Alhaji (Chief) Ayotunde Seriki V. Sefiu Olukorede Are & Ors (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The amended election petition presented before the lower court by the petitioner/appellant (Alhaji (Chief) Ayotunde Seriki) against the first respondent/cross-appellant (Sefiu Olukorede Are) and the second to the fourth respondents was predicated on two grounds. The petitioner/appellant contested election for the Chairman of Epe Local Government Council, Lagos State on the 5th of December, 1998 on the platform of Alliance for Democracy (A.D.) against the first respondent/cross-appellant who vied for the said election on the ticket of All Peoples Party (A.P.P.). The conduct of the said local government elections was under the control, direction and supervision of the fourth respondent whose agents officers and/or servants, for the purpose of the said election were the second and third respondents.

The grounds on which the amended petition was founded are two; they are in the following terms less the particulars:-

1. The first respondent, Sefiu Olukorede Are, was not duly elected by a majority of lawful votes cast at the election.
2. The election was voided by corrupt practices, irregularities or offences against the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.

The reliefs sought by the petitioner/appellant are as follows:-

(a) that the 1st respondent Sefiu Olukorede Are was not validly elected or returned as Chairman, Epe Local Government by majority of lawful votes cast and the Local Government Council Election for the Epe Local Government on 5th December, 1998

(b) that the petitioner herein Alhaji (Chief) Ayotunde Seriki was/is elected and ought to have been returned.

(e) That the petitioner herein Alhaji Chief Ayotunde Seriki is/was the winner of the Epe Local Government Chairmanship Election held on 5th December, 1998 having polled the majority of lawful votes cast at the said election.

(d) such further or other Orders as the honourable tribunal may deem fit to make in the circumstances.

Having filed and exchanged necessary processes, the petition proceeded to trial with both sides calling evidence at the end of which their different counsel addressed the lower court. In its considered judgment dated 5th of February 1999, after making a number or findings, the lower court concluded as follows:-

“We now resort to the provision of Section 85(1) and 87(1) of the Decree and conclude that the election was not conducted substantially in accordance with the principle of the Decree.

The election was so replete with bits and pieces of irregularities on both sides that the fairest order would be to declare the election void under paragraph 28 of the 5th Schedule. The election is hereby declared void.”

Dissatisfied with the said judgment, the petitioner/appellant filed on the 10th of February 1999, a notice or appeal dated 9th February, 1999 which contains four original grounds of appeal and they are as follows:

1. The Local Government Election Tribunal erred in law in failing to grant the prayers of the petitioner as contained in paragraph 53 A-C of the amended petition having found that the petitioner proved over-voting and anomalies in units 002 and 007 (Ward R1 Code 084) and units 018 and 031 (Ward C1 code 072) which showed that the petitioner won the election by majority of valid votes of 18,250 as against that of the 1st respondent’s 18,096 votes.
2. The Local Government Election Tribunal erred in law in declaring the election void when the petitioner proved that he scored the majority of valid votes cast at the election.
3. The Local Government Election Tribunal erred in law in voiding the election on the ground among others that the 1st respondent through DW4 Mr. Agbabiaka also proved over-voting and irregularities in some units in some wards in Epe Local Government in the said chairmanship election.
4. The judgment of the Local Government Election Tribunal is against the weight of evidence. The substratum of the complaint of the petitioner/appellant against the judgment is that the lower tribunal, ought to, on the face of the evidence before it, declare the petitioner the winner with majority of lawful votes instead of voiding the election as it did.

In a similar vein, the first respondent/cross-appellant who was equally dissatisfied, filed a process which he captioned “Notice of Appeal” but which for the purpose of clarity or avoiding confusion, I shall re-name “Notice of Cross-Appeal: it is dated 11th February, 1999 and filed on the same date. The cross/appeal is predicated on eight original grounds which less the particulars are set out hereunder:

1. The Local Government Elections Tribunal (hereinafter called “the Election Tribunal”) misdirected itself in law in failing to direct itself that it should answer, in the judgment the objections raised by the 1st respondent to the competence/defects of the two grounds or the petition before proceeding to treat the petition on the merits.

The Election Tribunal erred in law in not holding that ground 2 of the election petition was incompetent and should be struck-out.

3. The Election Tribunal erred in law and came to a wrong conclusion in not observing that the statement of facts pleaded in support of ground 1 of the petition was defective and/or insufficient in law to present even a prima facie case in proof of the ground.
4. After correctly holding that “In this petition the bone of contention could be reduced to two areas. That there were massive irregularities and over-voting in certain units which if they are computed and deducted could, have made the petitioner to score majority by (sic) lawful votes and would have been declared as the winner.”

The Election Tribunal erred in law and on the evidence in concluding that:-

“The doctrine of ex turpi causa-oritur non action ‘though a doctrine under the law of contract could also be employed in this situation where the parties are in pari delicto. ‘ In Jacobs Dashe v. Adamu Bawa (1989) 1 N.E.P.LR. 71 at 72 it was held that if the nature of non-compliance is such as to give an obvious advantage to one of the parties to the election, such non-compliance is substantial and unless there is evidence to the contrary, has affected the result of the election in favour of the party who enjoyed the advantage and against the party who suffered a disadvantage. We now resort to the provisions of sections 88(1) and 87(1) of the Decree and conclude that the election was not conducted substantially in accordance with the principle of the Decree.

The election was so replete with bits and pieces of irregularities on both sides that the fairest order would be to declare the election void under paragraph 28 of the 5th Schedule. The election is hereby declared void.”

5. The Election Tribunal erred in law and on the evidence in failing to properly evaluate the evidence adduced for the respondents in addition to that adduced for the petitioner vis-a-vis the pleadings before it, and consequently, came to a wrong decision.
6. The Election Tribunal misdirected itself in law and on the evidence in relying on the evidence of PW2, PW3, P’W4, PW5, PW6 and PW7 to hold that there were irregularities or non-compliance in the election conducted in the polling units complained of by the petitioner.
7. The judgment is against the weight of evidence.
8. The judgment of the Election Tribunal is wrong in law and on the evidence in that:-

The petitioner/appellant filed brief of argument and the 1st respondents brief of argument in reaction to the cross/appeal of the 1st respondent/appellant who in turn filed across/appellant’s brief of argument and an appellant’s reply brief of argument and 1st respondent’s brief to petitioner’s appellant’s brief. The second to the fourth respondents who did not cross-appeal filed a 2nd-4th respondents’ brief on the 4th of March, 1999.

Counsel for the appellant, the cross-appellant and 2nd – 4th respondents adopted the different briefs filed on behalf of their different clients. The petitioner/appellant raised four issues, following from his original grounds of appeal, in his brief of argument and they are as follows:-

1. Did {he petitioner/appellant not prove and was entitled to judgment upon the evidence before the lower tribunal on the ground that the petitioner won the election by a majority of valid/lawful votes?
2. Was the 1st respondent entitled to lead evidence of objections to votes,over-voting and gross misconduct of the election as pleaded in the whole of paragraph 21 of 1st respondent’s reply on pages 2728 of the record when he failed to file list of objections to the votes he was objecting to?
3. Did the 1st respondent plead, prove or lead any evidence of tabulation of what would have been the relative position of petitioner and 1st respondent’s votes to determine who scored majority of valid votes even if it can be said that he proved over-voting, irregularities or misconduct of the election to entitle 1st respondent to any judgment in his favour?
4. Whether the judgment of the lower tribunal is not against the weight of evidence.

Reacting to the appeal of the petitioner/appellant the 1st cross respondent/appellant also formulated four issues in the cross-appeal and they are as follows:-

1. Whether having regard to the evidence (in particular, results of polling units) before the Tribunal showing over-voting in certain polling units tendered for both the 1st respondent and the appellant, the Tribunal ought not to nullify all such results?
2. Whether after nullification of such results, the 1st respondent or the appellant won the election on the majority of valid votes?
3. Whether the decision voiding the whole election was not wrong in the circumstances?
4. Whether having regard to the pleadings and evidence and all the circumstances of the case return of the appellant as winner of the election ought not to stand?

The 2nd to 4th respondents did not file any reply brief to the brief of argument filed by the petitioner/appellant.

In his brief of argument, the 1st respondent/cross-appellant to back up his cross-appeal formulated three issues for determination and they are:-

1. Whether the Tribunal ought not to have struck out grounds 1 and 2 of the amended election petition without more in its judgment as being incompetent having regard to:

(i) the incompatibility of ground 2 with the prayers sought in the petition for the 1st respondent to be returned as having won the election by a majority of valid votes?

(ii) the legal insufficiency of the statement of facts stated in support of ground 11 to maintain the ground in any event?

2. Whether having regard to the pleadings of all the parties the prayers of the 1st respondent in the petition, the evidence adduced before it, the tribunal was entitled to declare as void the whole election?
3. Whether the election petition aught not to fail and the appellant’s election upheld as having won by a majority of valid votes, the election having been conducted in substantial compliance with the provisions of the Decree?

In their brief filed on 4/3/99 to the cross-appeal, the 2nd to 4th respondents adopted the issues for determination as contained in the brief of argument of the cross-appellant. They, however, raised three fresh issues for determination and they are thus:

1. whether the findings of the Tribunal are perverse considering the totality of documentary evidence before it, particularly with respect to the votes scored as shown on Exhibits A, A1, D and D2;
2. whether the petitioner/1st respondent has sufficiently discharged the onus of proof beyond reasonable doubt placed on him in all the units where allegation of incidence of over-voting which is criminal in nature were alleged;
3. whether non-compliance with the provision of the Decree No.36 of 1998 of any is of such a nature and extent that will vitiate the result of the entire Epe Local Government.

The briefs filed by the parties are, undoubtedly very comprehensive. As observed above, the bone of contention of the petitioner/appellant is that on the face of the evidence before the lower tribunal, the petitioner ought to have been declared the winner with majority of lawful votes instead of voiding the election as it (lower tribunal) did. On the other hand 1st respondent/cross-appellant is contending that the lower tribunal ought to have struck-out grounds 1 and 2 on which the petition stood for reasons of insufficiency of the statement of facts and incompatibility with the prayers sought in the petition, respectively.

I shall take the cross-appeal first. For if the issues raised therein succeed that will terminate this appeal. The prayer sought in the event of the issues succeeding is either a striking out or a dismissal of the entire petition, in limine. For a clear understanding of the points raised I shall again reproduce grounds 1 and 2; they are:

1. “The 1st respondent, Sefiu Olukorede Are, was not duly elected by a majority of valid votes cast at the election.”
2. The election was voided by corrupt practices or offences or noncompliance with the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998.

Of course, the prayers contained in the petition again are:

(a) That the 1st respondent, Sefiu Olukorede Are, was not validly elected or returned as Chairman, Epe Local Government by majority of lawful votes cast at the Local Government Council Election for Epe Local Government on 5th December, 1998.

(b) That the petitioner herein Alhaji (Chief) Ayotunde Seriki was/is elected and ought to have been returned.

(c) That the petitioner herein Alhaji Chief Ayotunde Seriki Are is/was the winner of the Epe Local Government Chairmanship Election held on 5th December, 1998 having polled the majority of lawful votes cast at the said election.

Learned counsel for the 1st respondent/cross-appellant, through the brief submitted that the invalid votes intended for deduction were not pleaded specifically. He urged that the ground should be struck-out praying in aid the decision in Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 598, Again, he contended that voiding of the election was not part of the prayers before the lower tribunal and since a court does not make a practice of awarding what is not claimed, ground 2 must also be struck out and consequently, the entire petition should be dismissed: calling in aid the decision in Chief Ige v. Dr. Olunloyo (1984) 1 SCNLR 158.

To meet these arguments learned counsel for the petitioner/appellant, through the brief of argument contended that under the Decree, a tribunal was not obliged to limit its inquiries or even findings within the compartment of the issues put up by the parties to an election petition in their petition or reply placing reliance on the decision in Kanya v. Babura (1993) 3 NWLR (Pt. 280) 149. On ground two, learned counsel contended that once a petitioner prays a tribunal to determine or find that a candidate elected was not duly elected, he has, by so doing, invoked the jurisdiction of the tribunal to make a declaration voiding the entire election if there is evidence in support; calling in support the decision in Oluteh v. Ishida (1993) 3 NWLR (Pt.279) 34. Both counsel placed reliance on the relevant provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.36 of 1998.

Section 87(1) of the said Decree provides:

“Subject to sub-section (2) of this section, if the Election Tribunal determines that a candidate who was returned as elected was not validly elected all any ground the Election Tribunal shall nullify the election.”

87(2): provides

“If the Election Tribunal determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal shall declare as elected the candid me who scored the majority of valid votes cast at the election:’

In reaching its conclusion, the lower Tribunal relied on paragraph 28(1) of Schedule 5 to Decree No, 36 of 1998 which is in the following terms:-

“At the conclusion of the hearing the Election Tribunal shall determine whether a person whose election or return is complained of or any other person and what person, was validly returned or elected or whether the election was void, and shall certify the determination to the Electoral Commissioner or the Commission,”

I think the short answer to the question raised under the first issue of the 1st respondent/cross-appellant as to ground 1 finds expression in paragraph 15(3) of Schedules to the Decree which says that an Election Tribunal is not obliged to limit its inquiry or finding to the issues formulated by the parties in their pleadings, Interpreting the provision of paragraph 15(2) Schedule 4 of Decree 18 of (1992) which is ill pari materia with the provisions of paragraph 15(3) of Schedule 5 of Decree No. 36 of (1998) this court in Kanya v. Babura (1993) 3 NWLR (Pt. 280) 149 held at page 162.

“I think there is substance in the submissions of the learned counsel for the second and third respondents to the effect that should in case the tribunal acted on issue not strictly placed before it, the provisions of paragraph 15(2) ofSchedule4 of Decree 18 of 1992 made ample provisions for the tribunal not to confine or restrict its inquiry or findings to the issue raised by parties.”

Reinforcing this point of law is the case of Kangama v. NEC (1993) 3 NWLR (Pt. 284) 681. Again the combined effect of the provisions of section 87(1) and (2) of Decree No. 36 is that a Tribunal after perceiving and evaluating the totality of the evidence led before it can where the justice of the case demands it, make an order voiding an election notwithstanding that specific prayer for voiding was not before it, this was the view of this court in Oputeh v. Ishida (1993) 3 NWLR (Pt. 279) 34 put the judgment of Uwaifo JCA (as he then was) at page 54.

The effect of all I have said above is that the cross-petition of Sefiu Olukorede Are (the respondent/cross-appellant) on issues I and 2 he formulated must fail. Grounds 1 and 2 are on a firma terra.

As I have observed, the summation of the issues formulated by the appellant is that having regard to the pleadings and the evidence led the lower tribunal ought to have declared the appellant as validly elected and returned him as such. The remaining two issues set out by the cross/appellant are saying no more than that on he face of the pleadings and evidence adduced, the petition ought to have been dismissed by (he lower tribunal and the election of the cross/appellant as the chairman of the Council be upheld.

The evidence led points conclusively to the fact that there was over-voting and that both contestants benefited from the illegal votes although, in varying degree. The parties admit that much in their briefs and particulars of enrichment through over-voting are contained in the briefs. The lower tribunal found that there was over-voting. The petitioner/appellant in his brief is requesting this court to sift all the invalid votes credited to each of the contestants and by way of evaluation of the evidence led hold that he (petitioner/appellant) won the election. The cross/ appellant made similar submission in his brief of argument. Rigging or over-voting is a serious electoral malpractice. It is a most disgraceful and dishonest act that should be condemned in all its ramification, it is an illegal act. And no persons involved in any form of immoral or illegal act or transaction shall be allowed to come to court to seek a redress. No polluted hand shall touch the pure foundation of justice. See Canfaillia v. Chahin (1939) 5 WACA 104. One cannot have a right of action when one comes to a court of justice in such an unclean manner. Both parties have benefited from invalid votes, albeit, as i have said, in varying proportion. No one is ever allowed to take advantage of his own wrong doing; the Latin maxim is Nullus Commodum Capere Potest De Injuria Sua Propria. In Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt. 96) 212 the Court of Appeal per the judgment of Akpata JCA (as he then was) applied the maxim where at page 226 he quoted with approval the dictum of Widgery L.J, in Buswell v. Godwin (1971) 1 A.E.R. 421 thus:-

‘the proposition that a man will not be allowed to take advantage of his own wrong doing is no doubt a very salutary one and one which the court would wish to endorse”

Generally, the effect of illegality the likes of rigging or over-voting is to render the exercise wholly void and of no legal effect.

I agree with the lower tribunal, given the facts of this case, that the doctrine of “Ex Turpi Causa Non Orifur Actio” applies here: the parties are in pari delicto. And invoking its powers under paragraph 28 of the 5th Schedule of the Decree quoted supra the overall interest of justice which any adjudicating body must always seek (to do, demands that the election be declared void as the lower tribunal has done.

It is for all of the above that I have come to the irresistible conclusion that the appeal and the cross/appeal are lacking in merit. They (appeal and cross appeal) are therefore dismissed. There shall be no order as to costs.

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Other Citations: (1999)LCN/0617(CA)

Fidelis Ubanatu V. Commissioner of Police (1999)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

The appellant, Fidelis Ubanatu was arraigned before the Chief Magistrates Court, Warri, on a two count charge under section 323 of the Criminal Code CAP 48 of the Laws of the defunct Bendel state now applicable in Delta State of Nigeria. The two counts at page 1 of the record of appeal are as follows:-

“1. That you Fidelis Ubanatu (m) on the 7th day of November, 1992 at Warri in the Warri Magisterial District, knowingly caused one David Maroh (m) of Dowell Schlumberger (Nig.) Limited, P.O. Box 344 Warri to receive a letter threatening to kill him and thereby committed an offence punishable under section 323 of the Criminal Code Cap 48 Vol. 11, Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.

