Occupational Health & Safety Association vs Union Of India & Ors (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

K.S. Radhakrishnan, J.

1. The Petitioner, a non-profit occupational health and safety organization, registered under the Societies Registration Act, 1860, has invoked the extra-ordinary jurisdiction of this Court under Article 32 of the Constitution of India seeking the following reliefs :-

a. To issue a writ of mandamus or any other appropriate writ, order, or direction directing the Respondents to frame guidelines with respect to occupational safety and health regulations to be maintained by various industries;

b. To issue a writ of mandamus or any other appropriate writ, order or direction directing respondents to appoint and constitute a committee for the monitoring of the working of thermal power plants in India and to keep check on the health and safety norms for the workers working in their power stations;

c. To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay compensation to the workers who are victims of occupational health disorders and to frame a scheme of compensation for workers in cases of occupational health disorders;

d. To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to notify the recommendations as contained in paragraph 35 of the Petition as guidelines to be followed by thermal power plant.

2. The Petitioner represents about 130 Coal Fired Thermal Power Plants (CFTPPs) in India spread over different States in the country, but no proper occupational health services with adequate facilities for health delivery system or guidelines with respect to occupational safety are in place. Factories Act, Boilers Act, Employees’ State Insurance Act, Compensation Act, the Water (Prevention and Control of Pollution) Act, the Air (Prevention and Control of Pollution) Act, Environmental Protection Act, etc. are in place, but the lack of proper health delivery system, evaluation of occupational health status of workers, their safety and protection cause serious occupational health hazards.

3. The Petitioner herein filed I.A. No.1 of 2005 and 2 of 2007 and highlighted the serious diseases, the workers working in thermal plants are suffering from over a period of years. The Report produced by the Petitioner would indicate that half of the workers have lung function abnormalities, pulmonary function test abnormalities, senor neuro loss, skin diseases, asthama, and so on. This Court noticing the same, passed an interim order on 30.1.2008, after taking note of the various suggestions made at the Bar to reduce the occupational hazards of the employees working in various thermal power stations in the country. Following are the main suggestions put forward before this Court :

1. Comprehensive medical checkup of all workers in all coal fired thermal power stations by doctors appointed in consultation with the trade unions. First medical check up to be completed within six months. Then to be done on yearly basis.

2. Free and comprehensive medical treatment to be provided to all workers found to be suffering from an occupational disease, ailment or accident, until cured or until death.

3. Services of the workmen not to be terminated during illness and to be treated as if on duty.

4. Compensation to be paid to workmen suffering from any occupational disease, aliment or accident in accordance with the provisions of the Workmen’s Compensation Act, 1923.

5. Modern protective equipment to be provided to workmen as recommended by an expert body in consultation with the trade unions.

6. Strict control measures to be immediately adopted for the control of dust, heat, noise, vibration and radiation to be recommended by the National Institute of Occupational Health (NIOH) Ahmadabad, Gujarat.

7. All employees to abide by the Code of Practice on Occupational Safety and Health Audit as developed by the Bureau of Indian Standards.

8. Safe methods be followed for the handling, collection and disposal of hazardous waste to be recommended by NIOH.

9. Appointment of a Committee of experts by NIOH including therein Trade Union representatives and Health and Safety NGO’s to look into the issue of Health and Safety of workers and make recommendations.

4. Mr. P.P. Malhotra, learned Additional Solicitor General, submitted that the suggestions no.1 to 7 have been accepted by the Central Government stating that they are broadly covered in various existing enactments and consequently pro-occupational action would be taken for effective implementation of the relevant laws, in particular, areas covered by those suggestions. After recording the above submissions, this Court had also directed the Ministry of Labour to take steps to see that those suggestions and relevant provisions of the various Labour Acts are properly implemented to protect the welfare of the employees. Learned ASG also submitted before the Court that the Central Government would examine whether the remaining two suggestions i.e. suggestion nos.8 and 9 could be implemented and, if so, to what extent.

5. The Writ Petition again came up for hearing before this Court on 6.9.2010 and this Court passed the following order:

“Vide order dated January 30, 2008, Respondent No.1 had agreed to Guideline Nos.1 to 7.

However, time was taken to consider Guidelines Nos.8 and 9, which primarily dealt with the appointment of Committee of Experts by NIOH. The constitution of that Committee is also spelt out in Guideline No.9. Today, when the matter came up for hearing before this Court, learned Solicitor General stated that the Committee of Experts has been duly constituted by NIOH and it will submit its status report on the next occasion.

The writ petition shall stand over for eight weeks.”

6. The Government of India later placed a Report of the Committee prepared by the National Institute of Occupational Health (NIOH) titled Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of the year 2011.

7. Shri Colin Gonsalves, learned senior counsel, referring to the above- mentioned Report, submitted that the Union of India as also the Committee have misunderstood the scope of the suggestion nos.8 and 9. Learned senior counsel submitted that not much importance was given to the serious health problems being faced by the workers who are working in the thermal power plants and the treatment they require as well as the payment of wages and compensation to those workers who are suffering from serious illness. Learned senior counsel pointed out that some urgent steps should be taken to ensure the health and safety of the workers, through comprehensive and timely medical examinations, follow-up treatment as well as to provide compensation for the serious occupational diseases they are suffering from. Even these vital aspects, according to the learned senior counsel, have been completely overlooked by the Committee.

8. Learned ASG submitted that the Report of the NIOH is comprehensive and all relevant aspects have been taken care of and that there are several laws to protect the health and safety of the workers who are working in the various thermal power stations in the country. Learned ASG also submitted that the Committee has recommended the need of occupational health services with adequate facilities for health delivery system and that all power generating authorities must have well defined sector-specific occupational health safety and environmental management framework. Learned ASG also submitted that the Report would be implemented in its true letter and spirit.

9. This Court in Consumer Education & Research Centre and others v. Union of India and others (1995) 3 SCC 42, has held that the right to health and medical care to protect one’s health and vigour, while in service or post-retirement, is a fundamental right of a worker under Article 21 read with Articles 39(e), 41, 43, 48-A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person. The Court held that the compelling necessity to work in an industry exposed to health hazards due to indigence to bread-winning for himself and his dependents should not be at the cost of health and vigour of the workman.

10. Right to health i.e. right to live in a clean, hygienic and safe environment is a right flowing from Article 21. Clean surroundings lead to healthy body and healthy mind. But, unfortunately, for eking a livelihood and for national interest, many employees work in dangerous, risky and unhygienic environment. Right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy, particularly clauses (e) and (f) of Articles 39, 41 and 42. Those Articles include protection of health and strength of workers and just and humane conditions of work. Those are minimum requirements which must exist to enable a person to live with human dignity. Every State has an obligation and duty to provide at least the minimum condition ensuring human dignity. But when workers are engaged in such hazardous and risky jobs, then the responsibility and duty on the State is double-fold. Occupational health and safety issues of CFTPPs are associated with thermal discharge, air and coal emission, fire hazards, explosion hazards etc. Dust emanates also contain free silica associated with silicosis, arsenic leading to skin and lung cancer, coal dust leading to black lung and the potential harmful substances. Necessity for constant supervision and to the drive to mitigate the harmful effects on the workers is of extreme importance.

11. India is one of the largest coal producing countries in the world and it has numerous CFTPPs requiring nearly 440 million tons of coal per year. We have about 130 CFTPPs in India. The thermal power plants generate about two-third of the electricity consumed in India, while 54.3% of the energy demand is met by coal fired power generation. The NIOH in its Report in 2011 has already made its recommendations with respect to the suggestions made by this Court in its order dated 30.1.2008. Since the Central Government has already accepted suggestions no.1 to 7, at the moment we are concerned with suggestions no.8 and 9, which we reiterate as follows :-

“8. Safe methods be followed for the handling, collection and disposal of hazardous waste to be recommended by NIOH.

9. Appointment of a Committee of experts by NIOH including therein Trade Union representatives and Health and Safety NGO’s to look into the issue of Health and Safety of workers and make recommendations.”

12. The Report in para 4.1.2 has referred to various health hazards and the same is reproduced hereinbelow :-

“4.1.2 General . Use of Hazardous Material for Insulation: Certain materials such as asbestos, glass wool etc. are used for insulation. These materials are highly dangerous to human health, if inhaled or if contacted with the eye/skin surface. While handling such materials, the PPE should be provided to the workers as well as proper disposal of waste asbestos and glass wool should be ensured. Nowadays, safer substitutes, such as p-aramid, polyvinyl alcohol (PVA), cellulose, polyacrylonitrile, glass fibres, graphite are available, the use of which may be explored.

. Compliance with the provisions of the Environment (Protection) Act and its amendments from time to time applicable for the power plants with respect to emission and discharge, ash utilization and hazardous waste management should be ensured to protect the ambient environment as well as maintain safe and healthy working conditions for the workers. . The generated fly ash need to be utilized as per the CPCB annual implementation report on fly ash utilization (2009-10) that 100% utilization to be achieved by the power plants, within 5 years from the date of notification (refer to Table 17, page 48). For new CFTPPs, the fly ash utilization needs to be regulated as per the schedule given in Table 17.

. It is desirable that the coal handling facilities are mechanized and automated to the extent possible.

. Occupational health services should be provided for wide range benefit to the workers. Broadly, it should contain the facilities for occupational health delivery system with trained manpower and infrastructure including investigational facilities, environmental assessment, evaluation of occupational health status and first aid training of the workers on regular basis. These services should be independent and separate from hospital services (curative service) but should function in liaison with the curative service.

. Periodic awareness programmes regarding the health and safety with active involvement of the workers should be organized, covering each individual with the minimum annual average duration of 8 hours per worker. Regular community level awareness programmes may be organized in the vicinity of the plant for the family members of the workers. . Periodic medical examination (PME), as required under the Factories Act should be undertaken. However, the investigations performed under the PME should be relevant to the job exposures. Since coal/ash handling workers are prone to dust exposure related diseases, due attention is required to those workers. In case of need, the frequency of PME may be scheduled, based on observation of the health check-up information. Providing PPE and re-locating of job for those workers may also be considered. . As per recommendations of the Factories Act, the workers need to be examined radiologically (chest X-ray) on yearly basis. However, in order to avoid unnecessary exposure of the human body to the radiation, the regular yearly chest X-ray is not recommended, unless urgent and essential. Considering the latency period of development of pneumoconiosis, it is recommended to undergo chest X-ray every two years for initial 10 years and based on the progression, re-scheduling may be adopted. After 10 years it should be done on yearly basis or earlier depending on the development and/or progression of the disease.

. Health records should be maintained in easily retrievable manner, preferably in electronic form. The provision should be made to recall the worker, as and when his or her check up is due. Pre-placement medical examination and proper documentation of records should be mandatory.

. A comprehensive document on environment, health and safety specific to coal based thermal power projects should be framed. It should cover the legal provisions, management system, best practices, safe operating procedures, etc. for various areas of thermal power plants. This will serve as a reference document for effective implementation of the provisions. . All CFTPPs should have environmental and occupational health and safety management systems in place, which are auditable by third party, approved by the Govt of India (Ministry of Power). Participatory management regarding health and safety at plant level may be ensured.

. The occupier of the CFTPP shall be responsible for the compliance of provisions of the Factories’ Act for casual/contractual labour on health and safety issues. In case of women workers, the provisions of the Factories’ Act, as applicable, shall be given attention.

13. Para 3.1.2 of the Report specifically refers to the occupational health and safety issues of workers in CFTPPs. The Report also refers to the hazards associated with (a) dust, (b) heat, (c) noise, (d) vibration,

(e) radiation, and (f) disposal of waste. After dealing with those health hazards, the Committee has stated that the hazards associated with inhalation of coal dust might result in development of dust related morbidity in the form of pneumoconiosis (coal workers pneumoconiosis, silicosis) and non-pneumoconiotic persistent respiratory morbidities, such as chronic bronchitis, emphysema, asthma, etc. Further, it also pointed out that whenever asbestos fibres are used for insulation and other purposes, the possibility of asbestosis among workers due to inhalation of asbestos fibres cannot be ruled out. The Report also says that other morbidities because of exposure to fly ash, including metallic constituents such as lead, arsenic, and mercury might also be present. Due to exposure to other chemicals used in different operations of CFTPP, the Report says, may also be responsible to adversely affect human health.

14. Report further says that occupational exposure to high heat in different thermal power plants may also cause heat related disorders, like heat exhaustion. Noise and vibration exposures in higher doses than the permissible limits may result in noise-induced hearing loss, raised blood pressure, regional vascular disorders, musculo-skeletal disorders, human error, productivity loss, accidents and injuries. Radiation hazards particularly from the generated fly ash and its used products have also been indicated of possible health risks. Different chemicals that are often being used in CFTPPs, such as chlorine, ammonia, fuel oil, and released in the working and community environment may be responsible for wide range of acute as well as chronic health impairments. Since large quantities of coal, other fuels and chemicals are stored and used in CFTPPs, the risks of fire and explosion are high, unless special care is taken in handling the materials. It may cause fire and explosion. Further, it may also be pointed out that in various work operations for manual materials handling, the workers are subjected to high degree of physical stress, with potential risks of musculo-skeletal disorders and injuries.

15. In para 3.1.5 the Report suggests certain protective measures for health and safety and also steps to be taken for emergency preparedness on spot/off-spot emergency plans and also the measures to be adopted for social welfare.

16. We may notice, the recommendations made are to be welcomed, but how far they are put into practice and what preventive actions are taken to protect the workers from the serious health-hazards associated with the work in CFTPPs calls for serious attention. Many workers employed in various CFTPPs are reported to be suffering from serious diseases referred to earlier. What are the steps taken by CFTPPs and the Union of India and the statutory authorities to protect them from serious health hazards and also the medical treatment extended to them, including compensation etc. calls for detailed examination.

17. We notice that CFTPPs are spread over various States in the country like Uttar Pradesh, Chhattisgarh, Maharashtra, Andhra Pradesh, and so on, and it would not be practicable for this Court to examine whether CFTPPs are complying with safety standards and the rules and regulations relating to the health of the employees working in various CFTPPs throughout the country. We feel that these aspects could be better examined by the respective High Courts in whose jurisdiction these power plants are situated. The High Court should examine whether there is adequate and effective health delivery system in place and whether there is any evaluation of occupational health status of the workers. The High Court should also examine whether any effective medical treatment is meted out to them.

18. We, therefore, feel that it is appropriate to relegate it to the various High Courts to examine these issues with the assistance of the State Governments after calling for necessary Reports from the CFTPPs situated in their respective States. For the said purpose, we are sending a copy of this Judgment to the Chief Secretaries of the respective States as well as Registrar Generals of the High Courts of the following States :

a) Uttar Pradesh

b) Chhattisgarh

c) Maharashtra

d) Andhra Pradesh

e) West Bengal

f) Madhya Pradesh

g) Bihar

h) Orissa

i) Haryana

j) Rajasthan

k) Punjab

l) Delhi/NCT Delhi

m) Gujarat

n) Karnataka

o) Kerala

p) Tamil Nadu

q) Jharkhand

r) Assam

19. Report of National Institute of Occupational Health (NIOH) titled Environment, Health and Safety Issues in Coal Fired Thermal Power Plants of the year 2011 may also be made available by the Secretary General of the Supreme Court to the Registrar Generals of the High Courts of the aforesaid States. We make it clear that the Report is not at all comprehensive in certain aspects and the respective High Courts can examine the issues projected in this Judgment independently after calling for the reports about the CFTPPs functioning in their respective States. The Registrar Generals of High Courts of the aforesaid States should place this Judgment before the Chief Justices of the respective States so as to initiate suo moto proceedings in the larger interest of the workers working in CFTPPs in the respective States.

20. The Writ Petition is accordingly disposed of.

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Credit: Indian Kanoon

Perumal vs Janaki (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

Chelameswar, J.

1. Leave granted.

2. Aggrieved by an order in Crl. R.C. No.1119 of 2011 of the High Court of Madras, the unsuccessful petitioner therein preferred the instant appeal.

3. A petition in C.M.P. No.4561 of 2010 (private complaint) under section 200 of the Code of Criminal Procedure, 1973 (hereinafter for short referred to as “the Cr.P.C.”) filed by the appellant herein against the respondent came to be dismissed by the Judicial Magistrate No.2 at Pollachi by his judgment dated 31st August 2010. Challenging the same, the abovementioned Crl. R.C. was filed.

4. The factual background of the case is as follows:

5. The respondent was working as a Sub-Inspector in an All-Women Police Station, Pollachi at the relevant point of time. On 18th May 2008, one Nagal reported to the respondent that the appellant herein had cheated her. The respondent registered Crime No.18/08 under sections 417 and 506(i) of the Indian Penal Code (hereinafter for short referred to as “the IPC”). Eventually, the respondent filed a charge-sheet, the relevant portion of which reads as follows:

“On 26.12.07, that the accused called upon the de-facto complainant for an outing and while going in the night at around 10.00 via Vadugapalayam Ittori route the accused enticed the de-facto complainant of marrying her and had sexual interaction several times in the nearby jungle and on account of which the complainant became pregnant and when she asked the accused to marry him he threatened the complainant of killing her if she disclosed the above fact to anybody.

Hence the accused committed an offence punishable u/s. 417, 506 (i) of IPC.” [emphasis supplied]

6. The appellant was tried for the offences mentioned above by the learned Judicial Magistrate No.1, Pollachi. The learned Judicial Magistrate by his judgment dated 15th March 2010 acquitted the appellant of both the charges.

7. It appears that the said judgment has become final.

8. In the light of the acquittal, the appellant filed a complaint (C.M.P. No.4561 of 2010) under section 190 of the Cr.P.C. on the file of the Judicial Magistrate No.2 at Pollachi praying that the respondent be tried for an offence under section 193 of the IPC. The said complaint came to be dismissed by an order dated 31st August 2010 on the ground that in view of sections 195 and 340 of the Cr.P.C. the complaint of the appellant herein is not maintainable.

9. Aggrieved by the said dismissal, the appellant herein unsuccessfully carried the matter to the High Court. Hence the present appeal.

10. The case of the appellant herein in his complaint is that though Nagal alleged an offence of cheating against the appellant which led to the pregnancy of Nagal, such an offence was not proved against him. Upon the registration of Crime No.18/08, Nagal was subjected to medical examination. She was not found to be pregnant. Dr. Geetha, who examined Nagal, categorically opined that Nagal was not found to be pregnant on the date of examination which took place six days after the registration of the FIR. In spite of the definite medical opinion that Nagal was not pregnant, the respondent chose to file a charge-sheet with an allegation that Nagal became pregnant. Therefore, according to the appellant, the charge-sheet was filed with a deliberate false statement by the respondent herein. The appellant, therefore, prayed in his complaint as follows;

“It is, therefore, prayed that this Hon’ble Court may be pleased to take this complaint on file, try the accused U/s. 193 IPC for deliberately giving false evidence in the Court as against the complainant, and punish the accused and pass such further or other orders as this Hon’ble court deems fit and proper.”

11. The learned Magistrate dismissed the complaint on the ground that section 195 of the Cr.P.C. bars criminal courts to take cognizance of an offence under section 193 of the IPC except on the complaint in writing of that Court or an officer of that Court in relation to any proceeding in the Court where the offence under section 193 is said to have been committed and a private complaint such as the one on hand is not maintainable.

12. The High Court declined to interfere with the matter in exercise of its revisional jurisdiction. The operative portion of the order under challenge reads as follows:

“3. … This court is in agreement with the conclusion of the court below in dismissing the complaint. The complaint provided very little to take action upon, particularly, where this court finds that the respondent had not in any manner tampered with the medical record so as to mulct the petitioner with criminal liability. The wording in the final report informing of the de facto complainant having been pregnant can in the facts and circumstances of the case, be seen only as a mistake.

4. In the result, the criminal revision stands dismissed.”

13. We regret to place on record that at every stage of this matter the inquiry was misdirected.

14. The facts relevant for the issue on hand are that:-

(1) The appellant was prosecuted for the offences under sections 417 and 506 (i) IPC. (The factual allegations forming the basis of such a prosecution are already noted earlier).

(2) The respondent filed a charge-sheet with an assertion that the appellant was responsible for pregnancy of Nagal.

(3) Even before the filing of the charge-sheet, a definite medical opinion was available to the respondent (secured during the course of the investigation of the offence alleged against the appellant) to the effect that Nagal was not pregnant.

(4) Still the respondent chose to assert in the charge-sheet that Nagal was pregnant.

(5) The prosecution against the appellant ended in acquittal.

15. The abovementioned indisputable facts, in our opinion, prima facie may not constitute an offence under section 193 IPC but may constitute an offence under section 211 IPC. We say prima facie only for the reason this aspect has not been examined at any stage in the case nor any submission is made before us on either side but we cannot help taking notice of the basic facts and the legal position.

16. The offence under section 193[1] IPC is an act of giving false evidence or fabricating false evidence in a judicial proceeding. The act of giving false evidence is defined under section 191 IPC as follows:

“191. Giving false evidence.— Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1.—A statement is within the meaning of this section, whether it is made verbally or otherwise.

Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.” It can be seen from the definition that to constitute an act of giving false evidence, a person must make a statement which is either false to the knowledge or belief of the maker or which the maker does not believe to be true. Further, it requires that such a statement is made by a person (1) who is legally bound by an oath; (2) by an express provision of law to state the truth; or (3) being bound by law to make a declaration upon any subject.

17. A police officer filing a charge-sheet does not make any statement on oath nor is bound by any express provision of law to state the truth though in our opinion being a public servant is obliged to act in good faith. Whether the statement made by the police officer in a charge-sheet amounts to a declaration upon any subject within the meaning of the clause “being bound by law to make a declaration upon any subject” occurring under section 191 of the IPC is a question which requires further examination.

