the provisions of Section 285(7) supra is like the rock of Gibraltar or Mount Zion which cannot be moved. The time provided therein is sacrosanct in the sense that it cannot be extended. Granted, for the purposes of argument only, that application of the provisions amounts to a denial of the right to fair hearing, which is not admitted by me, what would be the benefit to appellants in view of the fact that the sixty (60) days cannot be extended to accommodate the hearing of their appeal To me, I hold the considered view that the instant appeal is an exercise in futility in the present circumstances and realities. The court is not being asked to declare the provisions of Section 285(7) unconstitutional which means it remains valid. As long as it remains the law appeals relevant to that provision must necessarily be heard and determined within sixty (60) days of the delivery of the judgment on appeal otherwise the appeal would lapse.

The provision does not say that the appeal would not lapse if the inability to hear and determine same was not caused by the appellant or was caused by the court, or by any person of whatever description. Section 285(7) supra is clearly intended by the legislature to limit time not to extend time and it would be inappropriate, and in fact illegal, to interpret same to attain the effect of extending the time therein allotted which is clearly the intention of the appellants in the instant appeal. See the judgments of the court in the consolidated appeal Nos. SC/332/2011; SC/333/2011 and SC/352/2011 Alh. Kasim Shettima & Ors vs Alh. Mohammed Goni & Ors delivered on the 31st day of October, 2011 and another consolidated appeal Nos. SC/272/2011 and SC/276/2011 between Peoples Democratic Party (PDP) vs Congress for Progressive Change (CPC) & Ors also delivered on 31st October, 2011 and the most recent one delivered on 27th January, 2012 in the consolidated appeal Nos.SC/141/2011; SC/266/2011; SC/267/2011; SC/282/2011; SC/356/2011 and SC/357/2011 Brig. General Mohammed B. Marwa & Anr vs Adm Murtala Nyako & Ors.

It is very important to note that the provisions of Section 285(7) supra do not deny an appellant the right to fair hearing, just like every statute of limitation. It merely gives all parties and the court a time frame within which parties are to exercise their right to fair hearing in a relevant appeal. If for whatever reason the appeal is not heard within the allotted time frame it cannot be said that an appellant affected thereby has been denied his right to fair hearing. The provision is of strict liability and since the court has not been called upon to declare same unconstitutional it remains the law and binding on all and sundry.

By the way, what is the attitude of appellants to the expeditious hearing of the appeal at the lower court

It is not disputed that the appeal was to be heard and determined within sixty (60) days from the date of the delivery of the judgment by the Election Tribunal. So everyone involved in the matter – appellants, respondent and the court must beat the sixty (60) days dead line. The judgment of the tribunal was delivered on 7th October, 2011 and appellants had twenty-one (21) days within which to file their appeal which they did on 28th October, 2011 which was the very last day of the twenty-one (21) days allowed for the filing of the appeal. That apart, appellants did not file their appellant brief until the 25th day of November, 2011 which was ten (10) days to the end of the sixty (60) days from the date of judgment on appeal. It is therefore very clear that appellants were very tardy in prosecuting the appeal having regard to the time constraint involved.

In conclusion, I find no merit in this appeal which is accordingly dismissed by me. I affirm the ruling/judgment of the lower court delivered on the 7th day of December, 2011 in appeal No. CA/PH/EPT/36/2011. I, however, order that parties bear their respective costs.

Appeal dismissed.

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SC.476/2011

Ishola V. Societe Generale Bank (Nig.) Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

In the Ilorin Judicial Division of the High Court of Kwara State, the plaintiff instituted an action against the defendant claiming, as subsequently amended, as follows –

“(1) The sum of One Hundred and Fifty-Four Thousand, Three hundred and fifty-seven Naira, Fourteen Kobo (154,357.14k) being the principal Overdraft, plus accumulated interests and other Bank charges as on the 31st day of October, 1986.

(2) Interest at the Bank rate of 15% per annum on the said sum from the 1st day of November, 1986 until 30th day of September, 1987.

(3) Interest at the Current Bank rate of 19% per annum from the 1st day of October, 1987 until the day of judgment.

(4) Interest at the rate of 10% per annum on the judgment debt from the date of judgment till final liquidation thereof.”

The suit was originally filed in the undefended list pursuant to the provisions of Order 3 Rules 8-14 of the Kwara State High Court (Civil Procedure) Rules, 1975. Following the defendant’s notice of intention to defend the suit under the provisions of Order 3 Rule 10 of the said Rules, he was admitted to defend the same whereupon the suit was on the 9th day of April, 1987 transferred to the General Cause List for hearing and determination. Pleadings were ordered in the suit and were duly, settled, filed and exchanged.

The plaintiff’s case is that on the 13th February, 1980, the defendant opened a Current Account No. 00307811131 with the sum of N200.00 in his name. On the basis of some arrangement between them, the defendant operated this account and on various dates purchased Bank Drafts from the plaintiff bank by means of cheques drawn on his account. The total amount of drafts purchased by the defendant from the plaintiff bank together with his other withdrawals from the said account between the 13th February, 1980 and the 3rd March, 1981 was N447,772.71. On the other hand, the defendant’s total lodgements into the account during the period amounted to N377,777.35. The defendant’s account was therefore over drawn to the tune of N69,995.35 as at the 3rd day of March, 1981. This was in addition to the accumulated interests, commissions and other charges which accrued to this account during the period which amounted to N5,630.11. The plaintiff claimed that as at the 3rd March, 1981 from which date the defendant stopped operating the account, his total indebtedness stood at N75,625.47. The account has remained dormant ever since although interest and commissions continued in the normal way of business to be charged and debited to the account. The plaintiff further claimed that the total outstanding debit balance in the defendant’s account as at the 31st October, 1986 stood at N154,357.14.

The plaintiff wrote various letters to the defendant drawing his attention to the position of the account. As these letters were ignored, the plaintiff finally made a formal demand in writing to the defendant for the liquidation of his indebtedness. This was by Exhibit 44 dated the 9th February, 1982. As Exhibit 44 was further ignored, the plaintiff filed this action as above indicated. Relevant documents including the defendant’s ledger cards Exhibit 2, and the bank statements of the defendant’s current account were tendered and admitted in evidence at the hearing.

The defendant’s position is a total denial of the plaintiffs’ claims. He denied enjoying any overdraft facilities as claimed by the plaintiff. In particular, he claimed that the plaintiff in breach of its duties misplaced some N60,000.00 he lodged into his account by cash and cheques but were never reflected or credited to his said account. He further asserted that the statements of account upon which the plaintiff has founded its claims were unreliable, inaccurate and did not show the correct position of his account. During his cross-examination, however, the defendant put the amount he paid but not credited to his account at over N64,000.00. In the alternative the defendant contended that the plaintiff’s action being in debt, was, in law unenforceable, in that the action in respect of the alleged debt was not filed within 6 years of its accrual and was therefore statute-barred by virtue of the provisions of the English Limitation Act, 1623. On the question of the interests claimed, the defendant denied knowledge of any banking tradition or custom in relation to interest chargeable on loans or overdrafts. He did not authorise or consent to the plaintiff charging any interest on his account. He also denied entering into any agreement with the plaintiff which entitled it to charge any interest, commission or Bank charges to his account. He described the plaintiff’s claims as baseless and, at all events, statute-barred.

At the subsequent trial, both parties testified on their own behalf and tendered Exhibits. At the conclusion of hearing, the learned trial Judge, Fabiyi, J. after a careful review of the evidence on the 19th January, 1990 found for the plaintiff against the defendant and decreed as follows –

“In conclusion, I enter judgment in favour of the plaintiff against the defendant in the sum of N69,995.35 plus 10% interest from 16.2.87 until the judgment sum is finally paid up.”

Dissatisfied with this decision of the trial court, the defendant lodged an appeal against the same to the Court of Appeal, Kaduna Division, which in a unanimous decision, substantially dismissed the appeal on the 1st day of July, 1993, and affirmed the judgment of the trial court in favour of the plaintiff against the defendant in the sum of N69,995.35 being the balance of overdraft facility granted by the plaintiff to the defendant as at the 31st day of October, 1986. It was however ordered that the 10% interest chargeable on this judgment debt was to start running from the date of the judgment of the trial court on the 29th January, 1990 and not from the date the action was instituted on the 16th February, 1987.

Aggrieved by this decision of the Court of Appeal, both parties appealed to this court. The defendant has complained in the main appeal against that part of the decision of the court below which upheld the finding of the trial court to the effect that he was indebted to the plaintiff in the sum of N69,995.35 and that the suit was not statute barred. The plaintiff, on the other hand, has attacked that part of the decision of the court below which affirmed that the various rates of interest claimed on the overdraft were not proved. I shall hereinafter refer to the plaintiff and the defendant in this judgment simply as the respondent or the respondent/ cross-appellant and the appellant respectively.

Nine grounds of appeal were filed by the appellant against this decision of the Court of Appeal. I find it unnecessary to reproduce them in this judgment. It suffices to state that the appellant, pursuant to the rules of this court, filed his brief of argument in which three issues were identified for the determination of this court. These are as follows –

“1. Whether the Lower Court was right to have affirmed the finding of the trial court on the issue of Statute of Limitation when Exhibit 49 is a letter of demand and it pre-dated Exhibit 44, another letter of demand, relied upon to dismiss the plea of Statute of Limitation raised by the appellant at the trial.

2. Whether the lower court was not wrong having regard to the admissible oral and documentary evidence led at the trial to have found in favour of the respondent to whom it awarded the sum of N69,995.35 and whether the respondent proffered enough qualitative evidence to entitle it to the relief granted and whether this is not a deserving case for this court to upturn the concurrent findings of facts of the lower and trial courts.
3. Whether the judgment of the lower court delivered by only two Justices of that court was not a nullity after the third Justice that took part when the appeal was argued and judgment reserved was no more de facto, de jure a member of that court before the lower court purported to have delivered the judgment in this case”.

The respondent/cross appellant, for its own part also submitted three issues in its brief of argument as arising in this appeal for determination. These are –

“(1) Whether or not the Lower Court was right in affirming the finding of the trial court that the respondent’s claim was not statute barred basing its decision on the fact that the action was filed within Six years of the first letter of demand which is letter of 9/2/1982 i.e. Exhibit 44.

(2) Whether or not the Lower court was right in affirming the finding of fact by the trial court that on the totality of pleadings and evidence before the trial court that the respondent was entitled to N69,995.35 as overdraft facility against the appellant.

(3) Whether the judgment of the Lower Court is a nullity having regard to the fact that the 3rd member of the panel that heard the appeal on 12/5/93 and who has written his judgment and handed same to Honourable Justice Muritala Aremu Okunola after the conference on 12/5/93 was before the date of judgment on 1/7/93 elevated from the lower court bench to this court bench.”

A close study of the issues set out in the respective briefs of the parties reveals that they are patently identical and refer to the same questions. It is plain that they are both similar and it will not matter which of the two sets of issues is adopted for my consideration of this appeal.

There is next the cross-appeal by the respondent/cross appellant in which the sole issue for consideration is whether the Court of Appeal was right in affirming the decision of the trial court to the effect that the cross-appellant did not establish his entitlement to the various interest claimed by credible evidence. Both parties are in agreement on this sole issue for consideration in the cross-appeal.

At the oral hearing of the appeal, both learned counsel for the parties proffered additional arguments in amplification of the submissions contained in their written briefs of argument.

Learned counsel for the appellant, Yusuf O. Alli, Esq. submitted with regard to the first issue that the alleged debt claimed by the respondent was in law statute-barred and unenforceable in that it did not accrue within 6 years of the institution of the action pursuant to the provisions of Section 3 of the Limitation Act, 1623 and/or the Limitation Decree 1966. He stressed that a special defence or plea, such as one founded on the statute of Limitation, must be replied to by a plaintiff in a reply and that failure to do so will amount to acceptance of such special plea of the defendant. He contended that it was not the case of the respondent that there was an agreed date for the repayment of the overdraft alleged. In his view, the Limitation Act in the present transaction commenced to run from the 28th day of July, 1980 on which date the account of the appellant was allegedly overdrawn. He therefore submitted that this action became statute-barred from the 29th day of July, 1986 and that the respondent’s suit which was filed on the 16th February 1987 was clearly out of time.

Alternatively he pointed out that it was Exhibit 49 dated the 9th February, 1981 and not Exhibit 44 of the 9th February, 1982 that was the respondent’s first letter of demand.

He argued that Exhibit 49 having preceded Exhibit 44, time the Limitation Act, 1623 started to run was from the 9th February, 1981 which, all the same, rendered this suit filed on the 16th February, 1987 statute-barred and incompetent. He made a third submission on the issue. This is to the effect that the time within which to claim the debt, if any, started to run from February, 1980 in which month the appellant stopped the operation of his account. The action, having been filed on the 16th February, 1987 was here again statute-barred.

On the second issue, learned counsel attacked the evidence of the respondent as hearsay and unreliable and submitted that the court below had no legal basis on the facts to have affirmed the finding of the trial court on the issue of the award of N69,995.35 in favour of the respondent.