2. That you, Fidelis Ubanatu (m) on the 10th day of August, 1994 at Warri in the Warri Magisterial District, knowingly caused one David Maroh (m) of Dowell Schlumberger (Nig.) Limited P.O. Box 344, Warri to receive a letter threatening to kill him and thereby committed an offence punishable under section 323 of the Criminal Code Cap 48 Vol.11 Laws of the defunct Bendel State of Nigeria 1976 as applicable in Delta State.”

In support of the charge contained in these two counts, the prosecution called 6 witnesses and tendered a number of documents which include two letters written by the appellant which were the subject of the two counts and a statement of the appellant to the police given under caution and which the police described, as confessional statement. At the close of the case of the prosecution on 15-3-1995 at the trial Chief Magistrate court, Warri, the learned counsel for the appellant elected not to call on the appellant to enter into his defence but elected to make a no Case submission on his behalf. The case was accordingly adjourned to 29-3-1995 for the learned counsel for the appellant to make his submission which was duly presented to the trial court on that date before the court adjourned the matter for ruling on 6-4-1995. In his short ruling delivered on this date, the learned trial Chief Magistrate over ruled the no case submission made on behalf of the appellant and held that the prosecution, on the evidence before him, had made out a prima facie case against the appellant sufficiently to require his being called upon to defend himself on both counts.

Aggrieved by this decision of the trial Chief Magistrate court, the appellant appealed against it to the Delta State High Court of Justice, Warri where the appeal was heard and ultimately dismissed in a reserved judgment of that court delivered on 28-9-1995 by Dr. Dorubo Narebor J. Still not satisfied with the judgment, the appellant has now appealed to this court. His Notice of appeal contains 2 grounds of appeal from which two issues for determination of the appeal were distilled in the appellant’s brief of argument. The issues are:-

“1. Whether or not the Justice of the appellate court misdirected himself on the charges and if so whether or not the misdirection occasioned substantial miscarriage of Justice”

2. Whether or not the two letters exhibits 1 and 3 contain threat to kill David Maroh?”

However, in the brief of argument filed by the respondent, the following two issues were identified for the determination of the appeal.

“1. Whether the abbreviation of the contents of the charge by the learned Justice of the appellate High Court in his judgment occasioned a miscarriage of justice.

2. Whether the appeal against the overruling of the no-case submission was rightfully dismissed.”

Before proceeding to resolve these issues, it is necessary to examine the second issue in the appellant’s brief of argument in order to determine whether or not it arose from ground 2 of the appellant’s grounds of appeal.

The ground of appeal reads:-

“2. The learned Justice of the appellate court (High Court, Warri) erred in Law in confirming the ruling of the Chief Magistrate, which over-ruled the no case submission of the counsel for the appellant when the essential ingredients of the offences namely “Threat to kill David Moroh” are not proved.

PARTICULARS OF ERROR IN LAW

The letters exhibits 1 and 3 dated 7-11-92 and 10-8-94 respectively, written by the accused/appellant to David Moroh do not contain a threat to kill him.”

The issue No. 2 formulated from this ground of appeal in the appellate brief of argument is; –

“Whether or not the two letters exhibits 1 and 3 contain threat to kill David Moroh.”

The ground of appeal is clearly complaining against the whole decision of the lower court affirming the dismissal of the appellant’s submission of no case to answer by the trial Chief Magistrate Court. Taking into consideration that 6 witnesses testified for the prosecution and a number of documentary evidence including the two letters Exhibit 1 and 3 which have been exclusively made the subject of issue No.2 in question, were tendered and received in evidence before the delivery of the ruling dismissing the appellant’s no Case submission, confining the issue No. 2 for determination exclusively to the letters Exhibits 1 and 3 is clearly not in line with the complaint of the appellant in the ground of appeal. This short coming no doubt arose as a result of the action of the learned counsel to the appellant in framing his issue No. 2 exclusively from the particulars of the ground of appeal rather than from the ground of appeal itself. It is indeed settled practice that issues for determination in any appeal must be related to and arises from the ground or grounds of appeal alone. See Attorney-General Anambra State v. Onuselogu Enterprises Ltd. (1987) 4 NWLR (pt.66) 547; Oniah v. Onyia (1989) 1 NWLR (pt.99) 514 at 527; Onisupebi v. Saibu (1982) 7 SC 104 at 110; Western Steel Works Limited v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (pt.49) 304; Ugo v. Obiekwe (1989) 1 NWLR (pt.99) 566 at 580; Okpala v. Ibeme (1989) 2 NWLR (pt.102) 208 at 220 and Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546 at 567. Therefore the particulars of a ground of appeal no matter how beautifully and comprehensively drafted cannot support any issue for the determination of the appeal. For this reason, the appellant’s issue No.2 which has not been framed from the grounds of appeal shall not be taken into consideration in the determination of this appeal. However in its place I shall use the respondent’s issue No.2 which was clearly formulated from the ground of appeal itself and not from the particulars thereof. In other words this appeal shall now be determined on the following 2 issues:-

1. Whether the lower court misdirected itself on the charges and if so whether or not the misdirection occasioned substantial miscarriage of justice.
2. Whether the appellant’s appeal against the over-ruling of the no case submission was rightly dismissed.

It is not at all in dispute that the learned Judge of the lower court in his judgment rather summarised the 2 counts against which the appellant was charged at the trial Warri Chief Magistrate Court as follows at page 44 of the record of appeal.

“1. Threatening to kill and thereby committed an offence punishable under section 323 of the Criminal Code CAP 48 Vol.11 Laws of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.

2. Threatening to kill and thereby committed an offence punishable under section 323 of the Criminal Code CAP 48 Vol.11 Laws of the defunct Bendel State of Nigeria as applicable in Delta State.”

It was argued for the appellant by his learned counsel that the omission of the specific essential ingredient of the offence charged namely, –

“Caused one David Moroh to receive a letter threatening to kill him.”

is a very serious misdirection which will lead to the failure of the charges against the appellant having regard to the cases of Aderemi v. The Police (1961) WNLR 137 and Onagoruwa v. The State (1993) 3 NWLR (pt.303) 49 at 85. Learned counsel further contended that written threat to kill David Moroh’ is an essential and indispensable element of the offence charged, and to drop it from the charge is a misdirection which no doubt resulted in serious miscarriage of justice in this case on the authority of the case of Oguke v. The State (1988) 4 NWLR (pt.86) 36 at 38. Counsel therefore claimed that it was this misdirection that resulted in the court below holding that the learned trial Chief Magistrate rightly overruled the no-case submission.

In his re-action to the arguments of the appellant on this issue, the learned counsel to the respondent pointed out that the slight omission in stating an ingredient in the charge in the judgment of the appellate court is not fundamental, neither was it detrimental to the case of the appellant. That the record of appeal which contained the charges of the Magistrate court spelt out the charges clearly and correctly. That the lower court while determining the issues brought before it, was clearly not in doubt as to the ingredients of the offence with which the appellant was charged as can be seen in the entire judgment. Learned counsel concluded by pointing out that as far as the record of appeal is concerned, the lower court was properly directed as to the charges and the ingredients to prove them, since having regard to the analysis of the appeal by the lower court in its judgment, the complaint of the appellant in this issue is quite unfounded.

It is significant to note that this stage that although the learned counsel to the appellant in the appellant’s brief of argument and his oral submissions before us mainly complained against the leaving out of a vital ingredient of the offence charged under section 323 in the two counts quoted in the judgment of the lower court now on appeal in this court, the learned counsel to the appellant infact had committed even a more serious omission in quoting the two counts in the lower court when he also inadvertently left out the Law under which the appellant was charged when he quoted the two counts in his own appellant’s brief of argument at page 2 as follows:-

“Count 1: Threatening to kill and thereby committed an offence punishable under section 323 … of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.

Count 2: Threatening to kill and thereby committed an offence punishable under section 323 … of the defunct Bendel State of Nigeria, 1976 as applicable in Delta State.”

Definitely the two counts as quoted in the appellant’s brief cannot even be described as charges under any Law not to talk of such charges being defective by leaving out an ingredient of the offence charged. This of course shows that the learned counsel to the appellant being a human being like the learned Judge of the lower court is also liable to make such ommission. To err is indeed human!

It is indeed true that the learned Judge of the lower court in his judgment now on appeal did not quote in full the two counts upon which the appellant was charged at the trial Chief Magistrate Court as contained at page 1 of the record of the appeal. Inspite of this omission, it is quite clear from the statement of the learned Judge of the lower court himself at page 44 of the record of appeal, immediately below the two counts quoted in the judgment where he said

“Although there is no complaint against the above charge in the memorandum of grounds of appeal, it is patent on the face of the charge as disclosed by the record of appeal (page 1) that count 2 is repetition of count 1. The two counts are identical.”

that the learned Judge was looking at the original counts at page 1 of the record throughout his consideration of the appellant’s submission, which culminated in the dismissal of the appellant’s appeal. In otherwords, the learned Judge of the lower court was guided throughout his judgment only by the original counts contained in the record of the trial Chief Magistrate court at page 1 and not by the counts as quoted by him in the opening paragraph of his judgment which which are at page 44 of the record. Therefore since the record of appeal which contains the original

counts upon which the dismissal of the appellant’s no-case submission was based at the trial Chief Magistrate Court has spelt out the charges clearly and correctly and it is upon this same record that the lower court based its judgment dismissing the appellant’s appeal, the possibility of any substantial miscarriage of justice being occasioned by the omission to quote the two counts in full, is clearly ruled out. This is because the lower court in the determination of the issues brought hefore it in the appeal, was clearly not at all in doubt as to the ingredients of the offence with which the appellant was charged as can be seen “in the entire judgment of that court. I am therefore of the view that as far as the record of the lower court is concerned particularly the judgment, the complaint of the appellant on this first issue for determination in this appeal is quite unfounded as the omission to

reproduce the two counts in full in the judgment of the lower court did not occasion any miscarriage of justice to justify any interference in the judgment of that court in this appeal.

The second issue for determination is whether the appeal against the overruling of the no-case submission was rightly dismissed by the lower court. The main argument of the appellant on this issue is that the two letters written by him do not contain any threat to kill David Moroh as alleged in the two counts against him to justify calling upon him to defend himself. This is because, according to the learned counsel to the appellant, in the absence of any threat to kill in the documents, the essential ingredient of the offence under section 323 of the Criminal Code was not proved to warrant the appellant being called upon to defend himself. The cases of Q v. Ogucha (1959) 4 FSC 64, (1959) SCNLR 154; Okora v. The State (1988) 5 NWLR (Pt.94) 255,12 SCNJ (Pt. II) 191 at 198 and Onagoruwa v. The State (1993) 7 NWLR (Pt. 303) 49 at 83 were cited and relied upon in support of this submission by the learned counsel who urged this court to allow the appeal and discharge and acquit the appellant.

The contention of the respondent however is that the submission of no-case to answer made by the appellant’s counsel at the trial Magistrate Court Was rightly over-ruled as credible evidence had been led to prove all the essential ingredients of the offence for which the appellant’ had been charged. That a prima facie Case had in-fact been made out by the prosecution at the close of its case in accordance with Section 287(1) of the Criminal Procedure Law of Bendel State 1976 sufficient enough to warrant the accused being called upon to make his defence as the appellant’s confessional statement and other evidence on record was not contradicted or discredited. Learned counsel referred to the Case of Okoro v. The State (1988) 5 NWLR (pt.94) 255 and other cases cited and relied upon by the appellant and submitted that all the cases do not apply to support the appellant’s Case. Learned counsel then referred to the evidence on record including the contents of the letters Exhibits 1 and 3 and the cases of Owonikoko v. The State (1990) 7 NWLR (pt.162) 381 at 388; Bello v. The State (1967) NMLR 1 and Olaniyan v. The State (1987) 1 NWLR (pt. 48) 156 at 160 and submitted that the no-case submission was rightly over-ruled by the trial Court and consequently the lower court was right in affirming that decision after dismissing the appeal.

It is significant to observe here that under Section 33(5) of our 1979 Constitution, it is a requirement that every person who is charged with a Criminal Offence will be presumed to be innocent until he is proved guilty. This is the presumption of innocence to which everyone charged with a Criminal offence is entitled. It is important to also observe that an accused person is not obliged to say anything in the course of his trial. See section 33(11) of the 1979 Constitution. An accused will only be obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case made out against him by the prosecution. See the case of R. v. Mohammed Bode & Anor. (1944) 10 WACA 249 and section 138 (1) of the Evidence Act Cap. 112 of the Laws of the Federation 1990 which states:-

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

This burden remains on the prosecution up to the end of the case and never shifts. See Oteki v. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648. Thus in the prosecution for the offence under section 323 with which the appellant was charged in the two courts at the trial court, it is essential for the prosecution to prove:-

(a) That the accused caused one David Moroh to receive a letter.

(b) That the letter contains a threat to kill the said David Moroh.

(c) That the accused did so knowingly.

Thus, if at the close of the case for the prosecution the totality of the evidence on record fails to meet these essential requirements, then no prima facie case would have been made against the accused to require him to enter into his defence.

However, if the evidence adduced by the prosecution has met these essential ingredients of the charge, then prima facie case would have been made out against the accused to require him to defend himself against the charge.

In other words, when a court is giving consideration to a submission of no-case to answer, it is not necessary at that stage of the trial for the trial court to determine if the evidence is sufficient to justify conviction. The trial court only has to satisfy itself that there is a prima facie case requiring at least some explanation from the accused person. Evidence is said to disclose a prima facie case when it is such that if it remained uncontradicted and if believed will be sufficient for any reasonable tribunal to convict on it. See Ajidagba v. I.G.P. (1958) 3 FSC 5, (1958) SCNLR 60; Atano v. Attorney-General Bendel State (1988) 2 NWLR (Pt. 75) 201 and Abogede v. The State (1996) 5 NWLR (Pt.448) 270 at 280. See also section 287(1) of the Criminal Procedure Law of Bendel State and the requirement of proof in a no-case submission. It does not require proof beyond reasonable doubt as in the case of the requirement for conviction.

In the present case, in order to ascertain whether the prosecution had made out a prima facie case against the appellant to justify his being called upon to defend himself, it is necessary to examine the entire evidence on record adduced by the prosecution as was ably done by the learned Judge of the lower court in his judgment on pages 50 – 52 of the record. David Moroh who gave evidence as PW1 said at page 2 of the record as follows:-

“On 12/11/92 I was on duty at my working place when I received a letter from one David Okiemute by post. I read the letter. It was a letter of threat to my life.”

This witness was introduced to the appellant at the police station as the writer of this letter.

The Investigating Police Officer who testified as PW4 testified that he recovered the two letters Exhibits 1 and 3 from the appellant after executing a search warrant in the appellant’s house. A type writer with which the appellant typed the letter was also recovered from him. The witness also testified that the appellant in his confessional statement Exhibit 9 had admitted writing and signing the letters Exhibits 1 and 3 before posting them to David Maroh PW 1.

Furthermore, one of the two letters which are the subject of the charge against the appellant Exhibit 3 dated 10-8-1994 and addressed to PW 1 Mr. David Moroh contains the following paragraphs:

“I am sorry to learn that some hired killers attempted your life recently. I thank Almighty God that you narrowly survived that dastardly act. It was Mr. Francis Obuninta’s hand work. He is still plotting to eliminate you, vowing that you will not survive the second (sic) enslought. ”

In a nut shell, this was the evidence that was before the learned trial Chief Magistrate when he ruled against the appellant’s submission of no case to answer. This was also the same evidence on record that was scrutinised by the learned Judge of the High Court of Justice Warri before coming to the conclusion in his judgment of 28-9-1995 to dismiss the appellant’s appeal against the dismissal of his submission of no-ease to answer by the trial Magistrate court. The question now is whether I have any reason to disagree with the two concurrent decisions of the two lower courts on the dismissal of the appellant’s submission of no case to answer having regard to this evidence on record. The answer of course is in the negative because the lower court was quite right in dismissing the appellant’s appeal.

In the result, the appeal having failed, it is accordingly hereby dismissed. The judgment of Dr. Morubo Narebor J. of the Delta State High Court of Justice Warri delivered on 28-9-1995 is hereby affirmed.

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Other Citations: (1999)LCN/0616(CA)

Chief P. Kpogban & Ors V. Smart Ojirigho & Ors (1999)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

On the 18/3/96 at the Ughelli Judicial Division of the High Court of Delta State, this Suit No. UCH/47/96 was filed. In it the Plaintiffs/Respondents claimed four reliefs including:-

(i) A declaration of the Plaintiffs’ entitlement to a grant of statutory right of occupancy over a piece of land;

(ii) A claim for N500,000.00 as damages for trespass on the said land,

(iii) A claim for an order of perpetual injunction restraining the defendants/appellants their agents servants etc from further trespassing on the said land; and

(iv) An order compelling the defendants/appellants to give accounts of the proceeds of that part of land which was the subject matter of suit No. UCH/38/73 and SC/88/83.