18. On the other hand, section 211 of the IPC deals with an offence of instituting or causing to be instituted any criminal proceeding or falsely charging any person of having committed an offence even when there is no just or lawful ground for such proceeding to the knowledge of the person instituting or causing the institution of the criminal proceedings.

19. Irrespective of the fact whether the offence disclosed by the complaint of the appellant herein is an offence falling either under section 193 or 211 of the IPC, section 195 of the Cr.P.C. declares that no Court shall take cognizance of either of the abovementioned two offences except in the manner specified under section 195 of the Cr.P.C.:

“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.—(1) No Court shall take cognizance— x x x x x

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that court is subordinate.”

20. In the light of the language of section 195 Cr.P.C. we do not find fault with the conclusion of the learned Magistrate in dismissing the complaint of the appellant herein for the reason that the complaint is not filed by the person contemplated under section 195 Cr.P.C. It may be mentioned here that as a matter of fact the Court before which the instant complaint was lodged is not the same Court before which the appellant herein was prosecuted by the respondent.

21. Under section 340(1) of the Cr.P.C., it is stipulated that whenever it appears that any one of the offences mentioned in clause (b) of sub- section (1) of section 195 appears to have been committed in or in relation to a proceeding before a Court, that Court either on an application made to it or otherwise make a complaint thereof in writing to the competent Magistrate after following the procedure mentioned under section 340 of the Cr.P.C.[2]

22. Admittedly, the appellant herein did not make an application to the judicial magistrate No.1, Pollachi under section 340 to ‘make a complaint’ against the respondent herein nor the said magistrate suo moto made a complaint. Therefore, the learned judicial magistrate No.2 before whom the private complaint is made by the appellant had no option but to dismiss the complaint.

23. But the High Court, in our view, is not justified in confining itself to the examination of the correctness of the order of the magistrate dismissing the said private complaint. Both Section 195(1) and Section 340(2) Cr.P.C. authorise the exercise of the power conferred under Section 195(1) by any other court to which the court in respect of which the offence is committed is subordinate to. (hereinafter referred to for the sake of convenience as ‘the original court’)

24. It can be seen from the language of Section 195(4), Cr.P.C. that it creates a legal fiction whereby it is declared that the original court is subordinate to that court to which appeals ordinarily lie from the judgments or orders of the original court. (hereinafter referred to as ‘the appellate court’) In our view, such a fiction must be understood in the context of Article 227[3] of the Constitution of India and Section 10(1) and 15(1) of Cr.P.C[4]. Article 227 confers the power of superintendence on a High Court over all courts and tribunals functioning within the territories in relation to which a High Court exercises jurisdiction. Section 10(1) and 15(1) of Cr.P.C. declare that the Assistant Sessions Judges and Chief Judicial Magistrates are subordinate to the Session Judge and other Judicial Magistrates to be subordinate to the Chief Judicial Magistrate subject to the control of the Session Judge. It may be remembered that Section 195(4) deals with the authority of the superior courts in the context of taking cognizance of various offences mentioned in Section 195(1). Such offences are relatable to civil, criminal and revenue courts etc.[5] Each one of the streams of these courts may have their administrative hierarchy depending upon under the law by which such courts are brought into existence. It is also well known that certain courts have appellate jurisdiction while certain courts only have original jurisdiction. Appellate jurisdiction is the creature of statute and depending upon the scheme of a particular statute, the forum of appeal varies. Generally, the appellate for a are created on the basis of either subject matter of dispute or economic implications or nature of crime etc.

25. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate court competent to entertain the appeals either from decrees or sentence passed by the original court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo moto whenever the interests of justice demand.

26. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors – (1) the embargo created by Section 195 restricting the liberty of aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195; (2) such offences pertain to either the contempt of lawful authorities of public servants or offences against public justice.

27. A constitution Bench of this Court in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., (2005) 4 SCC 370, while interpreting Section 195 Cr.P.C., although in a different context, held that any interpretation which leads to a situation where a victim of crime is rendered remediless, has to be discarded[6]. The power of superintendence like any other power impliedly carries an obligation to exercise powers in an appropriate case to maintain the majesty of the judicial process and the purity of the legal system. Such an obligation becomes more profound when these allegations of commission of offences pertain to public justice.

28. In the case on hand, when the appellant alleges that he had been prosecuted on the basis of a palpably false statement coupled with the further allegation in his complaint that the respondent did so for extraneous considerations, we are of the opinion that it is an appropriate case where the High Court ought to have exercised the jurisdiction under Section 195 Cr.P.C.. The allegation such as the one made by the complainant against the respondent is not uncommon. As was pointed earlier by this Court in a different context “there is no rule of law that common sense should be put in cold storage”[7]. Our Constitution is designed on the theory of checks and balances. A theory which is the product of the belief that all power corrupts – such belief is based on experience.

29. The appeal is, therefore, allowed. The matter is remitted to the High Court for further appropriate course of action to initiate proceedings against the respondent on the basis of the complaint of the appellant in accordance with law.

………………………………………..CJI (P. Sathasivam) …………………………………..……J.

(J. Chelameswar) New Delhi;

January 20, 2014.

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[1] Section 193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extended to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extended to three years, and shall also be liable to fine.

Explanation 1.—A trial before a Court-martial; is a judicial proceeding.

Explanation 2.—An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. [2] Section 340. Procedure in cases mentioned in section 195.—(1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magi?

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Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik & Anr (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

CHANDRAMAULI KR. PRASAD, J.

Petitioner happens to be the husband of respondent no. 1, Lata Nandlal Badwaik and alleged to be the father of girl child Netra alias Neha Nandlal Badwaik, respondent no. 2, herein. The marriage between them was solemnized on 30th of June, 1990 at Chandrapur. Wife filed an application for maintenance under Section 125 of the Code of Criminal Procedure, but the same was dismissed by the learned Magistrate by order dated 10th December, 1993. Thereafter, the wife resorted to a fresh proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) claiming maintenance for herself and her daughter, inter alia, alleging that she started living with her husband from 20th of June, 1996 and stayed with him for about two years and during that period got pregnant. She was sent for delivery at her parents’ place where she gave birth to a girl child, the respondent no. 2 herein. Petitioner-husband resisted the claim and alleged that the assertion of the wife that she stayed with him since 20th of June, 1996 is false. He denied that respondent no. 2 is his daughter. After 1991, according to the husband, he had no physical relationship with his wife. The learned Magistrate accepted the plea of the wife and granted maintenance at the rate of Rs.900/- per month to the wife and at the rate of Rs.500/- per month to the daughter. The challenge to the said order in revision has failed so also a petition under Section 482 of the Code, challenging those orders.

It is against these orders, the petitioner has preferred this special leave petition.

Leave granted.

Taking note of the challenge to the paternity of the child, this Court by order dated 10th of January, 2011 passed the following order:

“…………However, the petitioner-husband had challenged the paternity of the child and had claimed that no maintenance ought to have been awarded to the child. The petitioner had also applied for referring the child for DNA test, which was refused. It is against the said order of refusal that the present Special Leave was filed and the same prayer for conducting the DNA test was made before us. On 8th November, 2010 we had accordingly, directed the petitioner-husband to deposit all dues, both arrear and current, in respect of the maintenance awarded to the wife and child to enable us to consider the prayer for holding of such DNA test. Such deposit having been made on 3rd January, 2011, we had agreed to allow the petitioner’s prayer for conducting DNA test for ascertaining the paternity of the child.

We have since been informed by counsel for the parties that a Forensic Science Laboratory in Nagpur conducts the very same test, as has been asked for, by the Petitioner. Accordingly, we direct the petitioner-Nandlal Wasudeo Badwaik and the respondent No. 1-Ms. Lata Nandlal Badwaik to make a joint application to the Forensic Science Laboratory, Nagpur, situated at Jail Road, Dhantoli, for conducting such test. The petitioner, as well as the respondent No. 1, shall present themselves at the Laboratory with respondent No. 2 for the said purpose on the date to be fixed by the laboratory, and, thereafter, the laboratory is directed to send the result of such test to this Court within four weeks thereafter. The expenses for the test to be conducted shall be borne by the petitioner-husband.” In the light of the aforesaid order, the Regional Forensic Science Laboratory, Nagpur has submitted the result of DNA testing and opined that appellant “Nandlal Vasudev Badwaik is excluded to be the biological father of Netra alias Neha Nandlal Badwaik”, respondent no. 2 herein.

Respondents, not being satisfied with the aforesaid report, made a request for re-test. The said prayer of the respondents was accepted and this Court by order dated 22nd of July, 2011 gave the following direction:

“Despite the fact that the report of the DNA Test conducted at the Regional Forensic Science Laboratory, State of Maharashtra, Nagpur-12, indicates that the petitioner is not the biological father of the respondent No. 2, on the prayer made on behalf of the respondents for a re-test, we are of the view that such a prayer may be allowed having regard to the serious consequences of the Report which has been filed.

Accordingly, we direct that a further DNA Test be conducted at the Central Forensic Laboratory, Ministry of Home Affairs, Government of India at Hyderabad and for the said purpose the parties are directed to appear before the Laboratory on 24th August, 2011 at 11.00 a.m.” As directed, the Central Forensic Science Laboratory, Hyderabad submitted its report and on that basis opined that the appellant, “Nandlal Wasudeo Badwaik can be excluded from being the biological father of Miss Neha Nandlal Badwaik”, respondent no. 2 herein.

At the outset, Mr. Manish Pitale appearing for the respondents submits that the appellant having failed to establish that he had no access to his wife at any time when she could have begotten respondent no. 2, the direction for DNA test ought not to have been given. In view of the aforesaid he submits that the result of such a test is fit to be ignored. In support of the submission he has placed reliance on a judgment of this Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418, relevant portions whereof read as under:

“24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”.

26. From the above discussion it emerges— (1) That courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) no one can be compelled to give sample of blood for analysis.

27. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Additional Chief Judicial Magistrate, Alipore in rejecting the application for blood test…………….” Yet another decision on which reliance has been placed is the decision of this Court in the case of Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, paragraph 13, which is relevant for the purpose is quoted below:

“13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. (See Kamti Devi v. Poshi Ram, 2001 (5) SCC 311.)” Reliance has also been placed on a decision of this Court in the case of Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, in which it has been held as follows:

“22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.” Miss Anagha S. Desai appearing on behalf of the appellant submits that this Court twice ordered for DNA test and, hence, the question as to whether this was a fit case in which DNA profiling should or should not have been ordered is academic. We find substance in the submission of Ms. Desai. Fact of the matter is that this Court not only once, but twice gave directions for DNA test. The respondents, in fact, had not opposed the prayer of DNA test when such a prayer was being considered. It is only after the reports of the DNA test had been received, which was adverse to the respondents, that they are challenging it on the ground that such a test ought not to have been directed. We cannot go into the validity of the orders passed by a coordinate Bench of this Court at this stage. It has attained finality. Hence, we do not find any merit in the submission of the learned counsel for the respondents. As regards the decision of this Court in the cases of Goutam Kundu (supra), Banarsi Dass (supra) and Bhabani Prasad Jena (supra), the same have no bearing in the facts and circumstances of the case. In all these cases, the court was considering as to whether facts of those cases justify passing of an order for DNA test. When the order for DNA test has already been passed, at this stage, we are not concerned with this issue and we have to proceed on an assumption that a valid direction for DNA test was given.

Ms. Desai submits that in view of the opinions, based on DNA profiling that appellant is not the biological father, he cannot be fastened with the liability to pay maintenance to the girl-child born to the wife. Mr. Pitale, however, submits that the marriage between the parties has not been dissolved, and the birth of the child having taken place during the subsistence of a valid marriage and the husband having access to the wife, conclusively prove that the girl-child is the legitimate daughter of the appellant. According to him, the DNA test cannot rebut the conclusive presumption envisaged under Section 112 of the Evidence Act. According to him, respondent no. 2, therefore, has to be held to be the appellant’s legitimate daughter. In support of the submission, reliance has been placed on a decision of this Court in the case of Kamti Devi v. Poshi Ram, (2001) 5 SCC 311, and reference has been made to paragraph 10 of the judgment, which reads as follows:

“10. ………The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception……….” Before we proceed to consider the rival submissions, we deem it necessary to understand what exactly DNA test is and ultimately its accuracy. All living beings are composed of cells which are the smallest and basic unit of life. An average human body has trillion of cells of different sizes. DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. Human cells contain 46 chromosomes and those 46 chromosomes contain a total of six billion base pair in 46 duplex threads of DNA. DNA consists of four nitrogenous bases – adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Given that the Earth’s population is about 5 billion, this test shall have accurate result. It has been recognized by this Court in the case of Kamti Devi (supra) that the result of a genuine DNA test is scientifically accurate.

It is nobody’s case that the result of the DNA test is not genuine and, therefore, we have to proceed on an assumption that the result of the DNA test is accurate. The DNA test reports show that the appellant is not the biological father of the girl-child.

Now we have to consider as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no. 2, in the face of what has been provided under Section 112 of the Evidence Act, which reads as follows:“112. Birth during marriage, conclusive proof of legitimacy.-

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten.

As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl- child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us.

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.

As regards the authority of this Court in the case of Kamti Devi (Supra), this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non- access of the husband with the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act”. The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court was confronted with a situation in which DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents.

In the result, we allow this appeal, set aside the impugned judgment so far as it directs payment of maintenance to respondent no. 2. However, we direct that the payments already made shall not be recovered from the respondents.

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Akeredolu & Anor Vs Mimiko & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, JSC

In the lead judgment prepared and delivered in this appeal before this court the facts and the statements of the cases of the parties have been set out in sufficient detail. For the purpose of this short contribution I adopt them as mine.

It is to be noted that the Tribunal in this petition in its judgment has dismissed the petition even although it has also reached the conclusion that more than 100,000 unlawful registrants have been injected into the 2012 Register of voters without there having been conducted by INEC of any exercises in review or revision or new registration as per the said Register of voters. The Tribunal has in reaching this conclusion said that the petitioners’ main complaint of non-compliance has been hinged on challenging the content of the Register of voters and not as to the use to which the register has been put during the actual conduct of the election process and so, that its jurisdiction as election Tribunal has been ousted as the complaint tantamount to a pre-election matter over which an Election Tribunal has no power to deal with. Clearly there is a misconception of the applicable election law, procedure and practice vis-a-vis the said finding as I will establish anon. Even then, and more importantly that the effect of the injection of names of these illegal voters upon the result of the instant election has not been proved by the petitioners, i.e. that the petitioners have failed to show how the injection of over 100,000 registrants has affected the outcome of the election.

Against the foregoing background the lower court’ has rightly set aside the Tribunal’s finding declining jurisdiction, it has itself nonetheless come to hold that the injection of over 100,000 unlawful Registrants ever although not as per any legitimate exercise by INEC’s act under the Electoral Act as to suffice as what might go as a review or revision or new registration of the Register of voters. All the same, that much of what properly has been in issue in this matter is as regards to the use to which the register of voters has been put in the conduct of the instant election process and so that the instant petition is absolutely within the Tribunal’s jurisdiction as the complaint of its use is not by any stretch of the construction of the Electoral Act a pre-election issue, it has also held that the petitioners have not even then as a matter of discharging the onus on them showed how it has impacted the outcome of the instant election, in other words, that the injection has not substantially affected the outcome of the election, it has therefore come to hold the due Return of the 1st respondent in the said election, it is on such sound grounds that the court below has based its decision in this matter.

Let me pause here to interpose that there are occasions arising from the peculiar facts and circumstances of an election petition when some pre-election causes may in fact and in law arise in the conduct of actual elections as in this regard. There are causes such as questioning in most cases even the nominations, or its validity, screening and clearing of candidates for elections may so arise. Such complaints are known to have reared their heads thus spilling over into the conduct of elections proper. And so a Tribunal as the instant one faced with the questions as in the instant circumstances as aforesaid has to examine absolutely the facts and circumstances, in order words the subject matter of the petition before it closely to ascertain whether the Court/Tribunal has jurisdiction over the subject matter of the petition and so also against the Act creating the Court/Tribunal. Thus an election petition itself has to be closely examined as regards to the subject matter of the claim/petition as in this case before the Court/Tribunal declines jurisdiction on the ground simply that the complaint does not arise out of the conduct of an election process proper or as not having happened within the actual period of the conduct of elections. The ground upon which the instant petition is premised is clearly within the provisions of Sections 138(1) (b) and 139(1). It is settled law that the plaintiff’s claim as a petitioner’s petition here has to be looked at to ascertain whether or not the claim/petition falls within the jurisdiction of the Court/Tribunal. See: Madukofu & Ors. v. Nkemdillm (1962) 1 ANLR 587. in the above cited case this court has attempted to set out the pre-conditions now trite that has to exist before a court could assume jurisdiction over a matter placed before it for adjudication. I see no need replicating them here. And this principle applies here with every vigour.

The appellants’ case in this appeal put briefly has questioned the instant voting without accreditation vis-a-v vis the instant alleged disorderly register of voters with all its obvious discrepancies. Thus it has questioned the number of lawful voters so ticked therein as having voted according to the said register in the instant election as being totally different from the actual number as recorded to have so voted as per FORM EC8A. in other words, these infractions have brought out clearly the use of an inappropriate register of voters in the conduct of the said election process. Again, let me pause here to observe that the importance of an authentic Register of voters for an open and transparent election process cannot be underestimated. Not only that the candidate who intends to contest in a particular election is required to be a registered voter as per the Register of voters, also a person who is minded to cast his vote in an election must be a Registered Voter as per the register of voters to be enabled to cast his vote in an election.

It is clear that the gravamen of the appellants’ case in this matter is on the non use of an appropriate Register of voters and strictly speaking not on the contents of the said register of voters per se. I have to expatiate upon this point as it touches on the issue of jurisdiction and to show that the Tribunal here has completely, with respect, misapprehended the petitioners’ case before it; even although it ultimately has come to the correct decision by dismissing the petition. The Court below is therefore right to have overruled the Tribunal on the issue of want jurisdiction, and consequently to have set aside that finding to the effect that the petitioners’ complaints are otherwise hinged on pre-election infractions and so outside its jurisdiction.

The other crucial point upon which the appeal again hinges has included the propriety of the Tribunal’s finding as affirmed by the court below that the impact of the invalid number of registrants on the overall election has not been proved in the instant case nor has the evidence preferred attained the standard of proof required according to the law and also that the various questions of non-compliance alleged by the appellants in the petition have not again been proved.

On the backdrop of the above premises the crucial question on whom lies the burden of proof and the propriety of the Tribunal’s finding on that issue as affirmed by the court below and so also the finding that in law the burden of proof lies on the petitioners/appellants as a matter of law. The appellants utter failure so to appreciate this points upon the backdrop of a proper construction of section 133(1) (b) and Section 139(1) of the Electoral Act as amended is obvious as per paragraphs 8.06, 8.07 and 8.08 of the appellants joint brief of argument. I will expatiate anon, As a coroflary to the foregoing premise, again this has raised in this case the pertinent question of standard of proof beyond reasonable doubt as the categories of the complaints alleged by the appellants prima facie amounting to non-compliance with the Electoral Act are of a criminal nature. The appellants have proffered in that regard the testimonies of their experts as per PW34 and PW35 vis-a-vis Exhibits P52 (A & B) and P55, P56 and P57 (A1 – A20) received in evidence in this matter, all of which have been rejected and discountenanced by the court below for reasons ably stated in the lead judgment. The said exhibits tendered before the Tribunal have been castigated based on sections 131(1) & (2), 132, 133(13) and 134 of the Evidence Act 2011 which l also find applicable. However, this aspect of the appellants’ case has been so satisfactorily dealt with in the lead judgment of my Noble Lord Ngwuta JSC that I do not see any grounds for duplicating the same here. He has given in-depth assessment of their evidential value and weight to be attached to the evidence of PW34 and PW35 in the context of this case, i need not delve into the same here as l have nothing to add thereto.

However, on the complaints that the appellants have failed to prove the acts of non-compiiance with the Electoral Act and its guidelines that is to say by showing that they substantially have affected the result of the election, the appellants’ stance in this regard is captured by their paragraphs 8.06, 8.07 and 8.08 in their joint brief of argument in this appeal and they read as follows:

“8.06 – The court of Appeal acted in contravention of S.139(1) of the Electoral Act by requiring the appellants who had already proved non-compliance with the Electoral Act to further proof that non-compliance substantially affected the outcome of the election.

8.7 – The lower court was wrong by failing to hold that invalidity of the election automatically followed by the operation of law under s.138 (1) (b), is (sic) holding that the election was afflicted by non-compliance with the Electoral Act.

8.8 – Even if the lower court was correct in holding that the appellants had a further duty to prove how the non-compliance proved, substantially affected the outcome of the election, the lower court was still wrong not to have itself, examined the evidence on record to see whether it was so proved.

The respondents particularly the 3rd respondent in response therefore have contended that the court below has acted correctly in folding to the findings that the appellants have totally failed to .establish the acts of non-compliance with Electoral Act and the guidelines as alleged so as to vitiate the election. And also that they have misconceived their case as per the combined reading of the provisions of Sections 138(1) (b) and 139(1) of the Electoral Act as amended in projecting their position that the Register of voters on having been vitiated that the invalidity of the election automatically followed by operation of the law under section 138(1) (b), and so that the instant election must be nullified. Again, that to hold to the foregoing views negates the clear provisions of Section 138(1) (b) construed together with section 139 (1) of Electoral Act 2010 as amended, in this regard they have argued that even where non-compliance with the provisions of the Electoral Act have been found proved, all the same, that the election is still sustainable provided it has been conducted in substantial compliance with the other provisions of the Electoral Act to such a degree that the election cannot be vitiated. As can be seen the questions raised for determination in this appeal turn on the construction of these provisions.