On the third issue, learned counsel pointed out that Uthman Mohammed, JCA., as he then was, had ceased to be a Justice of the Court of Appeal on the 1st July, 1993 when judgment in the appeal was delivered by the court below. He explained that the said Uthman Mohammed, JCA., was on the 3rd June, 1993 sworn in as a Justice of the Supreme Court of Nigeria. Relying on the case of Ogbunyiya and others v. Okudo and others (1978) 3 LRN 318 at 327-328 learned counsel submitted that the learned Justice, having become a member of this court on the 3rd June, 1993, lacked jurisdiction to express any opinion on the judgment of the Court of Appeal in issue on the 1st July, 1993. He urged the court to allow this appeal.

Learned counsel for the respondent, Mr. Biodun A. Adebara, in his reply on issue 1, conceded that it is the Limitation Act, 1623 that applies to this transaction but submitted, relying on the case of Angyu v. Malami (1992) 9 NWLR (Pt. 264) 242, that time would only start to run from the date demand for the recovery of the outstanding overdraft was made by the respondent. He stressed that it was the respondent’s letter of the 9th February, 1992, Exhibit 44, that was the first demand addressed to the appellant and not Exhibit 49, dated the 9th February, 1981. He argued that Exhibit 49 was merely a letter reminding the appellant of his indebtedness and inviting him to come over to the respondent’s office for discussion on the issue. He contended that time started to run in the present transaction from the date of Exhibit 44, that is to say, the 9th February, 1982. This action having been filed on 16th February, 1987 could not therefore be said to be statute-barred as it was instituted 5 years and seven days after the cause of action arose.

On issue 2, learned counsel submitted that from the pleadings and evidence adduced before the court, the court below was justified in affirming the finding of fact arrived at by the trial court to the effect that the appellant was liable to the respondent in the sum of N69,995.35. He stressed that the total lodgements made by the respondent into his current account amounted to N377,777.35 as against his total withdrawals which added up to N447,772.71. The withdrawals therefore outweighed the deposit by N69,995.35 for which judgment was entered for the respondent.

On issue 3, teamed counsel relied on the provisions of section 11 of the Court of Appeal Act, 1976. The crux of his submission is that if a member of a panel of Justices who heard an appeal participated in the conference in respect of the appeal and thereafter reduced his opinion in writing and gave the same to another Justice of that court for pronouncement before he retired from service or was elevated to a higher bench, or even died or otherwise became incapable of reading his opinion, the validity of such an opinion cannot be questioned. He argued that in the present case, Uthman Mohammed, JCA., as he then was, with the rest of the Justices who heard the appeal, participated in the conference over the appeal.

Thereafter, he wrote his opinion which he handed over to Okunola, JCA. on the date the appeal was heard and before his elevation to the Supreme Court. In these circumstances, he submitted that his opinion in the appeal was entirely without fault and unimpeachable.

On the cross-appeal, the submission of Mr. Adebara is that the cross-appellant pleaded sufficient facts and adduced enough evidence to be entitled to all the interest it claimed. He referred to the decision of this court in Union Bank of Nigeria Ltd. v. Professor Albert Ozigi (1993) 3 NWLR (Pt.333) 385 where it was observed that the power to fix the interest payable on Bank loans is vested by law in the Central Bank of Nigeria. He indicated that there was the evidence of P.W. 1 which was sufficient proof of rates of interest pleaded and that there was no need to tender the Central Bank guidelines on interest.

Mr. Alli, for his own part, submitted that the cross-appellant had failed to dislodge the concurrent findings of the trial court and the court below that the interests claimed were not established. Relying on the case of Himma Merchant Bank Ltd. v. Aliyu (1994) 5 NWLR (Pt. 347) 667 at 676-677, learned counsel submitted that the cross-appellant proferred no credible evidence on the interest claimed and therefore failed to prove the same. He pointed out that the facts of the case of Union Bank of Nigeria Ltd v. Professor Albert Ozigi, supra, relied on by the cross-appellant are distinguishable from the facts of the present case. According to learned counsel, in the former case, the Central Bank guideline was tendered, there was evidence of agreement by the parties as to the rate of interest and documents were also tendered in support of the various rates of interest claimed, unlike in the present case. He urged the court to dismiss the cross-appeal.

Turning now to issue number 1 in the main appeal, both parties are in agreement that the English Limitation Act, 1623 is not only a statute of general application but that it is the law governing the limitation of action in the present suit. Section 3 of this statute provides that all actions in debt, as therein stipulated, shall be commenced within six years from the accrual of the cause of action. The appellant in paragraphs 22 & 23 of his further amended Statement of Defence pleaded thus –

“22 The defendant will in further denial and or in the alternative defence to paragraphs 6, 7, 8, 9, 10, 11, 12,13, 14, 15, 17,18,19, 20, 21, 22 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, and 33 of the amended statement of claim contend that the plaintiff’s action/claims being in debt, is in law unenforceable, and invalid in that the alleged debts did not accrue within 6 years before this action was instituted and is barred by Limitation Act of 1623 and/or Limitation Decree 1966.

PARTICULARS:

(i) Each of the alleged sum of money granted as overdraft/ debt arose in 1980.

(ii) The plaintiff knew and or ought to know of each of the debt since they became accrued since 1980

(iii) The defendant never acknowledged any debt due to the plaintiff.

(iv) The defendant did not at any time specifically pay part of any acknowledged debt due to the plaintiff.

(v) Defendant was not guilty of fraud, mistake or concealment of any fact relating to any of the alleged overdraft claimed.

The defendant will therefore urge the court to dismiss this action as baseless, time statute barred and constitutes an abuse of the process of court.”

Mr. Yusuf Alli of learned counsel has vigorously contended that the appellant, having set up a special plea of the Limitation Act, it became incumbent on the respondent to file a reply thereto. He argued that where, as in this case, a plaintiff fails to file a reply to such a defence, he would be deemed to have admitted the special plea of the defendant.

The first question must be whether the plaintiff/respondent can, on the state of the pleadings, be deemed to have admitted, whether directly or by necessary implication, that this claim is statute- barred as averred by the defendant/appellant.

It cannot be over-emphasised that the proper function of a reply in the settlement of pleading is to raise in answer to the defence, any matter which, to be admissible in evidence, must be specifically pleaded, or which makes the defence not maintainable or which otherwise might take the defence by surprise or, where because of the defence fled, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings. See Bakare and Another v. Ibrahim (1973) 6 SC 205, Azeez Akeredolu v. Lasisi Akinremi (1989) 3 NWLR (Pt. 108) 164 at 172 etc. A party who desires to rely on any material facts to defeat the defence that an action is statute-barred must expressly plead such facts in his reply to take the case out of the statute unless he has already done so in his Statement of Claim.

Essentially, a reply may also constitute the defence of a plaintiff to a counter-claim of the defendant or to the new facts raised by the defendant in his Statement of Defence. Where, however, as in the present case, no counter-claim is filed, further pleadings by way of a reply to the statement of defence is generally unnecessary if the sole purpose is to deny the averment contained in the Statement of Defence. See Akeredolu v. Akinremi, supra.

In the present case, the respondent had in paragraphs 24, 25 and 26 of its amended Statement of Claim averred as follows –

“24 In February, 1981 and January, 1982 the plaintiff’s Manager wrote two letters Ref. SGBN/IL/YAS/MOR dated 19th February, 1981 and SGBN/IL/SO/AK dated 15th January, 1982 respectively to the defendant reminding him of his indebtedness to the plaintiff and inviting him to the plaintiff’s Office for a discussion over the said indebtedness, to which the plaintiff received no reply.

The plaintiff wrote a letter of demand to the defendant for the repayment of the Overdraft on the 9th day of February, 1982 by the letter written by the plaintiff’s Manager which letter was replied to by the defendant by his letter dated 16th February, 1982, all of which are hereby pleaded.

The defendant is hereby given notice to produce the original at the hearing.

The plaintiff’s Solicitor, Messrs SHITTU AROSANYIN and company also wrote a statutory letter of demand dated 15th August, 1985 to the defendant demanding the repayment of the said over-draft. This letter is hereby pleaded. The defendant is hereby given notice to produce the original at the hearing.”

The respondent, therefore quite clearly, pleaded that after the respondent had written several letters of invitation to the appellant inviting him for a discussion over his indebtedness which the said appellant ignored, the respondent was obliged to make a written demand on him for the repayment of the overdraft in issue. The said demand was made on the 9th day of February, 1982 and was tendered in evidence as Exhibit 44. It is dear from the respondent’s amended Statement of Claim that Exhibit 44 was the first written demand by the respondent on the appellant in respect of the overdraft.

A second demand of the 15th August, 1985 was also pleaded in paragraph 26 of the amended Statement of Claim. The first demand pleaded is, however, Exhibit 44. It seems to me plain that Exhibit 44, if in fact it was established, would constitute a complete answer to the defence under the Limitation Act as it would mean that this action which was filed on the 16th February 1987 was instituted in under six years of the accrual of the cause of action. Learned appellant’s counsel cannot, with respect, be right when he submitted that the respondent required to file further reply in answer to the appellant’s plea under the Limitation Act, that the respondent pleaded no facts which made the appellant’s defence under the Limitation Act not maintainable or that the respondent must be deemed to have admitted the appellant’s special plea as established. I will now consider whether the appellant succeeded in establishing his defence under the statute of Limitation.

Generally, a debt is repayable either on demand, or on notice given or upon any other condition agreed upon by the parties. See Lloyds Bank Ltd. v. Margolis and others (1954) 1 All E.R. 734 at 748, Joachimson v. Swiss Bank Corporation (1921) All E.R. 92 at 99 etc. It is also an implied term in the relationship between a banker and his customer that there should be no right of action for the repayment of an overdraft until there has been a demand or notice given. See Angyu v. Malami (1992) 9 NWLR (Pt. 264) 242 at 252. The cause of action does not arise until there has been a demand made or notice given. When therefore there is no specific date agreed upon for the repayment of an overdraft, as in the present case, a demand should be made or notice given. In other words, a cause of action on an unpaid overdraft is not deemed to accrue where no specific date for payment is agreed upon until there has been a demand made or notice given. The next question must now be an identification of the first letter of demand made on the appellant by the respondent in respect of the overdraft in issue. Whilst the respondent pleaded and asserted that this is Exhibit 44, the appellant contended that it is Exhibit 49.

After a careful consideration of the above issue, the learned trial Judge in the clearest possible term held thus –

The first letter of demand herein is Exhibit 44 dated 9.2.82.”

Affirming the above finding of the trial court, the court below observed as follows –

“In the present appeal, while the appellant is asserting that the first letter of demand was Exhibit 49 dated 9/2/1981, the respondent was saying that its first letter of demand to the appellant was Exhibit 44 dated 9/12/82. Learned trial Judge having examined the letters Exhibits 44 and 49, decided that Exhibit 44 was in fact the first letter of demand.

The learned trial Judge was indeed right because Exhibit 49 is not a letter of demand but a letter drawing the attention of the appellant to the position of his account. Such letters usually written by banks to their customers do not amount to letters of demand. See Angyus v. Malami supra at page 253.”

It is trite that where there are concurrent findings of a trial court and the Court of Appeal, then unless the findings are –

(i) found to be perverse; or

(ii) not supported by the evidence; or

(iii) reached as a result of a wrong approach to the evidence; or

(iv) a result of a wrong application of a principle of substantive law or procedure, this court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See Enang v. Adu (1981) 11-12 SC 25 at 42, Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67)718, Igwego v. Uzengo (1992) 6 NWLR (Pt. 249) 561 at 576 etc. The aforesaid findings of both courts below that Exhibit 44 dated the 9th February, 1992 is the respondent’s first letter of demand to the appellant in respect of the overdraft have neither been proved to be perverse or unsupported by evidence nor erroneous on point of law or fact. I have myself studied both Exhibits 44 and 49 with the evidence before the trial court and it is equally clear to me that only two letters of demand were addressed by the respondent to the appellant. These are Exhibits 44 dated the 9th February, 1982 and Exhibit 45 dated the 15th August, 1985. The latter is a statutory letter of demand addressed to the appellant by the respondent’s solicitors demanding payment of the overdraft. Neither of the parties pleaded or testified to Exhibit 49 as a letter of demand. Indeed, ex facie, Exhibit 49 is only a letter drawing the attention of the appellant to the position of his account and inviting him for a discussion over this indebtedness. Without doubt, such letters usually written by Bankers to their customers whose accounts are in the red do not and cannot amount to letters of demand. See Angyu v. Malami, supra at page 253. I am in total agreement with both courts below that Exhibit 44 dated the 9th February, 1982 is the first letter of demand addressed to the appellant by the respondent. But the question remains to be answered whether the present suit is caught by the provisions of the Limitation Act, 1623.