On the 24/4/96 a motion for interlocutory injunction restraining the defendants/appellants from trespassing on the land pending the determination of the substantive action was filed. And by a ruling delivered on the 13/3/97, the learned trial judge Akpomudjere J. granted the injunction in the following terms:-

“The defendants, pending the final determination of the above suit are hereby restrained by themselves, servants, agents and/or privies from further trespassing unto that portion of Ogude family land in possession of Odjevwedje arm of Ogbroko Branch. The plaintiffs will enter into a bond for the sum of N5,000.00 against damages.”

Against this ruling and order the defendants/appellants have now appealed to this court. The following four grounds of appeal were filed:-

1. The learned trial judge erred in law when he failed to consider the balance of convenience in granting the application of the appellants.
2. The learned trial judge erred in law when he held that the court having regard to the above is of the view that the plaintiffs have a right to bring the present suit and application.
3. The learned trial judge erred in law when he granted the order of injunction sought on the ground that it was not necessary to exhibit a plan of the land in dispute since both parties to the suit know the land very well and no one was left in doubt about the farm land they both referred to in their affidavit and counter affidavit
4. The learned trial judge failed to exercise his discretion right when he granted the applicants the injunction sought when having regard to the circumstances of the case he should have restrained both parties.

From these four grounds appellants formulated four issues contained at page 2 of the brief of argument while the respondents identified only one. The Respondents’ only issue states:

“Whether in all the circumstances of this case the learned trial judge rightly exercised his discretion in granting an order of interlocutory injunction against the defendant/appellants.”

In my view, all the arguments canvassed with respect to balance of convenience, identity of the land in respect of which the injunction was sought and granted, the question of whether the facts on which the substantive claim was founded were different from those on which the injunction was based can be answered in the all embracing one issue of the Respondent. I would therefore adopt the only issue of the Respondent.

On the question of balance of convenience it was the contention of the appellant’s counsel Dr. Enemeri that before an interlocutory injunction can be granted, the applicant must aver and prove that the balance of convenience is in his favour and where he fails to do this or the court fails to find in his favour, the application must be dismissed. In support of his contention he relied on the following cases: Missini & Others v. Balogun & Others (1968) 1 All NLR 318 at 325; John Holt Nigeria Ltd. & Anor v. Holt African Workers Union of Nigeria & Camerouns (1963) 2 SCNLR 383, (1963) 1 All NLR 379 at 382 – 383; Obeya Memorial Specialist Hospital & Anor v. A-G of the Federation & Anor (1987) 3 NWLR (Pt.60) 325, (1987) 7 SC 52 at 75- 76 and 94; Kotoye v. C.B.N. & Ors (1989) 1 NWLR (Pt.98) 419 at 441; Oniru & Another v. Gbadamosi (1971) 1 All NLR 355 at 358.

He argued that in view of the averments in the counter-affidavit about the appellants being in concurrent possession with the Respondents and their having crops on the land the court ought to have made a finding as to the person in whose favour the balance of convenience lay. Learned counsel submitted that the uncontroverted assertion of the appellant about their being in concurrent possession with the respondents sufficiently met the plaintiffs’ claim to exclusive possession. He drew attention to a contradiction between the mode of trespass alleged in the claim and that alleged in this application for injunction. It was his submission that since the allegation on which the application for injunction was based was allotment of land the named allottees ought to have been joined as parties. Learned counsel further argued that since the defendants/appellants denied knowing the particular portion of the Ogude land for which the injunction was sought and having regard to the fact that not the whole of the Ogude family land was in dispute a plan ought to have been filed to identify that particular portion for which the injunction was sought and granted. According to counsel it was not enough for the learned trial judge to hold that the land was known to the parties. On this he relied on Rotimi & Ors v. Mcgregor (1970) 1 All NLR 321 at 124; Oniru v. Gbadamosi (supra) at page 359. He contended that Kufeji v. Kogbe (1961) 1 All NLR (Pt. 1) page 113 and Opara v. Ihejirika (1990) 6 NWLR (Pt. 156) 291 are not applicable. In conclusion he contended that in view of the facts the court ought to haw exercised its discretion to restrain both parties.

For the Respondents, learned counsel Mr. Akpoguma contended that the fact that the learned trial judge did not expressly resolve the issue of balance of convenience did not mean that he did not consider it. It was his submission that the failure of the trial judge to expressly so hold is not sufficient to warrant reversal. He also relied on Obeya Memorial Hospital & Anor. v. A-G Federation and Anor. (supra). He argued that the trial court rightly identified triable issues and the Respondents’ legal rights against which violation the injunction was sought and granted. He relied on Commissioner for Works, Benue State & Anor. v. Devcon Development Consultants Ltd. (1988) 3 NWLR (Pt.83) 407 (1988) 7 SC (Pt. 1) 44 at 73. He submitted that once the ruling is shown to have considered the case put forward by the parties and in the law, before exercising the discretionary power judiciously and judicially, the appellate court will not interfere and relied on Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 at 147. He argued that the applicants/respondents’ claim to being in exclusive possession was not seriously countered and referred to paragraphs 5(a), (f) (g) of the counter affidavit at pages 16-17 of the record and paragraph 4 of the further counter affidavit at page 23 of the record. He justified the learned trial judge’s conclusion that the land in dispute was known to the parties and therefore that survey plan was not necessary and referred to paragraphs 5,6,7 of the supporting affidavit, 6 and 8 of the further affidavit 5(a) and (g) of the counter affidavit and paragraph 4 of the further counter affidavit. He relied once more on Obeya Memorial Specialist Hospital & Anor. and A-G of Federation & Anor (supra) at 71 and 72.

In an application for interlocutory injunction the first consideration is that the claim is not frivolous. In other words the claim and the facts both in support and against the application must show that there are serious issues to be tried in the substantive suit and that the plaintiff/applicant has real chances of success. See Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Globe Fishing Industries Ltd. and Others v. Coker (1990) 7 NWLR (Pt.162) 265. In this case the plaintiffs/applicants’ claim is that the land is part of the land of their common ancestor Ogude and that the land has since been partitioned among Ogude’s six children including Ogbroko. According to them the land in dispute is that which belongs to their Odjevwedje arm of the Ogbroko branch. Although the defendants/appellants denied the assertion about partition, they asserted that the land still remains the Ogude family land of which the plaintiffs/applicants are part. They therefore confirmed the plaintiffs’ proprietary interest in the land in dispute. The application therefore passed the first test.

The next question is that of balance of convenience. Each set of the parties contended that the balance of convenience was in their favour. The complaint in this appeal is that the learned trial judge failed to consider the issue before granting the injunction. The question of balance of convenience is sometimes a difficult one to resolve. It is one that can hardly be determined with mathematical exactitude. For this reason an appellate court will not substitute its own contrary view for that of the trial court on the issue of balance of convenience unless the trial court’s decision on the issue is seen to be manifestly wrong. See Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt. 216) 124 at 149. The result is that if the learned trial judge had expressly resolved the issue I would not have tried to revisit the same unless the court’s decision is seen to be manifestly wrong. Now he did not resolve it. In such circumstances I should consider the issue to see in whose favour the balance of convenience lies. The first question is, if without the injunction and the plaintiffs/respondents eventually succeed in the substantive claim, whether the injuries which they would have suffered from the defendants/appellants would be such for which they cannot be adequately compensated from costs recoverable in the action. If the damages are such for which they could be adequately rewarded from costs recoverable in the action, no interlocutory injunction should be granted no matter how strong the plaintiffs’ case may appear to be at that stage. If damages recoverable in the action would not be adequate compensation, then the court would, on the other hand consider if, the injunction is refused and the defendants were to succeed in the substantive claim, whether defendants/appellants could be adequately compensated under the plaintiffs’ undertaking as to damages for the injuries they would have suffered as a result of the injunction. If damages recoverable under the plaintiffs’ undertaking as to damages would be adequate compensation then the injunction could be granted.

In the instant case the relevant averments of the supporting affidavit are paragraphs 8, 10, 11 and 12. The substance of the complaints therein is that upon entry into the land the defendants/appellants allotted lands to individuals who have since started cultivating same. They have started changing the structure of the land by cutting across various boundaries and bulldozing existing cassava farms. And in paragraphs 20, 21 and 22 it was averred that unless the defendants were restrained, the land would have been so radically changed that individual owners within the Odjevwedje arm of the Ogbroko branch would have difficulty in relocating boundaries between themselves. And that even if they win at the trial, they cannot be adequately compensated. These assertions must be related to the reliefs claimed. There is a claim for N500,000.00 damages for trespass. There is also a claim for an order compelling the defendants/appellants to give account of proceeds from a part of the land. The allegation of the defendants cultivating the land in paragraph 10 of the supporting affidavit is not such that can cause irreparable damage. So also is the allegation of cutting across boundaries. The most serious allegation is that of bulldozing cassava farms, but this was denied in paragraph 11 of the counter affidavit. In my view there is no allegation of such a damage for which the plaintiffs/respondents cannot be adequately compensated by costs recoverable from the claims for N500,000.00 and for accounts. To justify the injunction, the plaintiffs/respondents must establish that unless the defendants/appellants are restrained they would suffer irreparable damages before the trial.

Proof of mere inconvenience or difficulties is not enough for the grant of an interlocutory injunction. See Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144 at 187. See also Volume 21 Halsbury’s Laws of England 3rd Edition paragraph 765 at page 366. I would therefore resolve this question of balance of convenience in favour of the appellants.

On the question of whether a plan was needed, I am in agreement with the view of the learned trial judge that a plan was not needed since that land in dispute was known to the parties. Part of paragraph 9 of the further and better counter affidavit stated:

“The land which they ascribe to the Odjewedje descendants is part of Ogude family farmland and still remains Ogude family farmland. It was pan of the land which was litigated upon to the Supreme Court in the name of Ogude family……”

This shows clearly that the land in dispute was known to the parties and for the purpose of an interlocutory injunction that was sufficient even though same may not be sufficient for the relevant reliefs in the substantive claim.

Finally, in view of the issue of balance of convenience which the learned trial judge failed to resolve and which I have resolved in favour of the appellants this appeal succeeds and is allowed. The interlocutory injunction granted by the learned trial judge on the 13/3/97 be and is hereby discharged. There shall be costs of N1,000.00 in favour of the appellants.

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Other Citations: (1999)LCN/0615(CA)

Paul Oparaji (Dead) & Anor V. Chief J.n. Obinna & Ors (1999)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A.

The appellants were the plaintiffs while the respondents were the defendants in the action which was instituted on 29/11/77 at Owerri High Court in suit No. HCW/165/77 in Owerri and later transferred to Mbaise Judicial Division when it was created and it was registered as suit No. HAM/95/82.

Pleadings were duly filed and delivered before the case was transferred to Mbaise Judicial Division for hearing and determination. The plaintiff’s claim as set out in paragraph 19 of their statement of claim is as follows:-

“(i) Declaration of title to the land in dispute i.e. to all that certain piece and parcel of land known as and called “Okwu” situated along Umuhu Azaraegbelu Road, Umuhu, Enyiogugu, Mbaise.

(ii) N400.00 being damages for trespass to the said land in dispute.

(iii) Perpetual injunction restraining the defendants and their agents from entering the land.”

The case thereafter went before Nsofor J (as he then was) for trial. The plaintiff’s case put in a nutshell was that the land in dispute “Okwu” descended on them through inheritance from Agwu the founder, to Egwu and Mbashi, Onyia, and Nwichi, Dujen Onyema, Chiukwu Omire and Opara, Omire, Nwamadu Okechukwu and John Onyernobi until it devolved on them.

The defendant’s case put in a nutshell was that the land in dispute “Okwu Ishiogwugwu” descended from their ancestor Ama to Kabia who begat Ugo, Maduakolam and Emekwuruibe until it devolved on them by inheritance.

At the conclusion of the trial, the Judge dismissed the appellant’s claim in its entirety.

The plaintiffs were dissatisfied with the judgment. They have brought this appeal against it on three grounds and formulated two issues for determination.

“1. Whether the appellants as plaintiffs in the lower court established on a preponderance of evidence that they are entitled to a declaration of title to the disputed land either by evidence of traditional history or by proof of acts of ownership and possession in line with their pleadings.

2. Whether the appellants proved their claims for damages for trespass and for perpetual injunction against the defendants/respondents.”

The Respondents in their brief formulated four issues for determination:

Issues for Determination

(a) Whether upon the pleadings and evidence led, the learned trial Judge was right in holding that the Appellants failed to prove title by traditional evidence.

(b) Whether or not the Appellants proved title by acts of ownership and possession in line with their pleadings.

(c) Whether the learned trial Judge evaluated the evidence of both parties before making his findings of facts.

(d) Whether upon the pleadings and evidence led, the learned trial Judge was right in dismissing the Appellants’ case.

On the first issue, it was submitted in the Appellant’s brief that they proved their title to the land in dispute by traditional history and reliance was placed on paragraphs 6, 10 and 18 of the statement of claim and the evidence of P.W. 1 and P.W.2.

It was further argued that the learned trial Judge having found that the traditional evidence of P.W.1 and D.W.1 are in conflict, he could have tested the traditional history given by each of them by reference to facts in recent years as established by evidence to see which of the two competing evidence is more probable and therefore acceptable, stressing that if he had referred to the facts in recent years as established by evidence adduced by the plaintiffs/appellants, he could have found that their evidence of traditional history is more probable than that of the Defendants/Respondents. He cited in support the cases of Kojo II v. Bonsie (1957) WLR 1223 at 1226; Adenle v. Oyegbode (1967) NMLR. 136 at 138-139.

It was also contended that only the plaintiffs/appellants who adduced evidence of facts relating to acts done by them in respect of the land in dispute as pleaded in paragraphs 7, 11,12,13 and 13(b) of the statement of claim in reinforcement of their evidence of traditional history. It was argued that the plaintiffs/appellants also proved their title to the land in dispute by acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the true owners of the land in dispute and reliance was placed on paragraphs 7, 11, 12, 13 and 13(b) of the statement of claim and the evidence of P.W.1 and P.W.2 and P.W.3 led in support which was not challenged. It was further submitted that the learned trial Judge failed to consider the totality of the evidence adduced by the plaintiffs/appellants in respect of acts of ownership and possession before deciding that the Plaintiffs/Appellants cannot obtain declaration of title to the land in dispute and cited Samson Awoyale v. Joshua Olabamiji Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 at 633. It was finally argued that the learned trial Judge based his findings that the defendants were in possession of the land on the inadmissible evidence of D.W.1. D.W.2 and D.W.3 and relied on the cases of Chief Victor Woluchem & Ors. v. Chief Gudi & Ors. (1981) 5 S.C. 291 at 226 and Lion Building Ltd. v. M.M. Shodipe (1976) 12 S.C. at 152- 153.

In reply to the first issue, it was argued in the Respondent’s brief that the plaintiffs/appellants failed to prove their title to the disputed land verged pink in Exhibit 1, (the survey plan) by traditional evidence and referred to paragraphs 6, 10 and 18 of the statement of claim in which their traditional evidence was pleaded. Reference was made to the evidence of P.W.1 where he stated that Agwu had one brother Ode and submitted that if Agwu had a brother by name Ode, both of them must have a father and since they failed to name their father, Agwu family is therefore incomplete and as such their traditional history is inconclusive and no declaration of title of the land can be granted to them. It was further contended that failure on the part of the Appellants to tender the judgment of 1930 which they pleaded in paragraph 11(b) of their Statement of Claim rendered their traditional evidence unreliable and that the learned trial Judge was quite right in rejecting their traditional evidence.

It was further argued that the Appellants failed to prove their title to the land in dispute by acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the true owners of the land in dispute. Reliance was placed on paragraphs 7, 11, 12, 13 and 13(b) of the Statement of Claim in which the appellants pleaded acts of possession but led no evidence in support of them because the 1930 judgment which they relied on was not tendered while the 1937 case was in respect of Uhukwu land in which the claim of the appellants’ people (Umuagwu) was dismissed. It was further argued that there is no explanation by evidence to show who owns the land in dispute as between “Omire family” or “Omire kindred” or “Umuagwu family” or “Umuagwu kindred”. It was finally submitted that no court can order a declaration of title when the claimant fails to give evidence of the land in dispute with a degree of certainty and clarity.

The law is well settled that there are five ways or methods of proving or establishing ownership of land in dispute. See Idundun v. Okumagba (1976) 9 – 10 S.C. 277. Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, Anyanwu v. Mbata (1992) 1 NWLR (Pt.242) 386 and Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252.

In this case, the parties relied on traditional evidence or history and acts of possession.

The defendants denied the plaintiffs’ claim. They also claimed to be owners in possession of the land in dispute which they call “Okwu Isiogwugwu”.

I consider it pertinent to reproduce the relevant pleadings of the parties on the traditional history of the land in dispute. The traditional history of the land is pleaded by the appellants in paragraphs 6, 10 and 18 of their statement of claim.

They read as follows:-

“6 The land in dispute has been the property of the Omire family of Umuagwu kindred of Umuhu Enyiogugu, Mbaise and their heirs and descendants from time immemorial.

10. The plaintiffs are members of the Umuagwu family. The word ‘Umuagwu’ means, children of Agwu, the founder of the plaintiff family. Agwu had a brother Ode who was the founder of the present Ode na ocham in Umuhu Onyiogugu Mbaise. Both families always share common boundaries. The plaintiffs have a juju known as “Ala Umuagwu”. Similarly, Ode na Ocham have one called Ala Umuade” Ode na Ocham have no blood relationship with the defendants.
11. The land in dispute descended by inheritance thus:-

From the great ancestor of the plaintiffs, Agwu to his sons Egwu and Mboshi, Mboshi begat Nwaihi who begat Dujem and Onyema. Onyema beg at Omire. This Omire begat Chukwu Omire and Opara Omire. This Omire is the great grandfather of the plaintiffs.”