At this stage I refer to the instant provisions of section 138(1) (b) and 139(1) by setting them out as follows:-

“138(1) An election may be questioned on on ……………….. the grounds:

(a) (not applicable)

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of (the) Act.

139(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Electoral Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

Clearly a combined reading of the provisions of Section 138(1) (b) and Section 139(1) has showed that Section 138 (1) (b) has to be resorted to on the backdrop of the provisions of section 139(1). The two sections must be read together in construing the principle of non-compliance and its application to the complaints of non-compliance in election matters. I hold the view that the two provisions have to be so construed together in order to arrive at the true intention of the law-maker and it couldn’t be moreso than here where the provisions of the said two sections are dealing with the same subject matter of non-compliance. The 3rd respondent has practically argued to the effect that Section 138(1) (b) literarily has to be read subject to Section 139(1) and I agree. Again, they must be read conjunctively to achieve the lawmaker’s intention, in this regard an election cannot be vitiated for non-compliance unless and until the election sought to be vitiated is also further showed conclusively where the standard proof so requires it, that the non-compliance has also substantially affected the result of the election in other words the appellants have to establish that but for the non-compliance they would otherwise have scored a majority of lawful votes over the number of votes cast for the 1st respondent. Meaning in the context of this matter that going arithmetically that by subtracting the said over 100,000 illegal votes from the votes cast in favour of the 1st respondent here in the election that the votes cast in their favour would have come tops to that of the 1st respondent In practical terms that is what the respondents’ argument here has represented. The appellants’ argument as per their above cited paragraph 8.07, with respect, is misconceived and unacceptable, it is wrong on the facts and circumstances of this matter or the applicable law to hold that the invalidity of the election automatically flows by operation of law under Section 138(1) without adverting to the further duty on the appellants to show that the non-compliance having been proved has substantially affected the outcome of the election. And so it is not the duty of the lower court to scout around the record to see if there is such evidence as that would mean prosecuting the appellants’ case by the Tribunal, in this regard the two limbs of the provisions of Section 139(1) must therefore be satisfied to warrant nullifying an election which otherwise in law has also to be presumed to be regular. Clearly from the provisions of Section 139(1) the burden is squarely on the appellants who asserts the acts of non-compliance to further show how the non-compliance has affected the outcome of the election and who otherwise would fail if no evidence at all is supplied in that regard. I am quite aware of the proposition by Lord Denning construing similar provision as here (as I have observed in many cases before now) to the effect that an election could be so marred that it is substantially conducted in non-compliance with the law and thus vitiating the entire election. See: Morgan v. Simpson (1975) OB. 151, in such a case I must add such an election must have lost all character of an election arising out of the alleged non-compliance with the law. in other words it must be such a fundamental breach in law to vitiate an election, upon that construction the observation of my learned brother Onnoghen JSC in Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt.1154) on non-compliance with regard to non-serialization of ballot papers used in that election, though obiter in dissenting opinion has to be seen in that light. However, this court’s opinion on this issue is as clearly settled in Awofowo v. Shagari (1979) 2 NSSC 87 at p.3 per Obaseki JSC. wherefore his Lordship has applied the principle as per the case of Woodward v. Sarsons (10 CP.733) at 751 in preference to the principle in Morgan v. Simpson (supra).

The wordings of these provisions i.e. sections 138(1) (b) and 139(1) I must emphasise are plain and clearly do not admit of any ambiguity. They therefore have to be construed literarily by giving the words used therein their natural simple meaning – thus there is no scope for having recourse to the rules of construction.

Construing the word “non-compliance” in both provisions with regard to an election has created a situation where an election has been conducted in a manner not in accordance with the provisions of the Act and/or the guidelines prescribed therefrom. The instant Electoral Act has made Rules for the conduct of elections under the heading “procedure at election” and they cover a wide range of activities or exercises which taken together will ground a wholesome election process that would culminate into a transparent and open election process that is fair and free, in this regard the two limbs of the provisions of Section 139(1) must be construed as a whole, each limb, as it were, throws some light on the other. And so, upon the meaning of non-compliance with the Act and for the plea to avail a petitioner in an election petition as the instant one it goes without more that the petitioner has to further prove that he would otherwise have won the election fair and square but for the illegitimate acts or omissions tantamounting to non-compliance as in this case by INEC i.e. the 3rd respondent (INEC) in the said election process.

I think the appellants have also missed the point in their submissions that the respondents have failed to supply any evidence in discharge of the onus of proof on them that is to show that the election has been conducted in substantial compliance with the principles of the Electoral Act and that the non-compliance as alleged in the petition by the appellants has not affected substantially the result of the election. This will tantamount to standing the onus of proof based on the instant pleadings and Electoral Act on its head. As I have showed herein to place such burden on the respondents will thus render the instant non-compliance as an exception under Section 139(1) and clearly it is based on a misconception of the provisions of the Act and is without any doubt misplaced and it is accordingly unacceptable. The second limb of section 139(1) is as much a part of the said section as the first limb that the two limbs of the section must therefore be construed conjunctively and as l have said herein as each limb throws some light on the other. The burden of proof arising from the provisions of Section 139(1) is squarely placed on the appellants in this matter.

In sum, the appellants’ case in these appeals lack merits. I too dismiss the same and I endorse the orders contained in lead judgment of my noble Lord Ngwuta JSC including the order on costs. Appeal and Cross Appeals dismissed.

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SC 352/2013

Lukmon Osetola & Anor V. The State (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This appeal is against the judgment of the court of Appeal, Ibadan Division delivered on 17th May, 2011, whereby it affirmed the conviction of the Appellants for conspiracy to commit armed robbery and attempted armed robbery, by S.A. Oduntan, J in his judgement delivered on 21st May, 2004 at the Ogun State High Court.

Sometime on the 14th March, 2000 by the complaint of the Attorney General of Ogun state of Nigeria, the appellants and one other had been charged before the state High court, Holden at Abeokuta, on the following counts:

Count 1

“Lukman Osetola (m), Fatai Tijani (m), Niyi Babatunde (m) and others now at large, on or about the 29th day of December, 1996 at Omida, Abeokuta, Ogun state, conspired together to commit the offence of armed robbery contrary to section 5 (b) and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of the Federation, 1990.”

Count 2

“Lukman Osetola (m), Fatai Tijani (m), and others now at large, on or about the 29th day of December, 1996, at Omida, Abeokuta, Ogun State, while armed with Firearms to wit: gun attempted to rob one Alhaji Sikiru Alao of his money and thereby committed an offence punishable under section 2(2) (a) of the Robbery and Firearms (Special Provisions) Act, cap 398 – Laws of the Federation of Nigeria, 1990.”

The case proceeded to trial. The prosecution called four witnesses and tendered twelve Exhibits including the statements of the Appellants. The appellants also testified in their respective defence but did not call any other witness. The prosecution’s case goes thus: that on the 29th December, 1999 at about 8pm, one Abdu Alao (PW2) was in his father’s beer shop when three young men on a white Vespa Motorcycle came to the shop. The rider of the motorcycle remained on it, while the other two entered the shop in pretence of being customers who wanted to purchase carton of stout. One of the two men suddenly produced a gun from a plastic bag which he pointed at PW2 to order him to produce all the money that had been made from the day’s sales.

PW2 told him he did not have the keys to the safe with him, where the money was kept. The men asked for his father and he told them that his father was not around.

The men then sported PW2’s father who was sitting somewhere outside the shop and then called him into the shop. They introduced themselves as men of the crime Investigation Department (C.I.D.) Eleweran, Abeokuta. The gun was pointed at him with a demand for the money he had made from the day’s sales’ PW2’s father, Alhaji Sikiru Alao requested his son (PW2), to get the money out from the safe for the men. As PW2 was going to the safe to get the money, his father – Alhaji Sikiru Alao was shot and killed. The men then fled and ran out of the shop to reunite with their partner on the Vespa motorcycle. PW2 ran after them toward the Motorcycle. One of them fell down from their get-away motorcycle while the other two escaped.

PW.2 struggled with the other man to get him down but he (PW2) was over powered by the man who eventually escaped too into the night. PW2 reported the incident to the Ibara Police Station. One Sergeant Fidelis Bimi was the police officer on duty who obtained PW2’s statement and followed him to the scene of the crime. The lifeless body of PW2’s father was later moved to the Mortuary that same night for necessary post-mortem examination. Dr. E. A. Sobowale, a Medical Officer (PW.1) carried out the authopsy and reported that PW2’s father had a gun shot wound in the chest and died of emorrhagic shock. The medical report was tendered and admitted as Exhibit A while the statement of PW2 made to the Police officer, PW3 was admitted as Exhibit B. An expired Cartridge found at the scene of the crime was admitted as Exhibit C.

Further investigation continued with PW4 Corporal Temitayo Adepelumi who on a search of the house of one Mrs. Modinatu Adekoya recovered among other items, the gun said to have been used at the crime in question. The said gun was tendered. PW4 later, between the 6th and 7th January, 1997 arrested the three accused persons including the appellants. He obtained their statements which was said to be confessional. Appellants’ counsel objected to the admissibility of the statement. The objection led to the trial court conducting a trial within trial and when the counsel’s objections were found to be baseless the statements were admitted and marked Exhibits I, J and K respectively. Photographs of an identification parade by the police where PW2 identified 1st Accused as the one who shot and killed his father, Alhaji Sikiru Alao were admitted as Exhibits G and G1 while the getaway Vespa motorcycle allegedly used by the fleeing armed trio on the night of the incident was admitted as Exhibit H. PW4 had been led by the 2nd Accused/Appellant to the house where the Vespa motorcycle was recovered.

At the close of the prosecution’s case, the defence opened and each of the appellants testified in defence, but did not call any other witness. While the 1st Accused/Appellant did not deny being at the scene of the crime on the night of the incident, his evidence was that of an innocent person who had found himself in the wrong place at the wrong time. He stated that he was at work at the Date Joint Restaurant when a man, called Saheed came in to have a drink. He tried to hurry up Saheed and another man by telling them that he needed to go to Ibara, Omida Area of Abeokuta, hence he wanted to close early. Saheed however asked him not to be in hurry as he was also going to the same area and would give him a ride. He (1st Accused/Appellant) and Saheed then came out of the Restaurant and boarded a commercial motorcycle popularly referred to as “Okada” and when they got to the shop of Alhaji Sikiru Alao (PW2’s father) around 8p.m. on the day of the incident, he disembarked and Saheed asked him to find out the price of a carton of Stout from PW2’s father’s shop while he (Saheed) would go to the shop of his radio repairer near PW2’s shop. Saheed then came into PW2’s shop. And surprisingly he produced a gun from a nylon bag he was carrying and pointed the gun at both PW2 and himself (1st Accused). Saheed then asked PW2 to bring out money they made on the day’s sales but as PW2 began to scream, the attention of a man outside the shop was attracted and the man came into the shop, Saheed ordered him to bring out the money from the day’s sales. As the man stood steel where he was, Saheed shot him.

1st Accused/Appellant stated that he did not know Saheed or where he came from as he had only met him twice in the past, the first time being the 24th December, 1996 and on the 29th December, 1996, the day of the incident and that if he saw him he would not be able to recognize him. He denied knowing anyone connected with the incident.

2nd Accused also denied the charge and stated that he knew nothing about the offence. While admitting that he was a commercial motorcyclist who owned a Vespa motorcycle but which colour he gave as red, he denied carrying any passenger to Ibara Omida on the 29th December, 1996, the day of the incident. He admitted making a confessional statement but stated he did so under torture.

At the close of the hearing in its considered judgment delivered on the 20th May, 2004 the trial court found both appellants guilty as charged, convicted and sentenced each of them on Count 1 to death and on Count 2 to life imprisonment.

Dissatisfied with the judgment of the trial court, the two convicts appealed to the court below, both against the ruling on the trial within trial delivered on the 21st February, 2003 and the final judgment delivered on 21st May, 2004.

The Court below allowed the appeal in part. Though the trial court was found to have rightly found the two appellants guilty of the two counts charge, the death sentence passed on the appellants was quashed by the court below in respect of count 1 and substituted for life imprisonment. The sentences were to take effect from the 24th May, 2004 when the trial court delivered its final judgment.

Further dissatisfied with the decision of the court below, in affirming the conviction, each of the appellants appealed to this court on their respective Notice of Appeal with four Grounds of Appeal each.

The Joint brief of argument of the Appellants was settled by Segun Fowowe, Esq. filed on 25th October, 2010 while the Respondent’s brief of argument was filed by Mrs. Adesina on 16th December, 2011 but was deemed properly filed and served on 7th March, 2012.

In their joint brief of argument, the appellants distilled three (3) issues from their Grounds of Appeals for determination as follows:

“1. Whether the learned Justices of the court of Appeal were right, in law, to affirm the conviction of the Appellants even though the prosecution relied upon hearsay evidence to prove the voluntariness of the confessional statements relied upon by the trial court in convicting the appellants.

2. Whether the learned Justices of the court of Appeal were right, in law, in affirming the conviction of the Appellants even though the prosecution did not prove its case against the Appellants beyond reasonable doubt.
3. Whether learned Justices of the court of Appeal were right in law to affirm the conviction of Appellants even though the trial court wrongly evaluated the evidence with which it disbelieved that the confessions of the Appellants were involuntary.”

The appellants took the issues seriatim.

They submitted that the testimony of PW1, the Superior Police officer (SPO) was hearsay evidence upon which the trial court relied to convict and sentence the appellants and which conviction and sentence were affirmed by the court below. The appellants contended that many policemen were involved in their interrogation. In their joint brief of argument references were made to the testimony of the 1st Appellant during trial within trial on the treatment metted out to him to force him to make the Statement obtained a team of Policemen. The Appellants referred to the testimony of the 2nd Appellant during trial within trial also on how he was arrested and made to make the alleged confessional statement to four police officers.

It was contended that the 2nd appellant was never taken before any Superior Police Officer and that the testimony of PW1 was hearsay. The two statements of the appellants were made in the absence of PW1. It was submitted that not being present when the confessional statements of the two appellants were taken, the testimony of PW1 on the fact of whether or not the statements were made voluntarily could not be evidence of a person who “saw” or “heard” as required by Section 77 of the Evidence Act and therefore could not be direct oral evidence on the fact of whether or not the statements were voluntary. The Appellants contended that whilst it may be direct oral evidence on the fact of endorsement thereof by SPO, the evidence of PW1 is at best, tantamount to hearsay evidence on the particular issue of whether or not the confessional statements of the Appellants were voluntarily made and therefore the evidence was inadmissible for the purpose of proving voluntariness thereof. They relied on Emeka Vs. The State (2001) 32 WRN 37 at 47, The State Vs. Ajayi (1997) 5 NWLR (pt. 167) 315 at 324.

The Appellants referred to part of PW1’s testimony to the effect that the case was investigated by a team of Police Officers. It was contended that the prosecution failed to call any one of those police officers who actually, participated in taking the two statements of the appellants to prove voluntariness thereof. The appellants contended that the evidence of PW1 who stood as a superior Police officer being a hearsay evidence and was erroneously admitted by the trial court to prove that the alleged confessional statements of the appellants were voluntarily made by them to convict therein.

It was therefore submitted that the court below was wrong in relying on the said hearsay testimony of PW1 in affirming the conviction. They urged the court to hold that the statements were not voluntary hence the appellants were wrongly convicted and the Issue must be resolved in favour of the appellants.

On Issue No.2, the appellants submitted that it is trite law that the onus of proof of its case beyond reasonable doubt lies always on the prosecution, and it never shifts, throughout the proceedings.

In arguing that the prosecution failed to prove its case beyond reasonable doubt, the appellants relied on their argument on issue one above, on the wrongly admitted testimony of PW1 to establish the voluntariness of the appellants statements as truly confessional statements.

The appellants contended that their alleged confessional statements were not made voluntarily as claimed and purportedly confirmed by PW1.

Reliance was placed upon the case of Saidu v. State (1982) 13 NSCC 70.

The appellants contended further that failure to call vital witnesses meant that the prosecution was not comfortable with their testimony. They relied upon section 149 (d) of the Evidence Act.

Similarly, the appellants wondered why the prosecution failed to tender the gun which the police recovered and remained in their custody all through. It was submitted that the presumption of law under section 149 (d) of the Evidence Act ought to have been allowed in favour of the appellants, to hold that the prosecution failed to prove its case beyond reasonable doubt. They relied on Onah vs. State (1985) 3 NWLR (pt.12) 236, United Cinema & Films Distributing Co. v. Shell B.P. Petroleum Development Co. of Nig. (1972) NNLR 86 at 94 Ogumonzee v. The State (1998) 5 NWLR (pt.551) 521 at 571.

The Appellants however conceded that the prosecution is not obliged to call a particular witness if it can otherwise establish its case, but must call at least a witness relevant and vital or necessary to prove its case. It was submitted that the prosecution never prove its case at all, let alone beyond reasonable doubt, with the evidence which they considered irrelevant and by reasons thereof inadmissible.

The appellants referred to the testimony of PW2- whose father was allegedly killed in his beer shop and contended that his story of how he pursued his father’s assailants who had used a gun to kill his father, with a bottle ought to have been taken as improbable and doubtful. Yet the trial court believed and relied on the testimony to convict the appellants.

The appellants contended that there were discrepancies and contradictions in the testimonies of prosecution witnesses that must have rendered the prosecution’s case not proved against the appellants. For instance, on the colour of the motorcycle allegedly used to commit the offence, the appellants stated that the colour conflict was not resolved. PW2 in his statement alleged it was white Vespa motorcycle while Exhibit H – the Vespa that was impounded as the Motorcycle used is red in colour, but with the same registration number.

Also, on what day the 2nd Appellant who testified as DW2 signed his alleged confessional statement, he contended that he was never taken before any Superior Police Officer as against the testimony of PW1 who was the Superior Police Officer. The appellants submitted that the contradictions were not resolved. They relied on Gabriel v. State (1989) 5 NWLR (Pt.122) 457 at 468, Ankwa v. The State (1969) 1 ALL NLR 129, Ahmed v. The State (1999) 7 NWLR (Pt.612) 641 at 673.

It was submitted that there were many inconsistencies in the prosecution’s case which cast doubt on the prosecution’s case to make the appellants conviction unsafe. It was further submitted that the trial court wrongly evaluated the testimonies of the appellants under cross examination which led to their conviction. And the court below failed to avert its mind to the issue of wrong evaluation of evidence by trial court.

The appellants submitted that the prosecution thereby failed to prove its case beyond reasonable doubt against them. They urged the court to resolve the Issue in their favour, set aside the decisions of the two courts below, discharge and acquit both of them.

The Respondent’s two issues which were argued together as one in its brief of argument are as follows:

“whether the prosecution proved its case beyond reasonable doubt to warrant the conviction of the appellants – and whether the learned Justices of the court of appeal were right when they affirmed the conviction of the appellants.”

The Respondent posed the question, how is a case proved beyond reasonable doubt It was submitted that a case can be proved by direct oral evidence. If the testimony of witnesses who saw and heard are believed, there will be proof beyond reasonable doubt. Circumstantial evidence can prove a case beyond reasonable doubt. Reliance was placed on Adio & Anor v. The State (1986) 3 NWLR (pt.24) 581. Joseph Ogunbayode, & Ors. v. The Queen (1954) 14 WACA 458.

The Respondent contended that in proof of its case, the prosecution called four witnesses and tendered twelve Exhibits.

Learned counsel to the Respondent in the brief of argument referred to the testimonies of the witnesses, statements of the two appellants which she said were confessional statements. She referred also to the testimony of PW1 during trial within trial when the appellants challenged their statements, voluntariness. The trial court had held that the evidence of the only prosecution witness who was a DSP Alex Agidiomo who endorsed the statements is relevant on the issue of voluntariness of Exhibits I and J. She submitted that a confessional statement becomes proof of an act when it is true, positive and direct. Cited; Peter v. The State (1997) 12 NWLR (pt.531); Ogoha v. State (1976) 1 SC 55 at 59.

Learned Respondent’s counsel referred to the conditions for testing the veracity of a confessional statement before a court can place any evidential weight on it, and contended that there is so much outside the confessional statements to buttress the facts contained in the statements.

The respondent further referred to the various Exhibits again including the confessional statements of the Appellants and Photographs taken at the Identification parade where PW1 properly identified the 1st Appellant as one of the men who came to their shop on the night of the incident. The Learned counsel submitted that the statements of both appellants were properly admitted by the trial court as confessional statements and were rightly relied upon to convict them. Learned counsel submitted further that notwithstanding the retraction of the 2nd Appellant, that the statement was properly admitted, their conviction was properly affirmed by the court below. She cited; Akpa vs. The State (2008) 14 NWLR (pt. 1106) 72 at 98-99; Odeh Vs. FRCN (2008) 13 NWLR (Pt.1103) 1 at 27-28.

Learned counsel submitted that the trial court properly evaluated the evidence adduced by both the prosecution and the appellants before coming to the conclusion as it did. There were no material contradictions that could justify any lingering doubt in the case of the prosecution. Counsel submitted that the alleged contradictions alluded to by the Appellants, if at all, are mere discrepancies which are not fundamental to the main issue in the prosecution’s case.

The respondent referred to the fact that the 2nd appellant led the Investigating Police Officer (IPO) to the place where the Vespa Motorcycle tendered as Exhibit was retrieved and contended that that is what was material but not whether the colour of the Vespa was white or red. The action of 2nd appellant showed that he knew about the attempted robbery where the Vespa was used, the Respondent contended.

Furthermore, the issue whether the deceased died and where he died are not material. The fact that he died shortly after he was shot is what is material but not whether he died before or after reaching the hospital. The Respondent submitted that all the supposed contradictions, if at all, mentioned by the appellants in their brief of argument, are not material enough to affect the prosecution’s case. She cited; Asariyn Vs State (1987) 4 NWLR (Pt.613) 10.