Exhibit 44 dated the 9th February, 1982 was firmly established as the first letter of demand addressed to the appellant by the respondent in respect of the overdraft. The respondent’s cause of action in the transaction therefore arose on the said 9th February, 1982. It is also not in dispute that the respondent’s action was filed on the 16th February, 1987. On the issue under consideration, the learned trial Judge found thus –

“The first letter of demand herein is Exhibit ’44 dated 9.2.82. This action was filed on 16.2.87. The period between is about five years i.e. less than six years envisaged by section 3 of the Limitation Act of 1623 and/or section 7 (1) of the Limitation Decree 1966. I cannot therefore acquiesce with the rationale that the plaintiff’s claim is statute-barred.”

For its part, the court below held –

“…………… since the first demand was made on 9/2/1982 while the action was filed on 16/3/1987, the decision of the trial court that the respondent’s claim was not statute-barred must be upheld.”

I, too, totally agree that the respondent’s claims on the facts as found by the trial court and affirmed by the court below cannot in any way be said to be statute-barred as the suit was filed 5 years and seven days after the accrual of the cause of action in the transaction. Issue 1 is therefore resolved against the appellant.

Issue 2 questions the correctness or otherwise of the judgment of the trial court in favour of the respondent in the sum of N69,995.35 as affirmed by the court below. In this regard, the respondent predicated his claim against the appellant on debt arising from overdraft facilities it granted to the appellant. The only witness who testified for the respondent in respect of this overdraft was P.W. 1, Surajudeen Agunbiade, a Loans officer of the respondent bank. Learned counsel for the appellant attacked the evidence of this witness as hearsay, irrelevant and totally unreliable since he admitted not being the Manager of the respondent bank at all material times. Mr. Niemes, who was the then Manager and who granted the overdraft facilities to the appellant was said to have left the bank before P.W. 1 was employed.

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SC.30/1994

Action Congress Of Nigeria Vs Sule Lamido & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

On Friday 10th Day of February, 2012, I delivered my judgment in this appeal in which I dismissed the Appellant’s appeal and further affirmed the judgment of the Court of Appeal which affirmed the decision of the Governorship Election Petition Tribunal sitting at Dutse, Jigawa State which dismissed the Appellant’s petition on 24th October, 2011. I did say on that day that I shall give my reasons for the judgment today. I now proceed to give my reasons.

The Appellant in this appeal as petitioner had challenged the election and return to the 1st Respondent as the Governor of Jigawa State in the election conducted by the 3rd Respondent on 26th April, 2011. The Governorship Election tribunal of Jigawa State, after giving the parties a full hearing, dismissed the Appellant’s petition. Not satisfied with the judgment of the Tribunal, the petitioner/Appellant had appealed against that judgment at the Kaduna Division of the Court of Appeal which after hearing the Appellant and the Respondents, dismissed the appeal and affirmed the judgment of the Tribunal. Aggrieved by the decision of the Court of Appeal, the Appellant is now on a further final appeal to this Court on a Notice of appeal containing 16 grounds of appeal from which 9 issues for the determination of the appeal were formulated after abandoning grounds 7, 8 and 12 of the grounds of appeal from which no issue was formulated. Accordingly, grounds 7, 8 and 12 of the grounds of appeal having been abandoned, are hereby struck out. The issues as identified in the Appellants briefs of argument are –

“1. Whether the Court of Appeal was right when despite its findings a fact that the Appellant was only allowed to utilize nine (9) days of 14 (fourteen) days statutory allocated to it when on the 1st September, 2011 its case was closed and held that the Appellant was not denied its right to fair hearing.

2. Whether the Court of Appeal was right when it upheld the lower trial Tribunal decision refusing to grant the Appellant’s application to summon the INEC Commissioner or his representative to tender ballot papers used in the election and held that, that did not lead to denial of fair hearing.
3. Whether the Court of Appeal was not wrong in its conclusion that the rejection of All the ballot papers sought to be tendered was wrong when they had as a fact found that the Appellant has sufficiently satisfied the second limb of the provision of paragraph 4(5)(c) of the First Schedule having listed five Local Government Areas of Birnin Kudu, Gwaram, Ringim, Taura and Gwiwa in the Appellant’s Petition at the Tribunal.
4. Whether the approach adopted by the Court of Appeal leading to the conclusion that the production of Exhibit ‘B’ alone in evidence had shifted the burden of proving that the 1st Respondent was not educated up to at least School Certificate from the 1st Respondent, did not occasion miscarriage of justice.
5. Whether having found that Exhibit ‘B’ is a public document which is inadmissible under the meaning of Section 111 of the Evidence Act, the Court of Appeal could justify reliance on the Exhibit by following the decision in ONOBRUCHERE vs. ESEGINE (1986) 1 N.W.L.R. (Pt. 19) 799 to find in favour of the 1st Respondent’s qualification to contest election into the office of Governor of Jigawa State.
6. Whether the Court of Appeal was not wrong in its assessment and evaluation of Exhibit ‘D’ vis-a-vis the evidence of PW4 as a result of which it misplaced the evidence to the case of the Appellant regarding the qualification of the 1st Respondent to contest the Governorship election of Jigawa State.
7. Whether the Court of Appeal was not wrong when it held that lower Tribunal did not misdirect itself when it failed to examine Exhibits ‘E’ – ‘Z,’ Exhibits 1 – 36 as enjoined by the law.
8. Whether the Court of Appeal was not wrong in its assessment and evaluation of evidence of DW1 and DW2 and on the weight the lower Tribunal attached to their evidence even as tainted witnesses.
9. Whether the Court of Appeal was right when it held that the averments contained in paragraphs 18 and 19 of the Appellant’s petition filed at the Tribunal were not specific but nebulous.”

Although in the 1st and 2nd Respondents’ joint brief of argument 8, issues were identified from Appellant’s grounds of appeal while 6 issues were framed by the 3rd, 4th and 5th Respondents in their joint brief of argument from the same Appellants grounds of appeal, all the issues in the respective Respondents brief of argument have adequately captured and covered all the complaints raised by the Appellants in the 9 issues raised in the Appellant’s brief of argument for the determination of this appeal. I shall therefore deal with the issues as raised in the Appellant’s brief of argument which contained various fragments of complaints of the Appellant on the way and manner the trial Tribunal evaluated the evidence before it arrived at various findings culminating in its decision affirmed by the Court of Appeal that the Appellants had failed to discharge the burden of proof vested upon it by law to justify granting the reliefs sought by it in its petition.

The basis of the complaint of the Appellant as a petitioner at the trial Tribunal against the Respondents was that the 1st Respondent was, at the time of the election, not qualified to contest the Governorship Election conducted by the Independent National Electoral Commission on 26th April, 2011 in Jigawa State; that the 1st Respondent was not qualified to contest the election because he presented to the Independent National Electoral Commission a forged West African Examination Council Certificate No. C3005655 and that he did not attend the then Government College Zaria now Barewa College beyond Form 3 and as such did not possess the requisite qualification required by the 1999 Constitution to contest the election. It was also the case of the Appellant/Petitioner that the election of 26th April, 2011, which produced the 1st Respondent as the Governor of Jigawa State of Nigeria, was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2010 and Independent National Electoral Commission Manual for Electoral Officers. The corrupt practice, complained of by the Appellant in the election, include multiple thumb printing and vote rigging in that the 3rd, 4th and 5th Respondents wrongfully computed majority of lawful votes counted as cast for the 1st Respondent even though the said figures were altered and inflated and were products of artificial polling units.

At the trial of the Appellant’s petition before the trial Tribunal which followed a pre-trial conference, the Appellant called 5 witnesses in the course of the trial during which Exhibits A – Z and 1 – 36 were tendered and received in evidence. On 1st September, 2011, the trial Tribunal closed the case of the Appellant before the Appellant’s witness, the Registrar of the West African Examination Council upon whom a subpoena had been issued to attend and give evidence.

The 1st and 2nd Respondents opened their case or defence on the same day 1st September, 2011 and closed the same the following day 2nd September, 2011 after calling only 2 witnesses. However, the 3rd, 4th and 5th Respondents declined to call any witness at the trial at the conclusion of which the trial Tribunal came to the conclusion that the Appellant had failed to prove its case to qualify for being granted the reliefs sought in its petition and accordingly dismissed the petition to give rise to the Appellants appeal to the court of appeal and ultimately to this Court.

Although the real and infact only issue for determination in this appeal is whether or not on the averments contained in the petition and the evidence adduced before the trial Tribunal, the Appellant succeeded in proving its case against the Respondent to be entitled to the reliefs sought by it, I shall all the same examine the fragments of the sub-issues surrounding the required burden of proof under the law in order to arrive at appropriate decision in the interest of justice.

The first issue in the Appellants brief of argument is whether by the action of closing its case on 1st September, 2011, the trial Tribunal denied the Appellant its Constitutional right of fair hearing under Section 36(1) of the 1999 Constitution. It was argued for the Appellant that by closing its case one day before its vital witness could arrive from Lagos to give evidence on the 1st Respondent’s West African Examination Council Certificate being disputed, on a day when the Appellant had only utilized 9 days out of the 14 days allowed it by the Rules of the Court to present its case, the Court below was wrong in finding that the Appellant’s right of fair hearing had not been breached by the trial Tribunal; that under the circumstances in which the Appellant’s case was closed by the trial Tribunal, it cannot be said that the Appellant was not denied a fair hearing which being a Constitutional right, cannot be waived by a party as held in Elike v. Nwankwoala (1984) 12 S.C. 301; Mohammed v. Kano N.A. (1968) All N.L.R. 411; Unongo v. Aku (1983) 11 S.C. 129 and Ariori & Ors. v. Euno & Ors. (1983) 1. S.C.N.L.R. Learned Counsel concluded on this issues that the right of the Appellant to fair hearing having been breached by the trial Tribunal, the Court below erred in not setting aside that decision in the line with the decision in Ndukanba v. Kolomo (2005) All F.W.L.R. (Pt. 248) 1602 at 1614.

For the 1st and 2nd Respondents, it was contended that the closure of the Appellant’s case on 1st September, 2011 after the refusal of the trial Tribunal to issue a subpoena on the INEC Commissioner to produce and tender ballot papers and its refusal to grant further adjournment to the Appellant to call an official of WAEC who was on a subpoena to come and give evidence for the Appellant, did not amount to denial of fair hearing as found by the Court below. Learned senior Counsel referred to the list of witnesses which accompanied the Appellant’s petition which does not contain any name of WAEC official and traced the record of the hearing of the petition which opened on 16th August, 2011 and closed on 1st September, 2011, and submitted that the Court below was right in finding that the Appellant was indeed given fair hearing as the maximum of 14 days allowed by Paragraph 41(10) of the 1st Schedule to the Electoral Act 2010 (as Amended) was exhausted on 29th August, 2011 to justify closing the case of the Appellant on 1st September, 2011. Citing and relying on the cases of Memorial Farms Ltd. Anor. v. Nigeria Agric & Co-operative Bank Ltd. & Anor. (2008) 12 N.W.L.R. (Pt.1098) 412 at 427 and T.M. Orugbo & 3 Ors. v. Bulama Una (2002) 16 N.W.L.R. (Pt.792) 175 at 206, learned senior concluded that going by the record of appeal, the Court below was right in its decision that the Appellant’s right of fair hearing under Section 36(1) of the 1999 Constitution had not been breached by the trial Tribunal.

As for the 3rd, 4th and 5th Respondents in their joint brief of argument, their learned Counsel also took the same stand as was taken by the 1st and 2nd Respondents in their joint brief of argument. Pointing at the decision of the trial Tribunal at pages 811 to 812 of the record of the appeal, learned Counsel stressed that having regard to the opportunity given to the Appellant to call witnesses to prove its petition, the complaint of the Appellant of an alleged denial of fair hearing is not supported by the record and therefore urged this Court to resolve the issue against the Appellant particularly when the case of Newswatch Communication Ltd. v. Attah (2006) 12 N.W.L.R.(Pt.993) 144 at 170 – 170, is taken into consideration. The complaint of the Appellant in this issue that the trial Tribunal denied it its Constitutional right of fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria is certainly not born out of the record of the trial Court. The Appellant which opened its case on 16th August, 2011, had its full time of 14 days prescribed under paragraph 41(10) of the 1st Schedule to the Electoral Act 2010 as amended to prosecute its case closed by the trial Tribunal on 1st September, 2011. It is quite clear from the record of appeal, as rightly found by the Court below, that the Appellant was given ample opportunity to present its case by being given several adjournments by the trial Tribunal to enable it call its witnesses, particularly the official of WAEC whose absence at the various dates shown on the record, could not be explained by the learned Counsel to the Appellant before its case was closed on 1st September, 2011. The Court below was therefore right, in my view, in finding that the trial Tribunal not only created conducive atmosphere or environment for the Appellant to enjoy its right of fair hearing but also gave the Appellant adequate time allowed by law to prove its case at the hearing. Hence, the Appellant having failed to utilize the opportunity given by the trial Tribunal to fully enjoy its right of fair hearing in the course of prosecuting its petition, the Appellant cannot now be allowed to turn round to accuse the trial Tribunal of denying it that right. I find support in the decision of this Court in the case of Newswatch Communication Ltd. v. Atta (2006) 12 N.W.L.R. (Pt.993) 144 at 170 – 171. Accordingly, this issue on the allegation of denial of fair hearing, must be resolved against the Appellant.