The defendants/respondents on the other hand pleaded their traditional history in paragraphs 6, 7 and 10 of their statement of defence. They read as follows:-

“6. The defendants deny paragraphs 6 and 7 of the statement of claim and state that the plaintiffs have never owned or possessed the land n dispute. The defendants will at the trial produce and tender a letter No. U/ML/63/27/73 dated 27th March, 1973 written to the 1st defendant at the instance of a relation of the plaintiffs stating that the land in dispute is in the possession of the 1st defendant.

7. The defendants deny paragraphs 8 of the statement of claim. In further answer they state that one Ama was the Chief Priest of “Ngwu Umuhu” (the Common juju of Umuhu) was the father of Kabi and Agwu. Agwu had 2 sons namely Egwu and Mbosi the father of Nwihi who was the father of Dujem. One Onyema, who settled with Dujem migrated from Amuzi Ahiara. He was the father of Omire, the ancestor of the plaintiffs.

Kabi had 3 sons namely Ugo, Manuakolam and Emekwuruibe. The defendants are the descendants of the said 3 children of Kabi who shared the estate of Kabi including the land in dispute according to the custom of Umuhu Enyiogugu.

10. The defendants deny paragraph 11 of the statement of claim and will at the trial put the plaintiffs to the proof of their averments. In further answer, the defendants state that they were not party to the said action if any. Still in further answer the defendants state that in 1937 one John Opara, the father of the 2nd plaintiff sued one Odu Ajaero and 7 others of Odenaocham in Agbaja Native Court for title to “Uhukwu” land. The father of 1st defendant late Chief Obinna and late Chief Aguocha testified for Odenaocham. A plan was prepared by the surveyors for the parties in the said case. In the said plan the Okwu land which was the property of the 1st defendant’s father and his other relations were clearly shown. The judgment of Agbaja Native Court in 1937 will be founded upon at the trial.”

It is the duty of a claimant to title to land to establish and prove his claim by credible evidence. As it was put in the celebrated case of Kodilinye v. Mbanefo Odu W.A.C.A 336 at 337.

“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration. The plaintiff in this case must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”

P.W.1 and P.W.2 gave traditional evidence as to how the land in dispute devolved on them by inheritance from Agwu, their ancestor. At page 45 lines 25-29 of the records, P.W.1 testified as follows:-

“Agwu had one brother. He was Ode. It is this Ode who founded Odunaocham family in Umu Enyiogugu. The members of Umuagwu family have blood relationship with Odu-na-ocham family.”

There was no evidence led by P.W.1 and P.W.2 who gave traditional evidence of the land in dispute how Agwu their ancestor acquired his title to the land in dispute. As pleaded and given in evidence, the plaintiffs are claiming a declaration for and on behalf of Omire family, but there is no evidence to show who owns the land in dispute as between Ornire family or Omire kindred or Urnuagwu family or Umuagwu kindred. P.W.2 testified that Omire had two other brothers namely:- Nze Ahalanwa and Ahumulo. There is no evidence that the expression children of Agwu or Umuagwu does not include the children or the descendants of Omire’s two brothers and their father, Onyeama.

The expression Umuagwu pleaded in paragraph 10 of the statement of claim reproduced above would in my view include Dujem and Nwihi and their children.

P.W.1 testified that the land in dispute descended on them through inheritance from Agwu but there was no evidence led as to when or how the children of Agwu other than (descendants of Omire) surrendered their interest on the land in Omire family which is made up of Chukwu Omire branch and Opara omire branch.

At page 87 of the records P.W.4 testified that Okwu land is a large expanse of land or area and that some families own various portions or parcels within the area called Okwu. In the face of this evidence, the plaintiffs cannot lay claim to the whole of Okwu land in which some families own various portions or parcels within Okwu land. Suffice it therefore to say that the plaintiffs have failed to prove their title to the land by traditional evidence and the learned trial Judge was quite right in my view, in rejecting their traditional evidence. No court can order a declaration of title to land when the claimant fails to give evidence in respect of the land in dispute with a degree of certainty and clarity.

Suffice it to say that the traditional evidence given by the appellants in respect of the land in dispute is not only vague and most unsatisfactory but also inconclusive and not convincing.

It was only D.W.1 who gave traditional evidence of the land in dispute. At page 91 of the records, he gave traditional evidence of the land in dispute as follows:-

“I know the land in dispute. It is Okwu Ishiogwugwu.”

The Okwu Ishiogwugwu in dispute is situated in Umuku, Enyiogwugwu Abo Mbaise. The land descended on us from our forefathers. The land descended from Ama to Kabia, Kabia had the following sons; Ugo, Maduakolam Emekwuruibe.”

This piece of evidence is in conflict with paragraph 7 of the statement of defence where they pleaded their traditional history. There is nothing in it to show that the land in dispute was founded by Ama let alone descending from Ama to Kabia. The learned trial Judge was quite right in rejecting the traditional evidence of the land in dispute given by both parties.

On the issue of acts of possession, learned counsel for the Appellants submitted that the learned trial Judge was wrong in failing to observe that the Appellants established their exclusive possession of the land in dispute in the light of the ample evidence adduced by them and relied on pages 44,66,68,72 and 85 of the records. It was further argued by learned counsel that the trespass complained of was established by evidence at the trial and relied on the evidence of P.W.1 page 69 lines 5-7.

It was further contended that since the appellants successfully established that they were in exclusive possession of the land in dispute at the time of the trespass by the respondents, they are entitled to maintain and succeed in their claim for damages for trespass and cited many legal authorities including Pius Amakoru v. Benedict (1974) 1 All N.L.R. (Pt. 119) at 126. It was further argued that the evidence of the appellants asking for N400.00 as damages for trespass was neither challenged nor contradicted by the respondents under cross examination and as such the court is entitled to accept the evidence and award damages claimed by the appellants. It was also argued that the appellants are entitled to an order of injunction perpetually restraining the respondents from entering the land in dispute and causing further damages to it because they established by credible evidence that they are in exclusive possession of the land at the time of the trespass and cited a plethora of legal authorities in support including Etowa Enang & Ors. v. Fidelis Ikor Adu (1981) 11-12 S.C.25 at 48.

In reply, learned counsel for the respondents in his brief of argument submitted that the Plaintiffs/Appellants failed to prove their title to the land in dispute by acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they are the true owners of the land in dispute because the evidence of the plaintiffs contradicted the evidence of their witnesses in respect of the Agbaja Native Court judgment of 1930 in which the plaintiff’s case was dismissed and the judgment was in respect of Uhukwu land and not the land in dispute and also not three pieces or parcels of land as claimed by the plaintiffs/respondents.

It was further submitted that there is no explanation as to who owns the land in dispute as between Omire family or Omire kindred or Umuagwu family or Umuagwu kindred and referred to the evidence of P.W. 2 at page 72 who said that the land belonged to P.W.2 and at page 87 where P.W.4 said that the Okwu land is a large expanse of land or area and that some families own various portions or parcels within the area called Okwu.

It was further contended that the appellants failed to prove their title to the land in dispute by acts of possession because the particular portion of Okwu land claimed by them was not identified with any degree of certainty.

It was further submitted that failure on the part of the plaintiffs/Applicants to tender any copy of the judgment of 1930 goes to show that there was no such judgment.

Reliance was placed on Section 148(d) of the Evidence Act. It was also the contention of learned counsel that the plaintiffs/Appellants, claim for trespass and injunction must fail in view of the fact that they failed to prove their title to the land by traditional history which they relied on and their failure to identify the portions of Okwu land claimed by them. It was finally submitted that the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which his claims relate and that the plaintiffs/appellants failed to do and urged on the court to dismiss the appeal.

It is well settled law that finding as to acts of ownership numerous and positive is only relevant where traditional evidence is inconclusive and the case has to be decided on question of facts of possession. See Ekpo v. Ita 11 NLR 68, Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 800.

The question that readily comes to my mind is whether the plaintiffs/appellants proved their title to the land in dispute by acts of possession extending over a sufficient length of time numerous and positive enough, to warrant the inference that they are the true owners of the land in dispute. Such acts of ownership were pleaded in paragraphs 7, 7(b), 11 11b), 12(a), 12(b), 12(c) 13,& 13(b) and the plaintiffs/appellants and their witnesses testified in support of them. They gave evidence of previous disputes in respect of the land now in dispute between the Odenocham and Umuagwu in the Native Court, Agbaja before Bartholomew (P.W.3) and elders of Enyiogugu in 1973 and (1937) of which the defendants were not parties in the said suit in the Agbaja native court. They were not also parties in the boundary dispute of 1973.

The learned trial Judge rightly in my view put the relevance of the previous suit at page 129 of the records:-

“Those previous suits were therefore res inter alias acta so far as the defendants are concerned. But what is the relevance of such previous disputes with third parties and not with the defendant? The relevance is this. A party may raise and rely on the evidence of such previous disputes or cases as evidence of his acts of possession and ownership of the land being disputed – things done in assertion or in defence of his title to possession of land being presently disputed with the defendants.”

The evidence of Celestine Obi (P.W.1) and his witnesses showed clearly, that the two previous land disputes were not in respect of the land in dispute while the evidence of Joseph Nze Obinna (D.W.1) showed clearly that Okwu land now in dispute has never been a subject matter of a previous suit with any persons or in a court.

It was pleaded in paragraph II of the statement of claim (supra) that the suit in Agbaja Court was in 1930 and Celestine Obi (P.W.1) and Boniface megwa (P.W.2) testified to that effect while (P.W.4) and (P.W.5) testified that the Native Court, Agbaja’s case was in 1937. All the witnesses agreed that the father of D.W.1 testified in that case in favour of Odunacham. Celestine Obi (P.W.1) failed to produce certified true copies of the judgment of the Native Court, Agbaja of “1930” and 1937 and no satisfactory evidence was given for not tendering them.

The learned trial Judge was right, in my view when he held at page 132 of the records as follows:-

From the evidence adduced, I do not believe Celestine Obi (P. W. 1) and his witnesses that the land now in dispute was the subject matter of the previous disputes either in the Native Court Agbaja. or in 1973. I believed Chief Nze Obinna when he testified that the land in dispute had never been disputed previously with any persons. Based on my above finding, the plaintiffs cannot now seek to raise or rely on the evidence of the previous disputes with third parties in proof of an act of possession or ownership of the land being now disputed in this court.”

This finding is amply supported by the evidence led before the learned trial Judge and it cannot be faulted.

On other acts of possession, the learned trial Judge considered the evidence led before him and held as follows at pages 132-133:-

Lazarus Nwamadu (D.W.2) and Nwaneri Ekeji (D.W.3) each stated that his own land shares a common boundary with the land in dispute. They see the defendants on the land in dispute farming for the past fifty years. They deny the plaintiffs ever farmed on the land. Both Lazarus Nnamdi and Nwaneri Ekeji impressed me whilst in the witness box. I have duly considered and weighed the two versions of the evidence adduced on this point. And I watched the witnesses as each testified. I preferred the version of the evidence by Chief Joseph Nze Obinna (D.W.1) and his other witnesses, the D.W.2 and D.W.3 I believed them. I rejected the version of the evidence by Celestine Obi (P.W.1) and his other witness (P.W.2). They did not impress me as reliable witnesses. I disbelieved them.

It is well settled that unless a finding is perverse and cannot be supported by evidence, a Court of Appeal will not interfere with it. See Akibu v. Opaleye (1974) 11 S.C. 189, Woluchem v. Gudi (1981) 5 S.C. 29 and Omwube v. Nduba (1972) 3 S.C. 106. In the instant case, I do not find any such short-coming that would warrant the interference of the findings of the learned trial Judge who saw the witnesses and watched their demeanour in the witness box when they testified before him. This issue is also resolved in favour of the respondents against the Appellants.

In view of the fact that the plaintiffs/respondents failed to prove their title to land in dispute, by traditional evidence and acts of possession and ownership, their claims for damages for trespass and injunction must also fail. On the submission of learned counsel for the appellants that the learned trial Judge failed to evaluate the evidence led before him by the parties the learned trial Judge in my view, meticulously evaluated the evidence led by both parties before making his findings of facts.

In the end result, this appeal fails in all the grounds on which it was argued and it is hereby dismissed with costs assessed at N3,000.00 in favour of the respondents.

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Other Citations: (1999)LCN/0614(CA)

Hakimi Boyi Ummaru V. Aisa Bakoshi (1999)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

This appeal is yet another land mark in appreciating the extent of the principles of Hauzi (prescription) in Islamic law. It also discusses the issue of offering of Oath of judgment Yaminul-Qallaa to the person in possession on the grounds of Hauzi. The plaintiff, who is now the respondent before this court, instituted an action against the defendant, now appellant, claiming a number of farms land at Tungar Gawo, under the defendants control and possession, 30 years after the death of the respondent’s father Mallam Ummaru. Her father used to work and farm thereon up to the time of his death. The appellant flatly denied the claim and alleged that the farms land belonged initially to Hakimi Bubakar who lent same to the respondent’s father Bakoshi. According to him, after two years of the loan the respondent’s father migrated to Tungm Wanzan village and abandoned the farm land in question. The respondent’s father when leaving for another place did not care to entrust the farms to someone. The appellant further claimed that at that point in time he requested, from Hakimi Bubakar, for the said farms land to be given to him. His request was granted. Hakimi Bubakar gave the appellant the farms in dispute as an outright gift to him.

He again emphasised that the farms land in question were on loan to the respondents father by the Hakimi Bubakar.

After careful consideration of the facts of the case the trial Judge directed that Madam Aisa is the claimant and ordered her to call witnesses, if any, to establish her claim. This is so, because in Sharia once a Judge discovered a proper plaintiff, Muddaee, the law places a burden of proving his claim on him. He or she can discharge the onus put on him by the law by calling witnesses to prove and establish his or her case according to the dictate of Islamic law, I will come to the requirements of the law on proof anon.

It is not a matter of course to say that whoever initiates or institutes an action he becomes a plaintiff and the other party a defendant as obtained in the common law system. The position in Islamic law of procedure is quite unique. It may be possible that ‘A’ appears in court as plaintiff and ‘B’ as defendant. After rudimentary investigations by the trial Judge on the facts of the case ‘B’ the defendant, may become the claimmant/plaintiff and the initial plaintiff ‘A’ may turn the defendant. Mudda ‘a Alaihi, Thae and then, the person who appeared as the defendant may be asked to prove his case as plaintiff. The exercise by the trial Judge is considered the most essential aspect of trial in Islamic law. See p 8 of Ihkanul Ahkam short commentary on Tuhfatul-Hukkani where the learned Author states thus:-

Meaning: “Distinguishing the circumstances and positions of plaintiff and defendant is certainly the pivot (milestone) upon which the substructure or substratum of litigation lies.”

It was also stated in AI-Mayyara Vol. 1 p. 17 that:-

Meaning: “It may happen that the claimant/plaintiff becomes a defendant and the defendant turns a plaintiff.

Honourable Saeed bn Musayyib clearly mentioned that the whole trial depends on comprehending, by the Judge, the nature and characteristics of the parties i.e. who is the plaintiff and who is the defendant. It was also stated on p. 105 of Tabsiratul Hukkam Vol. 1, 1st edition.

Meaning: It has to be known that to appreciate the nature of a litigation revolves around distinguishing and identifying the plaintiff and the defendants. This is the basis of the understanding the legal problems.

Coming back to the appeal at hand, the trial Judge adjudged the respondent, Mrs. Aba Bakoshi, as the plaintiff. In order to prove her case, as such, she called two witnesses who testified to the effect that the farms land in dispute belonged to her late father Mallam Ummaru Bakoshi.

The defendant, Hakimi Bayi Ummaru who is appellant before this court, was allowed to call witnesses to prove his assertion that he owned the farm lands in dispute by way of Hauzi (Prescription) in that he was in possession of the land in dispute for 10 years after the death of the respondent’s father. because Hakimi Bubakar gave him the farms land as an outright gift. He was able to call four witnesses in proof of his contention.

The facts of this appeal, if I may revisit same, reveal that the respondent was claiming that all the farms land belongs to her late father. The same land, she continues, had been in the possession of the appellant since the time of the death of her deceased father 30 years ago. The appellant’s case at the trial court was that the whole farms land belongs to Hakimi Bubakar who allowed the respondent’s father to use same on loan. Subsequently the father of the respondent abandoned the said farms land and left them fallow and migrated to Tungan Wanzam without leaving the said farms in the care of anybody her father subsequently died two months after his migration. The appellant then requested from Hakimi Bubakar the same farms lands which were given to him as a gift inter vivos i.e HIBA. That is the brief facts of the case.

At the end of the trial and after proper Izar by the trial Judge, he found for the appellant. Izar is akin to allocutus in criminal trial. In Islamic law Izar is quite necessary. It has to be done at the end of trial and before judgment is delivered. Failure by any court to do so would vitiate the proceedings and judgment delivered without Izar would be null and void. See Ihkamul-Ahkam p. 21 Hakimi in this context is a district head. He wields tremendous power vis-a-vis land administration.