The Respondent finally submitted that the trial court and the court below properly evaluated the evidence adduced by both parties and the court came to a right and just conclusion by finding the appellants guilty of both counts, convicting and passing the sentences on them. She urged the court to so hold as there was no miscarriage of justice in the matter. She urged the court to resolve the issues argued together in favour of the Respondent and not to disturb the findings of the two courts below but rather dismiss the appeal for lacking in merit and uphold the Respondent’s submission that the prosecution proved its case beyond any reasonable doubt. She relied on Ebodo v. Enarofia (1980) 5-7 SC 42 at 56 – 57.

In the consideration of this appeal I shall take the three issues distilled by the Appellants together, as they are all attacking the affirmation of the decision of the trial court by the court below when, according to them, the prosecution totally failed to prove the case against the appellants beyond reasonable doubt.

As stated earlier, the appellants were both charged with two count charges of conspiracy to commit the offence of armed robbery and attempted armed robbery.

The trial court having carefully considered the testimony, (oral and documentary), and all Exhibits produced and admitted by the prosecution along with the defence proffered by the appellants, the trial court found as follows:

“… I have no doubt in my mind that there was an attempt by a three-member gang to steal some money from the Late Alhaji Sikiru Alao, the father of PW2 on the night in question. I have no doubt also that at least a member of the gang was armed with firearms (a gun); or that the gang was in company with a person so armed. Again, there is no doubt that the gang used personal violence against the person of the late Alhaji Sikiru Alao. These facts without more would certainly and clearly constitute an offence of attempted armed robbery against the three member gang that visited the beer shop in question on the 29th December, 1996. Consequently, I hold that the prosecution has been able to establish a case of attempted armed robbery against the gang.”

First and foremost, I must state that the proper approach to an indictment containing conspiracy charge and substantive charges is to deal with the later, that is, the substantive charges first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy.

Conspiracy is an agreement between two or more persons to do an unlawful act. Failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, independent of the actual offence conspired to commit. See; Segun Balogun v. Attorney General Ogun State (2002) 2 SC (pt.11) 89, (2002) 4 SCM 23, (2002) 2 SCNJ 196.

It is note-worthy that the trial court in this case did just that. The Court took the substantive count charge of attempted armed robbery against the two appellants before dealing with the count of conspiracy which involved the appellants and yet another who was later discharged and acquitted.

Now, the appellants were convicted and sentenced for the offence of attempted armed robbery.

It is trite law that for the prosecution to establish the offence of armed robbery the following are required to be proved.

(a)That there was infact robbery;

(b)That the robbery was an armed robbery; and

(c) That the accused person was the armed robber.

See; Bozin Vs State (1985) 2 NWLR (Pt.8) 465 at 467; Alabi Vs State (1993) 7 NWLR (Pt.307) 551, Olayinka Vs State (2007) 4 SC (pt.1) 210; (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM 193.

To establish the offence of attempted robbery, the prosecution in this case relied mainly on the testimony of PW2 and PW4 and the Confessional Statements of the Appellants. PW2 is the son of the deceased victim of the crime whose property was attempted to be robbed, while PW4 was the Investigating Police Officer.

The Statements of the Appellants had been tendered though objected by the defence, hence trial within trial was conducted as required, the trial court found the statements admissible having been made voluntarily as confessional statements, admitted them and marked the said statements as Exhibits I and J respectively. From the careful consideration of the two statements of the appellants, the trial court made the following findings:

“1. That the 2nd accused was an “Okada” rider as at 29th December, 1995. An Okada rider is a Motorcyclist who uses his Motorcycle as a public transport to carry fare paying passengers.

2. That on that day, 29/12/96, the 2nd accused was operating with a white Vespa Motorcycle belonging to one Kassim when at about 6.30p.m. he was stopped by one Saidi who told him of an assignment and to follow him
3. That the 2nd accused followed the said Saidi to the Date Joint Restaurant located in Sabo area of Abeokuta, where the first accused worked as a Manager.
4. That at the Date Joint Restaurant, the three of them discussed the assignment brought by the said Saidi and agreed to execute it.
5. That in furtherance of that agreement, they all left the Date Joint Restaurant for a beer shop at Ibara Omida belonging to the late Alhaji Sikiru Alao.
6. That at about 8p.m. on that day 29/12/96, they arrived in front of that beer shop on the Vespa Motorcycle ridden by the 2nd accused.
7. That the 1st accused and the said Saidi came down from the motor cycle and entered the beer shop, while the 2nd accused remained on the Motorcycle outside the beer hop.
8. That the 1st accused and the said Saidi met the late Alhaji Sikiru Alao in front of his shop and invited him into the shop after introducing themselves as men from the State CID, Eleweran Abeokuta.
9. That while inside the shop, the said Saidi brought out a gun from his bag and pointed it at the late Alhaji Sikiru Alao and ordered him to bring out his money.
10. That the said late Alhaji became dump founded and while still in that confused state of mind, the said Saidi shot him.
11. That following that shooting the said Alhaji slumped while the gunman and the 1st accused left the shop.
12. That both the 1st and 2nd accused succeeded in escaping from the scene on their get-away Motorcycle, leaving the said Saidi behind.”

See pages 107-108 of the record.

Based on the above findings of the trial court on the confessional statements of the appellants, the trial Judge concluded as follows:-

“Clearly, the above is a direct and unequivocal admission of complicity in the killing of the late Alhaji Sikiru Alao in the attempt to steal money from him by the accused persons and their runaway accomplice Saidi.”

The court below upon review of the evidence of PW2, the son of the deceased victim of the crime came to the conclusion at the initial stage, that the prosecution was able to prove that whoever the young men were, they were armed robbers. Also upon examination of Exhibits G and G1, the photographs where, at an identification parade conducted by the police, the 1st accused was duly identified by PW2.

It is interesting to note that the court below in its concurring finding of facts held that the 1st Accused/Appellant did not deny the fact that he was at the scene of crime on that day and time in question. He only denied having participated in the act of either attempting to steal from or in murdering Alhaji Sikiru Alao. He claimed that he had only gone to the shop to ask for the price of a carton of stout when he found himself in the midst of vicious people.

As I stated earlier, the confessional statements of both appellants were what the trial court relied upon after warning itself on the weight to be attached to them as retracted statements.

It is already settled, that where an accused person during trial retracts, denies or resists from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his said earlier statement. See; Nwachukkwu Vs The State (2007) 12 SCM (Pt.2) 447, (2007) 17 NWLR (Pt.1062) 31 at 69, Hassan Vs. State (2001) 11 SCM 100, (2001) 35 WRN 175, (2001) 15 NWLR (Pt.735) 184.

During trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showing any of the following:

(i) That he did not in fact make any such statement as presented; or

(ii) That he was not correctly recorded; or

(iii) That he was unsettled in mind at the time he made the statement, or

(iv) That he was induced to make the statement. See; Hassan Vs The State (supra); Folorunsho Kazeem Vs. The State (2009) 29 WRN 43 at 68-59.

Generally, the way to discharge the burden of establishing any of the above by an accused at the tendering of his confessional statement is by calling evidence during a trial within trial. In the instant case, none of the two appellants called any evidence to support or buttress their retraction or establish any of the above. Not even the 2nd appellant who put forward an alibi. He failed to give the police necessary particulars of his where about, to be able to investigate the defence of alibi. No wonder that defence failed him. However, on the weight to be attached to the confessional statements, which has been retracted, the court is expected to test its truthfulness and veracity by examining the said statements in the light of other credible available evidence. This is done by looking into whether –

(a) There is anything outside it to show that it is true;

(b) It is corroborated;

(c) The facts stated in it are true as far as can be tested;

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

(e) The accused person’s confession is possible;

(f) The confession is consistent with the other facts ascertained and proved at the trial.

See; Akpan Vs State (2001) 11 SCM 66, (2001) 53 WRN 1; (2000) 12 NWLR (Pt.682) 607 AT 628, Kareem Vs. Federal Republic of Nigeria (2002) 7 SCM 73.

In this case, the trial court considered the above test and applied it to the retracted extra-judicial statements of the appellants in the following way.

“In applying the above tests to the facts of this case, one only needs to consider the evidence of PW2 and PW4 and relate it to the statements of the 1st and 2nd Accused persons (Exhibits I and J) respectively. After a deep and sober consideration of the evidence of this case, I am of the view that the confessional statements in question are substantially and materially corroborated by the evidence of PW2 and PW4 and that the said confessions did satisfy all the tests set out above and that the accused are consequently liable to be convicted on their said statements.”

This court in couple of cases of similar facts and circumstances has stated that where an extra judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker resiles therefrom or retracted it altogether at the trial. See; Egboghonome Vs. The State (1993) 7 NWLR (Pt.306) 383.

The court below in also applying the above tests to the instant case stated a s follows:-

“There is so much outside the confessional statements that indicate the truth contained in them. The 1st accused/Appellant did not deny that he was in PW2’s father’s (Alhaji Sikiru Alao) Shop on the 29th December, 1996 at about 8p.m. and was witness to the incident that took place. His defence was that he did not participate in the crime. This evidence was punctured by the evidence of PW2 who identified him in the identification parade. He claimed that he did not know the other two persons who were his partners in crime on that day but even this was found to be false. The 2nd Accused/Appellant according to PW4’s evidence confessed to PW4 that he took part in the crime and that it was he who rode the others to the beer shop of late Alhaji Sikiru Alao, PW2’s father on the day of the incident. After the confession, he led the PW4 to a house in Obantoko Abeokuta where the Vespa Motorcycle used for the attempted robbery operation on that day was found and recovered. The question is – how did the 2nd Accused/Appellant know about the use of the Motorcycle on the 29th December, 1996 and how did he know the location of the Motorcycle if he took no part in the dastardly crime on the night of the incident.”

The learned counsel to the Appellants had argued that the prosecution ought to have called some other Police Officers who investigated the case with PW4 to corroborate the purported confessional statements of the appellants.

This court has stated in plethora of cases that how many witnesses the prosecution needs to prove its case against any accused person is entirely its responsibility not that of defence. In Ijiofor v. The State (2006) 6 NSCQR (Pt.1) 209 at 237, per Achike, JSC (of blessed memory), this court stated thus:-

“The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure the conviction of the Appellant. How, they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.”

Therefore, with respect to the first issue on whether the prosecution relied upon hearsay evidence to prove the voluntariness of the confessional statements of the appellants upon which the trial court relied in convicting them, it is very clear that the extra judicial statements of the appellants are materially confessional, admissible and rightly admitted and relied upon by the trial court in convicting them. There was nothing like a hearsay evidence.

Similarly, from the totality of the evidence adduced by the prosecution, it is clear that the trial court rightly evaluated the evidence to believe that the confessional statements of the appellants were voluntarily made by them.

Furthermore, on the issue of conspiracy, when two or more persons come together as it happened in this case, and form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such common purpose an offence is committed of such a nature that is of a probable consequence of the prosecution of such purpose, each of them is in law deemed to have committed the offence. See; The State v. Alhaji Moshood Oladimeji (2003) 7 SC 108 at 165, (2003) FWLR (pt. 175) 395 at 405.

In the instant case, I am not in the slightest doubt that the prosecution dutifully proved its case beyond any reasonable doubt. The trial court rightly evaluated the evidence and convicted the appellants. The court below therefore correctly affirmed the conviction of the appellants. In other words, the three issues formulated by the appellants are resolved against them.

In the circumstance, the appeal is lacking in merit and substance. It deserves to fail and be dismissed. The judgment of the court below was rightly arrived at and it is hereby affirmed. Accordingly, the conviction and sentence as given by the court below are affirmed. The sentences are to run from the 24th May, 2004 when the judgment of the trial court per Oduntan, J was given.

---

SC.308/2010

Chief Cyprian Chukwu Vs Celestine Omehia & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Appellant/Applicant by a Motion on Notice filed on 23/3/12 prayed this Court for the following reliefs:-

1. AN ORDER of this Honourable Court enlarging time within which the Appellant/applicant may seek leave to appeal against the ruling of the Court of Appeal in CA/A/299/M/2011 delivered on the 20th of December, 2011.
2. AN ORDER of this Honourable Court granting the Appellant/Applicant herein leave to appeal against the ruling of the Court of Appeal, Abuja Division in CA/A/299/M/2011 delivered on the 20th of December, 2011.
3. AN ORDER of this Honourable Court extending the time within which the Appellant/Applicant may appeal against the ruling of the Court of Appeal, Abuja Division in CA/A/299/M/2011 delivered on the 20th of December, 2011.

The grounds for the application are thus:

1. The ruling of the Honourable Court of Appeal, against which the Appellant/Applicant is seeking leave to lodge on appeal (which allowed the 1st Respondent to appeal against the decision of the Federal High Court, Abuja per Kafarati J in FHC/ABJ/CS/656/2010 was delivered on the 20th of December, 2011.
2. Being dissatisfied with the ruling, the Appellant/Applicant herein prepared its proposed Notice of Appeal annexed herein as Exhibit CY 2.
3. The said proposed Notice of Appeal comprises grounds other than of law.
4. The Appellant/Applicant had filed a similar application at the Court of Appeal on the 20th of March, 2012.
5. The said application at the Court of Appeal is now spent, having remained pending outside the time allowed by the Rules of the Court for such an application to be considered by the Court of Appeal.
6. That there is thus a need to seek and obtain the leave of this court to appeal against the said ruling as presently constituted.

On the 22nd day of May, 2012 date of hearing, learned counsel for the Appellant/Applicant, Mr. Jolaawo referred to their 16 paragraph affidavit with four exhibits and also their Brief filed on 23/3/12. He contended that the Counter-Affidavit of the 1st Respondent should be struck out for incompetence same not being in keeping with Section 1 of the Oath’s Act and section 115(1) of the Evidence Act since the attestation clause was missing. Also that the 1st Respondent’s Brief based on that defective affidavit should be struck out.

Responding, Mr. Ezike of counsel for the Respondent regretted the omission in their counter affidavit filed on 3/4/12 and said it was only a matter of form which should not vitiate the process. He referred to their Brief of the 1st Respondent and urged the court to dismiss the application which failed to include crucial documents.

Mr. Lateef Fagbemi SAN, learned counsel for the 3rd Respondent said he was not opposing the application. That where time had expired at the Court below, that court lacks jurisdiction and the proper thing is to approach the Supreme Court.

The 2nd and 4th Respondents were absent and not represented even though served with hearing notices and the motion papers.

It seems to me necessary to state below a background briefly though of the facts leading to this Motion. They are as follows:-

BACKGROUND:

The 3rd Respondent herein was declared the lawful candidate of the 4th Respondent (PDP) in the 14th April 2007 gubernatorial elections in Rivers State by the Supreme Court on the 25th October, 2007. In Amaechi v. INEC (2008) 6 WRN 1 at 7, with the full reasons of the said judgment being given per Oguntade JSC (as he then was) on the 18th January, 2008 in Amachi v. INEC (2008) 5 NWLR (Pt. 1080) SC 227.

By virtue of the said judgment Celestine Omehia who had hitherto occupied the office of governor on the strength of the Peoples Democratic Party’s victory at the 2007 elections as its “duly” elected candidate, was ordered to immediately vacate the seat and that the Appellant herein be sworn in forthwith as governor of Rivers State.

Meanwhile, in 2011, the 2nd Respondent (INEC) herein having failed to include Rivers State amongst the states of the Federation wherein general elections for the seat of the governor would take place in accordance with the rest of the country on 26th April, 2011, the Appellant/Applicant brought suit NO. FHC/ABJ/CS/656/2010 at the Federal High Court, Abuja to seek for the determination of, inter alia, the date when the Rivers State gubernatorial election should be conducted in 2011.

At the conclusion of hearing, the trial court delivered its judgment in favour of the Appellant/Applicant as Plaintiff , granting all the reliefs sought to the effect inter alia that the tenure of office of the 3rd Respondent terminated, in the eyes of the law on the 28th of May, 2011 that he was not therefore entitled to remain in office beyond the said date, and consequently ordered that gubernatorial elections be conducted in Rivers State on the same date and at the same time when Governorship elections were scheduled to be held for the purpose of electing successors to the office of governors in all other states of the Federation whose current tenure was due to expire on 28th May, 2011.

Following the judgment of the trial Court, the 2nd Respondent (INEC) conducted the gubernatorial election in Rivers state with other states of the federation, wherein the 1st Respondent also participated and contested against the 2nd Respondent but lost.

Having lost the said election, the 1st Respondent filed a Motion on Notice on 27/05/2011 to seek the leave of the Court of Appeal to appeal as interested party against the judgment of the Federal High Court.

Counter processes were filed and issues joined on the said application.

On the 20th of December, 2011, the Court of Appeal delivered its ruling in favour of the 1st Respondent, granted leave to appeal as an interested party.

The Appellant/Applicant being dissatisfied with the ruling intended to lodge an appeal against same.

The Appellant therefore prepared a proposed Notice of Appeal and filed an application to seek leave of the court of Appeal to appeal against the ruling on the 20th of March 2010, being a ruling bordering on the exercise of the Court’s discretion and appeal based on grounds other than law.

The said application is now spent at the Court of Appeal, having been pending beyond the time allowed by the Rules of court for such to be taken, hence, the filing of this application at the registry of this Honourable Court and need to apply for extension of time to seek such leave.

The reason the application for leave was filed out of the time allowed by law is as result of a mistake of counsel.

Therefore, extension of time to seek the leave of this Honourable Court to file the appeal and extension of time to file the appeal is now imperative to file a valid notice of appeal before this court, against the said ruling.

The copy of the proposed notice of appeal attached hereto as Exhibit CT2 raises competent, recondite and arguable issues of law for determination of this Honourable Court.

The record of appeal is being compiled for the purpose of transmission to this Honourable Court so as to facilitate the quick determination of this appeal if the reliefs sought in this application are granted.

The Appellant in the Brief settled by Rickey Tarfa SAN and filed on 23/3/12 raised a single issue, thus:-

Whether from the facts and circumstances of the instant application, the Appellant/Applicant is entitled to the reliefs sought in his application.

The 1st Respondent in their Brief settled by Mr. James C. Ezike and filed on 3/4/12 formulated also a sole issue which is:-

Whether in the circumstances the prayers sought by the Applicant are grantable.

It can be seen that the two issues from the two contending Briefs convey the same message even though differently couched and so the simpler one of the 1st Respondent shall be used by me.

I shall recast verbatim the deposed to affidavit in support and the counter affidavit:-

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE

I, Banikole Aduloju, Male, Christian, Adult, Nigerian Citizen, Legal Practitioner of No. 2, Libreville Street, Off Aminu Kano Crescent, Wuse II, Abuja do hereby make oath and state as follows:-

1. That I am a legal practitioner in the firm of Messrs Rickey Tarfa & Co, counsel to the Appellant/Applicant herein by virtue of which I am conversant with the facts of this instant application.
2. That I have the consent and authority of my employer as well as that of the Appellant/Applicant to depose to this Affidavit.
3. That I depose to this affidavit from facts within my knowledge except where otherwise stated.
4. That I know as a fact that the 1st Respondent herein (Celestine Omehia) filed an application at the registry of the court of Appeal on 27/05/2011, wherein he sought for the leave of the Court of Appeal as an interested party against the judgment of the Federal High Court, Abuja in FHC/ABJ/CS/656/2010.

Annexed herein is a copy of the judgment of the Federal High Court in PHC/ABJ/CS/656/2010, and marked as Exhibit CY.

5. That counter processes were filed by the Respondents (including the Appellant/Applicant herein) and the Court delivered its ruling on the 20th of December, 2011 in favour of the 1st Respondent.
6. That the Appellant/Applicant applied for and ultimately obtained a certified true copy of the said ruling of the Court on the 19th day of March, 2012. A copy of the said ruling is hereby annexed and marked as Exhibit CY1.
7. That being dissatisfied with the decision of the Court, the Appellant/Applicant herein subsequently instructed us to appeal to the Supreme Court against the said ruling.
8. That a Notice of Appeal has consequently been prepared for the purpose of lodging an appeal against the ruling of the Court of Appeal at this Honourable Court.

The said Proposed Notice of Appeal is hereby annexed and marked as Exhibit CY 2.

9. That the grouse of the Appellant/Applicant in the proposed Notice of Appeal are founded principally on the exercise of the court’s discretion in the determination of the application.
10. That I also know that the grounds of appeal as contained in the Notice of Appeal include, inter alia, grounds other than of law.
11. That the Appellant/Applicant’s application for leave to appeal against the said ruling was filed at the Court of Appeal but same is now spent without having been heard.

Annexed herewith is a copy of the application first filed at the Court of Appeal marked as Exhibit CY 3.

12. That I know that the facts contained in paragraph 11 above have necessitated this application.
13. That there is a need to seek and obtain the leave of this Honourable Court before an appeal can be properly lodged in the instance of this Appeal.

Annexed herewith is the judgment of the Federal High Court, Abuja in FHC/ABJ/656/2010 marked as

Exhibit CY 4.

14. That it is in the interest of justice that this application be granted.
15. That the Respondents would not be prejudiced by the grant of this application.
16. That I deposed to this affidavit in good faith believing its contents to be true, correct and in accordance with the Oaths Act.

COUNTER-AFFIDAVIT OF THE 1ST RESPONDENT IN OPPOSITION TO THE APPLICANT’S MOTION ON NOTICE DATED 22/03/2012 AND FILED 23/03/2012

I, CELESTINE NGOZICHIM OMEHIA, Male, Adult, Christian, Nigeria, Legal Practitioner of 2A Ikwerre Road, Port Harcourt, Rivers State, do hereby make oath and state as follows:-

1. That I am 1st Respondent/Party Granted leave to appeal as interested party.
2. That by the virtue of my position I am fully conversant with the facts of this case.
3. That I have seen and read the affidavit of Banikole Aduloju Esq. which was deposed to on behalf of the

Applicant on 23rd March, 2012.