The second issue in the Appellant’s brief of argument also relates the same complaint of denial of fair hearing as raised in the first issue just resolved. The only exception is that the complaint of denial of fair hearing in this second issue is tied to the alleged refusal of the trial Tribunal to grant the Appellant’s application to summon the INEC commissioner or his representative to tender ballot papers used in the conduct of the election. This issue is not at all supported by the record of appeal as found by the trial Tribunal and affirmed by the court below. This is because the failure of the Appellant to accompany its petition with copies or list of every document to be relied on at the hearing of the petition, which in this case include the said ballot papers in line with requirements of paragraphs 4(5)(c) and 41(8) of the 1st schedule to the Electoral Act 2010, as amended, was mainly responsible for the refusal of the trial Tribunal to admit the documents in evidence. No complaint of denial of fair hearing at all shall arise from the facts revealed on the record. This second issue like the first one must also fail.

The third issue is whether the court of Appeal was not wrong in its conclusion that the rejection of all the ballot papers sought to be tendered was not wrong when they found as a fact that the Appellant has sufficiently satisfied the second limb of the provision of paragraph 4(5)(c) of the 1st Schedule with the listing of five Local Government Areas of Birnin Kudu, Gwaram, Ringim, Taura and Gwiwa in the Appellant’s petition. The Appellant has argued on this issue that it had complied with sub-paragraph (5) of paragraph 4 of the 1st schedule to the Electoral Act 2010 as amended to have been entitled to the indulgence of the trial Tribunal in receiving the bailout papers in evidence.

From the manner in which this third issue is frame in the Appellant’s brief where it admits of having complied with the second limb only of the provisions of paragraph 4(5) of the 1st Schedule to the Electoral Act 2010 as amended, the fact that only five Local Government Areas out of the 27 Local Government Areas of Jigawa state had been listed in the Appellant’s petition thereby leaving out 22 Local Government Areas from the list, the finding of the trial Tribunal affirmed by the Court of Appeal that there were no full compliance with the requirement of that provision of the Electoral Act, 2010, by the Appellant was quite in order to justify resolving this issue against the Appellant without further consideration.

The fourth issue is whether the approach adopted by the court of Appeal leading to the conclusion that the production of Exhibit ‘B’ alone in evidence had shifted the burden of proving that the 1st Respondent was not educated up to at least school Certificate from the 1st Respondent did not occasion miscarriage of justice. Learned Counsel to the Appellant has submitted that the evidence PW4 has cast doubt on the genuineness of Exhibit ‘B’ to have required the Respondent to lead evidence to prove the genuineness of his Certificate Exhibit ‘B’ the burden having shifted to him as was the case in G. Chitex Industries Ltd. v. Oceanic Bank Ltd (2005) 7 S.C.N.J. 278.

As for the 1st and 2nd Respondents, their learned senior Counsel maintained that the Court below was right in affirming the decision of the trial Tribunal that the original of the West African School Certificate of the 1st Respondent produced and tendered in evidence as Exhibit ‘B’ was sufficient proof that the 1st Respondent was educated up to School Certificate level and cast on the Appellant the burden of proof that Exhibit ‘B’ was a forgery; that since it was the Appellant that alleged in its petition that the 1st Respondent was as at the date of the ejection of 2011 not qualified to contest the elections, the trial Tribunal and the Court of Appeal were right in saying that the initial burden of proof that the 1st Respondent was not qualified to contest the election, lay on the Appellant which failed to discharge that burden.

Learned Counsel to the 3rd, 4th and 5th Respondents on the other hand pointed out that the two Courts below were right in their decisions that the burden of proving that Exhibits ‘B’ was a forged document lay on the Appellant Petitioner which was required to have proved that fact beyond reasonable doubt.

In the resolution of this issue, it is necessary to examine the averment in the Appellant’s petition where the first ground upon which the election and return of the 1st and 2nd Respondents was challenged in paragraph 10(a) of the petition states-

“10(a.) That the 1st Respondent was at the time of the election not qualified to contest the election.”

The particulars of this ground contained in paragraphs 11(i) and (ii), 12, 13, 14, and 15 of the petition alleged that the 1st Respondent was not validly nominated; that the 1st Respondent is not educated to at least School Certificate level and that the 1st Respondent presented a forged West African School Certificate to the INEC. As the initial allegations that the 1st Respondent was not qualified to contest the election on the grounds stated are contained in the Appellant’s petition, the burden of proving the allegation lay squarely on the Appellant inspite of the fact the 1st Respondent West African School Certificate Exhibit ‘B’ was tendered through the Appellant’s witness PW4. In particular, the allegation of presentation of a forged West African School Certificate to INEC by the 1st Respondent is a disqualification factor under Section 182(1)(j) of the 1999 Constitution which states –

“182(1) No person shall be qualified for election to the office of Governor of a state if

(a) ………………

(j) he has presented a forged Certificate to the INEC”

The allegation of forgery being a criminal offence, must be proved beyond reasonable doubt which burden the two counts below found the Appellant had failed to discharge in its bid to prove its petition, which in my view, was rightly dismissed by the trial Tribunal and affirmed by the Court below.

Issue 5 in the Appellant’s brief is whether having found that Exhibit ‘B’ is a public document which is inadmissible under Section 111 of the Evidence Act, the Court of Appeal could justify reliance on the Exhibit by following the decision in Onobruchere v. Esegine (1985) 1 N.W.L.R. (Pt. 19) 799 at 808, to find in favour of the 1st Respondent’s qualification to contest the election into the office of the Governor of Jigawa State. This issue having been formulated from one of the abandoned ground 8 of the grounds of appeal which had been already struck out earlier in this judgment, the issue shall have no legs to stand upon and is hereby ignored. See WAEC v. Adeyanju (2008) 9 N.W.L.R. (Pt. 1092) 207 at 291. In any case, the Appellant having failed to prove that the Certificate Exhibit ‘B’ was forged in support of its petition, the fact that whether or not the same Certificate Exhibit ‘B’ was inadmissible in evidence is totally irrelevant as the 1st Respondent was not required to prove for the Appellant the grounds of its petition.

Issue 6 in the Appellant’s brief of argument on the other hand is whether the Court of Appeal was not wrong in its assessment and evaluation of Exhibit ‘D’ vis-a-vis the evidence of PW4 as a result of which it misapplied the evidence to the case of the Appellant regarding the qualification of the 1st Respondent to contest the Governorship election of Jigawa state. Learned Appellant’s Counsel submitted that evaluation of a document is not within the exclusive preserve of the trial court as both the trial Court and the appellate court, have equal rights in evaluation of documentary evidence having regard to the decision of this Court in Iwuoha & Ors. v. Nigeria Postal Services Ltd. & Ors. 14 N.S.C.Q.R. (Pt. 253) 275; that although the complaint of the Appellants in its petition was that the 1st Respondent did not go beyond Form 3 at the Government College Zaria, the Court below failed to scrutinize Exhibit ‘D’ properly to make appropriate findings.

However, 1st and 2nd Respondent’s senior Counsel is of the view that both the trial Tribunal and the Court below properly evaluated the evidence contained in Exhibit ‘D’ before making appropriate findings. Learned Counsel to the 3rd, 4th and 5th Respondents is also of the view that the Court of Appeal was right in affirming the decision of the trial Tribunal on the content of the file Exhibit ‘D’.

From the evidence of PW4 who was called by the Appellant to testify in support of its ground of petition that the 1st Respondent was not qualified to contest the election being challenged, confirmed from Exhibit ‘D’ that student No. 1528 of Barewa College Zaria is Sule Lamido the 1st Respondent. The witness further confirmed that Exhibit D contained report sheets of 1st Respondent from 1962 – 1966 and that the reports are from Forms 1 – 5. There is no doubt whatsoever that based on the evidence on record correctly assessed and evaluated, the Court below rightly exercised its powers as appellate Court in affirming the decision of the trial Tribunal that the Appellant had failed to prove one of its grounds of petition that the 1st Respondent does not possess the required educational qualification of at least up to School Certificate level as prescribed by the 1999 Constitution to contest the 26th April, 2011 election. This issue must also be resolved against the Appellant.

The 7th issue in the Appellant’s brief of argument is whether the Court of Appeal was not wrong when it held that the lower Tribunal did not misdirect itself when it failed to examine Exhibits ‘E’ -‘Z’ and Exhibits 1- 36 as enjoined by the law. Learned Counsel argued that the documents were tendered to prove facts in support of its petition in paragraphs 8, 17, 18 and 19; that even in the absence of oral evidence in support of the documents, having regard to the case of W.A.B. Ltd v. Savannah Ventures Ltd. (2002) 10 N.W.L.R. (Pt. 775) 401, the Court below was bound to examine the documents and make appropriate findings as the documents speak for themselves.

For the 1st and 2nd Respondents, their stand on this issue is that the Court below was right in holding that the pleadings of the Appellant in paragraphs 18 and 19 of the petition were generic, imprecise, inexact, wooly and incapable of supporting an allegation of non compliance or attract anything more than a general denial. Replying on several cases including Onibudo v. Akibu (1982) 7 S.C. 29 at 30, learned Counsel submitted that the Court below was right in refusing to examine, the contents of Exhibits ‘E’ -‘Z’ and 1- 36 in order to see whether or not there was non-compliance with the Electoral Act 2010 as amended in the conduct of the Election by the 3rd Respondent.

Learned Counsel to the 3rd, 4th and 5th Respondents is also of the view that the Court of Appeal was right in the conclusion it reached in its judgment regarding the evaluation of evidence contained in the Exhibits mentioned in this issue, that is to say Exhibits ‘E’ -‘Z’ and 1 – 36 respectively; that the Court below was right in holding that the trial Tribunal was not bound to sort out and examine the affected documents to make out or establish the case of the Appellant in its petition.

Taking into consideration of the nature of the Appellant’s allegation in its petition against the conduct of the election by the 3rd – 5th Respondents in that they acted contrary to the spirit and intendment of the Electoral Act 2010 as the election was characterized by malpractices, substantial non-compliance with mandatory statutory requirements and irregularities that substantially affected the election. The Appellant also complained in the petition of deliberate wrong entries made by the 3rd Respondent’s agents or representatives at the Units, Wards, Local Government Areas and at State Level collation centres and that the results of the election of Jigawa State were jettisoned and altered. All these serious allegations in various paragraphs of the petition must be supported by oral evidence to tie the relevant documents admitted in evidenced to various acts of non-compliance or alterations complained of in the documents. It is certainly not the duty of the trial Tribunal or the Court below to place exhibits ‘E’ -‘Z’ and 1- 36 on the table and examine them one by one in order to determine whether or not the Appellant’s petition had been established to be entitled to the reliefs sought. See Onibudo v. Akibu (1982) 7 S.C. 29 at 30 and Chief Joshua Alao v. Alfa Issa Kano & Ors. (2005) 11 N.W.L.R. (Pt. 935) 165 at 178. On this issue therefore, the Court below was far from being wrong in its decision on Exhibits ‘E’ -‘Z’ and 1- 36 complained of by the Appellant in this issue

Issue No. 8 in the Appellant’s brief is whether the Court of Appeal was not wrong in its assessment and evaluation of evidence of DW1 and DW2 and the weight the trial Tribunal attached to their evidence even as tainted witnesses. The complaint of the Appellant in this issue is that under cross examination, the witnesses had exhibited their respective interest in the outcome of the case suggesting that they were tainted witnesses; that the Court of Appeal was in error relying on a criminal case Moses v. The State (2006) 11 N.IN.L.R. (Pt. 992) 458, resolving the question regarding the admissibility of the evidence of the said tainted witnesses.

The stand of the 1st and 2nd Respondent on this issue is that the law is quite clear that merely close relationship like employer/employee does not make a person a tainted witness. This was the decision in Feliwa Ojo v. Dr. Gharoro & Ors. (2006) 10 N.W.L.R. (Pt.987) 173 at 208 – 201.

3rd, 4th and 5th Respondents are also of the view that the decision of the Court below on DW1 and DW2 is in order.

The Tribunal which was right in not treating the witnesses as tainted and the Court below was right in my view in affirming that stand of the trial Tribunal. The issue is thus resolved against the Appellant.

The last issue and 9th issue in the Appellants brief of argument is whether the Court of Appeal was right when it held that the averments contained in paragraphs 18 and 19 of the Appellant’s petition filed at the Tribunal were not specific but nebulous. It was argued for the Appellant that even if the Court of Appeal was right in holding that the Appellant had joined issue with the Respondents in respect of the material averments as contained in paragraphs 18 and 19 of the petition, the burden of proving the averments in paragraph 19 of the petition had shifted to the Respondents because of their consistent assertion in the affirmative.