As stated earlier on that the trial court entered judgment in favour of the appellant who was the defendant before the court. The reasons for the decision are as follows:

1. The appellant was found to be in possession of the farms land in dispute 30 years after the death of the respondent’s father;
2. The evidence pointed to the fact that the respondent, Mrs. Aisa Bakoshi, was in the same town with the appellant for 12 years while the latter was in firm possession of the land in dispute without taking any steps to reclaim her farms from appellant. During the said 12 years period there was no indication that she was married.
3. The Judge offered Yaminul-Qala’s i.e. oath of judgment while the appellant subscribed to that oath based on the above findings and reason the trial court declared the farms land to be the properties of the appellant.

The respondent herein un-successfully appealed to the Upper Area Court Bagudo where the decision of the Trial Area Court Zagga were affirmed and the appeal dismissed.

Dissatisfied with the decisions of the Upper Area Court the respondent herein has further appealed to the Kebbi State Sharia Court of Appeal on three grounds of appeal thus:-

1. That the decision of the Upper Area Court Bagudo was unjustified as the decision of that court was reached without investigation.
2. The decision of the trial Area Court is contrary to the principles of Islamic law.
3. The appellant, herein stated that she testified to the effect her father entrusted the farm land to the respondent together with Ummaru Kalla. But now Hakimi Boyi Ummaru is alleging that he inherited these farms and the trial court just administered oath on him without taking into consideration her evidence and the testimonies of her witnesses.

In a very dramatice manner, the Sharia Court of Appeal Kebbi State hereinafter referred to as court below, announced that the appeal was allowed and confirmed the farms land in dispute to the respondent and set aside the decisions of both trial and Upper Area Court. It added that the farms in dispute belong to her late father because of the testimonies of her witnesses which established that her deceased father cleared the farms when they were forest and “bona vacantio” Bubakar, which fact further rendered the purported gift to the appellant a nullity. This, in a nutshell was the judgment of the court below.

On further appeal to this court, the appellants filed a Notice of Appeal containing the following grounds:-

(a) The Sharia Court of Appeal, Birnin Kebbi erred in law and on facts by allowing the appeal in favour of the appellant before it (now respondent) in breach of the principles of Islamic law.

(b) The Shari a Court of Appeal, Birnin Kebbi fail (sic) to take cognizance of the duration of the farms land under my title.

(c) The Sharia Court of Appeal, Birnin Kebbi fail {sic) to take cognizance of the testimonies of the reliable witnesses I presented at the lower court at its decision (sic).

The appellant herein then urged us to allow this appeal, set aside the decision of the court below and to restore the decision of the Upper Area Court Bagudo affirming the decision of the trial court.

The appellant was represented by a counsel in the person of Aliyu M. Hassan Esq. The respondent did not engage the services of any counsel and remained undefended. She therefore appears in person.

On 14th November, 1999 the appellant through his counsel filed a motion on Notice which was granted and subsequently the appellants brief was filed by the order of this court. Additional Grounds of appeal was then filed. It reads thus:

Additional grounds of appeal.

1. The Sharia Court of Appeal, Birnin Kebbi erred in law in reversing the decision of the lower courts which were based on Hauzi (prescription) even and when the respondent and her witnesses have admitted facts giving rise to application of Hauzi.

Particulars of error

(a) The appellant has been enjoying an undisturbed possession of the farmland in dispute for 30 years before the commencement of this action at the trial court.

(b) The respondent admitted and her witnesses testified to the fact that the appellant has been in possession of the farmland in dispute for 30 years.

(c) The respondent further admitted that she has been in the locality of where the farmland in dispute was situated for 12 years without raising any objection to the possession of the appellant.

2. The Sharia Court of Appeal erred in law when it acted upon the respondent’s claim and testimony of her witnesses i.e. P.W.5, 1 and 2 when the witnesses have no locus standi to so testify under Islamic law.

Particulars of error

(a) The record before the Sharia Court reveals fact leading to the application of Hauzi.

(b) Since Hauzi is applicable to this particular case the plaintiffs/respondent’s claim ought not to be called less acting upon their testimony.

3. The Sharia Court of Appeal erred in law when it reversed the decision of the lower courts without evaluating the record of the lower court before it and without advancing any cogent reason for its decision.

Particulars of error

(a) The Sharia Court did not analyse the judgment of the lower courts but only reversed the decisions of the lower courts summarily.

(b) The Sharia Court failed to state reasons for its decision.

The appellant then submitted three issues for the determination of the appeal as follows:

1. Whether the Sharia Court of Appeal Birnin Kebbi was correct in reversing the decision of the trial court and Upper Area Court that were based on Hauzi (Prescription) without any reason even when the respondent admitted the fact of Hauzi and her witnesses testified in the same vein.
2. Whether the Sharia Court of Appeal was right in accepting the testimony of respondent witnesses called at the lower courts when they have no locus standi.
3. Whether the decision of the Sharia Court of Appeal could stand when it neither states the reasons for its decision nor did it evaluate the record of the lower courts before it.

At the hearing of the matter the appeal was taken as argued. This court considered the issues together. Since the respondent could not file a respondent’s brief, he indicated his desire to rely on his case as presented at all the trial and lower courts and urge this court to dismiss the appeal and affirm the judgment of the lower court.

Considering the issue as formulated by the appellants counsel and the stance taken by the respondent I wish to state thus:

“It is trite in Islamic Law that where a person has been in peaceful enjoyment or possession of land without challenge for 10 years he thereby acquires a title by Hauzi (Prescription) against any person who claims to be the true or original owner of such land and who stood by without taking any action to reclaim his land during that period. Put more clearly, the law is that a person who sees somebody in possession of his or her property and claiming and using the same as his own over a long period without any objection from (the true owner) loses his ownership and that other person in possession becomes the owner – Bahja Vol. 11 p. 256; Mayyara Vol 11, 3 p. 236, Ruxton, Summary Translation of Mukhtasar Khalil P. 309 paragraph 1698 Baba v. Aruwa (1986) 5 NWLR (Pt. 44) 774/776 and Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) 1 at 2.”

The above statement of Islamic Law is of general nature. It permits some exceptions. Among the common reasons where generally a person will stand by and watching somebody, who is not a stranger, using his own property as his own (Tasarruful Mulk) are many. Sometimes it is blood relationship, in law or marriage or fear of executive persecution etc. The position of’ the law is therefore was succinctly put thus:-

Where a person has been in an undisturbed possession of real property for 10 years without opposition from the true owner, he acquires ownership. However, this principle of (Hauzi) (Prescription) under Islamic law permits of exceptions.

These are:-

(a) cogent reasons are adduced for not complaining in time, for example blood relationship or fear of harm from authority.

(b) The claimant is a minor

(c) The person in possession was put in possession by the claimant either as a free or paying tenant;

(d) The person in possession is put in possession as a trustee;

(e) The claimant is a relative, or a partner or co-proprietor to the person in possession;

(f) In the case of a house the possessor is in permissive occupancy – see Hada v. Mahunfashi supra p. 20 paragraph C – F.

Again, where a claimant has not been in the town or village where the land is situated and or where the claimant is not residing with the person in possession or where the claimant has travelled out or he was in a state of in communicado, then, the principles of Hauzi cannot be used to deprive him or her of his or her property. It is also accepted by Islamic jurists in the famous texts that where there is evidence that the claimant is a female and has been in marriage bounds throughout the period of Hauzi, and also that her husband would not allow her to come out of the matrimonial home to pursue her case or he will not allow his wife to sponsor or appoint a Wakili i.e. representative to challenge the person in possession, then if later she comes out and claims the ownership of such land, her claim will be entertained notwithstanding that the person claiming Hauzi has been in undisturbed possession of the land for such along period. See Ihkanul Ahkam. Short commentary on Tuhfatul refers to the book of Hashiyaid Dusuki Vol. 4 p. 235.

In the appeal before us there is evidence that the appellant has been on the land for about 30 years. Both the respondent and her mother were present but none raised an eye brow or challenged the appellant who was working on the said farm lands undisturbed. That being the case, and in view of the fact that the respondent personally has stood by at least for 12 years seeing the appellant making use of the farms in dispute as his own and did not take any steps to reclaim her property. Either period has caught up with her. The evidence of the witnesses is so clear on issue that even the respondent could not deny the fact that the appellant has been in possession of the farms land in dispute for that long.

It is correct that the appellant who was found in possession of the land in dispute at least got one witness in his favour. Because possession in Islamic Law is regarded as having one witness. In law he should be asked to take a complimentary oath to have judgment in his favour. In other words, where the witnesses of the parties are equally balanced, or on the same rooting or even the same nature, then the judge will offer the oath of affirmation of his claim to the person in possession – Zoo Yadi. If he subscribes to it there and then judgment would be entered in his favour. If he rejects it or turns it down, the same oath will be offered to the other party and then if the latter takes it, the court will give him judgment. In a situation where both parties refused- Nukul- the property in dispute must be shared equally between them. See Usman v. Kusfa (1997) 1 NWLR (Pt.483) 525/534 per Wali, J.S.C.: Babayo v. Diddi p. 452 at 457 – 458.

It is a well established principle of Islamic Law that he who asserts must prove. And the requirement of proof in Islamic law has been stated times without number. In fact it is fast becoming trite. However I will briefly say that proof in civil matter is completed by:

(a) evidence of two male un-impeachable witnesses; or

(b) evidence of one male witness and two or more female of unimpeachable witnesses; or

(c) evidence of one male or two female or more witnesses with claimants oath in either case.

See Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) p. 1 at 17. It is not established that the respondent has proved the fact that her father was the owner of the land in dispute. There is no evidence which conclusively proved that it was her late father who cleared the land when it was bona vacantia. If there is cogent and credible evidence at the trial court that the father of the respondent, herein, cleared or improved the farm lands when it was a forest, then the court would have ruled that her late father owned it and no person or authority can take it from him. Therefore if Hakimi Babukar seized same from him his act is ghasb- or piracy. See the case of Ishaku v. Hadejia Native Authority (1961-1989) Vol. 1 S.L.R.N. and the unreported case of this court in Dodori v. Ambursa CA/K/188/S/1933 delivered on 30/6/94. See also Balarabe v. Abdu (1997) 10 NWLR (Pt. 524) p. 299/306 per Okunola, J.C.A.

If it is a case of having two contending claims where it was proved that the respondent proved that she is the true owner and the appellant maintained that he has been on the land by virtue of Hauzi simpliciter then I would have held that ownership is stronger than ownership by Hauzi and the judgment could have been entered in favour of the respondent. The evidence or totality of evidence does not show that the position of the respondent is stronger compared with that of the appellant. The court below has not come up with any decision. The reasons were not clearly stated in so many words. The defence of Hauzi by the appellant must therefore subsist. The position now remains as before, namely that where a person has been in an undisturbed possession of a landed property, the person in possession acquires title by prescription popularly known as Hauzi. I refer to Dandume v. Adamu (1997) 10 NWLR (Pt. 525) 452 at 457-458.

In the appeal at hand none of the exceptions to the principles of Hauzi is applicable. The appellant must be held to have acquired title by Hauzi (prescription). Moreover going by the totality of the evidence in this particular case it was perfectly justified to have asked the appellant to subscribe to the Yaminul-Qalaa. The findings and decision of the Upper Area Court Bagudo affirming the judgment of Area Court Zagga are therefore un-assailable.

I will not, in this case, order the appellant to subscribe to an oath of rebuttal since right of Hauzi is applicable. Kada v. Yawa (1998) 10 NWLR (Pt.569) 196; (1998) 7 SCNJ p. 171 at 176 per Mohammed, J.S.C. See also Ihkamul Ahkam short ommentary on Tuhfatul-Hukkam p. 622. It is also not a proper situation where the appellant will be asked to take the oath of judgment because apart from undisputed firm possession of the property he was allowed to call credible witnesses in proof of his case. The decision of the court below cannot be sustained. The appeal therefore has merits. It is allowed. The judgment of the Kebbi State Sharia Court of Appeal is hereby set aside. In its place the judgment of the Upper Area Court Bagudo is restored and affirmed. The total costs of Two Thousand Naira (N2,000.00) is awarded to the appellant against the respondent.

Appeal allowed.

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Other Citations: (1999)LCN/0613(CA)

Chidiebere Nwoke V. Dan Ebeogu (1999)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The main issue in this appeal is whether the allegations of electoral malpractice contained in paragraph 6, 6(a) – 6(j) of the petition were directed against the ward returning officer or the presiding officers of the polling units. The Tribunal in its Ruling dated 5/3/99 upheld the objection raised by the 1st respondent that the petition was incompetent and accordingly struck out on the ground that allegations contained in the petition were against the presiding officers who were not joined in the petition, the petitioner on the other hand maintained that the allegations were against the ward returning officer and evidence ought to have been taken before deciding on the Issue.

The facts leading to this appeal may be briefly stated as follows:-

On 9th January, 1999, with the exception of Bayelsa State, elections into the State Houses of Assembly and Governorship seats were held throughout the country, Abia State inclusive. In Umuahia East Constituency for the Abia State House of Assembly election, only two candidates contested namely Barrister Chidiebere Nwoke, the petitioner who contested under the platform of the All Peoples Party (A.P.P) while Dan Ebiogu (now 1st respondent) was sponsored by the Peoples Democratic Party (PDP) was declared winner of the election. The Alliance for Democracy (AD) did not field any candidate for the election. The results announced at the end of the election were:-

Dan Ebiogu (APP) – 6,173 votes

Chidiebere Nwoke (PDP) – 5,993 votes.

The 1st respondent was therefore declared the winner of the election with a small margin of 180 votes. Quite naturally the petitioner was dissatisfied with the return and filed a petition with the Governorship and Legislative Houses Election Tribunal sitting at Umuahia the Abia State Capital. Upon receipt of the petition, the 1st respondent entered appearance and brought a motion seeking an order enlarging the time within which to file his reply. The petitioner did not oppose the application and the reply was deemed as duly filed and served. Thereafter two motions were filed, one by the petitioner asking the tribunal to strike out certain paragraphs of the reply and the other by the 1st respondent praying the Tribunal to strike out the petition or in the alternative paragraphs 6, 6(a)-6(j) for being incompetent.

This latter motion dated 1/3/99 was taken and in a well considered ruling the tribunal held that the petition was incompetent and proceeded to strike it out. It is against this ruling that the petitioner/appellant has appealed to this court upon 4 grounds of appeal filed with the notice. All the parties filed briefs of argument with the appellant filing a reply brief to counter 1st respondent’s contention that he needed leave to appeal against the interlocutory ruling of the court dated 5/3/99.

The 1st respondent without filing a cross appeal cannot raise more issues than the grounds filed or raise any issue outside the grounds of appeal, since issues are distilled from the grounds of appeal and an issue can cover one or more grounds of appeal. See: Olowosogo v. Adebanjo (1988)4 NWLR (Pt. 88) 275: Akilu v. Fawehinmi (No.2)(1989) 2 NWLR (Pt.102) 122; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208.

Of the six issues raised in the 1st respondent’s brief for determination, issues Nos. (i) & (v) do not flow from the grounds of appeal filed by the appellant and they are accordingly struck out. Suffice it to say that the order striking out the petition was a final order and the appellant does not need leave before he can appeal (see section 220 (1)(a) of 1979 Constitution as amended).

The appellant formulated four issues for determination which learned counsel for 2nd – 4th respondents adopted. The remaining four issues by 1st respondent’s counsel are quite similar with those of the appellant. The issues formulated by the appellant are:-

1. Whether the tribunal was right in holding as it did inspite of the averments in paragraph 5(c) of the petition against the 2nd respondent followed by the complaints against her in paragraph 6(e) 6(f), 6(g) and 6(h) which were directed at what she did in the relevant form EC8B(1) which are Ward collation forms.
2. From the petition, whose conduct was complained about? Whether it was not the result as collated by the returning officer, 2nd respondent that was complained about and not the conducts of the presiding officers who produced the booth to booth results which were used by the 2nd respondent.
3. Whether the Election Petition Tribunal was right in striking out the petition on grounds of non-joinder of alleged presiding officers, when the 2nd respondent a ward returning officer whose conduct was complained of in the petition was duly joinded as the 2nd respondent in the petition.
4. Whether the objection was proper before the tribunal at the stage when it was taken.

The remaining 4 issues framed by 1st respondent are similar to those of the

appellant. They are more lucid. They are:-

1. Whether the complaints in paragraphs 5(c) 6(c), 6(c),6(g) and 6(h) of the petition were actually complaints against the 2nd respondent who was only a ward returning officer and never officiated at the polling stations complained of which were only a few of the number of polling stations in the ward, or complaints against the conduct of elections at the affected polling stations and therefore against the presiding officers of the stations.
2. Whether a careful and sober perusal of the averments in paragraph 6, 6(a) – 6(j) of the petition will not show unmistakably that the complaints therein are against the conduct of elections at the questioned polling stations and therefore, against the presiding officers and of the said polling Stations – and not the 2nd – 4th respondents.
3. Whether in view of the mandatory provisions of s.133 of Decree No.3 of 1999 the non-inclusion of the presiding officers who officiated at the polling stations complained of in the petition, is not a failure to include all the necessary and statutory parties and therefore, failure to comply with a condition precedent.
4. Whether there is any time bar to an objection on the ground of fundamental incompetence of a petition and therefore lack of jurisdiction of the tribunal.