4. That the facts deposed to in paragraph 6, 9, 10, 11, 12, 13, 14, 15 and 16 of the Applicant’s supporting affidavit are neither true nor made in good faith.
5. That the copies of the ruling of the Court of Appeal delivered on 20/12/11 have long been available and the Applicant alone is to blame if he obtained a copy thereof only on 19/3/12.
6. That there is pending before the Court of Appeal, an appeal filed by the 3rd Respondent in Appeal No. CA/A/293/2011.
7. That the 1st Respondent filed and served his own Brief of argument and by motion in that behalf applied to consolidate to the 2 appeals on the same decision.
8. That it was only after the Applicant was served with my substantial Brief of argument and motion that they hurriedly filed a raft of applications in the Supreme Court and the Court of Appeal.
9. That the objective of the Applicant is to delay and or abort the hearing of the appeal.
10. That the Applicant has not placed the proceedings and other relevant records before this Honorable Court.
11. That the Court below categorically relied on the said facts and record to reach its decision.
12. That the 1st Respondent will be irreparably prejudiced if this application is granted.

SOLE ISSUE:

Whether in the circumstances the prayers sought by the Applicant are grantable.

In seeking to persuade this Court to grant the application and the reliefs sought, learned counsel for the Appellant/Applicant, Rickey Tarfa SAN stated that the crux of the application is praying for leave of the Court to enable the Applicant appeal against the ruling of the Court of Appeal Abuja Division which allowed the 1st Respondent herein to appeal as interested party against the judgment of the Federal High Court, Abuja wherein the 1st Respondent was not a party in same court.

That in accordance with the Rules of the Court of Appeal, the Applicant had filed an application to seek leave of the Court to lodge their appeal, but same is now spent, having remained pending outside the time allowed by the Rules of the Court of Appeal for such an application to be considered by same. He referred to Exhibit CY 3 annexed to the application. He stated on that it is trite that where an application of this nature is spent at the Lower court, the Lower Court would lack jurisdiction to entertain same being spent. That thereafter the law allows the applicant to approach the Supreme Court with a similar application and that is what the Applicant has now done.

Senior Counsel went on to say that the grant of an application for enlargement of time within which to appeal is within the discretion of the court and that numerous authorities have posted that such a discretion must be exercised judiciously and judicially. He cited the case of N.I.W.A. v. S.P.D.C. Nig. Ltd (2008) 13 NWLR (Pt.1103) 65.

He stated further on behalf of the Applicant that by the nature of the ruling of the Court of Appeal seeking to appeal against and the grounds of the Appeal as contained in the proposed Notice of Appeal, the Applicant is entitled to the leave of this Court to appeal against the said ruling as per the grounds contained in the applicant’s proposed Notice of Appeal. He referred to Exhibit CY1 and CY2 annexed to the supporting Affidavit.

Mr. Tarfa SAN stated on that the court would observe that the decision of the Court of Appeal in Exhibit CY1 is discretionary in nature. That ground 3 of Exhibit CY2 (proposed Notice of Appeal) reveals the Applicant’s grouse against the ruling on an issue which is of mixed law and fact in nature hence the need to seek leave of this Court firstly before lodging the appeal. He cited Section 233 of the 1999 Constitution of the Federal Republic of Nigeria (as altered); Okwuagbala & 3 Ors v Ikwueme & 2 Ors (2010) 12 SC (Pt. iv) 1; Kotove v. Saraki (1995) 5 NWLR (Pt.393) 264; Ifekandu v Uzoegwu (2008) 15 NWLR (Pt. 1111) 517; Okere v Nlem (1992) 4 NWLR (Pt.234) 143; A.G. Federation v. A.I.C. Ltd (1995) 2 NWLR (Pt.378) 404.

For the Appellant/Applicant was further canvassed that there is a competent appeal before this court. That from the proposed grounds of appeal and the particulars therein the said appeal is arguable in law and fact before this court. He said once the Appellant/Applicant can show that the appeal is arguable, enlargement of time to appeal is grantable. He referred to E.F.P. Co. Ltd v N.D.I. C. (2007) 9 NWLR (Pt. 1039) 239.

Mr. James Ezike of counsel for the 1st Respondent contended by saying that the prayers sought by the Appellant are not grantable for the following reasons.

1. The application is an abuse of the process of court. That the decision of the Court below appealed from is a Ruling that the 1st Respondent has a locus standi to be joined to the suit filed in the Federal High Court which is now on appeal at the Court of Appeal filed by the 3rd Respondent along with another filed by the 1st Respondent. That the proposed appeal is an appeal on ground of law being a matter of jurisdiction. He cited Attorney General of Lagos State v Dosunmu (1989) 3 NWLR (Pt.111) 552.
2. It is on law that a decision on jurisdiction is a final decision and a party dissatisfied with such a decision does not need leave to appeal. That even as at 25th day of March 2012 when the Applicant claimed to have filed his prayers in the Court below, the said appeal was still valid.
3. The application herein should be discountenanced that the Applicant has woefully failed to satisfy the conjunctive twin requirements of satisfying the Supreme Court within the meaning of its Order 2 Rule 31, that he:

(a) Has given good and substantial reasons by affidavit evidence for his failure to appeal within time; and also

(b) Has also by affidavit evidence shown prima facie good cause why the appeal should be heard.

Mr. Ezike of counsel further contended that in the case in hand the Applicant’s appeal must be based on the decision of the Court below and based on the said Ruling the Court below found inter alia that the 1st Respondent contested elections in 2007 and 2011. That he was a party to the Amaechi v INEC case (supra) and that the case he presented before the Court of Appeal justified the said Court’s finding that the 1st Respondent has a locus standi to be joined to the case. He stated that the sum and substance of the 1st Respondent’s submission in the Court below was that since applicant initiated his action by Originating Summons, under Order 3 Rule 9 of the Federal High Court Rules he should have followed Forms 3, 4, and 5 Scheduled to the said Rules by which the summons should have been headed thus:

“In the matter of “or” in Re The Rt Honourable Rotimi Amaechi

AND

1. Independent National Electoral Commission
2. Sir Celestine Omehia
3. Peoples’ Democratic Party

AND

CHIEF CYPRIAN CHUKWU”.

Mr. Ezike said that from Nwadialo’s Civil Procedure In Nigeria Second Edition at Page 242 Originating Summons “must” be so headed. That if the Summons were so headed the 1st Respondent must have been joined as a necessary Party.

Learned counsel for the 1st Respondent said Order 2 Rule 31 demanded that the Applicant should exhibit certain documents including:

“The proceedings necessary to support the complaints against the judgment.” That the Applicant failed to so produce evidence of the proceedings from which this court to see the substantiality of the grounds relied upon. He cited Ibodo v. Enarofia (1980) 5 – 7 SC 57 – 58 (SC); Agbaje v. Adelekan (1990) 7 NWLR (Pt. 154) 595 at 616 – 617.

4. The 4th reason the application cannot be sustained, learned counsel for the 1st Respondent said is that there is no piece of evidence that the Applicant did anything until the 20th March 2012 and the ruling was delivered on the 20th of December 2011. There was no reason for this lapse in time. That it is not for this court or even the Court below to go scouting for the arguable and substantial points upon which the appeal is proposed. He cited: In Re Madaki (1996) 7 NWLR (Pt. 459) 153 at 146.

That the Applicant cannot succeed by his own default because he failed to annex the proceedings and documents which he is bound to accompany his application with. That the Supreme Court cannot be invited to consider the 3rd Ground of Appeal without the benefit of seeing the application against the Applicant’s complaints in this ground. He referred to many authorities.

Having placed above the summary of the submissions of counsel on either side and the materials attached or made available to court, it is for this Court to utilize those materials within the purview of the law, rules of court including the discretionary powers of the court. It is in the con of the above that I would state without hesitation what is now trite that the grant of an application for enlargement of time within which to appeal is in the discretion of the court. The discretion however must be exercised both judicially and judiciously. This means in effect that the discretionary exercise are done not in vacuo but based on certain materials existing such as the reason for the delay in filing the process and in this case the Notice of appeal. In some instances the delay may have been caused by the mistake, negligence or inadvertence of counsel in which case the court cannot close its eyes to the need of the right of the Applicant in need of protection and thereafter consider favourably in his favour. See N.I.W.A. v. Shell Petroleum Development Company Nigeria Ltd. (2008) 13 NWLR (Pt.1103) 65.

The twin requirements to the matter of the reason for the delay is the ground or grounds of appeal which must show the substantially thereof and that they are arguable. These are to be grounded in the proposed grounds of appeal. Also in this case perusing the proposed notice and grounds of appeal some grouse of the Applicant present some features of mixed law and fact and thus needing leave before they can be appealed against makes it mandatory that leave be first sought and obtained. I place reliance on Section 233 of the 1999 Constitution of the Federal Republic of Nigeria (as altered); Okwuagbala & 3 Ors. v. Ikwueme & 2 Ors. (2010) 12 SC (Pt.iv) 1.

In respect to whether or not the grounds of appeal are substantial and arguable based on the proposed ground but the court is confined or restricted to the good cause of the grounds. This court per Onnoghen JSC in E.F.P. Co Ltd v NDIC (2007) 9 NWLR (Pt. 1039) 239 at 253 & 261 said:

“The duty of an appellate court in the consideration of grounds of appeal proposed by an appellant and filed in support of an application for leave to appeal is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. Therefore, it is not the duty of the court at that stage to decide the merits of such grounds in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application.”

Having stated that I would recast the grounds of appeal with their particulars in the Proposed Notice of Appeal and they are as follows:-

GROUNDS OF APPEAL

GROUND ONE:

The Learned Justices of the Court of Appeal erred in law by refusing to consider and be bound by the authority of SENATOR ABRAHAM ADESANYA v. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358, when in spite of their findings at page 18 of the cyclostyled ruling that the Applicant/4th Respondent contested in the election he was challenging, they still proceeded in granting leave to the same Applicant/4th Respondent to appeal as interested party. And thereby occasioned a miscarriage of justice adverse to the Appellant.

PARTICULAR OF ERROR:

1. The Applicant/4th/Respondent, by the application filed on 27/05/2011 sought to appeal against the judgment of the trial court which decided that the tenure of the 2nd Respondent ends on 28/05/2011 and ordered that elections hold in Rivers state in April, 2011.
2. The Applicant/4th Respondent, by his affidavit evidence adduced at the Lower Court, presented that he was a candidate in the said April 2011 election under the banner of All progressive Grand Alliance (APGA), which he keenly contested with the 2nd Respondent, but lost.
3. The Appellant invited the Court of Appeal to rely on the case of SENATOR ABRAHAM ADESANYA V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358, to the effect that having taken benefit of the judgment of the trial court by contesting the election, the law forbids the Applicant/4th Respondent to turn around and challenge the same judgment.
4. The Court of Appeal wrongly refused to consider and or rely on the binding authority of SENATOR ABRAHAM ADESANYA V PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358 cited by the Appellant to persuade same to dismiss the Applicant/4th Respondent’s application.

GROUND TWO:

The Learned Justices of the Court of Appeal erred in law in their application of the authority of OMOTESHO v ABDULLAHI (2008) ALL FWLR (Pt.402) Pg 1114 to determine the application, as cited to the Court by the Appellant. And thereby occasioned a miscarriage of justice adverse to the Appellant.

PARTICULARS OF ERROR:

1. The Appellant at the Court of Appeal submitted that the Applicant cannot be described as an aggrieved person in law since what he sought to appeal against is not what he has right to demand in law (i.e his grouse was against the date of the conduct of the gubernatorial election in Rivers State in 2011 and not the conduct of the election per se), and cited the case of OMOTESHO v ABDULLAHI (2008) ALL FWLR (Pt. 402) Pg. 1114 at 1129 – 1130.
2. The Court of Appeal wrongly applied the said authority and held that the Applicant/4th Respondent is entitled to appeal having shown his legal grievances.

GROUND THREE:

The Learned Justices of the Court of Appeal erred in law when they held at page 19 of the cyclostyled judgment as follows:-

“The record of appeal has shown the grievance suffered by the applicant and reference was made to him by the trial judge in its decision. The applicant has by the affidavit evidence before the court shown sufficient interest in the pending appeal and we are so satisfied…”

And therefore occasioned a miscarriage of justice.

PARTICULARS:

1. The Applicant/4th Respondent’s application before the Court of Appeal was strictly bothered to determine whether or not he can be described as an aggrieved person against the judgment of the Federal High Court in FHC/ABJ/656/2010 so as to allow him to appeal against same as an interested party.
2. The Applicant/4th Respondent’s supported his application only with a 26 and 11 paragraph affidavits and 4 documentary Exhibits wherein he did not disclose what grievance he had suffered from the trial court’s judgment that constituted sufficient interest to entitle him to the grant of his application.
3. The Court of Appeal wrongly held that the applicant has shown sufficient interest in a “pending appeal” when there was yet to be an appeal at the time of the ruling.
4. The Court of Appeal, in determining the application therefore wrongly considered some extraneous materials and issues not placed before it for the determination of the application.

From what is expected to be argued on appeal as shown by the proposed Grounds above stated, the concluding question would be if this application for enlargement of time to appeal, leave to appeal etc have met the two joint requirements upon which such an application can be granted. These requirements which must go together are thus:-

(a) Good and substantial reasons for the failure to appeal within the prescribed period; and

(b) The proposed grounds on which the appeal must show prima facie good cause why the appeal should be heard. See Kotove v Saraki (1995) 5 NWLR (Pt. 393) 264; Okere v Nlem (1992) 4 NWLR (Pt. 234) 143.

Having shown the proposed grounds of appeal, it is to be noted that those cannot be considered in vacuo or in the air without the necessary back up documents, affidavits and other materials from the Court below to use in coming to a decision that the appeal is being propelled on good and substantial cause. It is not for the court including the Supreme Court to go into the Records at this stage to ferret out those materials that would lead it to the conclusion that the grounds of appeal are arguable and substantial. Of necessity is the proposed Notice of Appeal of the 1st Respondent in the Court below which complained about the date of the conduct of the gubernatorial election in Rivers State in 2011 and not the conduct of the election per se. It is a vital document since it is concerned about the nullity and unconstitutionality of the judgment of the Federal High court. The need for that document to be attached to the supporting affidavit to this Application herein is because it would have shown when the said proposed Notice of Appeal was filed by the 1st Respondent in the court of Appeal whether before or after the said elections. See Ibodo v Enarofia (1980) 5 – 7 SC 57 – 58.

However inspite of the absence of the document referred to above there are other materials upon which the question as to the substantiality of the grounds of appeal can be ascertained.

As for that leg in the conjunctive twin requirement under order 2 Rule 31 of the Rules of the Supreme Court it has been satisfied, the Applicant from the supporting affidavit has shown the reason for their failure to appeal within the prescribed time. It is therefore in the light of the fact that the reason for the delay in filing and the good cause why the appeal should be heard that his application has to be favourably considered. As I said earlier and in keeping with the practice which is now common place that the discretion sought must be exercised judicially and judiciously and in the presence of those requirements nothing can be done to stop the granting of the application sought by the applicant.

Concluding therefore I would say without hesitation that the application is granted thus: Leave to appeal and 60 days granted to the applicant within which to file the notice and grounds of appeal.

I make no order as to costs.

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SC.111/2012

Kaydee Ventures Ltd V The Hon. Minister Of Fed. Capital Territory (2010)

LAWGLOBAL HUB Lead Judgment Report

I. T. MUHAMMAD, J.S.C.

The plaintiff at the High Court of Justice of the Federal Capital Territory, Abuja [the trial court] and who is the appellant herein, is a limited liability Company carrying on Construction business throughout the Federal Republic of Nigeria, The 1st and 2nd defendants and now respondents in this appeal are the Honourable Minister of the Federal Capital Territory [F.C.T], Abuja and the Federal Capital Development Authority [F.C.D,A], a statutory body charged with the responsibility of physical development of the Federal Capital Territory, Abuja. The 3rd defendant/respondent is another limited liability Company carrying on business in the Federal Capital Territory. The plaintiff averred in its statement of claim that she was invited along with other contractors on the 10th of September, 1996, by the 2nd defendant to submit tenders for the rehabilitation of Keffi road at Karmo junction and Airport Express way. The plaintiff further averred that of all the six companies that tendered for the contract, that of the plaintiff was found to be the lowest and most attractive. On the 3rd of June, 1997, the plaintiff was awarded the contract at the cost of N94,623,797.84. A formal agreement was executed between the plaintiff and the 2nd defendant on the 30th day of July, 1997. The plaintiff averred that by virtue of clause 6.00 of the formal agreement, she was expected to mobilize its resources and commence work within two weeks of signing the agreement. The 2nd defendant was required by the contract to furnish the plaintiff with full priced copy of the Bills of Quantity, the drawings and specifications. The drawings as afore stated were not given to the plaintiff and without the drawings the plaintiff could not mobilize and commence work on the site. The plaintiff claimed further that even after signing the contract the demand for the afore said drawings was in vain. The duration of the work was for 6 months from the date of signing the contract. Before the expiration of the two weeks period allowed for mobilization, there were moves to terminate the contract. And by a letter dated 29th of August, 1997, the contract of the plaintiff was terminated by the defendants.

The plaintiff averred that despite the non-provision of the necessary drawings, it mobilized on site after signing the agreement. A site inspection was carried out by an independent Engineer mandated to inspect the said contract. He produced a report on 3rd of September, 1997. The plaintiff averred further that as at the date of termination of the contract, it had expended about 11 Million Naira for hiring machinery on site, vehicles, procurement of materials including bitumen, payment of workers salaries, allowances, procurement of letter of bond from N.I.M.B Ltd. According to the plaintiff, immediately the contract was purportedly terminated, the 3rd defendant moved all machinery and men into the area plaintiff had already worked upon thereby committing trespass on the site. The plaintiff finally made the following claims:

‘1. A declaration that the letter reference No. FCDA/DES/44/s/295/80 dated 29/8/97 titled ‘Termination of Contract for the construction of Link Road Keffi to Airport Express way’ is illegal null and void.

2. Perpetual injunction restraining the defendants, their servants, agents assigns and privies from interfering, interrupting, or preventing the plaintiff from executing contract agreement dated 30th of July 1997.
3. A perpetual injunction restraining the defendants, their assigns, agents and privies from carrying out any work on the construction of Link road III Alignment along Keffi Road to the Airport Express way, Abuja
4. A perpetual injunction restraining the 1st and 2nd defendants from giving effects, or any backing or support to the 3rd defendant in carrying out the construction of the Link Road III Alignment, Keffi to Airport Express way’. IN THE ALTERNATIVE 37.

The sum of N28,387,137,139.35 being anticipated loss of profit from the aforesaid contract. 38. N30,000,000.00 as general damages for loss of goodwill reputation, and cost of demolition on site.’

In their joint statement of defence the defendants denied each and every allegation of fact contained in the statement of claim except where the defendants expressly made an admission. They put the plaintiff on the strictest proof of every allegation not admitted. After full hearing, the learned trial judge entered judgment in favour of the plaintiff by holding that the termination of contract by the defendants was wrongfully done. He awarded to the plaintiff the sum of N14,193,569.68. Dissatisfied, the defendants appealed to the court below. After hearing the appeal, the court below allowed the appeal and set aside the judgment of the trial court. It also dismissed the cross-appeal. The plaintiff/respondent appealed to this court by filing a Notice of Appeal dated 15th of December, 2000 containing five grounds of appeal. Another Notice of Appeal containing eight grounds of appeal was, with the leave of this court, filed on 24/12/2002. The latter Notice and grounds of appeal were deemed dully filed by this court on the 29th day of October, 2003. This means that the former Notice and grounds of Appeal contained in the Record of Appeal and dated 15th of December, 2000 were abandoned by the appellant. In compliance with the Rules of Practice of this court, parties settled their briefs of argument which they adopted on the hearing day of the appeal. Learned counsel for the appellant formulated the following issues:

ISSUES FOR DETERMINATION

‘1. Whether the learned justices of the court below were right in concluding that the defendants lawfully terminated the contract award to the plaintiff,

2. Whether the learned Justices of the court below were right in holding that the trial judge wrongly evaluated the evidence before him and whether they were right in their own evaluation to warrant an interference with the findings and reasoning of the trial judge.
3. Whether plaintiff is entitled to damages.’

The respondents on their part, through their counsel, settled the following issues:

‘1. Whether having regards to the state of pleadings and evidence in this case the learned justices of the Court of Appeal rightly held that the termination of the contract award to the Appellant was lawful. [Ground 3 of the Notice of Appeal].

2. Whether the court below was right in holding that findings of the trial court were perverse and in interfering with the said findings. [Ground 4 of the Notice of Appeal].
3. Whether the court below was right in setting aside the award of damages made by the trial court in favour of the Appellant. [Ground 5 of the Notice of Appeal].’

In this submissions on issue No.1, learned counsel for the appellant stated that it was common ground between the parties that the terms of the contract awarded to the plaintiff by the defendants were as contained in Exhibits F and B. It was also common ground that the contract was terminated by the defendants. It is trite law, he submitted further, that in matters of contract in which the terms and conditions of the contract were embodied in a written document, the parties and the court will not be allowed to read into the contract extraneous terms on which they reached no agreement. In other words, both the parties and the court are bound by the terms of the contract and the court is to interpret and enforce the terms of the contract as agreed by the parties. Learned counsel cited and relied on the cases of INTERNATIONAL TEXTILE INDUSTRY [NIG.] LTD. V. ADEREMI [1999] 8 NWLR [pt. 614] 268; KOIKI V. MAGNUSSON [1999] 8 NWLR [pt.615] 492.