The learned senior Counsel to 1st and 2nd Respondents on the other hand is of the strong view that the conclusion of the Court of Appeal that the pleadings in paragraphs 18 and 19 of the petition were wooly, general and vague was inevitable because the Appellant had claimed that those paragraphs were admitted by the Respondents who did not give a more specific answer to those paragraphs.

3rd, 4th and 5th Respondents through their learned counsel on their part had maintained that paragraphs 18 and 19 of the petition are clearly wooly and vague as described by the Court of Appeal and therefore urged this Court to resolve this issue against the Appellant.

This last and 9th issue in the Appellant’s brief relates exclusively to the legal effect of paragraphs 18 and 19 of the petition. It is quite plain that the Appellant’s complaint in this issue had already been put forward by the Appellant and considered in the resolution of issue No. 7 at page 23 of the Appellant’s brief of argument wherein the Appellant’s brief of argument the Appellant said in paragraph 4.64 of the brief thus –

“4.65 It is well settled law that documentary evidence must relate to the parties pleading. It is submitted with respect that exhibit E-Z and 1 – 36 relate to the facts averred in paragraphs 8, 17, 18 and 19 of the petition. The fact in issue in the instant case is non compliance with Section 53 and 74 of the Electoral Act 2010 (as amended) Court of Appeal at page 1157 – 115 Volume 2 of the record acknowledged that Exhibits E – Z and 1- 36 were tendered in relation to averment contained in paragraphs 18 and 19 of the petition. Having so acknowledged, then the issue at stake would have been whether Exhibits E – Z and 1 – 36 relate to the Appellants pleading but not whether was oral evidence to support such exhibits.”

There is no doubt whatsoever that the effect of paragraphs 18 and 19 of the Appellant’s petition in relation to the evidence adduced by the Appellant, particularly Exhibits E – Z and 1 – 36, had already been considered under issue 7 and effectively resolved. Infact the fact that the two paragraphs in question are vague can be clearly seen from paragraph 18 which states-

“18. Your petitioner avers further that contrary to the 3rd Respondent’s guideline and Electoral Act 2010, the results of the election of Jigawa State were jettisoned and altered to suit the 1st Respondent.”

The way the results of the election in Jigawa State were jettisoned and altered to suit the 1st Respondent are very far from being clear from this paragraph. The Court of Appeal was therefore absolutely right, in my view, in describing the averments in paragraphs 18 and 19 of the Appellant’s petition as generic, imprecise and incapable of supporting an allegation of non-compliance and can attract only general denial. Like the rest of the issues 1 – 8 earlier resolved in this judgment, the last and 9th issue for determination in this appeal must also be resolved against the Appellant.

In the final result, the Appellant having failed to prove its petition as required by law, the trial Tribunal was right in dismissing the petition while the Court of Appeal was equally right in law in dismissing the Appellant’s appeal. These are therefore my reasons for dismissing the Appellant’s appeal and affirming the judgments of two Courts below on 10th February, 2012 without any order on costs.

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SC.25/2012 (REASONS)

National Union Of Electricity Employees & Anor. V Bureau Of Public Enterprises (2012)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, J.S.C. 

The plaintiffs in this action at the trial court claims against the defendants jointly and severally the following reliefs as per paragraphs 24(1) to (3) of the Statement of Claim:

‘(1) A declaration to the effect that having regards to its juristic character as a Registered Trade Union within the meaning of Section 1 (1) of Trade Unions Act, Cap. 437 Laws of the Federation of Nigeria 1990 being such a juristic entity that has duly been issued by the Ministry of Employment, Labour and Productivity with a Certificate of Registration pursuant to Section 5 also of the Trade Unions Act (supra) neither the National Union of Electricity Employees, nor any of its members they together being collectively and in combination a body of persons engaged in the provision of an essential service within the meaning of Section 47 of the Trade Disputes Act and of Section 9(1) of the Trade Disputes (Essential Services) Act, Cap 432 and Cap 433 respectively of the Laws of the Federation 1990 is entitled either to contrive, or to declare, or to embark upon, or to proceed with, or to implement and carry into subsistence and effect any strike action either within the contemplation of or as defined by Section 47(1) of the Trade Disputes Act (supra) or any strike action of any other kind without first pursuing, fulfilling, exhausting and otherwise ensuring strict compliance with and faithful adherence to all the strict mandatory procedures/conditions precedent prescribed by all diverse Federal Legislation currently prevailing and in force, in regulation of the lawful conduct of essential service. Trade Unions before they may be at liberty. Lawfully to declare and to embark upon any prospective or threatened strike action of any sort.

(2) An Order of perpetual injunction restraining Mr. Precious Kiri-Kalio, the 2nd Defendant above named Qua General Secretary and also restraining all other functionaries or persons whomsoever who either presently occupy or at any other previous relevant time have occupied either offices, portfolios or positions of authority/responsibility on or within the executive organs of the National Union of Electricity Employees the first (1st)Defendant sued from giving any further instructions, or issuing any further directives, or passing and implementing any further resolutions, or from effectuating any other measures and otherwise from taking any steps, or any further steps of all and any kinds to cause, or to instigate, or to compel, encourage and persuade or in any other manner to enable all or any members of the National Union of Electricity Employees anywhere throughout Nigeria to carry the threat of proceeding with and embarking upon a nationwide strike from Monday 7th January 2002 or as from any other earlier or later date into implementation, force and effect unless and until after they have first pursued, fulfilled exhausted and otherwise ensured strict compliance with and faithful adherence to all the mandatory procedures/conditions precedent prescribed by all diverse Federal Legislation currently prevailing and in force in regulation of the Lawful conduct of essential service Trade Union or alternatively unless and until otherwise directed by specific Court Order.

(3) A further Order of perpetual injunction directed against all members of and against every member of the National Union of Electricity Employees the first Defendant sued in these proceedings wherever in Nigeria such member or members of the within named Union may presently be, restraining them all from acting upon, or from acting in compliance with, or from acting in obedience to any instructions, directive or resolution given, issued, passed or taken for any purpose or objectives that do or may pertain to, or that do or may be connected with any prospective strike action with the consequential effect of withholding or withdrawing them from the performance of their usual daily job, duties and likewise restraining them all by any other means, whatsoever from carrying the threat of proceeding with and embarking upon a nation-wide strike action as from Monday 7th January 2002 or as from any other earlier or later date into implementation, force and effect unless and until after they have first pursued, fulfilled, exhausted and otherwise ensured strict compliance with and faithful adherence to all the mandatory procedures/conditions precedent prescribed by all diverse Federal Legislation currently prevailing and in force in regulation of the lawful conduct of essential service Trade Union or alternatively unless and until otherwise directed by specific Court Order.’

After entry of a conditional appearance by the defendants/appellants, the plaintiff/respondent has applied for interim injunction to restrain the appellants not to carry out their threat of striking pending the hearing of the interlocutory injunction. It is to be noted that it has also sought and obtained leave of court to sue the 2nd defendant/appellant both in his personal and official capacity. The defendants/appellants picking up the gauntlet from there have raised by a notice of preliminary objection pursuant to Section 251 of the 1999 Constitution and Order 23 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 1994 a number of issues with regard to the competence of the suit as follows:

‘1. That the Plaintiff/Respondent lacks locus standi to institute this action.

2. That there is no Employer/Employee relationship between the Plaintiff and the Defendant whatsoever and no contract of any kind between the parties.
3. That this Honourable Court lacks jurisdiction to entertain the suit in view of the provision of Section 251 (1) (n) and (p) of the 1999 Constitution.
4. That the suit itself is an infringement of the Constitutional rights of the Defendants as enshrined in Section 40 of the 1999 Constitution.
5. That the suit itself discloses no cause of action against the Defendants.
6. That the jurisdiction of the Honourable Court to entertain this suit is suspect in that the provision of Section 1 of cap.432 Laws of the Federation as amended by Section 2 (1) a (1) and (2) of Decree No.47 of 1992 as it relates to the rights of the Defendants to embark on industrial action as a Trade Union oust the jurisdiction of the court, the said provision of the law being an existing Law by virtue of Section 315 of the 1999 Constitution.
7. The joinder of the 2nd Defendant is improper in law, thereby rendering the suit incompetent.
8. The cause of action as endorsed on the Writ of Summons and in the Statement of Claim has lapsed and at best is an academic exercise and an abuse of court processes.’

The notice of preliminary objection is supported by an affidavit of 8 paragraphs deposed to by one Yemi Alao, a Legal Practitioner.

The trial court having carefully considered the above processes before it and the submissions rendered on behalf of the parties with regard to issues 3 and 6 above as pertinent as they are to the trial courts jurisdiction to entertain this case decided that it has no jurisdiction and struck out the plaintiffs suit but without ruling on the remaining 6 issues properly raised in the notice of preliminary objection. In other words, the trial court upheld grounds 3 and 6 of the objection by concluding that:

‘All other issues raised by the defendant/applicant in the preliminary objection become academic.’

The plaintiff being dissatisfied with the decision has appealed the same to the Court of Appeal Lagos (court below) and so also the defendants have cross-appealed on the failure of the trial court to pronounce on the other 6 issues as raised in the notice of preliminary objection. The court below on its part having held that the trial court has the jurisdiction to entertain the claim in its entirety, allowed the appeal to that extent; it however has dismissed the cross-appeal as devoid of merit and has observed thus:

‘As all unconsidered issues are subsumed in the two considered and since an appeal is a re-hearing of the case by a superior court the exercise I have embarked upon is not out of place.’

The Defendants dissatisfied with the decision have now appealed to this court by a Notice of Appeal dated 4/6/2003 containing 5 grounds of appeal. The appellants and Respondents in this appeal before this court respectively are the defendants and the plaintiff at the trial court.

In the brief of argument in support of the appeal dated 24/05/2004 the appellants have raised three issues for determination as follows:

‘1. Whether by virtue of Sections 315(1) and 316(1) of the Constitution of the Federal Republic of Nigeria 1999, Decree No.47 of 1992 which ousted jurisdiction of a High Court from adjudicating a trade dispute and exclusively vested the jurisdiction thereof on the National Industrial Court was correctly struck down by the lower court, as being inconsistent with Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 so that jurisdiction in trade disputes becomes concurrent as between National Industrial Court and Lagos State High Court for determination of the claims in this action. If the answers to issue No.1 is in the negative.

2. Whether a court that lacks jurisdiction to entertain a case of action founded upon a trade dispute can exercise jurisdiction to declare rights of parties in respect of a trade dispute.
3. Whether the six additional grounds of objection not pronounced upon in the trial court comprising lack of reasonable cause of action lack of locus standi academicity and abuse of court process were rightly dismissed by the court of appeal on the merit.’

The Respondent in its brief of argument filed on 2/6/2005 has also raised three issues as follows:

‘1. Whether the claim in this suit is a trade dispute and is conquerable exclusively in the National Industrial Court.

2. Whether Decree 47 of 1992 which vests exclusive jurisdiction in the National Industrial Court to hear and determine trade disputes (including inter and intra union disputes) is inconsistent with Section 272 of the 1999 Constitution?
3. Whether the Lower Court correctly dismissed the six additional grounds of objection, which were not pronounced by the trial court?’

Arguing issues 1 and 2 together, the appellants, firstly, on the backdrop of a crucial finding by the court below to the effect that the disagreement between the instant parties is not a trade dispute, have taken to a detailed expositions on the meaning and ramification of trade dispute. In that regard, they have adverted to the respondents pleadings in paragraphs 4 and 12 which they contend have conceded the appellants right to embark on the planned industrial action/strike to register their objection to the privatization of the National Electric Power Authority (NEPA) – their employer but as contended by the respondent without complying with due process that is, in accordance with the relevant pre-conditions dealing with trade disputes in regard to essential services as prescribed under the Trade Union Act and in the Trade Disputes Cap.432 and more specifically Trade Disputes (Essential Services) Act Cap.433. Having examined the provisions of Section 47 of the Trade Disputes Act with regard to the meaning of ‘strike’ they have posited that the right to strike or not and even the procedure of embarking on strike action are recognized as fundamental statutory terms of employment in the industry where there is a right to unionize and has therefore been made non-actionable as per Section 43 of the Trade Union Act. It is also contended that privatization of NEPA if carried through will convert the nature of their employment with the 1st respondent from public service as defined in Section 318 of the 1999 Constitution and as per Section 1(1) of the National Electric Power Authority Act Cap.256 Laws of the Federation of Nigeria 1990 to private employees of the purchasers of NEPA.. In the circumstances, they urge that privatization per se is a trade activity and that its disapproval thereof by the appellants constitutes a trade dispute under Section 47 of the Trade Disputes Act and without more that the disagreement amounts to an industrial dispute and so, is non-actionable under Section 43 of the Trade Union Act. And for all this, they submit that the instant industrial dispute has qualified in every respect as a trade dispute notwithstanding that they are not the employees of an employer i.e. the plaintiff they have disagreement with.