In order to fully appreciate the arguments on the ruling appealed against it is necessary to reproduce the entire paragraph 6 of the petition wherein the appellant set out the facts supporting the grounds upon which the petition was based and they are as follow

6. Facts supporting the grounds relied upon

Your petitioner states that his 183 valid votes were unlawfully excluded at polling unit No. AB/15/150/03/6 & 13. Your petitioner shall at the hearing of this petition lead evidence to show that at close of the election a total of 183 votes validly thumbprinted and cast for your petitioner by duly accredited voters who voted at the said polling unit were wrongfully excluded and not taken into account on the flimsy reason that those ballot papers were not stamped. Your petitioner states that whereas a total of 344 registered voters were accredited and stood in queue to vote and voted at the said polling unit only a total of 161 votes were recorded as total votes cast, 96 for your petitioner and 65 for 1st respondent. Copy of INEC Form EC 8A with serial No. 0002297 in respect of polling unit No. AB/15/150/03/6 & 13 is hereby pleaded and the 3rd and 4th respondents are hereby given notice to produce the original at the hearing of this petition. If the 183 valid votes of your petitioner are added or included, the correct result of the election would have been 6,176 for the petitioner and 6,173 for the 1st respondent.

(a) Your petitioner shall contend and show at the hearing of this petition that the votes purportedly cast for the 1st respondent is Ibeku East I Ward, particularly at Isiadu polling unit No. AB/149/15/15, Nkata III polling unit No. AB/15/149/3, Isieke/Umuajiji polling units I, II, III Nos. AB/15/149/5. AB/15/149/13 and 19 and AB/15/149/6. Okwuta I, II & III Nos. AB/149/15/112 & 18, AB/149/15/4 and Umuezeagwu Polling Unit AB/15/149/16 were totally invalided and marred by irregularities, mutilations, cancellations and wrongful allocation of false, fictitious and invalid votes to the 1st respondent.

(b) Your petitioner shall at the hearing show that the result form Isiadu polling unit No. AB/149/15/15 was false in that the total voles purportedly cast exceeded No. of accredited voters. In INEC Form EC 8A(1). No.0002284, 300 voters were accredited, 296 were in queue to vote. 282 were votes purportedly scored by 1st respondent as against your petitioner’s 14 on1y while 5 invalid votes were recorded. An addition of 282 to 14 and 5 gives a total of 301 votes cast over and above the number of accredited voters and the number in queue to vote. The petitioner shall contend that this result ought not to be taken into account in computing the results of the election in which case your petitioner’s score would have been 5,979 as against 1st respondent’s score of 5,891.

(c) Your petitioner shall at the hearing of this petition contend and show that 4th respondent’s Form EC.SA(1) issued to all the polling units were serially numbered and same by fraud and electoral malpractices, no two polling units received the same result sheets Form EC 8A(1) bearing the serial number and no one polling unit received result sheet hearing different serial numbers for one particular election. It shall be shown at the hearing that each polling unit in Ibeku East I Ward received only 6 of the said INEC Form EC8A(1) with a particular serial number for the particular election and no polling unit received more than 6 or less than 6 of the same serial number and no one polling unit received result sheets with different serial numbers for the House of Assembly election.

(d) House of Assembly election results from Ukoma code No. AB/149/15/8, and Isieke unit code No.AB/149/15/13 & 19 were returned on the same sheet with serial No. 0002296. Results from units AB/149/15/12 & IS and AB/149/15/4 were also returned on the same sheet bearing serial No. 0002295 House of Assembly election result from Okwuta Unit AB/l5/149/4 was further returned on two different result sheets hearing different serial numbers i.e. 0002294 and 0002295 and the result from Umuajiji suit No. AB/15/149/5 also returned on two different results sheets bearing different serial Nos. i.e. 0002293 and 0002292. Your petitioner shall contend that the results from these polling units were invalided and marred by irregularities and malpractices in that result sheets returned to 4th respondent differed from what were handed over to party agent etc.

The INEC result sheet Form EC.8A(1) in respect of the above polling units for House of Assembly election are hereby pleaded for reliance and the 3rd and 4th respondents are given notice to produce the originals at the hearing of this petition.

(e) Your petitioner shall at the hearing lead evidence to show that the result submitted to 4th respondent from Nkata polling unit No. III was not valid in that the election in the said Nkata booth III was not free and fair as agents of the 1st respondent was used thuggery to forcefully remove one of PDP booth agents thereat before stuffing the ballot box with so many thumbprinted ballots to the glare of other people working in the other booths. The ballot papers that were stuffed into the box were thumbprinted by APP agents inside the bush and were not cast by registered voters. The 359 votes allocated to the 1st respondent in Form EC 8B(1) 0000 159 purporting same to be his score from Nkata polling unit III AB/15/149/3, were fictitious and invalid. In the INEC booth result in Form EC SA (1), No. of registered voters was put at 500, and 300 as, number of accredited voters. Number of voters in queue to vote was shown to be either 405 or 450. Number of votes purportedly scored by 1st respondent 359 while 39 votes was falsely credited to the petitioner, in Form EC 8B(1) 0000 159 instead of his actual score of 239. The number of invalid votes was shown to be 405 or 399. And the column for number of valid votes was left empty but an addition of 359 to 239 and I gives 599, which figure is above the number of

registered voters, number of accredited voters and number of voters in queue to vote. If No. of invalid votes was either 405 or 399, 1st respondent could not have scored 359 votes allocated to him which must have been invalid votes. It the results from this unit are cancelled the fictitious 359 votes allocated to 1st respondent shall be deducted from his results to give a balance of 5,814 and 39 votes deducted from your petitioner’s results to give 5,954 majority votes; or in the alternative the 300 votes added to the petitioner’s results to give 6, 193 majority votes. INEC Form EC8A(1) No. 0002292 in respect of polling unit No. AB/15/149/3 is hereby pleaded and 3rd and 4th respondents are given notice to produce the original.

(f) Your petitioner further states that the election at Okwuta polling unit No. AB/15/149/12 & 18 were marred by irregularities and malpractices and the results therefrom invalided as a result of allocation of fictitious and invalid votes to the benefit of the 1st respondent. Your petitioner state that the 363 votes allocated to the 1st respondent in Form EC 8B (1) 0000159 as his purported score from unit AB/15/149/12 & 18 were fictitious, false and invalid. In INEC Form EC 8A(1) No. 0002294 showing result from the said unit, 394 voters were shown as registered voters 394 voters accredited and 394 in queue to vote. A total of 378 votes were shown to be invalid while only 16 votes were shown to be valid in this unit. If 378 votes were invalid, the 1st respondent could not have scored 363 votes allocated to him which must have been invalid votes which ought not to be included in the computation. And having been wrongfully included ought to be deducted by the tribunal.

Deducting the 363 invalid votes wrongfully allocated to the 1st respondent from his results leaves him with a balance of 5,810 votes while 12 invalid votes removed from the petitioner result gives 5,981 majority votes. INEC Form EC 8A No.00002294 in respect of polling unit No. AB/15/149/12 & 18 is hereby pleaded and the 3rd and 4th respondents are given notice to produce the original.

(g) Your petitioner further states that the election at and results from Okwuta unit No. AB/15/149/4 were further marred by malpractices and allocation of false, fictitious and invalid votes to the 1st respondent. These malpractices and allocation of fictitious, invalid and unlawful votes for the benefit of the 1st respondent were so glaring that the total votes cast in the said unit exceeded the number of accredited voters by more than one hundred and fifty (150). In INECs Form EC 8A (1) No. 0002295 the number of accredited voters was put at 120 (one hundred and twenty) while the total votes cast put together live 316(three hundred and sixteen). The 1st respondent was said to have scored 279 while your petitioner was said to have scored 22. AD 4 and 11 invalid votes recorded. The excess of 196 were invalid and unlawful votes or votes purportedly cast by non accredited voters, or votes not cast but wrongfully recorded and included in computation for the benefit of the 1st respondent which votes ought to be deducted or the entire results from AB/15/149/4 cancelled by the tribunal for this high level irregularity and substantial non compliance with the guidelines and Decree. INEC Form EC 8A(1) No. 0002295 in respect of AB/15/149/4 is hereby pleaded and the 3rd and 4th respondents are given notice to produce the original. If the 279 votes allocated to the 1st respondent in Form EC B(1) No. 0000 159 as his purported score from the said unit is deducted from his result. 1st respondent’s balance shall be 5,894 votes while deducting the 22 votes credited to the petitioner from his results shall give 5,971 majority votes.

(h) The result in Form EC 8B(1) No. 0000 159 in respect of Umuezeagu polling unit No. AB/15/149/16 were falsified to the extent that the 1st respondent was falsely credited with 257 votes when in fact he scored 83 i.e. excess of 174 votes and your petitioner was falsely credited with 33 votes instead of 233 votes he actually scored. i.e. a loss of 200 votes he actually scored. i.e. a loss 01200 votes. If the correct figure were taken into account in the computation of results, your petitioner would score 5.993 +200=6, 193 while 1st respondent would score 6, 173 – 174 = 5,999. Your Petitioner shall contend in the alternative that results from this unit be cancelled on grounds of falsification of results whereby your petitioner would score 5,960 votes (5,993 – 33) and 1st respondent 5916 votes (6,173 – 257).

INEC’s Form EC 8A(1) in respect of AB/15/149/16 is pleaded and 3rd and 4th respondents gives notice to produce same upon hearing, Furthermore only 9 votes were shown to be valid in the said Form EC 8A(1) while 291 were invalid.

(i) Your petitioner state that if all the results from the 5 polling: units complained of in this petition, i.e. AB/15/149/15, AB/15/149/16, AB/15/149/3, AB/15/149/12 & 18 and AB/15/149/4 are cancelled

or nullified on grounds of the said irregularities and allocation of fictitious votes the 1st respondent’s total result shall he his purported total results from these unit 1,540 deducted from 6,173 = 4,633 while you petitioner’s total results from these units 120 deducted from 5,993 leave him with 5,873 majority votes. And if your petitioners 183 valid votes from units AB/15/150/03/6 & 13 are included. his total votes shall be 5,955. If however only AB/15/149/16, AB/15/149/3 and AB/15/1494 unit are cancelled, the 1st respondent would score 6,173 – 995 = 5,899 majority votes.

(j) Your petitioner shall at the hearing of this petition urge the tribunal to:

(1) Find that the petitioner’s 183 valid votes cast by duly accredited voters at Umueze polling unit No. AB/15/150/03/6 & 13 were unlawfully excluded and shall urge the tribunal to make an order adding the said 183 votes to the petitioner’s total votes.

(2) Your petitioner shall also upon hearing urge the tribunal to hold the election at and results from Isiadu, Umueseagwu. Nkata III, and Okwuta I, II & III polling units were marred by irregularities including the allocation of fictitious and invalid votes to 1st respondent and urge the tribunal to make an order nullifying the said election results from Nkata Polling unit No. III AB/151149/3, Okwuta units AB/15/149/12 & 18, AB/15/149/16 and Isiadu AB/15/149/15.”

Learned counsel for the appellant referred to paragraph 5(c) of the petition and argued that except for the polling unit referred to in paragraph 6, the rest of the polling booth results referred to in paragraph 6(a), 6(b), 6(e), 6(d), 6(e), 6(1), 6(g) and 6(h) of the petition relate to the results and what the 2nd respondent did to change the said results, learned counsel argued that it is in the course of hearing the petition that the tribunal will he in a position to determine the nature of the allegations against the 2nd respondent. The tribunal merely speculated and assumed that the conducts complained of were entirely those of the presiding Officers which is not the case asserted learned counsel. He therefore submitted that since the complaints were in the main against the conduct of the ward returning Officer, 2nd respondent who was duly joined as a party, the tribunal should have considered that as sufficient to enable the petition be heard on the merits, and to exclude evidence to be led against any presiding officer not joined in the petition.

The appellant dealt with issues No.2 and 3 together and submitted that the paragraphs of the petition which the 1st respondent applied to be struck out, when read with paragraphs 4 and 5(c) of the petition, did not complain about the conduct of presiding officers but the use the returning officer made of the respective Forms EC 8A(1) in collating the results at the ward collation centre in Form EC 8B(1) NO. 0000159. He contended that the Election Petition Tribunal should not have acted hastily in striking out the petition based on its own assumption that it was the conducts of the presiding officers that were called to question and submitted that where there are other respondents against whose conduct a petitioner has made complaints in the petition and who are joined as parties, the proper course would be to proceed to trial and to reject any evidence touching on the conduct of any officer relied upon but not joined in the petition. This he argued is because in a case where there are 3 necessary parties and 2 are joined the non joinder of the other

remaining necessary party cannot render the petition incompetent.

On the fourth issue, learned counsel relied on Schedule 6 paragraph 50(2) which provides that an application to set aside an election petition or proceedings for being irregular or a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the matter to argue that since the 1st respondent had taken fresh steps towards defending the petition after becoming award of the alleged defects on the face of the petition, he was not entitled to raise an objection as to the competency of the petition. He forcefully argued that by failing to act timeously the 1st respondent was not entitled to raise his preliminary objection at the state he was allowed to do by the tribunal. He cited the case of Shedon v. Bayloyse Steel Works Ltd & Anor. (1995) All ER 894 which he says is applicable to the facts of this petition.

Learned counsel for 1st respondent argued issues Nos. 2, 3 & 4 together and submitted that the averments in paragraphs 5,6,6(a)-6(j) of the petition directly referred to the conduct of the presiding officers who functioned at the affected Polling Stations and it accords with the finding of the tribunal. He argued that there is no direct allegation in the petition against the returning officer going by the acts described and the mere mention of the returning officer (2nd respondent) is in effect the mention of a wrong person because the acts complained of had occurred at the polling units being questioned before going to the collation centre where he collates results submitted to him and sign. He submitted that the joinder of the presiding officer was a condition precedent which must be complied with otherwise the petition will not be properly constituted and the court will have no jurisdiction to hear the petition.

On the last issue, Learned Counsel for the 1st respondent contended that the objection to the competence of the petition and therefore to the jurisdiction of the tribunal was taken in limine after an appearance only had been filed and this did not amount to taking a step as envisaged by the law. He submitted that the entry of unconditional appearance in this case did not foreclose an objection to the competence of the petition.

Learned counsel for 2nd – 4th respondents agreed with all the submissions made by the appellant and urged this court to hold that the objection was not properly brought and that the ends of justice will be met if the petition is heard and determined on the merits.

The tribunal meticulously went through the petition and in particular paragraph 6, 6(a)-6(j) and concluded that the allegations therein were undoubtedly directed and referable to polling units and no reference was made to the collation centres or the headquarters of the 4th respondents. The tribunal found and I agree that an allegation of malpractices, irregularities, falsification of votes and allocation fictitious votes directed at the polling units are in fact directed against the presiding Officers who are in charge of the polling units, see Schedule 5 paragraph 14(2).

Although in paragraph5(c) of the petition, the petitioner/appellant impugned the conduct of the returning officer in Ibeku East I Ward, the facts enumerated in paragraph 6, 6(a)-6(j) centered on the conduct of the presiding officers. In drafting an election petition, extreme care must be taken to ensure that it is the person whose conduct in an election that is being complained against that is joined as a party. It is my view that once a party applies for the striking out of a petition or paragraphs in a petition, the tribunal has to decide the issue especially if no evidence has been taken, this is different from the case of Godwin Ebiriezeke v. Godwin Dede & 4 Ors (unreported) in appeal No. CA/PH/EP/37/99 delivered on 5/3/99 where the 1st respondent/appellant raised the issue of the competency of the petition for the first time on appeal after both parties had given evidence. If in paragraph 6, 6(a)-6(j) the petitioner/appellant had alleged that:-

“The ward returning officer prepared a false return different form the scores the presiding officers entered in Form EC8A or EC8A(1) which the agents signed and copies distributed to them …”

it would have been obvious that the complaints were directed at the returning officer and not the presiding officers. 1see no reason whatsoever to fault the ruling of the Tribunal and the tribunal was not hasty in fu1ing on the competency of the Petition. At the stage the objection was taken, the 1st respondent had not taken any fresh steps that foreclosed him from raising the objection.

I find no merit in this appeal and I dismiss it with N2,000.00 as costs to the respondents against the appellant.

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Other Citations: (1999)LCN/0612(CA)

Mohammed Kachalla Jumbam V. Usman Adamu & Ors (1999)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

This matter stems from the recent election into Local Government Councils in the Federation of Nigeria.

The nation went to the polls on the 5th December, 1998 to elect chairmen and Councilors for the several Local Government Councils in the States. The appellant and 1st respondent were among the multitudes of aspirants and contestants who contested the election. In this case their constituency was Tarmuwa Local Government Council in Yobe State.

The appellant and the 1st respondent are candidates who ran for the chairmanship of the said Tarmuwa Local Government Council on the platform of People’s Democratic Party (P.D.P) and the All People’s Party (A.P.P.).

The 1st respondent was returned as being duly elected wherefore the appellant filed a petition at the Yobe Local Government Council Election Petition Tribunal sitting at Damaturu. After hearing evidence and addresses from counsel, the tribunal in a considered judgment dismissed the petition.

Being dissatisfied with the decision of the Election Tribunal, the petitioner has appealed to this court upon three grounds of appeal. These grounds without their particulars read:-

(1) The tribunal was in error of law and came to a wrong conclusion having regard to the circumstances of the petition when it held that the non-compliance with the provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 did not substantially affect the result of the election and therefore dismissed the petition.

(2) The tribunal was in error and came to a wrong conclusion when it held that it is possible for voters whose registration cards were not stamped and signed by the presiding officer at the polling unit to have voted, omitting to avert to the entire evidence before it and the procedure at election.

(3) The decision of the tribunal is against the weight of evidence.