Learned counsel for the appellant argued that the settled law is he who asserts must prove and hence the defendants having given reasons for the termination of the contract in paragraphs 13 and 18 of their statement of defence, have a duty to prove and justify the reasons for the termination. He argued further that the time limit within which the plaintiff was to mobilize to site had not expired at the material time when the defendants set the machinery in motion to terminate the contract and when the necessary drawing to be used had not been released by the defendants, notwithstanding the various demands made by the plaintiff. He made reference to Exhibit F which, he said, by it, the plaintiff was not expected to carry on any construction until all relevant construction documents had been signed. He also referred to Exhibit B the contract document which was executed on the 3rd of August, 1997, and it gave the plaintiff a period of two weeks to mobilize to site and that period would have expired on the 18th of August, 1997. The decision taken by the defendants to terminate the contract was premature. He quoted the evidence given under cross-examination by Defence Witness 1 which amounted to admission against interest. He cited the case of ADEYEYE V. AJIBOYE [1987] 3 NWLR [pt.61] 4321. He referred also to the finding of the learned trial judge that the termination of the contract was wrong. On the particular practice of the defendants to commit a contractor to commence work before formal execution of a contract agreement, which the court below upheld to be correct, learned counsel submitted that there was no evidence to support it. He urged this court to set aside the conclusion of the court below on the practice which was never proved, though pleaded in paragraph 6 of the statement of defence. Learned counsel posited also that the provision made by Exhibit B for 7 days notice to be given before termination was not complied with. He urged this court to resolve issue No.1 in appellants favour.

The learned counsel for the respondents first raised an observation which had the character of a preliminary objection although he did not specifically call it as such. That has to do with the issues formulated by the appellant and some of the Grounds of Appeal especially grounds 1 and 2 as set out in the Notice of Appeal. The first of these observations is that the appellant failed to marry the issues to the grounds of appeal. It had also failed to create any nexus between the grounds of appeal and the issues in its argument. He urged this court to deprecate that kind of practice, Secondly, learned counsel observed that the appellant did not distill any issue from grounds 1 and 2 of Notice of Appeal as none of the three issues distilled raised the complaints in those grounds of appeal and that these grounds are deemed abandoned and would be struck out. Several cases were cited in support among which are OJEGBE V. OMOTASONE [1999] 6 NWLR [part 608] 591 at 597 – 598 H – A; OGUNBADE V. ADELEYE [1992] 8 NWLR [part 260] 409 at 419 0 – E, He urged this court to strike out the grounds.

Learned counsel for the appellant filed a reply brief in answer to the issues raised by the respondent. He replied that the 3 issues for determination as formulated by the appellant are borne out of the Grounds of Appeal dated 23rd of December, 2002 and filed on the 24th of December, 2002, and were not distilled from the 5 grounds of appeal contained in the earlier Notice of Appeal dated and filed on the 15th of December, 2000. The 3 issues by the appellant are borne out of the 8 grounds of appeal as contained in the Notice of Appeal aforesaid. He urged this court to discountenance the objection in the respondents brief relating to the issues for determination. I cannot say that the learned counsel for the respondent was raising a preliminary objection on the brief of argument and the Grounds of Appeal contained in the Notice of Appeal filed in the court below on the15th December, 2000. I say so because he has not complied with Order 2 Rule 9 of the Supreme Court Rules, 1999 [as amended] which provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time, Where he fails to comply, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such order as it thinks fit.

I thought the learned counsel was making a peripheral observation that was why he was urging this court to deprecate the practice adopted by the learned counsel for the appellant. But for whatever that observation was made by the learned counsel for the respondent, he, at the end, succeeded in making the learned counsel for the appellant to file a reply brief in answer to that observation which to my mind, solved the respondents problem, The learned counsel for the respondent made the following observation:

1. That the appellant has failed to marry the issues to the grounds of appeal in its Notice of Appeal
2. the appellant also failed to create any nexus between the grounds of Appeal and the issues in its argument on issues distilled for determination and
3. That the appellant did not distil any issue from grounds 1 and 2 of the Notice of Appeal as none of the three issues distilled raised the complaints in those grounds of appeal. These grounds he, submitted, are deemed abandoned and would be struck out. Learned counsel for the respondent went on to distill his three issues from the remaining grounds 3, 4 and 5 of the Notice of Appeal. Thus, the respondents issues set out earlier in this judgment stemmed from these three grounds.

In his reply brief which was filed on the 25th of May, 2009, the learned counsel for the appellant submitted that contrary to the submission by the respondents at paragraph 3 : 1 of the respondents brief of argument, the appellants 3 issues for determination were not founded on any of the 5 grounds of appeal earlier filed.

They were borne out of the grounds of appeal dated the 23rd of December, 2002 and filed on the 24th of December, 2002. The issues for determination, he further submitted, were not distilled from the 5 grounds of appeal as contained in the earlier Notice of Appeal dated and filed on the 15th of December, 2000. The appellants 3 issues, he said, were borne out of the 8 grounds of appeal as contained in the Notice of Appeal dated 23rd of December, 2002. He urged this court to discontenance the objection raised by the respondents.

I must say that this issue as argued above by the parties gave me a little anxiety in the sense that it was initially not clear to me as to how there came about two Notices of Appeal on the same appeal with nothing practically to guide one on the quandary, neither from any of the parties nor from the file made available to me for the appeal.

I had to travel extra miles to our Registry to find out exactly what had happened. It was then that I was shown an enrolled order made by this court which granted to the applicant/appellant extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. It also deemed as dully filed [on that date that is 29th of December, 2003] the appellants Notice of Appeal. The respondent, according to that order, would have his time running from the date of service of that order on him. The order was made by this court on the 29th day of October, 2003.

The appellant did not tell us anywhere in his brief or his oral adumbration that there was an order of this court that validated his otherwise, incompetent Notice of Appeal. He never told us that he filed a motion for leave to appeal. Although the respondents counsel could not be blamed, there is nothing as well from him to inform us of whether he was ever served with the enrolled order or not, which was granted in chambers. This is one of the disturbing and nagging problems we usually grapple with in chamber proceedings.

Now, as I said earlier, the leave sought and obtained to file the appeal saved the appeal itself. The appellants brief of argument was shown to have been filed within a day after leave to appeal and a deeming order that the Notice of Appeal was dully filed, were granted. Whatever miracle might have been used by the appellant in getting his record of appeal and the brief of argument filed in this court within a day after having the Notice and Grounds of Appeal been deemed filed, may appear surprising, though not impossible or illegal.

There is therefore, a valid appeal before this court. There is also a competent brief filed by the appellant. I shall now consider the submissions made by learned counsel for the respondents on issue No.1. Learned counsel for the respondent submitted that the reason for terminating the appellants contract was simply as a result of the respondents contention that the appellant did not mobilize to site upon being granted the letter of award of the contract on 3rd of June, 1997. He referred to paragraphs 13 and 18 of the statement of defence which he set out as well. He argued further 11 that the respondents witnesses testified to this and tendered Exhibits K and L to show that the appellant was directed to mobilize to site and warned of the consequences of failure to do so. Learned counsel stated that there were conflicting averments on the statement of claim of the appellant. He cited paragraphs 8, 10, 12, 13, 24 and 27 thereof. He went further to say that with such contradictions reflected in the paragraphs referred to above, the appellant puts nobody in doubt that it did not mobilize to the site because of the respondents failure to provide it with drawings and because the agreement permitted them to mobilize to site within two weeks from the date of signing. Learned counsel for the respondent submitted that the appellant testified to these series of conflicting averments through its witnesses and given the state of pleadings and evidence, the appellant prevaricated on the issue of mobilization to site.

To further show that the appellant did not mobilize to site, the report of the independent inspection found that the appellant was not on the site. On the invoices, receipts, hire of machinery and procurement of materials and letter of advance payment bond, learned counsel for the respondents submitted that the appellant, who pleaded same in paragraph 27 of its statement of claim failed to tender any of them. He argued that if these documents were tendered, they could have shown to some extent that the appellant attempted to mobilize to the site. Learned counsel urged this court to invoke section 149 [d] of the Evidence Act Cap. 14 LFN 2004 and to hold that the appellant failed to produce them because if it had done so, those documents would have been against it. He cited in support: AREMU V. ADETORO [2007] 16 NWLR [1060] 12 244. Learned counsel for the respondents stated that they averred in paragraph 6 of their statement of Defence that it was normal practice in the 2nd defendants contracts to commence work before formal execution of a contract. Learned counsel submitted that the 2nd respondent wrote Exhibit K to the appellant directing it to commence construction immediately.

No reply brief was filed by the appellant thereof. He submitted that failure to traverse that new fact constituted a formal admission by the appellant that it knew of the custom and openly flouted it. There was no need for the respondents to prove an admitted fact. He cited the provision of section 75 of the Evidence Act and the case of NDUKWE V. LPDC [2007] 75 NWLR [pt. 1026) at page 56 paragraph G; AKPAN V. UMOH [1999] 11 NWLR [pt. 627)349; MBA V. AGU [1999] 12 NWLR [pt 629]1 at page 18 F – G.

It was submitted further that since Exhibit F did not render the admitted custom inapplicable, that custom or practice commenced operation immediately upon the award of the contract on the 3rd of June, 1997. It was argued that the subsequent provision in Exhibit B to the effect that the appellant had a period of two weeks to commence work after the execution of Exhibit B was ineffectual as the terms in Exhibit B manifestly or expressly operate prospectively and not retrospectively. The appellant, it was argued further, was obligated to mobilize to site immediately it received Exhibit F but failed to do so which entitled the respondents to terminate the contract. The evidence of Defence Witnesses 1 and 2 that even several weeks after Exhibit B was executed , the appellant failed to do anything at the site was another factor which defeats appellants right in sticking to the two week period provided by Exhibit B.

On the procedure of determining the contract and in compliance with what clause 21.01 of Exhibit B provided the respondents submitted that in paragraphs 17 and 19 of the statement of claim, the appellant admitted that there was a decision to terminate the contract and that notice was given to appellant through Defence Witness 1 of respondents intention to commence irreversible termination of the contract from 1st of September, 1997 on 13th of August, 1997. In evidence, the actual date of termination of the contract was 29th of August, 1997.It was argued further that the period between the date of the notice and the date of the letter of termination that is, Exhibit 1 was more than seven days. Learned counsel for the respondents cited paragraphs 15, 16 and 18 of the Statement of Defence that it issued series of warning letters to the appellant. Having regard to the pleadings of the parties and the evidence led, the 1st and 2nd respondents complied with Clause 21.01 of Exhibit B in terminating the contract. The trial court was wrong in holding that the contract was wrongfully terminated and the court below was right when it held otherwise. Learned counsel urged us to resolve this issue in favour of the respondents and against the appellant.

Appellants issue No.2 is the trial courts evaluation of evidence and its review by the court below. It is the submission of learned counsel for the appellant that the uncontroverted evidence of Defence Witness 1 to the effect that the respondent was instructed to commence work on site since 16th of June, 1997 vide Exhibit K, cannot stand because Exhibit B which was later in time and which was executed on the 3rd of August, 1997, gave plaintiff 14 days from the date of the execution of the contract to mobilize to site. He argued further that the oral evidence of Defence Witness 1 cannot be used to vary the contents of a written document that is Exhibit B THE CASE OF UNION BANK V. OZIGI [1994] 3 NWLR [333] 385 at page 389 was cited in support. The learned counsel made reference to the practice where a contractor could be called upon to commence work on site before formal execution of the contract. He also made reference to the court belows holding on the Bill of Quantity and the drawing; Exhibit A1 was the Bill of Quantity which was admitted in evidence with no objection from the defendants/respondents. As to Exhibit A 1s authenticity, it was the court below that raised that issue Suo Motu.

There was no conflict in the evidence on the source of the Bill of Quantity and it was wrong to reject the evidence of 1st plaintiffs witness on the basis of a conflict which did not exist. Learned counsel for the appellant urged this court to hold that there was no misconception whatsoever on the part of the learned trial judge concerning the evaluation he gave to the evidence before him, rather, it was the court below that fell into a grave error in substituting its own views for that of the trial court. He urged us to resolve this issue in favour of the appellant. Learned counsel for the respondents submitted on issue two that the interference by an appeal court with the evaluation of evidence made by a trial court as well as with the findings of a trial court are governed by settled principles of law. Several cases were cited in support including: EBOADE V. ATOMESUN [1997] 5 NWLR [pt.506] 490 at page 507 – 508; MAGAJI V. ODOFIN [1978] 4 SC 94 at page 96; NZEKWU V. NZEKWU [1989] 2 NWLR [pt.104] 373 at page 393. The principle stated in these cases, is that an appellate court will not interfere with such findings unless they are perverse or unsupportable by the evidence led at the trial. It is further argued by the learned counsel for the respondents that the findings of the trial court which led it to the conclusion that the termination of the contract was wrongful were not supported by the pleadings and evidence led at the trial. The court below was in a good position to interfere with the findings and reassess the evidence. Learned counsel urged this court to resolve the issue in favour of the respondents.

Appellants issue No. 3 is on the award of damages made by the trial court which the court below set aside. Learned counsel for the appellant urged this court to hold that the defendants conduct in terminating the contract was wrongful, hence, the plaintiff was entitled to damages. He further urged that since the evidence of 1st plaintiffs witness on the profit margin of 30% of the contract sum was not challenged and should be relied upon. He relied on the case of OSONDU co. LTD. V. AKHIGBE [1999] 11 NWLR [pt.625] 1. Learned counsel urged us to set aside the contrary views of the court below and restore PAGE 7 the award made by the trial court as there was no evidence to the contrary before the court below that the plaintiff/appellant could not have realized 15% as profit on the contract price. Learned counsel for the respondents submitted that the position taken by the court below in selling aside the award of N14,193,569.68 in favour of the appellant, is unassailable having regard to the state of pleadings and evidence in this case. He submitted further that given the act of termination of the contract was not wrongful, the appellant cannot be entitled to any damages as he was found by the court below to have done nothing at the site and he cannot benefit from his own wrong.

He cited in support the cases of KANO TEXTILES PLC V. GLOEDE & HOFF [Nig.] Ltd. [2002] 2 NWLR [pt.751 420 at page 450; FIRST BANK OF NIGERIA PLC. V. MAY MEDICAL CLINIC [1996] 9 NWLR [pt.471] 195 at page 204. He urged us to resolve this issue in favour of the respondents and against the appellant. Now, it is clear from the pleadings of the parties, the evidence led before the trial court, its findings and judgment and the decision of the court below that this appeal arose as a result of dispute between the parties on whether there was a breach of the terms embedded in a Road Construction contract entered by the parties. Issue No. 1 by the appellant which is agreed by the respondents is on the lawfulness of termination of the contract between the parties. Now, where a legally permitted contract has been concluded by parties to it, the parties become bound by the terms and conditions provided therein. None of the parties will be permitted by law to resile from such terms and conditions except for good and genuine reasons. As a general rule, a contract may be determined either in accordance with the contractual terms such as through performance by the promisor of the exact terms he undertook to do for example, in contract of sale of goods or contract of supplies of service. Equally, a contract can be brought to termination where the promisor failed to perform through breach or where he made misrepresentation or where subsequent agreement took place.

A Contract can also be terminated by frustration and or as a result of certain miscellaneous events such as merger and in some cases death or bankruptcy: In its paragraph 23 of the statement of claim, the plaintiff/appellant averred as follow: ’23. In violation of the contract agreement and the content of preliminary letter aforesaid, the defendants vide a letter dated 29th of August, 1997 reference No.FDCA/DES/44/S.295/80 signed by one Asmau T. Garba [Mrs.] terminated the plaintiffs contract. The plaintiff plead [sic}and will rely on the aforesaid letter at the trial.’

In their statement of Defence, the defendants/respondents averred as follow: ’13. The defendant deny paragraph [sic] 16 and 17 of the plaintiffs statement of claim and aver that the contract was terminated on account of the plaintiffs persistent failure to mobilize on site in spite of repeated demands and instructions so to do. 18. The defendants denied paragraph 23 of the plaintiffs statement of claim and further aver that the plaintiffs contract was terminated for failure to commence work of site in spite of repeated warnings.’ After the evaluation of evidence led before him, the learned trial judge made a finding on the termination of the contract between the parties. He stated, inter alia: The formal contract agreement was executed on 30/7/97 though signed sealed and delivered on 3/8/97 between the parties as evidenced by exhibit B However as per their letter of 29/8/97, Exhibit 1 the said contract was terminated. The exhibit and paragraph 12 and 18 of statement of defence gives reasons for the termination as the plaintiffs persistent failure to mobilise on site in spite of repeated demands and instruction so to do by the defendants. This according to the learned counsel for the defendants, made it imperative that in so far as the plaintiff was in breach of contract should be and was terminated. The award of contract was however dated 3/6/97 [exhibit F] and it says that the contract was to commence after Exhibit B was prepared and signed. This was done on 29/7/97 and finalised on 3/8/97. Therefore issuance of exhibit L which was dated 3/7/97 was putting the cart before the horse.

The defendants cannot be hard [sic] to be complaining that the plaintiffs had refused to mobilise on site as the time for so doing was not yet at hand as per the contents and timing of exhibits F and exhibit B.’ PAGE 8 The learned trial judge also found that the only relevant documents in the contract are Exhibits F and B and it is the terms contained therein that the plaintiff should follow to the letter and that much had been admitted by Defence Witness 1. The learned trial judge stated further as follows:

‘The learned counsel for the defendants has rightly submitted that exhibits B[sic] speaks for itself. The agreement executed on 30/7/97 and signed on 3/8/97 allow [sic] the plaintiffs 2 weeks within which to commence work on site after DW1 wrote exhibit D on 24/8/97, four days before the grace period of 2 weeks had expired and it was to serve as last warning. this in my opinion is premature as the weeks allowed by exhibit B had not yet expired. However, assuming that exhibit B was a notice for the plaintiff to commence work on site and with a period of grace of up to 1/9/97 the termination letter dated 29/8/97 is premature, the contract work had not commenced as per exhibit D. Therefore, it cannot be construe [sic] to be abandoned in the letter of clause 21.01 read together with exhibit D. More so, that as per exhibit H, the drawings and specifications were not handed over to the plaintiffs by DW1 in line with clause 18,01 of the agreement.

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SC. 264/2002

G.m.o. Nworah & Sons Co. Ltd V. Afam Akputa (2010)

LAWGLOBAL HUB Lead Judgment Report

J.A. FABIYI, J.S.C.

This is an appeal against the judgment delivered by the court of Appeal, Enugu Division (court below for short) on 19th June, 2006 in respect of an appeal and cross appeal by the parties against the judgment of Ozoemena, J. of the High Court of Justice, Enugu delivered on 19th April, 2004.

The case at the trial court was a suit filed in the undefended list by the respondent as plaintiff thereat. He claimed the sum of =N=7, 555,000:00 against the appellant as professional fees for services allegedly rendered for the benefit of the defendant – appellant herein.

Upon being served with the writ of summons, the defendant filed a notice of preliminary objection challenging the locus standi of the plaintiff to institute and maintain the action. The trial judge was addressed by counsel on the preliminary objection and application for judgment under the undefended list. In his judgment handed out on 19th April, 2004, he dismissed the preliminary objection. As a follow up, he granted in part the plaintiffs’ application under the undefended list by awarding him =N=800,000.00 with 2% interest out of the =N=7,555,000:00 as he felt that ‘the fees to be paid must be reasonable in the circumstances’.

Both parties felt unhappy with the stance posed by the trial judge. The defendant appealed and the plaintiff, as well, cross-appealed to the court below. On 19th June, 2006, the court below dismissed the appellant’s appeal and allowed the respondent’s cross-appeal. The court below dismissed the appellant’s appeal and allowed the respondent’s cross-appeal. The court below awarded the respondent the sum of =N= 6,750.000:00 with 3% interest being the remainder or part of the cross-appellant’s claim at the trial court which was not granted thereat.

The appellant felt irked with the decision of the court below and has appealed to this court. He sought the leave of this court to raise new issues and filed four (4) additional grounds of appeal in respect of same.

On 7th December, 2009 when this appeal was heard, briefs of argument were adopted by both sides of the divide. The three (3) issues couched for determination of the appeal by the appellant read as follows:-“ISSUE NO. 1

Whether the respondent has the locus standi to institute the action at the High Court of Enugu State so as to confer the court with the jurisdiction to hear and determine the claim.

ISUE NO. 2

Whether, in all the circumstances of this case the suit filed by the respondent at the trial court satisfied necessary conditions of a suit that can be placed and determined under the undefended list.

ISSUE NO.3

Whether the court below was right in an undefended list claim for =N=7,555,000.00 to set aside the award of =N=800,000.00 with 2% interest granted respondent by the trial court and substitute same with an award of =N=6,750,000.00 with 3% interest as remainder of the sum not granted by the trial court.”

The respondent also distilled three issues for determination of the appeal. They read as follows:-

“1. Must respondent comply with Order 34 Rule 5 of High Court of Anambra State (Civil Procedure) Rule 1988, applicable in Enugu State in Order to establish the requisite locus standi necessary to sustain the claim herein

2. Whether the claim at the trial court satisfied the necessary conditions for a suit that ought to be placed and determined under the undefended list.
3. Whether the court below was right to have awarded =N=6,750,000.00 (six Million Seven Hundred and Fifty Thousand Naira) with 3% interest to the respondent.”

At this point, it is apt to start with the consideration of issue 2 as decoded by both parties. They both agree that this issue is whether the claim at the trial court satisfied the necessary conditions for a suit that ought to be placed under the undefended list.

On behalf of the appellant, learned counsel submitted that if the respondent has the requisite locus standi to initiate the suit at the trial court, the suit, as constituted, ought not to have been heard and determined under the undefended list. Learned counsel contended that the respondent’s claim as contained in Exhibit F, his ‘Bill of charge’ was not for liquidated debt, money demand or damages. He cited the case of U.T.C. (Nig) Limited v. Pamotie (1989) 2 NWLR (Pt.103) 244 at 299.