The second leg of the appellants attack of the decision of the court below stems from its holding that the instant claim being of declaratory in nature coupled with injunction it does not fall to be exercised within the ambit of judicial power of the exclusive jurisdiction of the National Industrial Court as per the Trade Disputes Acts. They submit that this has arisen from misconstruing the case of HANSON V. RADCLIFFE U.D.C. (1922) 2 Ch.507 per Sterndale M. R. – and the distinction between power and jurisdiction in that judicial power can only be exercised where there is jurisdiction. See: Section 6(6) of the 1999 Constitution and OWODUNMI V. REGISTERED TRUSTEES OF C.C.C. (2000) 10 NWLR (Pt.675) 315 at 345 – 346 paragraphs G-C. They also have submitted that the court below has not appreciated the limits of the principle underlining Hansons case in this regard. See: GURANTY TRAVEL COMPANY OF NEW YORK V. HANNAY & CO. (1915) 2 KB 536 at 573, EKUNO V. IFEKA (1960) SCNLR 320, EWARAMI V. ACB LTD. (1978) 4 SC.99 per Irikefe JSC at 108-109, NATIONAL ASSEMBLY V. PRESIDENT (2003) 9 NWLR (Pt.824) 104 at 133-4 paragraphs. E-B and in that wise they have further urged that given the exclusive jurisdiction conferred on the National Industrial Court on trade disputes, the said above finding of the court below as to the reliefs sought (be it injunction or declaration) will not be sufficient in this regard to confer jurisdiction on a court as the Lagos State High Court to determine the instant trade dispute between the instant parties and that,

‘The jurisdiction sought being ancillary did not confer jurisdiction on the court. The jurisdiction of the court cannot be determined by the effect of a successful claim.’ per Karibi Whyte JSC (in his dissenting opinion in Western Steel case (supra), I shall come to this question later.

It has debunked the preposition that the National Industrial Court cannot grant declarations and injunctions because the Trade Disputes Act has not provided for that power and thus has depreciated the contention that declaratory reliefs in regard to trade disputes fall outside the jurisdiction of the National Industrial Court but within the jurisdiction of the Lagos State High Court in this matter as per the case of WESTERN STEEEL WORKS LTD. V. IRON AND STEEL WORKERS UNION OF NIGERIA AND ANOR. (1987) 1 NWLR (Pt.49) at P.284 per Oputa JSC. The appellants submit that Oputas said opinion in the cited case on that point, is no longer good law as a lot of recent decisions have shown.

Moving on to next issue of whether the State High Court has the jurisdiction to entertain trade disputes by virtue of Section 272 of the 1999 Constitution as has been opined by the respondent the appellants refer to and rely on MADUKOLU V. NKENDILEMU (1962) 1 ANLR 587 to submit that the National Industrial Court has met all the conditions set out in the cited case as regards the necessary legal machinery competence wise to exercise jurisdiction over the instant action notwithstanding not being listed among the superior courts of record under Section 6(3) and (5) (i) of the 1999 Constitution which has listed exhaustively all the superior courts of record in Nigeria. And that the National Industrial Court, it is submitted has become one of such courts by virtue of Section 19 of the Trade Disputes Act as amended by Section 5 of the Trade Disputes (Amendment) Decree No.4 7 of 1992 – an existing law by virtue of Section 315 of the 1999 Constitution, that is, by a combined reading of the foresaid Trade Disputes Acts along with Section 316 of the said Constitution. And that clearly they have borne out that a State High Court does not have the requisite statutory machinery and competence to hear and determine trade disputes. In support of this proposition the appellants have referred to and relied on NDIC V. FMB (1997) 2 NWLR (Pt.490) although overruled but not on this point; IBWA V. PAVEX (2000) 7 NWLR (pt.663) 105 at 126 paragraphs E-G; M.D.YUSUF & ANOR. V. OLUSEGUN OBASANJO & ORS. SC.143/1993 (unreported judgment delivered on 7/5/2004 per Kutigi JSC (as he then was), and AMADI V. NNPC (2000) 10 NWLR (Pt.674) 76 at 110 paragraphs B-D.

The appellants have also re-examined this issue from the angle of the contrast between unlimited jurisdiction of a State High Court under Section 236 of the 1979 Constitution as re-enacted as Section 272 of 1999 Constitution without the word ‘unlimited’.

The appellants have posited that here again, the examination of both sections is sequel to the finding by the court below that,

‘From the combined effect of Section 251 and 272 of the Constitution the jurisdiction of a State High Court is not ousted such that it cannot entertain the present suit since the Constitution is supreme law of the land. See: ADISA V. DYINWOLE.”

The appellants have argued that this pronouncement suffers from a restrictive interpretation of the decree No.47 vis-à-vis Section 272 of the 1999 Constitution and that it has not considered other constitutional provisions confirming the consistency of Decree No.47 with the provisions of the 1999 Constitution based on the principle of liberal interpretation as espoused in the case of RAFIU RABIU V. KANO STATE (1980) 8-11 SC.130. They submit that before 1999 the case (1993) 7 NWLR (Pt.304) 189 decided by this court construing Section 1(A) (1) of the Trade Disputes (Amendment) Decree No.47 of 1992 has recognized that the said decree ousted the jurisdiction of State High Courts to entertain trade disputes and that a number of cases have followed Udos case (supra), such as NURTW V. OGBODO (1998) 2 NWLR (Pt.537) 189 at 201, DANET v. FADUGBA (1998) 13 NWLR (Pt.582) 482 at 497 paragraph H, SEATRUCKS (NIG.) LTD. V. ANIGBORO (2001) 2 NWLR (Pt.696) 159.

I must pause here to advert to paragraphs 4.38 and 4.39 of the appellants brief of argument and the necessary deductions to be drawn therefrom vis-à-vis the above cited cases as they have underscored to my mind the fundamental error pervading in the appellants reasoning in this matter. They state as follows:

‘4.38 Given the above history of lack jurisdiction of High Court on trade dispute before the Constitution of the Federal Republic of Nigeria, 1999 came into force, AND GIVEN THE EXPRESS saving provision of section 316(1) of the Constitution which we have reproduced above nothing has changed to reverse the exclusive jurisdiction of the NIC in adjudicating trade disputes.’

‘4.39 We respectfully submit, that the High Court of a state has not since the coming into force of the 1999 Constitution been conferred with any jurisdiction in respect of trade disputes inter/intra union disputes that it previously lacked. Only the Federal High Court has been conferred with additional jurisdiction by virtue of section 251 of the Constitution. Even so, the expansion did not include trade disputes. The lower court were therefore in error to have reasoned as they did, that the unlimited jurisdiction of the State High Court under the 1979 Constitution was restored by the 1999 Constitution mutatis mutandi.’

I shall come back to take the issues raised in these paragraphs later in the course of this judgment.

It is also argued that since the Federal High Court has been vested exclusively with the jurisdiction over matters covered by virtue of Section 251 of the 1999 Constitution, the unlimited jurisdiction of a State High Court as the instant one here has been curtailed mutatis mutandi and so a State High Court has not expressly been vested with unlimited jurisdiction and that the cases of WESTERN STEEL WORKS LTD. (supra), ADISA V. OYINWOLE (supra) and SAVANNAH BANK V. PAN ALLANTIC SHIPPING AND TRAVEL AGENCIES LTD. & ANOR. (1987) 1 NWLR (Pt.49) are no longer helpful in construing matters as the instant case.

They submit therefore that the jurisdiction of the State High Court is no longer unlimited and so, the jurisdiction of the State High Court, cannot be co-extensive with the jurisdiction of the National Industrial Court over trade disputes. And even then by the combined reading of the provisions of Section 4(3), 6(3) and (4) (a) and (b), 36(2), 240 and 251 (1) of the 1999 Constitution they have opined that Section 272(1) and 286(1) of 1999 Constitution vesting jurisdiction on the State High Court have to be read subject to Decree No.4 7 of 1992 on the backdrop of Section 315 of the 1999 Constitution as an existing law.

Finally, they have urged this court to affirm that part of the trial courts pronouncement that by virtue of Section 2 of the Trade Disputes (Amendment) Decree No.4 7 of 1992 a State High Court as the Lagos State High Court lacks the jurisdiction to entertain the instant claim as the jurisdiction in regard to trade disputes as here is vested exclusively on the National Industrial Court.

On the 6 issues not ruled upon by the trial the appellants have argued that their submissions before the court below on those 6 issues, that is to say, for lack of locus standi, lack of reasonable cause of action, improper joinder and abuse of court process have been erroneously dismissed by the court below. It is contended that the cumulative effect of having upheld those Issues would have been the dismissal of the instant suit instead of striking it out.

The court is urged to revisit those issues with a view to setting aside the decision of the court below. On the whole, this court is prayed to reverse the decision of the court below and in its stead allow the cross-appeal which has been dismissed in the court below thereof in toto.

The respondent submitting in its brief has conceded that central to this matter is whether the instant claim is a trade dispute. It is the contention of the respondent that the claim does not involve a trade dispute even though it is proposed to use strike action to forestall the statutory duty of the plaintiff in privatizing the National Electric Power Authority (NEPA).

Furthermore, based on the clear provision of Section 47 of the Trade Disputes Act Cap.432 Laws of the Federation of Nigeria it has posited that there is no employer/employee relationship to take the disagreement to the next level of employees/employer relationship so as to translate the instant disagreement to a trade dispute and even moreso that the nature of the dispute as disclosed in the plaintiffs pleadings is not connected either with the terms of employment or non-employment, or terms of employment and physical conditions of work of any person as would otherwise be the case with trade disputes. In the absence of the above factors that it is not a trade dispute cognizable under the Trade Union Act as to sustain the proposed strike action and has referred to the case of NWL LTD. V. WOODS (1979) 3 AER 614 per Lord Diplock to buttress the point. The Respondent has demonstrated that it is not every strike although a veritable tool of industrial action that qualifies as a trade dispute in the true sense of the Trade Disputes Acts. See: BRITISH BROADCASTING CORPORATION V. HEARN (1978) 1 AER II; (1977 1 WLR 1004). They have contended that the instant privatization exercise of NEPA and the Appellants objection of it without more cannot constitute a trade dispute.

On the proposition that the appellants are nonetheless protected against a claim as the instant one under Section 43(b) of Trade Union Act Cap.437 LFN 1990, the respondent has submitted that as the proposed industrial act i.e. strike action in this instance is not done pursuant to a trade dispute the protection otherwise provided under Section 43(b) cannot avail them – the defendants. See: CONWAY V. WADE (1909) AC 506 at 512 per Lord Loreburn L.C as particularly here where the acts of the defendants have in fact not been done, or in contemplation or furthermore of a trade dispute.

They have submitted that the submissions made in regard to the National Industrial Court being vested with the exclusive power to hear and determine trade disputes based on its special statutory set up go to no issue as this matter is not a trade dispute. And has underscored the issue that the court below has not found that the National Industrial Court has no jurisdiction to grant declarations but that the High Court has the power to grant declarations since its power is so to speak limitless in that regard.

On Issue2; the respondent has forthrightly submitted that the Trade Disputes (Amendment) Decree No.47 of 1992 is clearly in conflict with Section 272 of the 1999 Constitution. Having examined the provisions of Section 272(1) and 315(1), (2), (3) & (4) and 316(1) of the 1999 Constitution and Section 1A(1) and (2) of the Trade Disputes (Amendment) Decree No.4 7 of 1992 side by side and also having examined them against the backdrop of this matter, the point has been made that by virtue of Section 315 of the 1999 Constitution the Trade Disputes (Amendment) Decree No.47 is an existing law and deemed an Act of the National Assembly; besides, that by virtue of Section 316 of the 1999 Constitution the National Industrial Court is an existing court. The respondent has argued that the conferment on the National Industrial Court of the status of superior court of record with exclusive jurisdiction in trade dispute is in conflict with the jurisdiction of the State High Court vis-à-vis Section 272 of the 1999 Constitution. In taking this contention further, the respondent has made the point that any other law in conflict with the Constitution excepting by the express provision of the Constitution, the provisions of the Constitution shall prevail. See Section 1 (3) of the 1999 Constitution and the decision in ADISA V. OYINWOLE (supra). And so, that subjecting the State High Court to Section 251 which has conferred exclusively jurisdiction over certain matters therein contained on the Federal High Court has not altered the wide jurisdiction of the State High Court. Having referred to Section 6(4) (a) of the 1999 Constitution on the power of the National Assembly to create new courts, the respondent has conceded that the National Assembly has the power to create courts but of such subordinate jurisdiction albeit to the High Court, and that such exercise cannot affect or derogate from the jurisdiction of the High Court on the matters within its competence. It therefore, follows according to the respondent that although the Trade Disputes (Amendment) Decree 47 has created the National Industrial Court as a superior court of record it cannot be properly so designated without an amendment of Section 6(3) and (5) of the 1999 Constitution which has listed exhaustively all the superior courts of record known to the 1999 Constitution. See: ATTORNEY GENERAL OF OYO STATE V. NIGERIA LABOUR CONGRESS (2003) 8 NWLR (Pt.821) 1 at 3. The court is urged to resolve issue 2 in the respondents favour.