Briefs were filed and exchanged. The appellant at page 1 of his brief formulated, in my view, one issue for determination as follows:-

1. Whether having regard to Decree No. 36 of 1998, the petition and the replies of the parties, the evidence and all the circumstances of this matter, the tribunal was right to have dismissed the petition.

In arguing the appeal the learned counsel submitted that the issue formulated covers all the grounds of appeal. He argues that the appellant’s case was predicated on the election result at Koka polling unit within Sungul/Koka ward where the 1st respondent was alleged to have scored 404 votes as against 21 votes declared for the appellant.

The 1st and 2nd – 4th respondents adopted the issue as formulated by the appellant. The 1st respondent agreed that the main issue was that the tribunal was right in law having regard to the evidence before it to have dismissed the petition as it did. The 2nd – 4th respondents also agreed that the crux of the matter in the tribunal below was whether the return (sic) of the 1st respondent as duly elected Chairman of Tarmuwa Local Government Council by 2nd, 3rd and 4th respondents was right and valid.

This appeal will, from the views formulated by the appellant and respondents, appear to be based on issues of fact. It is trite that an appellate court will not interfere with the findings of a trial court provided such finding was not perverse and not the proper exercise of judicial discretion. In Uzoechi v. Onyemve (1999) 1 NWLR (Pt. 587) 339 at 340, the Supreme Court held that an appellate court should not interfere with findings of fact by a trial court once the findings are based on evidence upon the pleadings of the parties. The appellate court can however interfere where the trial court failed to make findings or arrived at inconsistent finding on a crucial issue raised by the parties.

In the instant case, the finding of the tribunal was supported by evidence and there is no obvious error in the judgment of the tribunal.

It is trite that where a court of trial unquestionably evaluated the evidence and appraised the facts in this case, it is not open to a court of appeal to substitute its own views for those of the trial court which are abundantly supported by evidence.

I see no reason to disturb the judgment of the tribunal, I hereby dismiss this appeal and assess costs at N2,000.00 in favour of the 1st respondent and N2,000.00 in favour of the 3rd – 4th respondents.

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Other Citations: (1999)LCN/0611(CA)

Sugun Maimele V. Alhaji Tijani Goni Mohammed & Ors (1999)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

This appeal emanates from the decision of the Local Government Council Election Tribunal of Borno State sitting at Maiduguri in the election petition presented by Alhaji Tijjani Mohammed (as the petitioner) against the declaration of Sugun Mai Mele as the winner of the election for the chairmanship seat of Guzamala Local Government Council. At the Election Tribunal the 1st respondent in this appeal was the petitioner and contested the election as a candidate of the All People’s Party (APP) while the appellant herein (i.e, the 1st respondent before the tribunal) contested as a candidate under the platform of the People’s Democratic Party (PDP).

The main complaints of the petitioner as articulated in his amended petition were founded on firstly, non qualification of the 1st respondent to contest the election as he was still a senior staff of Mobbar Local Government Damasak and did not properly “withdraw or resign his appointment”, Secondly, on various acts of corrupt practices, irregularities, violence and electoral offences, and thirdly, on the inconclusiveness of the elections. For each of these grounds the petitioner set forth copious and prolix facts in support. Amongst other things, he particularly highlighted the lateness of the INEC staff at the Local Government Council Headquarters hence the election materials could not be distributed timely enough and voting had to protract to the next day being Sunday 6/12/98 at various centres including Ari Gambori, Kadure, Adduwa, Hassanti Noram and Kadiyyi, violence at most polling units; tampering with the ballot boxes, impersonation by presiding officers including one Baba Shehu as PDP agents at Mastaphari polling unit; rampant voting without accreditation at Wamri and Kiugarwa Wards; excess returns from Kadugre; Bossoma Guworam polling units.

As regards the inconclusiveness of the elections the petitioner relied on the failure to conduct elections at all at certain centres including Aduwa Ward.

The background of this petition would not be complete without setting forth the reliefs sought in the amended petition thus:

(a) a declaration that the 1st respondent is not a person qualified and ought to have been disqualified from contesting the said elections;

(b) a declaration that the 1st respondent was not duly elected with majority of lawful votes cast at the elections as his election is null and void and of no effect whatsoever:

(c) a declaration that the petitioner was duly elected and ought to have been returned as the votes cast in favour of the 1st respondent are wasted votes and the petitioner being the only qualified candidate who came second in terms of votes cast at the election;

(d) an order returning the petitioner as duly elected;

(e) in the alternative to all the above, an order of fresh and or bye elections in the whole local government area:

(f) any further relief the tribunal may deem fit to make in the circumstances;

(g) cost of the petition;

The 1st respondent filed his reply in which he traversed all the allegations of facts contained in the amended petition. It is particularly noteworthy that paragraph 7c of the amended petition regarding the proper withdrawal from service or resignation of appointment by the 1st respondent was specifically denied and put in issue. It was also averred that the election was conducted within the stipulated time and that there were no incidence of corrupt practices, violence, irregularities or electoral offences. As for the rest of the respondent’s i.e 2nd to 4th, they joined issues with the petitioner on the averments in the amended petition.

At the hearing, the petitioner called 15 witnesses and the 1st respondent 11 witnesses while 2nd and 4th respondents called 2 witnesses. Learned counsel on both sides submitted written addresses. And in a considered judgment, the tribunal upheld the reliefs (a and e) as per the amended petition and nullified the election

on the ground that the appellant “Alhaji Tijjani Mohammed did not properly retire from his employment with the Local Government Services Board in accordance with the Revised Local Government Staff Regulation 1986 in that he paid one month’s salary in lieu of notice instead of paying three months salary”.

In the result, the appellant has brought this appeal challenging the whole decision of the tribunal based on three grounds of appeal set out in the notice and grounds of appeal. However, the matter did not rest there, as the 1st respondent has also cross-appealed against that part of the tribunal’s decision more specifically on the conduct of the election and the court order made thereof. He has predicated his complaints on two grounds of appeal. Both parties filed and adopted their respective briefs before this court.

The appellant has formulated two issues for determination in the main appeal as follows:

1. Having regard to the provisions of section 11 (1) (f) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 was the tribunal right in applying the provisions of the Borno State Revised Local Government Staff Regulation 1986 to the determination of the qualification of the appellant to hold the office of the chairman? If the answer to issue No. 1 is in the positive, then the determination of issue No.2 will arise it.

lf the tribunal had read the entire provisions of Chapter 11 part 1 of the Borno State Revised Local Government Staff Regulations dealing with retirement or resignation together, would it not have come to the conclusion that the appellant was right in paying one month’s salary in lieu of notice?

The 1st respondent in the respondent’s brief of argument adopted the issues for determination as formulated above. To avoid unnecessary repetition of myself in considering issues on the cross-appeal, I have opted to also set further the issues formulated in the cross-appeal to wit:

1. Whether the irregularities which were proved and demonstrated before the tribunal were substantially enough to nullify the conduct of the election.
2. Whether the tribunal can only nullify the election of the cross-respondent without consequently ordering the cross-appellant as the duly elected Chairman of Guazamala Local Government Area.

The appellant’s counsel has adverted to the cross-appeal in his brief.

Learned counsel in the main appeal in canvassing his grounds under issue No. I, with respect, totally misconceived the import of s.11 (1) (f) of Decree No. 36 of 1998 vis-a-vis Regulation 25 of the Revised Local Government Staff Regulations, 1986. For ease of reference I reproduce the two provisions in so far as they are relevant to the instant appeal as follows:

“S11 (1)(f) A person shall not be qualified to hold the office of chairman if:-

(a) [not applicable]

(b) ”

(c) ”

(d) ”

(e) ”

(f) he is a person employed in the public service or civil service of the Federation or of any State, or of any Local Government Councilor Area Council and has not resigned, withdrawn or retired from such employment 30 days before the date of election”.

Regulation 25

“25 An officer may retire, or the Local Government may at its own discretion with the approval of the Local Government Services Board, dispense with his services, on realising the age of forty-five, subject to three month’s notice on either side by or payment of three month’s salary in lieu of notice.

In such cases the officer shall be eligible for pension and gratuity in accordance with the pension enactment in force at the material time”.

Learned counsel for the appellant according to his brief is of the view that Regulation 25 of the Revised Local Government Staff Regulations, 1986 has no relevance and is inapplicable to the circumstances of the appellant because the provision of s.11 (1) (f) of Decree 36 of 1998 has superceded Regulation 25 of the Revised Local Government Staff Regulations, a mere subsidiary legislation and further-more, that a person employed in the public service or civil service of the Federation or any State or any Local Government Councilor Area Council who has not resigned, withdrawn, retired from such employment 30 days before the date of election is disqualified from holding the office of the chairman. To strengthen his argument in this regard he further contended that the appellant having paid one month’s salary in lieu of notice and the same having been accepted by the Local Government Services Board his employers, he had satisfied the provision of the Decree No. 36 of 1998 and thus was duly qualified to contest the election. Meanwhile, if I must say, no difficulties whatsoever is anticipated in construing the provisions of s. 11 (1) (f) of Decree No. 36 of 1998. From the wording it ought to present no problems of interpretation. It is clear and free from any ambiguity and therefore, admits of literary interpretation. My reaction to these submissions is that for purposes of determining whether a candidate for election under this Decree has effectively resigned, withdrawn or retired from his employment (i.e as regards the modus) one has necessarily to look beyond the confines of s. 11 (1) (f) of Decree 36 of 1998 in the instant appeal more appropriately to Regulation 25 of the Revised Local Government Staff Regulation 1986 and that is in deciding the appellant’s retirement. Section 11(1) (f) has not made provision as to how and when a candidate for election has to resign, withdraw or retire from his employment.

As for Regulation 25 again, I hold the same view of it as respecting s.11 (1) (f) above that the language is clear and simple and construing it literarily, it requires an officer who was intent to retire with pension and gratuity or where the Local Government Services Board is intent to retire an officer for 3 (three) month’s notice to be given on either side. The implication of this is that a candidate subject to the Revised Local Government Staff Regulation, 1986, desirous to contest an election under Decree 36 of 1998 has to make his application for resignation, withdrawal or retirement in good time to allow matters of his disengagement to be in place 30 days before the date of election. Simply put, in the instant matter the 1st respondent’s retirement has to commence 30 days to the date of the election proper, in this case 5/12/98. It is to be noted that the Borno State Revised Local Government Staff Regulation, 1986 deals with appointment, promotions, transfers, retirements etc, of all persons employed by the Borno State Local Government and at all materials binds the appellant and is relevant in determining whether the appellant had been regularly disengaged from his employment as an internal auditor 30 days to the date of the election.

For all this, therefore my answer to issue No. 1 is in the positive.

On Issue No.2: in this respect, it is pertinent to determine the place of Exh. “A” in this matter and whether it was proper for the appellant in addition to pay one month’s salary in lieu of notice as contended by him. I have carefully perused through Exh. “A”. I find it rather disconcerting that Exh. “L” was admitted to make the case that the appellant paid one month’s salary in lieu of notice. I shall come back to Exh. “L” later in the course of the judgment. Exh. “A”, a short letter is reproduced here for ease of reference as follows:

“Administration Department

Mobber Local Government Damasak

3rd November, 1998.

The Chairman

Local Government Service Commission

Maiduguri

Borno State.

U.F.S.

The Sole Administrator

Mobber Local Government

Damasak.

VOLUNTARY RETIREMENT FROM SERVICE

With due respect and honour, I wish to forward herewith the aforementioned subject matter.

I joined the Local Government Service in 1982 and presently serving Mobber Local Government as an Internal Auditor on Grade Level (GL. 09).

The request became extremely necessary in order to participate in the transition programme that is on course. I would be grateful if the effective date would be 03/11/98.

Grateful if you accord the urgency it deserves, please.

Yours faithfully,

SUGUN MAI MELE

INTERNAL AUDITOR”.

Exh. “A” – on the subject-matter of voluntary retirement from service, speaks for itself, it is pleaded in paragraph 4(d) of the 1st respondent’s reply thus:

“d Again contrary to the claim of the petitioner in paragraph 7c, in respect of proper withdrawal from service or resignation from appointment, the 1st respondent avers that he had prior to contesting the election properly and effectively retired from public services having submitted his letter of voluntary retirement and the same having been approved by the appropriate authority vide letter Ref. No. LGSC/TR/P/S/223/96 of 17th November, 1998 signed by Alhaji Warila A. Biu Director of Personnel Management in the Local Government Service Commission. The said letter which was copied to the 1st respondent is hereby pleaded”

This paragraph of the 1st respondent’s reply was not amended at the hearing. However, midstream in the 1st respondent’s case before the tribunal, the 1st respondent appeared to deviate completely from his case as pleaded in paragraph 4(d) of the reply and proceeded in his evidence to allege paying one month’s salary in lieu of notice as per Exh. “L”. It is crucial to emphasis that this vital aspect of his case, if at all, was not pleaded and was rightly in my view, even though cursorily referred to by the tribunal in its judgment, accorded no weight as it went to no issue. See Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt.13) 407; Edukugho v. Awani (1965) ANLR 277 and Emegokwue v. Okadigbo (1973) 1 All NLR (Pt.1) 379. I think that there are good reasons for the conclusion reached on this issue by the tribunal when it summurised thus:

“Going by the above provisions and the various submissions made as to the appropriate interpretation to be given firm view that the one month’s notice or salary in lieu of notice does not satisfy this requirement which expressly requires either 3 months’ notice or three months’ salary in lieu of notice. The 1st respondent having just paid one month salary in lieu of notice is in clear breach of the above regulation which governs his employment, with the Local Government Services Board. We therefore find no difficulty in upholding the submission of learned counsel for the petitioner that the 1st respondent intended to retire from service but without giving the requisite three months’ notice or three months’ salary in lieu of notice…”

Let me observe, in addition, that this appeal has not directly confronted this court with the issues of the effective dates of Exhs. “A” and “L” (i.e when actually did they become operative) if at all, as regards the 1st respondent’s purported retirement or resignation and payment of the one month’s salary in lieu of notice. All the same, these questions do not longer become any more important following from the conclusion reached herein.

Learned appellant’s counsel has also contended that Regulations 26, 27, 28 and 29 of the Revised Local Government Staff Regulation 1986 have to be read together with Regulation 25 relied on by the tribunal in reaching its decision. He has submitted that the tribunal should found that a month’s salary paid in lieu of notice and accepted by the appellant’s employers was in order. Even at the risk of repeating myself, the point has been made herein and rightly in my view, that the issue of paying one month’s salary in lieu of notice was not the 1st respondent’s case before the tribunal as it was not pleaded. The whole exercise went to no issue.

Besides, learned counsel, with respect, appears to be improperly raising issues not taken before the tribunal and it is not allowed: See Uwegba v. A.-G. Bendel State (1986) 1 NWLR (Pt. 16) 303. Short of making the final order of this court on the main appeal, the foregoing has amply taken care of the two issues raised in the main appeal. I will return to it for the order of this court later in this judgment.

On the cross-appeal, before coming to examine the provision of paragraph 28(1) of Schedule 4 of Decree 36 of 1998 and its relative bearing if any on the issues of corrupt practices and non-compliance with the Decree taken in the cross-appellant’s brief and the findings of the tribunal thereon, I must have to state that I find it totally incorrect for his counsel to make the claim he did make in his brief thus:

“The tribunal at p. 92 of the record of proceedings conceded that the cancelled results in the 4 polling units totalled 1,420 votes and accreditation and voting outside the official lime of 8.00 a.m. – 2.30 p.m. with votes totalling 2,267 as per Exh. G – G60.”

Issue No.1 in the cross-appeal is premised on the tribunal’s wrongful reliance on the provision of paragraph 28(1) of Schedule 4 of the Decree to “allow the irregularities” already conceded by it. The tribunal as can be seen from the following passage of its judgment made no such concessions. It held:

“On the 2nd issue touching on irregularities, violence and offences against the Decree petitioner has dwelt extensively on accreditation and voting outside the official time of 8.00 a.m. to 2.30 p.m. He has also come out with figures of votes totalling 2, 267 which he extracted from Exhs. G-G 60. All we can point out here is that the Decree allows adjournment of polls in cases of riot etc. Paragraph 28(1) of Schedule 4 provides…

“With the uncontradicted evidence before us that election was conducted peacefully despite the late arrival of officials and material and that in some areas elections were postponed to the next-day with the consent and knowledge of all the parties and the fact that there was no election malpractice we hereby discountenance the submission of Airadion that accreditation of voters outside the official hours of 8.00 to 2.30 p.m. on 5/12/98 coupled with Sunday voting has affected the election in any way. We find no merit whatsoever on this ground …” (Italics mine for emphasis)

If I may repeat, the tribunal discountenanced the cross-appellant’s case on the issue of corrupt practices and non-compliance. These are solid findings of fact and which this court will not treat lightly nor interfere unless they are perverse and have occasioned a miscarriage of justice. These have not been shown. However, I agree with cross-appellant’s counsel that paragraph 28(1) of Schedule 4 of the Decree has no relevance in this regard as there is no evidence of interruption or obstruction by riot or violence. Having so concluded, there is no ground based on the record for supposing that the tribunal reached its conclusion on these issues by applying the provision of paragraph 28(1) of Schedule 4 of the Decree. Issue No. 1 must therefore fail. On Issue No. 2. It is the case of the cross-appellant that since he and the appellant were the only candidates that contested the election and since the appellant has been disqualified by the tribunal, it ought to have declared the cross-appellant as duly elected having secured the next majority of number of votes and he relies on paragraph 28(1) of Schedule 5 of Decree 36 of 1998 which provides thus:

“At the conclusion of the hearing, the Election Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void, and shall certify the determination to the Electoral Officer, Resident Commissioner on the Commission”.