The respondent felt that since he worked for the appellant, the sum claimed by him was for a ‘debt’ and such liability need not be arithmetically ascertained. He maintained that he was entitled to apply to the court for recovery of the ‘debt’ under the undefended list procedure. He cited the case of Akinnuli v. Odugbesan (1992) 8 NWLR (Pt.258) 172 at 188.

Let me say it here pointedly that the undefended list proceeding is meant to shorten the hearing of a suit where the claim is for a liquidated sum. It is designed to avoid the intricacies of pleadings in a normal hearing in our trial courts. In recent times, its employment has been subject of abuse. Such should not be the case.

What then is a liquidated ‘sum’ or ‘damages’. Blacks Law Dictionary (6th Edition) at page 391 says that ‘damages’ is said to be liquidated when a specific sum of money has been expressly stipulated by the parties to a bond or other contract as the amount of damages to be recovered by either party for a breach of the agreement by the other side. Stein v. Bruce 366 S.W. 2d 732, 735. The term is applicable when the amount of the damages has been ascertained by the judgment in the action.

In Maja v. Samouris (2002) 7 NWLR (Pt.765) 78 at page 102, this court by Iguh, JSC pronounce thus:-

“A liquidated demand is a debt or specific sum of money usually due or payable and its amount must be already ascertained or capable of being ascertained as a matter of arithmetic without any other or further investigation. Whenever therefore the amount to which plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidate or made clear. Again, where the parties to a contract as part of the agreement between them fix the amount payable on the default of one of them or in the event of breach by way of damages such sum is classified as liquidated damages where it is classified as liquidated damages where it is the nature of genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a penalty and it is payable by the party in default.”

Earlier on, in the case of Eko Odume v. Ume Nnachi (1964) 1 All NLR 324 at page 328, this court per Idigbe, JSC pronounced thus:-

“whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate the damages are said to be unliquidated.”

It is clear and beyond tenable argument that the factors for determination a liquidated sum are as follows:-

(a) The sum must be arithmetically ascertainable without further investigation.

(b) If it is in references to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach.

(c) The agreed and fixed amount must be know prior to the breach

I have taken a careful look at the affidavit in support of the respondent’s claim under the undefended list. I cannot see any averment therein which shows that there was an agreement, written or otherwise between him and the appellant, at any material point in time pointing to the direction that the appellant would pay the respondent the sum of =N=7,555,000.00 contained in the writ of summons or any other particular sum of money for that matter.

To say the least, the various heads of amount in Exhibit F, the ‘Bill of Charges’ relied upon by the respondent, were estimates arrived at by the unilateral opinion of the respondent which were not based on any mutually agreed ascertainable standard. There was no fixed amount to the parties prior to the alleged breach of the oral agreement which the respondent said he had with the appellant. The claim of the respondent, in the circumstance can only be categorized as unliquidated damages. It ought not to have been placed and determined under the undefended list in the first instance.

Further, learned counsel for the appellant submitted that the case was not qualified to be place and determined under the undefended list because the respondent’s suit, as formulated and presented before the trial court, was not only contentious but also raised a number of triable issues.

What then amounts to a triable issue in the con of an undefended list proceeding If a defendant’s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim, such brings the parties within the concept of ‘joining issues’ as explained in Graham v. Esumai (1984) 15 NSCC 733, 743 and Ehimare v. Emhonyon (1985) 1 NWLR (pt.2) 177; (1985) 16 NSCC (pt.1) 163, 169. In such a situation, a triable issue comes into existence. Whenever a bona fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The court has a duty to ensure fair hearing even in cases under the undefended list procedure.

Let me point it out that although the procedure under the undefended list has the advantages of speedy and quick dispensation of justice, it has it’s limitation in that it is not an appropriate procedure in complex cases with controversial triable issues. It is the duty of a trial court to first certify that the case is a proper one to be placed on the undefended list. For guidance on the procedure for summary judgment on the undefended list action, See: UAC (Tech) Ltd. v. Anglo Canadian Cement Ltd. (1966) NWLR 349; Olubusola Stores v. Standard Bank Nig Ltd. (1975) 4 SC 51 at 55-56; Okambah Ltd. v. Sule (1990) 7 NWLR (Pt.160) 1; (1990) 11 SCNJ 1; Adebisi Macgregor Associates Ltd. v. Nigerian Merchant Bank Ltd. (1996) 2 NWLR (pt.431) 378; (1996) 2 SCNJ 72.

I note that the appellant herein, as defendant at the trial court filed a preliminary objection challenging the locus standi of the respondent as plaintiff instead of the usual notice of intention to defend as dictated by the Rules of the trial court. There appears to be no big deal in this point. The action could validly be challenged other than by filling a notice of intention to defend and an affidavit disclosing a defence on the merit. See: the case of Sodipo v. Lemminkainen OY (1986) 1 NWLR (pt.15) 220 at 231 ; Nishzawa Limited v. Jethwani (1984) 12 SC 234 at 257; UTC Nig. Ltd v. Pamotei (supra) at page 284.

In short, the trial court and the court below had a duty to consider the preliminary objection and the affidavit in support of same. The respondent maintained that he had an oral agreement to ‘work’ for the appellant. On the other hand, the appellant said it had no contract, oral or written with the respondent. The appellant said it had dealings with one Joe Akputa and attached an agreement between them marked Exhibits ‘A’ to its affidavit. It is the said Joe Akputa that the respondent said introduced him to the appellant. There is no doubt in my mind that a triable issue has arisen in respect of the standing of the respondent. The two courts below appeared to have brushed the issue aside. But it has refused to be swept under the carpet. It requires to be cleared in a full blow trial.

Again, to justify the sum of =N=2,000,000.00 in Exhibit F as the fee for representing the appellant at the Supreme Court, the respondent averred in paragraph 4 of the affidavit in support of his application under the undefended list that he filed a brief of argument on behalf of the appellant at the Supreme Court. But in paragraph 15, the respondent averred that he drafted the brief of argument and when he asked the appellant for money to file same, the appellant debriefed him by directing him to hand over the brief of argument to one Chief Ifeanyichukwu Okonkwo. There is nothing to show that a Notice of Appeal was filed at the Supreme Court as contained in paragraph 14 of his affidavit. As well, there is no evidence that the respondent filed a brief of argument on behalf of the appellant; at least for now.

To my mind, there exists a material conflict or contradiction in the affidavit of the respondent which requires explanation. In this regard, the respondent himself on page 11 of his brief of argument states as follows:-

“In the unlikely event of your Lordships agreeing with the appellant that there exists a material conflict or contradiction in the affidavit evidence of the respondent as contended in the appellant’s brief argument, I must however point out that the effect thereof will only be restricted to the sum of =N=2 million claimed in regard to the Supreme Court proceedings and thus only that aspect of the claim may by affected, whilst the remainder thereof should be upheld by this Honourable Court.”

From the above, the respondent appears to have thrown in the towel in respect of the =N=2 million claimed for ‘work done’ for the appellant in respect of the alleged Supreme Court proceedings. Howbeit, for now, I take it that a serious triable issue has been raised and same should be investigated at a full blown trial of this mater at the High Court.

At this point, the provision of Order 24 Rule 9 (5) of the trial court’s Rules to wit: Anambra State High Court (Civil Procedure) Rules, 1988, as applicable to Enugu State, is of moment. It provides as follows:-

“R.9 (5). Nothing herein shall preclude the court from making an order, should it so think fit at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit is not suitable for placement in the undefended list.”

I am of the considered view that this is a case that ought not to be placed in undefended list in the first instance. It does not relate to a claim for liquidated sum agreed to at the material time by the parties. There are contentious issues that should be investigated through viva voce evidence.

Since an order transferring the matter to the trial court for hearing in the general cause list is warranted, I wish to keep my peace in respect of other issues. The appeal is hereby allowed. The judgment of the court below is hereby set aside. The case is remitted to the trial court to be heard on the general cause list by another Judge other than Ozoemena, J. Pleadings shall be ordered accordingly. No costs awarded.

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SC.153/2006

Barr. (Mrs.) Amanda Peters Pam & Anor V. Nasiru Mohammed & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

The 1st respondent was the plaintiff at the Federal High Court, Abuja where he brought a claim against the appellants and the 2nd respondent as the defendants claiming the following reliefs:

“1. A Declaration that the 2nd defendant’s letter of 19th February, 2007, to the 1st defendant applying to substitute the Plaintiff Nasiru Mohammed as the 2nd defendant’s candidate for the April 2007 Abuja Municipal Area Council AMAC/BWARI Federal House of Representative Election is illegal, null, void and of no effect whatsoever.

2. A Declaration that the 1st Defendant cannot in law act upon the 2nd Defendant’s application as contained in the letter of 19th February, 2007, to effect a substitution of the plaintiff with 3rd defendant as the 2nd defendant’s candidate for the April 2007 AMAC/BWARI Federal House of Representative Election.
3. A Declaration that by virtue of the provision of section 34(2) of the Electoral Act, 2006, the letter dated 19th February, 2007, written by the 2nd defendant to the 1st defendant seeking to substitute the plaintiff’s name does not provide any cogent and verifiable reason sufficient in law to warrant a substitution of the plaintiff’s name by the 1st defendant.
4. An Order of injunction restraining the 1st defendant from acting, carrying into effect or doing anything whatsoever based on the 2nd defendant’s application for substitution as contained in the letter of 19 February, 2007, to the 1st defendant as same is illegal, null, void and of no effect whatsoever.
5. An Order setting aside anything and everything done by the 1st defendant pursuant to the letter of 19/2/07 for the 2nd Defendant to the 1st defendant.
6. An Order setting aside the substitution form purported to have been filed by the plaintiff as illegal, null, void and of no effect whatsoever.
7. An Order against the 1st defendant by itself, its agent, privies, servants or howsoever described directing a retention of the plaintiff’s name as the duly nominated candidate of the 2nd defendant for the AMAC/BWARI Federal House of Representatives.
8. An Order quashing and nullifying the purported substitution of the plaintiff by the letter dated 19th February, 2007, purporting to have been issued by the 2nd defendant.
9. An Order quashing, nullifying and setting aside the FORGED FORM CF004 A purportedly signed by the plaintiff in favour of the said Austeb Peter-Pam Amanda 1.
10. An Order affirming the plaintiff as the legitimate and bonafide candidate of the 2nd defendant for the April 2007 election into the Federal house of Representatives in respect of the Abuja Municipal Area Council/Bwari Federal Constituency.”

At the completion of hearing on 5-04-07, the trial court gave judgment in favour of the 1st respondent in accordance with the reliefs he sought from the court. Later however, the 1st appellant brought an application that the judgment given on 5-04-07 be set aside on the ground that she had not been served with the processes leading to the judgment. The 1st respondent in whose favour the judgment on 5-04-07 had been given did not oppose the application. The trial judge Tijani Abubakar J. had no difficulty in setting aside the said judgment on 18-04-07.

It needs be said here that the 1st respondents’ suit related to the National Assembly elections which were scheduled to be held on 21-04-07. It ought therefore to have been clear to the parties that the case needed to be disposed of early enough so as not to interfere with the elections to be held on 21-04-07.

The 1st respondent’s suit was heard on the same day i.e. 18-04-07 and judgment given a second time that day in favour of the 1st respondent. The earlier judgment in the case was similar in favour of the 1st respondent. The appellants were dissatisfied. They brought an appeal before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). The 1st respondent also filed a cross-appeal., on 5-07-07, the court below dismissed both the appeal and the cross-appeal. The appellants were dissatisfied with the judgment of the court below and have come before this Court on a final appeal. In their appellants’ brief, the issues for determination in the appeal were identified as the following:

“1. Whether the Court of Appeal was right in affirming that 1st respondents had locus standi to institute the suit to challenge his substitution as a candidate of the ANPP 2nd Appellant to contest the AMAC/BWARI Federal Constituency when at the time of institution of the suit i.e. March 22, 2007, he had ceased to be a member of ANPP by reason of expulsion on February 2, 2007.

2. Whether the Court of Appeal was right in holding that the 1st appellant’s right to fair hearing was not breached in the determination of the issues before the trial Court.
3. Whether originating summons was appropriate procedure in the determination of the issues raised in the suit”

The 1st respondent in his brief of argument raised three issues for determination which said issues are in substance similar to the appellants’ issues. The 2nd respondent also filed a brief of argument on 15-02-08 which we deemed properly filed at the hearing of the appeal on 4-03-08.

I intend in this judgment to consider each of the issues raised for determination in the appeal serially. The 1st issue raises the question whether or not the 1st respondent had the requisite locus standi to have commenced the suit before the trial court. It seems to me however that in the nature of the dispute brought before the trial court, the issue of 1st respondent’s locus standi was inexorably tied to the larger issue which was as to whether or not the 2nd appellant gave a cogent and verifiable reason in its letter to the 2nd respondent on 19-02-07 substituting the 1st appellant for the 1st respondent as its candidate for AMAC/BWARI Federal Constituency in the elections held on 21-04-07.

I observed earlier that the 1st respondent commenced his suit at the trial court by an originating summons. In paragraph 3(a) to.(m) of the affidavit in support of the originating summons, the 1st respondent deposed thus:

“a That the plaintiff is a Chattered Accountant with Office at No.4 Toamansina Street, off Kolda Link, off Adetokunbo Ademola Crescent, Wuse, Abuja.

b. That the plaintiff is a registered and bona fide member of the All Nigerian people’s Party, the 2nd defendant herein attached herewith is a copy of Plaintiff Party membership card marked Exhibit NAS 1.

c. By virtue of the plaintiff’s membership of the 2nd defendant, he contested the 2nd defendant’s party’s Primaries for the Abuja Municipal Area Council (AMAC)/Bwari National Assembly Elections and won, and was duly sponsored by the 2nd defendant to the 1st defendant as a House of Representative candidate for the April 2007 House of Representative Elections for the AMAC/BWARI Federal Constituency. Attached herewith is a copy of the Summary of Results for the Primary Elections 2006 is annexed herewith as exhibit NAS 2.

d. That upon the submission of Plaintiff’s name by the 2nd defendant to the 1st defendant, the 1st defendant as required by Law published his name both at its Headquarters and his constituency as the authentic candidate of the 2nd defendant for the April 2007 Federal House of Representatives Elections.

e. That upon the submission of his name to the 1st defendant by the 2nd defendant he participated in the 1st defendant’s verification exercise and was confirmed to contest the Federal House of Representatives Election for the AMAC/Bwari Federal Constituency in the forthcoming April 2007 National Assembly Elections. Copy of the Acknowledgment (Form CF 001) issued by the 1st defendant is annexed herewith as Exhibit NAS 3.

f. That surprisingly by a letter dated 19th February 2007, the 2nd defendant wrote the 1st defendant applying to Substitute the Plaintiff with the 3rd defendant (Austen Peters-Pam Amanda I.) as the 2nd defendant’s candidate for the April 2007 National Assembly Elections. A copy of the 2nd Defendant’s letter dated 19th February 2007 to the 1st Defendant is attached herewith marked exhibit NAS 4.

g. That the 2nd defendant’s application as contained in the said letter to the 1st defendant dated 19th February, 2007 gave no reason for the application to substitute the plaintiff with Austen Peters-Pam Amanda I. as the 2nd defendant’s candidate for the April 2007 National Assembly Election and notice of the purported attempt of substitution came very late to the plaintiff.

h. That he did not at any time withdraw his candidature in favour of the said Austen Peter Pam Amanda I. as he had no reason whatsoever to do so. That the signature appearing on Form CF.004A is a forgery consistent with the Scanned (instead of original) passport photograph appearing on said form. Copy of the said Form CF.004A is annexed herewith marked exhibit Forgery 1.

i. That the said letter of 19/2/07 which was signed only by the Secretary of the Party is contrary to the requirements of the 2nd defendant’s party constitution. Copy of the party Constitution is annexed herewith marked exhibit NAS 4.

j. That if effect is given to the said letter dated 19th February, 2007, it is going to cause the plaintiff severe damage mentally, physically, psychologically and financially, which no monetary compensation can assuage.

k. That pursuant to his sponsorship by the 2nd Ddfendant, plaintiff has commenced intense political campaign for he upcoming April, 2007 National Assembly Elections in the AMAC/Bwari Federal Constituency.

l. That I have been informed by D. D. Dodo, S.A.N. on the 15th Day of March, 2007 at about 7.00 p.m. at No. 10 Atbara-Street Wuse II and I very believe him that the 2nd defendant’s application as contained in the letter dated 19th February, 2007 does not meet the requirement of law for substitution of the plaintiff to contest the April 2007 National Assembly Elections under the Platform of the 2nd defendant in the AMAC/Bwari Federal Constituency.

m. That except the 1st and 2nd defendants are restrained, they will proceed to act pursuant to the application of the 2nd defendant to substitute the Plaintiff with Austen Peters-Pam Amanda 1. as the 2nd defendant’s candidate for the April 2007 National Assembly Election as contained in the said letter dated 19th February, 2007 and in the process prevent the plaintiff from contesting the April 2007 National Assembly Elections.”

It is apparent from the extracts of the affidavit in support of the originating summons reproduced above that that foundation and cornerstone of the 1st respondent’s case before the trial court was that he was the candidate of ANPP (i.e. – the 2nd appellant); and that he was validly nominated at the A.N.P.P. primaries to contest the April, 2007 election for the AMAC/Bwari Federal Constituency. It was further deposed to that by a letter dated 19-02-07, the 2nd appellant wrote to the 2nd respondent applying to substitute the 1st appellant’s name for the 1st respondent’s. The 1st respondent deposed that he remained ready and willing to be A.N.P.P. candidate for the said election and that the 2nd appellant wrongfully attempted to substitute 1st appellant for him. It is noteworthy that the 1st respondent made the point that the attempt by the 2nd appellant to substitute the 1st appellant for him did not conform with the law.

In her reaction to the 1st respondent’s affidavit, the 1st appellant in a counter-affidavit, sworn to on her behalf by one Ifeanyi M. Nrialike stated in paragraphs 5 to 8 thereof thus:

“5. That the plaintiff was expelled from the ANPP – the 2nd defendant on the 2nd of February 2007 and is not a member of the party the letter of expulsion is marked exhibit A1 and this fact was communicated to the 1st defendant.

6. That the plaintiff was duly substituted with 3rd defendant having been expelled from the All Nigeria People Party.
7. That EXHIBIT FORGERY 1- FORM CF 004A is not forged by the 3rd defendant or any other person but dully signed by the national Chairman and Secretary of the 2nd defendant. A letter to this effect written to the chairman of INEC by the chairman of ANPP FCT Abuja is marked exhibit A2.
8. That the National Secretary as the Chief scribe of the 2nd defendant in the absence of the National chairman has authority to write correspondence and letters on behalf of the 2nd defendant.”

It is obvious that the cause of the dispute between the parties was that whereas the 1st respondent claimed he was the properly nominated candidate of the 2nd appellant, the 1st appellant claimed that the 1st respondent could not be such candidate as the 1st respondent had by a letter dated 2-02-07 been expelled from the party.

In the appellants brief the contention of appellants’ counsel was that the 1st respondent had not the locus standi to bring the suit because by his expulsion from the party on 2-02-07 had lost the platform upon which to bring the suit as a member of the 2nd appellant.

In his address before the trial court 1st respondent’s counsel argued that there was no indication that the 1st respondent ever acknowledged that he got a letter dated 2-02-07 which expelled him from the 2nd respondent; and that in any case the letter by which the 2nd appellant tried to substitute the 1st appellant for the 1st respondent did not make any reference to a letter of expulsion of 1st respondent dated 2-02-07.

It seems to me that the objection made by the appellants as to the standing of the 1st respondent to bring this suit depended wholly on whose version of the evidence the trial court accepted. If, as contended by the appellants the 1st respondent had lost his membership of the 2nd respondent on 2-02-07, he would not have a platform to bring his suit on 22-03-07. But the contention of the 1st respondent was that the said letter by which he was allegedly expelled was a forgery and was never served on him.

The trial court did not make a specific funding on the point. Similarly, the court below did not express its opinion on the point as no issue of locus standi was raised before it.

It seems to me that from the nature or drift of evidence available before the trial court, it was not satisfactorily established that the 1st respondent had been expelled from the 2nd appellant by a letter dated 2-02-07. Elementary prudence and common sense dictate that if indeed the 1st respondent had been expelled from ANPP on 2-02-07, the letter allegedly written by ANPP on 19-02-07 exhibit NAS 4 ought to have given as reason for the substitution of the 1st respondent the fact that he had been expelled from the party. It is remarkable that the fact of the expulsion of the 1st respondent was never brought up anywhere until the 1st respondent had sued. It is to be expected that if in truth the 1st respondent was expelled it would have formed a valid basis to substitute his name with that of the 1st appellant. The cornerstone of the case of the 1st respondent was that he was substituted in a manner that did not conform with the law. This explains in my view why the two courts below saw no reason to examine the issue of the 1st respondent’s locus standi. This is because the issue of absence of locus standi raised by the appellants was inexorably linked with the validity of 1st respondent’s substitution when the same is viewed against the provisions of section 34(1) and (2) of the Electoral Act 2006 which provides:

“34(1) A political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election.

34(2). Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.”

The conclusion to be arrived at is that the issue of locus standi raised by the appellants is fully subsumed under the issue whether or not the 2nd appellant gave a cogent and verifiable reason for the attempted substitution of the 1st respondent with the 1st appellant. It is noteworthy that the appellants throughout the proceedings from the trial court to this court never at any stage contended that the letter exhibit NAS 4 dated 19-02-07 by which the 1st appellant was substituted for 1st respondent gave any cogent or verifiable reason for the substitution.