The respondent in further answer to the above has emphasized the point that the Constitution being the supreme law to that extent it cannot be made subject to any other law excepting by express provision of the constitution. See: ADISA V OYINWOLE (SUPRA), WESTERN STEEL WORKERS LTD V IRON AND STEEL WORKERS UNION OF NIGERIA AND ANOTHER (1987), NWLR (Pt 49) 284 PER COKER, JSC. The respondent submits that what has changed has been the removal of matters covered by section 251 of the 1999 constitution from the jurisdiction of the State High Court. Again, it is submitted that according to the status of superior Court of record the National Industrial Court without amending section 6(3) and (5) of the 1999 constitutional is to no effect. See ATTORNEY-GENERAL OF OYO STATA V NIGERIA LABOUR CONGRESS (2003) 8 NWLR (Pt 821) 1 at 3.

The Court is urged to approve the decision in the said cited case as well as affirm the decision of the Court below.

On issue 3: The Court below having exercised its powers under section 16 of the Court of Appeal Act has examined the 6 grounds of the preliminary objection raised but not considered by the High Court; it has formally dismissed them as lacking in merit.

On the question of Locus Standi: the respondent has contended that considering paragraphs 1, 3, 4, 5, 6, 7, 8, 12, 14 and 15 of its pleadings setting out its interest in the matter that paragraph 12, 17 and 18 of the pleadings particularly, have disclosed the proposed industrial action which would otherwise adversely affect its function and relies on OWODUNMI .V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt 675) at 355 and that it is not an industrial action the President or the Minister of Labour has the locus to intervene in the matter.

On Cause of Action: The respondent submits that a reasonable cause of action has been disclosed; it has arisen from the acts of the appellants proposed industrial action to frustrate the respondents privatization exercise.

On the breach of section 40 of the 1999 constitution i.e. the right to peaceful assembly and association; the respondent has contended that none of the three reliefs sought in the statement of claim infringes section 40 which otherwise is restricted by section 45 and which has validated them under the Trade Disputes (Essential Services) Act. The appellants having been engaged in essential services they cannot be heard to say that the Act is in breach of section 40.

On the improper joinder of the 2nd Appellant to this action, the respondent has submitted that the 2nd Appellant is a necessary and desirable party to the suit as he is likely to be affected by the decision. See: ONYENUCHEYA V MILITARY ADMINISTRATOR OF IMO STATE (1997) 1 NWLR (Pt 482) 429 at 456 and more so as the 3rd relief is directed against the 2nd appellant who is the General Secretary and the person issuing the strike threats.

On academic nature of action and abuse of process. This questions as raised under this head of the objection have been answered in the argument on issue 1. On section 251 (1) (n) of (p) of the constitution and the contention that the suit should have been commenced in the Federal High Court as decided in NEPA v EDEGBORO (2000) 18 NWLR (Pt 798)79. The respondent has submitted that the subject matter falls outside section 251 (1) (n) (p) of the 1999 constitution which deals with mines and minerals. 1t is the respondents submission that the subject matter has not fallen within the jurisdiction of the Federal High Court as the claim does not concern the management and control of the Federal Government; or any of its agencies for example NEPA.

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SC. 62/2004

Congress For Progressive Change V. Independent National Electoral Commission & Ors. (2012)

LAWGLOBAL HUB Lead Judgment Report

CHUKWUMA-ENEH, J.S.C.

The appellant in this matter has appealed to this court against the unanimous decision of the Court of Appeal Yola Division given on 6/1/2012 dismissing the appellant’s appeal in this matter for lack of merit. The appeal to the lower court is against the decision of the Taraba B State Governorship Election Tribunal that has as well dismissed the appellant’s petition. The petitioner has been the appellant in the proceedings in this court and before the two lower courts. The appellant (C.P.C) and the 3rd respondent (P.D.P.) as political parties have sponsored respectively one Engineer Ahmed Yusuf and the C 2nd respondent as candidates for the position of governorship position for Taraba State in the general election of 2011. The 1st, 4th and 5th respondents have returned the 3rd respondent as duly elected governor of Taraba State.

The parties herein have filed and exchanged their respective D briefs of argument; the same have been adopted and relied on at the oral hearing of the appeal before us in this court on 1/3/2012; and to save the instant appeal from elapsing by effluxion of time (i.e. 60 days from the decision of the Court of Appeal as per Section 285(7) supra) the judgment of this court in the instant matter has E been fixed for 5/3/2012. The appellant’s case in its brief of argument has been predicated on 3(three) issues raised for determination to wit:

“1. Whether considering the provisions of section 285(8) of the Constitution of the Federal Republic of Nigeria p 1999 (as amended) the Court of Appeal has the jurisdiction to deliver judgment in the this case and reserve its reasons to a later date.

(2) Whether the Court of Appeal was right when it affirmed the decision of the Trial tribunal that since witnesses did not lead evidence in support of the documents tendered will not look at them.

(3) Whether considering that election petition is sui generis, the Court of Appeal was right in holding that since the relief sought by the appellant are declaratory the burden is fixed on the appellant to prove its case notwithstanding the fact that the 2nd respondent admitted substantial part of the petition.”

The 1st, 4th and 5th respondents have filed a joint brief of argument in this matter and have raised similar issues for determination as encapsulated in the appellant’s brief of argument that I see no need repeating them. The 2nd respondent however has in his brief of argument formulated the issues for determination as follows:

“(1) Whether the decision made by the Court of Appeal on 6/1/2012 dismissing the appeal of the appellant in this case is unconstitutional or invalid simply because the court stated thus in the course of its judgment. “I will elaborate on this on a later day” having regard to Section 285(7) and (8) and 294(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999?

(2) Whether the Court of Appeal was wrong when it upheld as unassailable the decision of the governorship Election Petition Tribunal Taraba State that it could not be called to supply the evidence which the appellant failed to do from the recess of its chambers in order to assist the appellant prove his allegation of corrupt practices against the respondents?

(3) Whether the Court of Appeal was wrong in holding that the burden of proving his allegation of corrupt practices and establishing entitlement to declaratory reliefs sought lay on the appellants?”

The 3rd respondent has raised a preliminary objection in which it has maintained that the appeal is incompetent as the court has no jurisdiction to hear the same under Section 285(7) of the 1999 Constitution (as amended). It has relied on 7 grounds of objection which on the whole have raised the simple question of whether the court can remit the appeal for hearing before another panel of justices of the Court of Appeal after the expiration of 60 days provided in section 285(7) of the 1999 Constitution (as amended). The appellant has not reacted to the objection as no reply brief has been filed by the appellant in that regard. Having considered the objection cum the grounds in expatiation, I think the issue raised therein is coterminous with the issues to be resolved in the main appeal itself and so not a matter which can be taken at an interlocutory stage. The objection is most unnecessary in the light of the issues raised for determination even by the 3rd respondent in its brief of argument. I therefore overrule the same as it amounts to using two similar processes to achieve the same purpose which in my view is even then an abuse of process.

Furthermore, it is my view that the objection has to be taken at one fell swoop with the appeal itself in order to obviate unnecessary repetition of the parties’ entrenched positions in this matter. The 3rd respondent has also enuciated its arguments in the appeal in its brief of argument in the event of its objection being overruled.

The 3rd respondent’s brief of argument filed in this matter has raised three issues for determination which in content and substantiality are very similar to the issues raised by the other respondents in this appeal. I see no need repeating the issues all over again as I go ahead to review its case in this matter.

The 3rd respondent has submitted that the Court of Appeal decision has determined the merits or otherwise of the appellant’s appeal and therefore the inadvertence in referring to section 285(8) (supra) is a mere surplusage and has not occasioned a miscarriage of justice. It has D relied on a number of decided cases of this court in support of the point. See Ihesi v. Arinze & Anor. (2007) 5 NWLR (Pt. 1027) 241 at 251; INEC v. Musa & Ors. (2002) 9/11 SCNJ 1 at 6, (2002) 17 NWLR (Pt. 796)412.

It also argued that the law is clear and settled that documents £ tendered from the bar are not a conclusive evidence of proof of the particular facts therein unless such documents have been positively proved by oral evidence connecting them. See Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436; Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 468. And so that where a petitioner fails to prove the facts alleged, in his petition is liable to be dismissed. See Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487.

On the question of declaratory reliefs claimed by appellant, the 3rd respondent has posited that the appellant has to proffer cogent and credible evidence to show the strength of his case and rely on the same in order to succeed thereof as against the weakness of the respondents’ case. See Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 189 at 214 to support the case that the court does not grant declarations in default of defence or indeed on admission without hearing evidence and being satisfied by such evidence. The instant appellant must therefore adduce oral evidence to establish this item of its claim. The court is urged to n resolve all the issues in this appeal in favour of the respondents.

If I may observe the issues raised by the 2nd respondent as set out above and the 1st, 4th and 5th respondents (although not set out here) as I have said above are in all material particulars identical to the appellant’s issues as set herein. Again, in that vein I may paraphrase the three common issues raised for determination herein by all the parties in this appeal; they have culminated firstly on whether there is the want of jurisdiction to deliver the decision of the lower court pursuant to section 285(8) of the 1999 Constitution as amended i.e. to elaborate the same at a later date as stated in the said judgment; also that upon the upholding of the findings of the trial tribunal that the appellant (as petitioner before the trial tribunal) has failed to discharge the burden of proof placed on it to link by evidence the documentary evidence i.e. exhibits P1- P201 with any particularity to the relevant facts as pleaded in the petition; and failing to establish by oral evidence the entitlement to the declaratory reliefs claimed by the appellant. The 6th respondent as a true umpire so to speak having no decisive stake in this matter has maintained its neutrality by filing no brief.

However, it has happened that on 6/]/2012 the Court of Appeal has delivered its decision in this matter having captioned it by stating that it has done so pursuant to section 285(8) supra and ending the decision by saying that “I shall elaborate on this on later date” thus it has tasked the appellant to appeal this matter to this E court urging that the Court of Appeal has no jurisdiction to give its decision piecemeal. See Section 285(8) (supra).

In challenging the decision the appellant has considered the combined provisions of Section 285(8) supra on the backdrop of 233(2) and 246(1) (b) (ii) and (3) both of the 1999 Constitution (as F amended) and has submitted that the Supreme Court is the court in all final appeals albeit in the causes in regard to the governorship Election Petition matters appealed from the Court of Appeal; in other words, that such matters have to be covered under Section 233(2) (e) (iv) supra. Similarly that the Court of Appeal is by virtue Q of Section 246(1) (b) (ii) and (3) (supra) also the court in all final appeals from the election tribunal where the causes pertain to the National and State Houses of Assembly election matters. The point is taken even then that the Court of Appeal has not up till now given any reasons for its decision as per the decision of 6/1/2012. In this regard the appellant has claimed to be greatly disadvantaged and so that both the 14 clays from 6/1/2012 allowable within which to appeal the decision by filing a notice of appeal and 60 days within which to prosecute the appeal it is submitted have elapsed. The appellant has also construed the meaning of the words “decision” and “judgment” and relied as per Bamaiyi v. Attorney-General of A the Federation (2001) 7 SCNJ 346 at 355, (2001) 12 NWLR (Pt. 727) 468 to suggest that the decision of the Court of Appeal is neither a decision nor a judgment and has posited that the appellant in the situation has been denied its constitutional right of appeal amounting to a denial of fair hearing and has urged the court to set B aside the decision of the Court of Appeal of 6/1/2012 for reserving its reasons to a later date for want of jurisdiction to do so. This issue is the appellant’s trump card in this appeal.

On issue 2: the appellant relying on a plethora of authorities to wit: Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 at 451; Emeje v. Positive (2010) 1 NWLR (Pt. 1174) 48 at 49 paragraph 6-11; Igbeke v. Emordi (2010) 11 NLR (Pt. 209) 1, (2010) 11 NWLR (Pt. 1204) 1; Tangale Traditional Council v. Fawu (2002) FWLR (Pt. 117) 1137 at 1163 paragraphs G-H, (2001) 17 NWLR (Pt. 742) 293 and Omoju v. F.R.N. (2008) 2 SCNJ 97 at 215, (2008) D 7 NWLR (Pt. 1085) 38 but excluding Arabambi v. A.B.L.L. (2005) 12 SCNJ 331 at 354 – 355 reported as Arabambi v. A.B. Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1 has submitted that the Court of Appeal has affirmed the decision of the Election Petition Tribunal on the erroneous premise which has alleged that the appellant has E led no evidence to connect the relevant documents tendered in the tribunal to support the pleadings as per the petition even as it is trite that documentary evidence is the best form of evidence and more reliable. It is contended that the documents exhibit P1-P201 have practically been dumped on the court (untied).

On issue 3: It has been submitted that the burden of proof as per declaratory reliefs is fixed on the appellant and being aware of this onus the appellant it is contended has discharged the burden satisfactorily even on a minimal scale as the 22nd respondent has admitted substantial averments of the petition. It is also its Q contention that this burden even then does not extend to election petition matters. No authorities I must confess have been cited to court to support this novel proposition. It must be taken as clearly unsubstantiated.