The foregoing is clear and unambiguous and does not call for the assistance of any rules of statutory interpretation. From a line of decided cases that considered equivalent provisions as the instant one – where a person is disqualified after being elected naturally the votes cast for him at the election would not count for any purpose whatsoever. See Alhaji Mohammed v. Malama Ali & Anor. (1989) 1 NWLR (Pt.103) 349. However, the other candidate who opposed him at the election cannot be declared returned automatically without more and this is notwithstanding that he secured the next highest number of votes. He is required to further show that the electors were aware of the factors that gave rise to the disqualification. See Dashe v. Adamu Bawa (1989) 1 NEPLR 71 at 73.In the instant appeal the appellant as found by the tribunal did neither retire nor resign effectively from his employment 30 days to the election i.e 5/12/98. It was also found that he scored the highest number of votes.There is, however, no evidence that the electors had knowledge of these facts which disqualified 1st respondent before casting their votes.

Consequently, my answer to the two issues formulated in the cross-appellant’s brief is in the affirmative.

In sum, I do not find any merits in both the main appeal and the cross-appeal.

I accordingly dismiss the two appeals i.e. the main appeal and cross-appeal.

I make no order as to costs.

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Other Citations: (1999)LCN/0610(CA)

Dallah Malah V. Suleiman Kachalla & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

In the Local Government Election for the chairmanship of Gujba Local Government Council of Yobe State held on the 5th day of December, 1998, the 1st respondent in this appeal, contested the election on the platform of the All People’s Party against the appellant who was sponsored by the People’s Democratic Party. The appellant won the election scoring 6,850 votes as against 5,169 votes scored by the 1st respondent i.e. a difference of 1,681 votes.

The 1st respondent filed a petition at the tribunal signed on 30th December, 1998 praying that it be determined that the appellant was not duly returned and that his election was void and for a declaration that a bye-election be conducted at the said Goniri Ward.

His ground for the petition was that no election was held at Goniri Ward alleging that supporters of the appellant refused to allow the 2nd respondent’s staff to conduct the election.

The tribunal declared the election to be void and ordered bye-election in Gujba Local Government.

The appellant dissatisfied with the decision appealed to the Court of Appeal and filed three grounds of appeal.

The learned counsel for the appellant formulated 2 issues for determination.

They read thus:

“1. Was the tribunal right to have entertained the petition?

2. Having regard to the petition, the evidence and the circumstances, was the tribunal right in nullifying the election?”

The learned counsel for the 1st respondent also filed a brief of argument and adopted the issues formulated by the appellant.

The learned counsel for the appellant submitted that the petition of the 1st respondent was filed and receipted for on the 30th of December, 1998, a period of more than 14 days after the declaration of the result of the election on the 6th December 1998. He said that section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides that “an election petition shall be presented within 14 days from the date from which the result is declared.”

The learned counsel pointed out that the payments required by para 3 sub paras 1, 2 and 4 and para 4(1) and (4) were made on the 30th December 1998, thus rendering the petition incompetent and the Election Tribunal should not have entertained it.

He submitted that when a statute provides a particular method of performing a duty regulated by the statute, that method and no other must be adopted. He relied on the case of Co-operative and Commerce Bank Nig. Plc. v. Attorney-General of Enugu State (1992) 8 NWLR (Pt.261) 528.

On the 2nd issue, the learned counsel for the appellant, submitted that the finding of the tribunal that about 6,000 voters from Goniri Ward of Gujba Local Government Council could not vote and therefore, there should be a bye-election was wrong as there was clear evidence that only 1,553 voters were accredited in the ward to vote.

The learned counsel submitted that even if all the accredited voters voted in favour of the 1st respondent, the appellant would still be the winner.

In reply to the 1st issue, the learned counsel to the 1st respondent submitted that the petition was filed on the 19th December 1998, when no secretary to the tribunal had arrived in Yobe State. On the 30th December 1998, the secretary completed the filling formalities and signed the petition. The learned counsel therefore submitted that it was not filed out of time.

On the 2nd issue it was the contention of the learned counsel that the trial tribunal was right in ordering fresh election because about 6,000 voters did not vote and the difference between the votes of appellant and the 1st respondent numbered only 1,681.

I have given very serious thought to the submissions of counsel on both sides.

It is trite law that when a statute provides a particular method of performing a duty, that method alone and no other must be adopted. See Co-operative and Commerce Bank Nig. Plc. v. Attorney, General of Enugu State (1992) 7 NWLR (Pt.261) 528.

Section 82 of Decree No. 36 of 1998 reads:

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

This section is mandatory.

Paragraph 3 sub 1-4 of the 5th schedule to Decree No. 36 of 1998 is reproduced hereunder in full:

“1. At the time of presenting an election petition, the petitioner shall give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent.

2. The security shall be of such amount not less than N3,000 as the Election Tribunal may order and shall be given by depositing the amount with the Election Tribunal.
3. Where two or more persons join in an election petition, a deposit as may be ordered under sub-paragraph (2) of this paragraph of this schedule shall be sufficient.
4. If no security is given as required by this paragraph, there shall be no further proceedings on the election petition though the time prescribed under sub-paragraphs (1) and (3) of paragraph 2 of this schedule shall continue to run.”

From this paragraph it is clear that on the presentation of an election petition not less than N3,000.00 shall be given by depositing the amount with Election Tribunal. If no security is given, there shall be no further proceedings on the election petition. What the 1st respondent did when he presented his petition to the Chief Registrar of Yobe State High Court was to pay a sum of N200.00. Even the amount he paid on the 30th December 1998 to the secretary of the tribunal on receipt No. 7539701 is not stated.

It would appear that the 1st respondent encountered administrative problems in the presentation of his petition. However, administrative difficulties cannot over ride the express provisions of the law.

I am therefore of the firm view that when the petition was perfected on the 30th December, 1998, it was clearly out of time and should not have been entertained by the Election Tribunal.

On the 2nd issue, it is my view that only 1,553 voters in Goniri Ward were accredited to vote and if you take this number away from the appellant’s vote, he will still be the winner. The trial tribunal was wrong in using the figure of 6,000 in the ward because there was no evidence before it that all the voters in the ward would have voted.

Consequently, I allow the appeal and set aside the judgment of the Election Tribunal and strike out the 1st respondent’s petition before that tribunal. Even on the merit the petition ought to have been dismissed. In the result the appellant is declared as the duly elected chairman of Gujba Local Government Council of Yobe State.

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Other Citations: (1999)LCN/0609(CA)

M.tukur Abba & Anor V. M.ahmed Hassan Jumare & Ors (1999)

LawGlobal-Hub Lead Judgment Report

I.T. MUHAMMAD, J.C.A.

At the local government elections conducted on the 5th or December. 1998. the 1st appellant and the 1st respondent contested for the chairmanship of Makarfi Local Government Council. 1st respondent was declared winner by the 4th respondent when he scored the highest number of votes 19.361 as against 14.244 scored by the 1st appellant 1st appellant and his party All People’s Party (APP) as 2nd appellant were dissatisfied with the result declaration and they riled a petition at the Local Government Council Election Petition Tribunal or Kaduna State (the tribunal).

The appellants as petitioners alleged that the 1st respondent was not qualified to contest the election by virtue of the fact that his nominated vice chairman (not a party in the petition), was in the employment of Makarfi Local Government Education Authority upto and including the 22nd of November, 1998, and that he did not resign his appointment 30 days before the election which contravened the provisions of Decree 36, of 1998. It was further alleged that the 1st respondent and his party agents were involved in corrupt practices prior to the election and on the election day by the use of money to induce voters to elect him and the party.

In their joint reply, 1st and 3rd respondents denied all the allegations. The 4th and 5th respondents, too, denied the allegations.

At the hearing, the petitioners called 3 witnesses. The 1st & 3rd respondents failed a witness. The learned counsel for the 1st & 3rd respondents filed a written address for the tribunal’ s consideration whereas learned counsel for the appellants made oral submissions. After having considered the evidence before it, the lower tribunal found that the petitioners had failed to prove the allegations in paragraph 4(a) & (b) of their petition and it accordingly dismissed all the reliefs including the alternative relief in the petition.

Dissatisfied, the appellants appealed to this court on three grounds. They prayed this court to among other things, set aside the judgment of the lower tribunal and enter judgment in favour or the appellants by ordering the 4th respondent to conduct a fresh election for the chairmanship of Makarfi Local Government.

In the brief of argument filed by the appellants, their learned counsel formulated the following issues:-

“(a) Whether the lower tribunal was right by holding that it was essential for the petitioners to tender the receipt PW3 issued to the nominated vice-chairman for the payment of the one month salary in lieu of notice.

(b) Whether the effect of insufficient denial or traverse was not an admission.

(c) Whether there was any basis for rejecting the evidence of the 3 witnesses called by the petitioner as incredible and worthless.”

Learned counsel for the 1st and 3rd respondents filed a brief on their behalf.

Below are the issues he formulated:

“(a) Whether the petitioners at the trial adduced credible evidence in proof of the allegation that Dan Asabe Aliyu Umar, the running mate of the 1st respondent, who was not in any even made a party to the petition, did not resign from the employment of Makarfi Local Government Education Authority 30 days before 5th December. 1999, the date the local government election was held throughout the Federation, as required by S.11(i)(f) of Decree No. 36 of 1998.

(b) In particular whether the non-tendering of the official receipt as evidence of payment of one month’s salary in lieu or 30 days notice, which was issued by PW3 to Dan Asabe Aliyu Umar, is fatal to the appellant’s case.”

No brief was filed by the remaining respondents, After adopting the brief, the learned counsel for the appellants submitted on issue No. I that it was wrong for the lower tribunal to hold that the petitioners were under a duty to tender the receipt in respect of payment or salary in lieu of notice in view or the pleadings and the evidence of PW3. Further, there was nothing in the respondents’ pleadings and the evidence or DW1 denying the fact that the nominated running male to 1st petitioner resigned on 23/11/98 less than 30 days to the date of the election. On the 2nd issue, learned counsel argued that throughout the pleadings and the evidence of DW 1 and counsel’ s address there was no specific denial of the fact that the nominated vice-chairman resigned on 23/11/98 less than 30 days before the election and that the law is that where specific allegations in Pleadings are not denied and are supported by evidence the court is bound to accept it. Learned counsel argued on issue 3 that the tribunal was in error in rejecting the unchallenged evidence of the 3 witnesses who testified in favour of the petitioners.

He urged this court to grant the reliefs contained in their notice and grounds of appeal.

Learned counsel for the 1st & 3rd respondents adopted his brief. He argued his two issues together in the brief. His prime submissions are that the appellants failed to adduce evidence to the effect that the running mate to the 1st respondent, had resigned 30 days before the date or election (5/12/98) and that the failure to tender receipt of payment of “money” in lieu of the 30 days notice is fatal to their petition. He filed sections 135 & 137 of the Evidence Act. He finally urged the court to dismiss the appeal and affirm the tribunal’s decision of 28/1/99.

I have considered the record of proceedings in this appeal, submissions of the counsel for the respective parties and the prevailing law. I have observed from the judgment of the tribunal below that as a result of abandonment of reliefs (5(c)(1).

(d) & (e) of the petition, same were struck out by the tribunal.

In treating the issues formulated by the parties. I feel a marriage of convenience is inevitable. Thus, issue (b) or the 1st & 3rd respondents falls into issue (a) of the appellant. Equally, issue (a) of the 1st & 3rd respondents fib into issue (c) or the appellants.

The crux or issue (a)is whether the running mate to the 1st respondent who was returned as the elected Chairman of Makarfi Local Government Council did resign his appointment before contesting the election as required by law. The provision of the law that made this stipulation is section 11 (1)(f) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 (the Decree). It states:-

“(1) A person shall not be qualified to hold the office of chairman if-

(f) he is a person employed in the public service or civil service of the Federation or of any State, or of any Local Government Councilor Area Council and has not resigned, withdrawn or retired from such employment days before the date of election.”

The electoral laws under which the elections of the 5th December were conducted have provided that before a candidate could qualify to contest election for chairmanship of a local government councilor area council he must nominate from a ward other than his own ward another candidate who shall run as his associate candidate for the office of vice-chairman. See section 51(1) of the Decree. It is only then that he can be deemed to have been validly nominated for the office of chairman. In selecting his running mate, the candidate for chairmanship election, as a matter of policy, must exercise due care and attention that he selects a person who has scaled through all the qualification tests set by the Decree. This is very necessary as both the chairmanship candidate and his running mate are inseparable twins that must rise and fall together. By the provisions of section 13(2) of the Decree, the provisions relating to qualifications for election etc. other than section 51 (d) & (f) shall apply in relation to the office of the vice-chairman as if references to chairman were reference to vice-chairman. It is mandatory therefore that the qualification required by section 11(I)(f) must also be attainable by the chairman.

As it was the assertion of the petitioners/appellants that the 1st respondent was not qualified to contest the election by virtue of the fact that his nominated vice-chairman, Dan Asabe Umar, was in the employment of Makarfi Local Government Education Authority upto and including the 22nd of November, 1999 and that he only resigned his appointment on 23rd of November, 1998, less than 30 days to the date of the election – 5th December. 1998 (see paragraph 4(a) & (b) of the petition). These sub-paragraphs were one or the live grounds before the tribunal. And among the reliefs sought was a declaration that the 1st respondent was not qualified to contest the said election. (In their joint reply to the petition.

1st & 3rd respondents stated in paragraph 5 thereof:-

“5. In answer to paragraphs 4(a),4( b), 4(c), 4(d) and 4(c) the respondent says as follows:-

1. The 1st respondent and his nominated view-chairman were qualified to contest the election. The latter had properly resigned from his employment with Makarfi Local Government Education Authority before contesting the election.”

After the evaluation of evidence called by the parties, the tribunal found as follows:-

“In order to succeed, in their claim that Dan Asabe Aliyu Umar resigned his appointment on 23/11/98, the day PW 1and PW3 claimed he paid one month’s salary in lieu of notice and which Mr. Mahmood claimed was less than one month before election there must be a receipt tendered as exhibit which PW3 claimed in his evidence-in-chief he issued to him when he paid … At that stage the tribunal expected Mr. Mahmood to tender through PW3 the said receipt to substantiate the claim that Dan Asabe Aliyu Umar resigned on 23/11/98 which would not have been 30 days before election. But this was not done. The tendering of the said receipt would have established this material fact and would have enabled the tribunal to determine whether Dan Asabe did not resign his appointment before 30 days to the election or whether he resigned properly or improperly. Since the petitioners are alleging this material fact, they are in law expected to prove it.”

The trite law is that where there is an allegation of the existence of a particular fact, it is the duty or the person who alleges to prove his allegation. S.135(1) of the Evidence Act states:-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

Thus since the appellants asserted non-compliance with the provision of section 11 (1) (f) of the Decree, they ought to have proved payment or salary in lieu of resignation 30 days before the election date. I agree with the tribunal that the non-production or the receipt PW3 stated in his evidence in chief he issued to the 1st respondent on 23/11/98, as exhibit at the trial is indeed fatal to the petition.

Further, where a party refused to produce evidence that is material which is required to prove certain facts which are within the knowledge of a witness as is the case here, it is presumed that such evidence if adduced will be unfavourable to the person withholding it. See: Section 141(d) of The Evidence Act Habib Bank (Nig.) Ltd. v. Kora (1992) 7 NWLR (Pt. 251) P. 43; Awosile v. Sotunbo (1986) 3 NWLR (Pt. 21)) 471. The tribunal was quite right in my view to have held that section 11(1)(1) of the Decree has not been established to have been violated.

Issue (b) seems to place reliance on the weakness of 1st respondent’s case.

However, in a civil suit, a plaintiff (petitioner) in this case) must succeed on the strength of his case and not on the weakness of the case of the defendant (respondent). See; Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260. It is clear from the record that the petitioners/appellants have failed to prove their allegations. They have therefore lost the strength of their battle. The weakness of the defendants (respondents) if any, could nut have availed them success.

It is no gain saying that the basis upon which the tribunal rejected the evidence of the 3 witnesses called by the petitioners was because the totality of the evidence adduced by the petitioners could not sustain the allegations in paragraphs 4(a) & (b) of the petition. And where the plaintiffs’ (petitioners) evidence failed, there shall remain nothing for the defendants (respondents) to defend. See: Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt. 193) 517. I think what learned counsel for the appellants wants this court to do is to re-value the evidence taken and assessed by the trial tribunal.The position of this court as an appellate court is that we seldom interfere with the valuation of evidence done by the trial court as that province is specially reserved for the trial court. It is the trial court that heard, saw and assessed the evidence and demeanour of the witness. The trial court speaks better on these aspects. See Williams v. The Suite (191)2) 8 NWLR (Pt.261) 515; Retduwas v. Jwan (1992) 8 NWLR 358 (Pt. 259) 358; Kwasalba (Nig.) Ltd. v. Okonkwo (1992) 1 NWLR (Pt.218) 407.

I am satisfied with the evaluation of evidence done by the tribunal. I find no perversity in it. I have no right to tamper with the valuation.

Accordingly. I find no merit in this appeal and it is hereby dismissed. I affirm the decision of the lower tribunal. The 1st and 3rd respondents are entitled to N2,000.00 the appellants.

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Other Citations: (1999)LCN/0608(CA)