In Ugwu & Anor. v. Araraume & Anor [2007] 16 S.C. (pt.1) 88, this Court considered the import and effect of Section 34 of the Electoral Act on the substitution of a candidate where no cogent reason was given for the substitution. At page 134 of the report this Court per Tobi J.S.C. said:

“Taking Section 34(2) in the con of primaries in particular, I have no doubt in my mind that the subsection is not only important but has an imperative content; considering the general object intended to be secured by the 2006 Act. It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person….

If a section of a statute contains the mandatory ‘shall’ and it is so construed by, the court, then the consequence of not complying with the provision follows automatically. I do not think I sound clear. Perhaps I will be clearer by taking Section 34(2). The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of the 3rd respondent. This places a burden on the 3rd respondent not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore interpreted against the 3rd respondent in the way I have done in this judgment. It is as simple as that. It does not need all the jurisdiction of construction of statute. I know of no canon of statutory interpretation which foists on a draftsman a drafting duty to provide for sanction in every section of a statute.”

I made the same point at pages 155 to 156 of the report where I said:

”It is manifest that the requirement under Section 34(2) of the 2006 Act that ‘cogent and verifiable reason’ be given in order to effect a change of candidate was a deliberate and poignant attempt to reverse the 2002 Act which led to a situation where disputes arose even after elections had been concluded as to which particular candidates had been put up by parties to stand elections.

The meaning of the word ‘cogent’ as given in The Shorter Oxford English Dictionary, is stated to be ‘constraining, powerful, forcible, having power to compel assent, convincing.’ The same dictionary defines ‘verifiable’ as ‘that can be verified or proved to be true, authentic, accurate or real; capable of verification.’

In the light of the above, it seems to me that the expression ‘cogent and verifiable reason’ can only mean a reason self demonstrating of its truth and which can be checked and found to be true. The truth in the reason given must be self evident and without any suggestion of untruth. The reason given must be demonstrably true on the face of it so as not to admit of any shred of uncertainty.’

I am satisfied that the reason given by PDP as ‘error’ for substituting Omehia for Amaechi did not meet the requirement of Section 34 of the Electoral Act.”

See also Amaechi v. I.N.E.C .& Ors. {2008} 1 SC. (Pt. 1) 36.

The 2nd appellant in its letter exhibit NAS 4 dated 19-02-07 wherein it purported to substitute the 1st respondent with the 1st appellant no reason whatsoever was given for the substitution. In the letter from the 2nd appellant, the writer one Senator Sa’idu Umar Kumo simply wrote:

“I am forwarding herewith details of approved substitutions in respect of the National Assembly candidates for your necessary action please.”

Clearly, the 2nd appellant did not comply with the provisions of Section 34 in substituting the 1st appellant with the 1st respondent as the candidate for the National Assembly election on 21-04-08.

The 2nd issue for determination is a complaint that the court below was in error by not holding that the 1st appellant’s right to fair hearing was compromised by the manner the trial court handled the hearing of the suit on 18-04-07. I stated earlier that the judgment previously given in favour of the 1st respondent on 5-04-07 was set aside on 18/04/07 on the ground that the appellants had not been served with the processes leading to the judgment. The proceedings of the trial court reveals that the 1st respondent’s counsel Mr. Dodo S.A.N. prayed the trial court to hear the suit immediately after the previous judgment was set aside. Mr. Nwankwo S.A.N. for the appellants however insisted that he could not be rushed as he needed time to file a counter-affidavit. The trial court granted appellants a stand-down till 11.30a.m. Mr. Nwanko S.A.N. later sought a further stand-down till 3p.m. to enable him file a counter-affidavit notwithstanding that Mr. Dodo S.A.N. had opposed a further stand-down. The trial court granted a further stand down till 1.30p.m. After the second stand-down, all the parties by their counsel made submissions to the trial judge after they had filed their respective affidavits. None of the parties was disabled from putting across to the trial court his arguments in the matter.

Can it be said that there was a denial to the appellants of their right to fair hearing I think not. I have no doubt that the proceedings before the trial court on 18/4/07 were rushed and conducted in a hurry. This was so because the elections to the National Assembly which formed the subject-matter of the suit were to be conducted on 21-04-07. In other words there was only a period of 3 days available to the parties and court to come to a determination of the matter. Given the nature of the special circumstances that prevailed, I am unable to conclude that the appellants were denied their right to fair hearing.

The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. In the instant case, there has been no complaint that the respondents were granted advantages or special favours in the presentation of their case which were denied to the appellants. A complaint founded on a denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all the parties before it.

In Mohammed v. Kano N.A. [1968] All N.L.R. 411 at 413 (Reprint) Ademola C.J.N. considering the meaning of fair hearing said:

“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case. We feel obliged to agree with this.”

It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.

The court below at pages 289 to 291 of the record in its judgment examined the appellants’ complaint as to absence of fair hearing and said:

“It must be noted that the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the sense of his appeal being granted a fair hearing or even in the court below. This is because of the need that in granting the hearing on the merits no injustice is done to the other party where that opportunity or fair hearing existed in the court below, the appellate court has no business interfering. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) page 142; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 421.

The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteran partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 7 NWLR (pt. 164) 550.

A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, Otherwise, the action taken following the inquiry will be Unconstitutional and illegal. See Ogundijun v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atande v. State (1988) 3 NWLR (pt. 85) 681.

In the light of the above I have no difficulty in Resolving this issue of fair hearing or not against the Appellant. Therefore this appeal lacking in merit is hereby dismissed.”

I agree with the views expressed by the court below above. I am unable to hold that the appellants were denied their right to fair hearing as enshrined in section 36 of the 1999 Constitution.

The complaint of the appellants under their third issue is that the use of originating summons was not appropriate in the circumstances of this case. Let me consider Order 40 rules 1 and 2 of the Federal High Court (Civil Procedure Rules) 2000 which deal with the use of originating summons in proceedings at the Federal High Court from where this suit originates.

The rules Order 40 rules 1 & 2 provide:

“(1) A person claiming to be interested under a deed, will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

(2) A person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of the question of construction and for a declaration as to the right claimed.”

In the instant case, the simple question for the trial court to determine was whether or not the letter by which the 2nd appellant sought to substitute the 1st respondent with the 1st appellant was in conformity with the requirements of section 34 of the Electoral Act, 2006. This was not a case in which the truth of the relevant facts was in serious controversy. The trial court needed to determine whether or not there was cogent and verifiable reason given for the substitution of the 1st appellant for 1st respondent. In my humble opinion, this is the type of case in which the procedure of originating summons is eminently reasonable and relevant. The procedure of originating summons ought not to be used where the facts are likely to be in dispute: See Theophilus Doherty v. Richard Doherty [1968] NML.R. 241 and National Bank of Nigeria v. Ayodele Alakija [1978] 9 & 10 SC.59.

The procedure of originating summons is the appropriate one to be used in a dispute as this where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary: See Joseph Din v. Attorney-General of the Federation [1986] 1 NWL.R (Part 17) at page 471. This issue must be resolved against the appellants.

In the final conclusion, I am of the view that this appeal has no merit. It is accordingly dismissed with N50,000.00 costs in favour of 1st respondent against the appellants.

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SC.238/2007

Attorney-general Adamawa State & Ors V. Mr. Jonah Jauro Ware & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

The respondents as plaintiffs before the High Court of Adamawa State, holden at Yola, Bansi C.J. commenced these proceedings for themselves and on behalf of the Yandang community of Mayo-Belwa Local Government Area of Adamawa State, against the appellants herein as the defendants, claiming as followings:-

“(1) A declaration that the selection, election and/or appointment of the 3rd defendant as the District Head of Bajama District is altogether unconstitutional, irregular, invalid, null and void and of no effect whatsoever for offending the provisions of Adamawa State Districts Creation Law 1992 (as amended).

(2) (In the alternative to 1 above). A declaration that the selection process for the position of the District Head of Bajama District was manipulated by the 2nd defendant for purely sectional, parochial and ethnic reasons.

(3) An injunction to restrain the 3rd defendant by himself through his servants, agents howsoever from parading himself or continuing to parade himself as the District Head of Bajama District.

(4) An Order directing the 2nd defendant/appellant to conduct fresh selection/election and or appointment for the position of the District Head of Bajama District in accordance with the Provisions of the Adamawa State Creation of Districts Law, 1992 (as amended).

(5) Further and better reliefs as the court may deem fit to make.”

Pleadings were ordered filed exchanged and issues joined for trial. The plaintiffs called 4 witnesses and tendered 3 exhibits while the defendants called 5 witnesses and tendered 1 exhibit. After the address of counsel and in his judgment delivered 12th January, 1996, Bansi C.J dismissed in its entirety the case of the plaintiffs. The plaintiffs felt unhappy with the dismissal of their claims and filed an appeal to the Court of Appeal, Jos Division. In its judgment, the Court of Appeal, on the 8th February, 2000, unanimously allowed the plaintiffs’ appeal and granted all the reliefs, the plaintiffs claimed.

The defendants with the leave of this court filed an appeal against the decision of the Court of Appeal. The 3rd defendant who desired to engage a counsel and fight separately his appeal, applied for and was granted leave to appeal on the 19th of November, 2003. Now the defendants shall hereinafter be referred to as the appellants and the plaintiffs as the respondents.

It is convenient at this stage to set out the background facts as revealed by the pleadings and the evidence. In my view the fundamental facts are not in the main disputed. A vacancy arose for the post of the District Head of Bajama District under the Adamawa Emirate Council. On the 26/12/1991 an election was held in an attempt to fill the vacancy. At the election, the first respondent won the majority of the vote cast at the election by the village heads. The nomination/election was cancelled because,

(a) there were many petitions against it,

(b) the first respondent who won the nomination did not come from any recognized ruling house and

(c) Jereng village forming part of the district was not represented at the election.

In 1992, the Adamawa State Districts Creation Law was promulgated and was deemed to have come into operation on the 2nd of May, 1992. The Law, which was later amended, was designed to create and regulate the appointment, selection and election of District Heads in Adamawa State. On the 15/10/1992 another attempt was made to fill the vacant position of the District Head of Bajama District, it was to be conducted under the provisions of the new law as amended. The 2nd appellant sent its agents to come to Bajama District to conduct the selection. They explained to the populace the underlying reasons for the revisitation of the exercise. The representatives of the Adamawa Emirate Council directed the 8 Village Heads, the electoral college, to retire and present 3 names out of which one will be appointed as the District Head. The Village Head retired and eventually came out with the name of the 2nd respondent herein, the third appellant and one Halilu Chiroma as the three nominated candidates. It was on the 1/2/1993, that the names of the 3rd appellant herein, Hamman Adama Bello Ardo Lawal, was announced as the District Head of Bajama District. The respondents representing the Yandang community, pursuant to section 8(1) of the Adamawa State Districts Creation Law 1992 as amended, petitioned the 2nd appellant, the Adamawa Emirate Council, over the appointment. When nothing was heard from the Emirate Council the respondents commenced these proceedings.

Now, as mentioned above the respondents lost at the High Court but won in the court below and the defendants are now the appellants. The first and 2nd appellants in their brief of argument have identified and formulated the following issues arising for the determination of the appeal:-

“1. Whether the court below was justified in invoking the provisions of section 149(a) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990.

2. Whether the conclusion of the court below that, the appointment of the 3rd defendants/appellant was not done in accordance with the provisions of the Adamawa State Creation of Districts Law 1992, can be supported, having regard to the established evidence before it in relation to the provisions of section 7 of the said law as amended Or in the alternative:
3. Whether the decision of the court below in construing section 7 of the law in question without any regard to the subsequent amendment was not reached per incuriam

As mentioned above, the 3rd appellant filed with leave of court separate notice of appeal, and in his briefs has submitted the following 4 issues for the determination of the appeal:-

1. Whether going by the state of the pleadings, the conclusion of the lower appellate court that the appellants/defendants admitted most of the facts of the plaintiffs/respondents was justified and whether such conclusion did not occasion a miscarriage of justice to the appellant.
2. Whether the defendant/appellant pleaded native Law and custom or tradition relating to the position of District Head of Bajama.
3. Whether the lower appellate court correctly interpreted the provisions of the amended Adamawa State Districts Creation Law 1992. Whether the Court of Appeal was right in its conclusion on the state of evidence and application of section 149(a) of the Evidence Act in relation to the minutes of the meeting of 15/10/1992.

In their respondents’ brief filed in answer to both briefs of the appellants, the respondents, only submitted one issue for the determination of the appeal. The issue reads:-

“Whether having regards to the provisions of the Adamawa State Districts Creation Law 1992, and the evidence led before the trial court, the lower court was right in holding that the 3rd appellant was not duly appointed as the District Head of Bajama District”.

But before the examination of the issues for the determination of the appeal, it shall be necessary first to deal with preliminary objection to competence of the appeals raised in the respondents’ brief.

In the aforesaid notice of preliminary objection, the respondents object to grounds 1,2,3 contained in the notice of appeal of 21/2/2000 and grounds 4 and 5 contained in the notice of appeal filed on the 19/11/2003. The ground of objection is that the issue being canvassed in the grounds is an issue of law which was not raised or tried before the lower court. It is argued that no leave was sought or obtained to canvass the issue. It is settled law that it is not competent to raise a fresh issue of law in an appeal without leave. See A.I.C. Ltd. v. NNPC (2005) 5 SCNJ 316; (2005) 11 NWLR (Pt.937) 563. Without much ado, I am of the view that objection is not made out. The respondents are merely objecting to the complaints of the appellants that the Court of Appeal did not in its consideration of the case before it apply the provisions of the amended law. It is common ground that the Adamawa State Districts Creation Law 1992 was amended in the same year. As mentioned above the law was deemed to have come into force on 2/5/1992 but some far reaching amendments were made in October 1992. It is clearly wrong of the learned counsel for the respondents to argue that the amendment made to the law which came into force in October, 1992 before the action was filed was a fresh issue. The only possible and rational explanation one can make is that if the lower court did not advert its mind to the amendment, the lower court clearly erred in law by ignoring the amendment. It is the duty of every court to give effect to an existing statute whether cited by counsel or not. See Ajayi v. Military Adm. of Ondo State (1997) 5 NWLR (Pt.504) 237. See also Odua Investment Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1, where it was held that a statutory provision cannot be waived. In my view, when the Court of Appeal interpreted the provisions of the law under reference without considering the amendment made in a later law, the court merely misinterpreted the provisions or interpreted the provisions of non existent provisions. The case of the respondent was based on the law as amended and when lower court failed to take into consideration the amendment, the lower court merely erred in law. The issue cannot be said to be a fresh issue. I accordingly reject the objection.

Now returning to the issues for determination. In my view, the issue posed by the respondents is more apt and covers all the other issues formulated by the appellant. The issue is whether on the state of the pleadings, the evidence and the provisions of the law, the 3rd appellant was properly appointed as the District Head of Bajama. Now, the learned trial Judge made these findings of fact:

“1. That on the 26/12/1991 there was an election held for the District Headship of Bajama where the first plaintiff and two others contested but the said election was cancelled because-

(a) There were many petitions against it;

(b) The first plaintiff did not come from any ruling house, and

(c) Jereng Village was not represented when the election was conducted.

2. That the selection on 15/10/92 was done in accordance with the provisions of the Adamawa State Districts Creation Law 1992.
3. That Bajama District has been in existence 10 years after the white-man settled at Yola or since 1911.
4. That there are ancient traditions and customs for appointing District Head in Bajama. Maye-Farang or Nassarawa- Jereng District and that has not been abolished by any legislation.
5. That the tradition and customs came into being 10 years after the settlement of the white-man at Yola or 1911. That the third defendant was properly appointed being one of the descendants of Ardo Lawai the first District Head of Bajama who was appointed 10 years after the settlement of the white-man in Yola.”

Thus the claims of the respondents were dismissed by the trial court. The Court of Appeal on the other hand in its judgment per Akpabio, J.C.A. of blessed memory and concurred to by Omoren and Mangaji also of blessed memory JJ.C.A. opined as follows:

“But in the 1992 exercise, the village heads were not allowed to vote. They were merely asked to give names of three persons whom they considered suitable for appointment as District Head, and they did so without actually voting for a district head. The representative of the 2nd respondent then took the three names to the Emirate Council at Yola. It is reasonable to say that it was the officials of the Emirate Council at Yola who ultimately did the election or selection of 3rd respondent, and then forwarded his name to the Governor for approval. It is significant to note that even up till the time of writing this judgment, there has been no evidence as to the number of votes scored by the 3rd respondent” as the purported election to qualify him to be the District Head of Bajama District. From the foregoing, it becomes clear that the eight village heads were not allowed to carry out their statutory functions of being the “selectors” or “electors” of the District Head of Bajama. They were reduced to being mere “nominators” while the Emirate Council Officials took over or usurped the functions of being the ‘selectors’ or electors. This, in my view was clearly wrong and against the spirit and intendment of the Adamawa State Creation of Districts Law, 1992 The wrongful usurpation of the functions of the village heads by the officials of the Emirate Council must therefore be set aside and a new election ordered as claimed by the appellants.”

Thus the claims of the plaintiffs, the respondents, were found to have been proved and were granted in their entirety. The crux of the judgment was that the village heads who constituted the electoral college were not allowed to carry out their statutory functions of being the ‘selectors’ and or ‘electors’ of the district head, but were merely reduced to being “nominators.” Now, the question is whether the exercise by the village heads on the 15/10/1992 in the nomination of the three persons was done in accordance with the provisions of the law or not. Now, section 7 of the Adamawa State Districts Creation Law 1992, as amended, provides:

“7(1) The procedure for the selection or election and appointment of District Head shall be in the following manner where traditional or customary methods of selecting District Head exist.

(a) Selection shall be done in accordance with tradition and custom of the area constituting the District and under the supervision of a representative of the council and such security agents as the council may require. The representative of the council shall within one week make a report in writing to the council of the result of selection and submit same indicating the first three names who have the required number of votes set down by the Council. On receipt of the report, the Council shall deliberate on the report and shall recommend one person to the Governor for approval as the District Head of the District concerned. The Council shall within one month of approval take necessary steps to perform Turbaning Ceremony.

(2) Where no traditional methods of selecting District Heads exits

(a) where a vacancy exists and applications are received by the Council, the Council shall arrange for the election at any appropriate date and time and save for security reasons the election shall be conducted at the Headquarters of the District.

(b) The village heads shall be the selectors.

(c) The election shall be conducted under the supervision of a representative of the Council and such number of security agents as may be required by the council to keep the peace and issue a separate report on the election. The representative of the council shall within one week make a report in writing to the council of the election, and submit same indicating the first three persons who have scored the required number of votes as set down by the council. On receipt of the report and comments, the council shall deliberate on the report and comments and recommend only one person to the Governor for approval as the District concerned. The council shall within one month of the Governor’s approval take the necessary steps and perform the turbaning.”

From the pleadings and the evidence, it is common ground that a customary and traditional method exists for the selection and appointment of the District Head of Bajama District. Therefore it is section 7(1) of the Law that applies and the respondents as the plaintiffs were duty bound to show in what respect or respects there were non-compliance with the provisions of section 7(1) of the Law. The respondents in paragraphs 26 – 28 of the amended statement of claim, averred thus:-

1. There was electoral college of 8 village heads of Bajama District who were to select the District Head. That on the date of the election, the representative of the council in the presence of the security agents and Local Government officials directed the village heads to select the names of three persons whom they wanted to fill the vacancy of the District Head of Bajama. The village heads retired and on their own presented the names of three persons they nominated or selected whom they wanted to fill the position of the District Head of Bajama. The names were given to the representatives of the council who took them to Yola.
2. That without determining the number of votes scored by each of the three persons, the appellants/defendants decided to appoint the 3rd defendant/appellant as the District Head of Bajama. Section 7(1) of the Law, as amended had introduced far reaching changes in the procedure. The village heads are merely to nominate only 3 persons and submit the names to the Emirate Council, who shall elect only one of the three and recommend his name to the Governor for appointment. In my view, it is the function of the electoral college of the village heads to nominate 3 people, while the Emirate Council shall consider and deliberate on the 3 people and recommend only one name to the Governor, who may appoint the recommended name as the District Head. This, in my view, is what occurred in this case. In my view the instructions given to the village heads on 15/10/1992, to consult amongst themselves, after retiring and present 3 names to the representative of the Emirate Council satisfies the requirement of voting under section 7 of the Law. I am of the view that the entire process in the appointment of the 3rd defendant/appellant was done in a manner substantially regular and in accordance with the provisions of the section 7(1) of Adamawa State Creation of District Law 1992 as amended.

I am finally of the view, that the lower court acted and reached its decision per incuriam when it held that the Emirate Council wrongfully usurped the function of the village heads by “reducing them to mere nominators” instead of “electors” or “selectors”, section 7 of the law as amended, clearly made the village heads mere nominators. They were only to nominate 3 persons and pass the names to the council. The Emirate Council shall then consider the three names nominated by the village heads and recommended only one name to the governor who will appoint as the district head. I have referred to the judgment of the Court of Appeal where in his judgment Akpabio JCA reproduced and interpreted the old s.7(2) of the law, which was clearly amended as I have reproduced the same in this judgment. The function of the electoral college formed by the Village Heads is clearly to “nominate” while the recommendation and the eventual appointment is left to the Emirate Council and the governor respectively. The Court of Appeal by failing to be guided by the clear provisions of section 7 as amended acted wrongly. See Rossek v. ACB (1993) 8 NWLR (Pt.312) 382; African Newspapers v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137. On the state of the law and the facts, this appeal succeeds and is allowed by me. The judgment of the lower court is accordingly set aside and the judgment of the trial court is restored. The appellants are entitled to costs both in the lower court and in this court assessed at N7,000.00 and N10,000.00 respectively.

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SC.84/2001