In the premises the court is urged to set aside the decision J_J of the Court of Appeal and to affirm the decision of the Court of Appeal.

The 1st, 4th and 5th respondents having submitted that the appellant wrongly has misconstrued the wrong law as per Section 285(8) of the 1st, Amendment Act which does not contain the words “or Court” immediately before the words “may adopt” as per the 2ncl Amendment Act i.e. being the correct provisions of Section 285(8) it has naturally missed the salient point as the Court of Appeal has rightly acted in pursuance to Section 285(8). It is opined that regard has to be had as to the other relevant and similar provisions of the Constitution in construing these provisions including in this case, section 246(1) (c) (ii) supra to show that the provisions of section 285(8) can be invoked by the Court of Appeal in all final appeals from the Election Petition Tribunal in regard to the National and State House Assembly Election matters if I may observe over which it is the final court. They have relied on a host of authorities for so contending including Inakoju v. Adeleke (2007) All FWLR (Pt. 353) 3 at 104D, (2007) 4 NWLR (Pt; 1025) 423; Attorney-General of Abia State v. Attorney-General of the Federation (2003) FWLR (Pt. 152) 131 at 201G, (2003) 4 NWLR (Pt. 809) 124; Kraus Thompson Organisation v. N.I.P.S.S. (2004) All FWLR (Pt. 218) 797 at 809 F-G, (2004) 17 NWLR (Pt. 901) 44; Balogun v. Ode (2007) 4 NWLR (Pt. 1023) 1; Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483; Attorney-General of Lagos State v. Eko Hotels Ltd. (2006) All FWLR (Pt. 342) 1398 at 1471 H-1472A, (2006) 18 NWLR (Pt. 1011) 378 and thus having construed the said provisions it has been submitted that even though the Court of Appeal has as stated proceeded to deliver a brief judgment all the same it has delivered a comprehensive judgment consistent in every respects with a regular and full judgment which has affirmed crucial findings of the trial tribunal’s judgment and that it has actually been delivered pursuant to section 285(8) supra. It is a full judgment with reasons for its findings that is to say, notwithstanding having stated that it will elaborate on the judgment later.

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SC.33/2012

Senator Joel Danlami Ikenya & Ors Vs. Peoples Democratic Party (Pdp) & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, JSC

This appeal is against the judgment of the Court of Appeal Yola Division delivered on 6th January, 2012 dismissing the Appellants appeal and affirming the judgment of the trial Election Petition Tribunal. The 1st and 2nd Appellants were respectively the Governorship and Deputy Governorship candidates sponsored by the 3rd Appellant, a political party, as its candidates in the general election held into the office of the Governor of Taraba State on 26th April, 2011. The 2nd and 3rd Respondents on the other hand were the Governorship and Deputy Governorship candidates sponsored by the 1st Respondent, a political party, in the election to the office of the Governor of Taraba State. At the conclusion of the election, the 4th and 6th Respondents who conducted the election, returned the 2nd and 3rd Respondents as winners of the election and duly elected as Governor and Deputy Governor of Taraba State.

Not satisfied with the results of the election, the Appellants then filed their petition at the Governorship Election Petition Tribunal at Jalingo, Taraba State which heard the petition and at the end of the hearing, in its judgment delivered on 10th November, 2011, dismissed the Appellants petition. Aggrieved with the judgment of the Tribunal, the Appellants then appealed to the Court of Appeal, Yola Division which after hearing the appeal on 5th January, 2012, dismissed the appeal on 6th January, 2012 in its judgment delivered by the Presiding Justice, Hon. Justice Alagoa, JCA and agreed to by the other Justices Yakubu and John Mbaba JJCA as follows –

‘By virtue of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 as amended, I shall delivered my judgment in this appeal today to save it from lapsing and give my reasons later. The preliminary objections filed by the 1st Respondent on one hand and the 2nd and 3rd Respondents on the other hand lack merit and are hereby dismissed. The main appeal of the Appellants lack merit and is hereby accordingly dismissed and the judgment of the Governorship Election Petition Tribunal Taraba State holden at Jalingo in Petition No. EPT/TR/G/01/2011 delivered on the 10th November, 2011 is hereby affirmed by me.’

Not satisfied with this judgment of the Court of Appeal, the Appellants are now on a further and final appeal to this Court raising only one issue from the lone ground of appeal filed by them. The issue reads –

‘Whether the Court of Appeal by a construction of the provision of Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is competent to deliver judgment in respect of an appeal as to whether a person has been validly elected to the office of a Governor or Deputy Governor of a State and give reasons later.’

Learned Appellants Counsel after quoting the provisions of Sections 285(8) and 233(1) and (2)(e.)(i.) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), had argued that since the appeal from the decision of the Governorship Election Petition Tribunal to the Court of Appeal does not make the Court of Appeal the final Court of Appeal in the appeal which the Constitution allows to proceed and finally end at the Supreme Court, the Court of Appeal does not have the power or competence to deliver judgment under Section 285(8) of the Constitution and reserve reasons for the judgment to a later date as was done by the Court of Appeal in the present case; that the reasons for the decision ought to form the basis of the Appellants right of appeal in grounds of appeal challenging the reasons for the decision; that the very clear provisions of Section 285(8) of the Constitution does not give the Court of Appeal, a penultimate appellate Court to give its decision and reserve its reasons therefore to an indefinite date as was done by the Court of Appeal in the instant case and that this had rendered the decision of the Court of Appeal of 6th January, 2012, a nullity, concluded the learned Counsel who urged this Court to set aside the decision of the Court of Appeal of 6th January, 2012 and order a fresh the Appellants appeal before another panel of the Court of Appeal.

For the 1st Respondent, the issue identified in its brief of argument is –

‘Whether the judgment delivered by the lower Tribunal on 6th January, 2012 has not effectively and effectually determined the Appellants appeal on its merit as to affort an aggrieved party to appeal against it not withstanding this inadvertence reference to Section 285(8) of the 1999 Constitution of Nigeria.’

The stand of the 1st Respondent therefore on this issue is that the judgment of the Court of Appeal of 6th January, 2011, is quite in order. However, with regard to the relief of re-hearing of the appeal by another panel of the Court of Appeal sought by the Appellants, learned Counsel to the 1st Respondent relying on the provisions of Section 285(7) of the Constitution of Nigeria 1999, said having regard to the fact that the decision of the trial Election Petition Tribunal was given on 10th November, 2011, the 60 days allowed for the hearing and determination of the Appellants appeal, have lapsed already to make any order for fresh hearing of the appeal impossible. However, learned Counsel is of the view that failure of the Court of Appeal to give reasons for its judgment, does not make that decision invalid particularly when the facts are not indispute as was stated in Emmanuel Agbanelo v. U.B.N. Ltd. (2000) 4 S.C.N.J. 353 at 363 – 364.

The 2nd and 3rd Respondents in their joint brief of argument also adopted the issue as framed in the Appellants brief of argument before coming ltd the conclusion that by virtue of the provisions of Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of Appeal is qualified to give its decision and reserve giving reasons to a later date in the final appeal from the Governorship Election Tribunal of Taraba State. However, in his final submission, learned senior Counsel for 2nd and 3rd Respondents referred to the recent decisions of this Court in A.N.P.P. v. Alhaji Mohammed Goni & Ors. unreported decision of this Court delivered in suits No. SC. 1/2012 and SC.2/2012 consolidated delivered on 17th February, 2012; Action Alliance (A.C.) v INEC & Ors., unreported judgment of this Court in suit No. SC23/2012 delivered on 14th February, 2012 and the case of Mallam Abubakar Abubakar & Ors. v. Saidu Usman Nasamu & Ors. unreported judgment of this Court in suits No. SC.14/2012; SC.14A/2012; SC.14B/2012 and SC.14C/2012 delivered on 24th February, 2012 and submitted that the relief of re-hearing sought by the Appellants in this appeal, cannot be granted as the period of 60 days within which the appeal ought to be heard and determined, had already lapsed. On the authority of the last unreported decision of this Court in Abubakar & Ors. v. Nasamu & Ors. delivered on 24th February, 2012, learned senior Counsel for 2nd and 3rd Respondents finally submitted that since the decision of the. Court of Appeal of 6th January, 2012 in this appeal is a nullity, the decision of the Governorship Tribunal of 10th November, 2011, remains valid and ought to be restored and affirmed by this Court.

Learned senior Counsel for the 4th – 1023rd Respondents in their Respondents brief of argument is also of the view that the only issue for determination is whether the Court of Appeal was right in exercising the powers under Section 285(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to dismiss the Appellants appeal and reserve the reasons for judgment to a later date. On this issue learned senior Counsel is of the view that the Court of Appeal was right in exercising the powers under Section 285(8) of the Constitution to dismiss the Appellants appeal and reserve its reason to a later date if the case of Babatunde v. P.A.S.&T.A Ltd. (2007) All F.W.LR. (Pt. 372) 1721 at 1752C is taken into consideration.

The question now is whether the Court of Appeal can be accommodated under Section 285(8) of the Constitution of the Federal Republic of Nigeria 1999 after hearing an appeal from the decision of Governorship Election Petition Tribunal, to deliver its judgment in the appeal and give its reasons for the judgment on a later date. That Section 285(8) of the Constitution states –

‘(8) The Court, in all final appeals from Election Tribunal or Court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.

The interpretation of this very clear sub-section of Section 285 of the Constitution had been put to rest in the decision of this Court in the consolidated appeals in an unreported decision of this Court in appeals numbers SC.14/2012; SC.14A/2012; SC.14B/2012 and SC.14C/2012 Abubakar & Ors. v. Nasamu & Ors. delivered on 24th February, 2012 in relation to the powers of the Court of Appeal and this Court to deliver judgment in appeals arising from decisions of Election Petition Tribunals. As for the appeals from decisions of Election Petition Tribunal in National and State Assembly elections which terminate at the Court of Appeal, the Court of Appeal can exercise the power prescribed under Section 285(8) to deliver its judgment and reserve the reasons for the judgment to a later date.

However, where the appeals are from decisions of an Election Petition Tribunal in Governorship Elections which do not terminate at the Court of Appeal and are laible to proceed to the Supreme Court at the instance of an aggrieved party, the power under that sub-section (8) of Section 285 of the Constitution, is not available to the Court of Appeal. The power as far as appeals from decisions of Election Petition Tribunals in Governorship Elections coming to the Court of Appeal are concerned, only the Supreme Court can exercise the power to deliver its judgment in the appeal heard by it and reserve its reasons for the judgment to a later date. It is for this reason that this Court held that the effect of exercising this power by the Court of Appeal in an appeal which does not terminate at the Court of Appeal in this respect, rendered the judgment a nullity in the absence of the reasons for the judgment.

Applying the decision in Abubakar & Ors. v. Nasamu & ors to the present case where the Court of Appeal after hearing the Appellants appeal arising from Governorship election delivered its judgment dismissing the appeal on 6th January, 2012 and reserved its reasons indefinitely, the result is obvious. This action on the part of the Court of Appeal rendered its judgment a nullity in the absence of the reasons for the judgment resulting in leaving intact the judgment of the trial Election Petition Tribunal delivered on 10th November, 2011 affirming the election and return of the 2nd and 3rd Respondents as the Governor and Deputy Governor respectively of Taraba State in the election to the office of the Governor of Taraba State conducted by the 4th and 6th Respondents on 2.6th April, 2011. In otherwords the judgment of the Court of Appeal delivered on 6th January, 2012 without reasons for the judgment is indeed a nullity in the absence of the reasons for the judgment to provide the necessary materials from, which the Appellants may raise the grounds of appeal challenging the decision of that Court in exercising their Constitutional right of appeal. This is because the judgment of the Court and reasons for the judgment, are inseparable partners in law as it is the judgment and the reasons therefor that constitute a valid judgment of the Court.

As for the relief of re-hearing of the appeal by a different panel of the Court of Appeal sought by the Appellants in this Court, that relief cannot be granted because the 60 days under sub-section (7) of Section 285 of the Constitution of the Federal Republic of Nigeria 1999 within which the Appellants appeal must be heard and determined, had already lapsed as the judgment of the Election Petition Tribunal giving rise to the appeal, was delivered since 10r November, 2011. It will therefore be a futile exercise in my view granting that relief.

In the result this appeal, succeeds and it is hereby allowed. The decision of the Court of Appeal given in the Appellants appeal on 6th January, 2012 dismissing the Appellants appeal, is hereby declared a nullity for having been given without reasons for the decision. Consequently, the judgment of the trial Election Petition Tribunal in petition No. EPT/TR/G/ 01/2011 delivered on 10th November, 2011 affirming the election and return of the 2nd and 3rd Respondents as the Governor and Deputy Governor respectively of Taraba State of Nigeria, is hereby further affirmed.

I am not making any order on costs.

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PC. 13/2012