Egevafo Ekpeto V Ikono Wanogho & Ors (2004) LLJR-SC

Egevafo Ekpeto V Ikono Wanogho & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, JSC

The appeal and cross-appeals in this matter arose from the judgment and orders of the Court below wherein that Court (Coram, Abdullahi, PCA, Oguntade, Muhammad, Bulkachuwa, Oduyemi JJCA upheld the appeal against the ruling of Yussuf J, delivered on the 24th of March 2003 and set it aside. The Court went further to order that the case be heard de novo by another judge of the High Court of the Federal Capital Territory (FCT).

For a proper appraisal of the issues raised in the said appeals, it is in my view necessary that the facts leading thereto should be reviewed briefly. This matter apparently commenced when the appellants by an originating summons dated 3rd February 2003, was taken out at the Gwagwalada Division of the High Court of the FCT against 1st – 4th respondents for the following reliefs: –

“(1) A declaration that by virtue of the combined effect of sections 112, 114, 115 and 124 of the Evidence Act, Cap 112 laws of the Federation 1990 the Record of proceeding of the Bwari Upper Area Court of 18/8/1995 in Case No. CR81-95 is presumed genuine and sufficient in law for the 1st, 2nd and 3rd respondents to rely on same to act against the ex-convict.

A declaration that the ex-convict, Chief Onanefe Ibori, by virtue of his conviction and sentence in Case No. CR81-95 is not qualified to carry the 1st, 2nd and 3rd respondents’ flag as its Gubernatorial candidate in the 2003 elections within the meaning of section 182(1) of the 1999 Constitution.

An order compelling the 1st, 2nd and 3rd respondents to disqualify and withdraw its flag and certificate by affirmation given in the case, to the ex-convict, Chief James Onanefe Ibori, to contest the 2003 Gubernatorial elections in Delta State on the platform of the Peoples Democratic Party.

An injunction restraining the 1st, 2nd and 3rd Respondents, their agents, servants and privies from presenting the name of the ex-convict in this case, Chief James Onanefe Ibori to the Independent Electoral Commission as the candidate of the Peoples Democratic Party (POP) for the 2003 Gubernatorial Elections

An injunction restraining the 4th defendant from recognising and accepting the candidature of Chief James Onanefe Ibori, the candidate of the 1st, 2nd and 3rd respondents for the 2003 Gubernatorial Elections in Delta State.”

The 1st, 2nd and 3rd respondents by their counsel filed a memorandum of appearance and also filed a counter affidavit in response to the summons filed on them. The Court then set the motion for hearing on the 10th February 2003. On that date, the respondents were not in Court and they did not also defend the summons against them. The learned trial judge then adjourned the matter for ruling later on the same date. But that ruling could not be delivered as Mr. Alex Izinyon SAN, brought an application on behalf of the 5th respondent, wherein it was prayed that the 5th respondent be joined as defendant in the suit pending before the trial Court. By the said application, the 5th defendant also raised a preliminary objection to the originating summons upon the grounds (a) that the applicants had no locus standi to institute the action and (b) that the Court lacked jurisdiction to hear the suit.

The trial Court in a considered ruling granted the prayer for the joinder of the 5th respondent as one of the defendants to the action before it. The trial Court thereafter proceeded with the hearing of the originating summons with which the action was commenced and the preliminary objection raised against it as aforesaid. It was however resolved that the arguments of counsel in respect of the preliminary objection be taken first. After due consideration of the submissions made thereon by learned counsel for the parties, the learned trial judge struck out the preliminary objection as it lacked any merit.

After this ruling, learned Senior Counsel, Mr. Alex Izinyon, apparently appeared for the 5th respondent and led other counsel who had been appearing for him. Following his appearance, he then made the submission to the Court, which, inter alia, read thus: –

“We shall be addressing the Court on the affidavit before the Court. The issue is narrow. By virtue of Order 35(1) of the Rules of this Court we can identity the issues and address the court upon them. The issue in controversy is that the 5th defendant is an ex-convict. The law is that no oral evidence can be given of a judgment or proceeding of Court if reduced to writing except if…”

In his response to that submission, Mr. Odin, learned counsel for the plaintiffs said inter alia that “As a legal practitioner of several years standing, I cannot be a party to impersonation by anybody. However I suggest that oral evidence be heard to show if the governor was convicted.” The Court then adjourned further hearing to the 20th of March 2003. On that date the trial Court ordered as follows: –

“I therefore deem it necessary to direct parties to prepare the issues they think germane for the determination of this case. This is pursuant to Order 35 Rule 2”

Following that order, the trial Court proceeded to hear submissions of learned counsel who appeared for the parties. In the course of which Exh. A the proceedings of the Upper Area Court Bwari that convicted one James Onanefe Ibori was admitted in evidence. On the 24th day of March 2003, the Court delivered its ruling, and I consider it desirable to set out part of its reasoning for dismissing the claims of the plaintiffs. It reads: –

“In the record before me the substance which involves the determination of guilty by the Court was neglected and I am convinced that this Court has power to say so. Now that there is no conviction in exhibit A, which is CR/81/95 what is the effect of it on the claims of the plaintiff. The effect is to sweep the claims off the ground.

All the claims which I referred to at the beginning of this ruling are to the effect that the 5th defendant is an ex-convict by virtue of CR/81/95 decided by Upper Area Court Bwari on 28/9/95 and that under Section 182(1) E of the 1999 Constitution, he is disqualified from contesting 2003 election to the office of a Governor. That section provides 182(1) No person shall be qualified to the office of Governor of a State if – (E) within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or has been found guilty of the contravention of the code of conduct; on the argument of the learned SAN that 225 of the evidence act was not complied with. I am of the view that argument cannot be pursued seriously. The Certified True Copy of the record of proceedings exhibited in this case substantially complied with the provision. I also agree with the Plaintiff’s counsel that section 226 of the Evidence Act does not apply. I am of the view that the issues decided renders the trial of the claims of the plaintiffs unnecessary. I accordingly dismiss them.”

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As the appellants were dissatisfied with the ruling and orders of the trial Court, they appealed to the Court of Appeal, Abuja Division against the said ruling and orders of the trial Court. Pursuant thereto, the Court of Appeal granted leave for the accelerated hearing of the Court upon the bundle of documents prepared by them. The Court in granting their prayers apparently bore in mind their (the appellants) plea that the appeal be heard before 19/4/03 when elections to the office of Governor would take place. Indeed, the Court below also set the hearing of the appeal for the 9th of April 2003. Though the appeal was not heard as scheduled, it was further adjourned from that date to a day mutually convenient to the Court and learned counsel appearing for the parties. Eventually, the appeal before that Court was heard and judgment was delivered on the 16th day of April 2003. By the judgment, the Court below allowed the plaintiff’s appeal and set aside the ruling of Yusuf J. It is I think useful in the circumstances to quote verbatim, in part, reasons to the conclusion reached by the Court below, per the judgment of Oguntade JCA and which reads: –

“The accused in Exhibit A pleaded guilty and the Court thereafter proceeded to impose a sentence. The only conclusion to be arrived at on that hypothesis is that the Upper Area Court did not observe the essential pre-requisites laid down under Section 157 (1) of the CPC (i.e. Criminal Procedure Code) before proceeding to convict the accused. It is in my view clearly unarguable to say that there was no conviction. The procedure leading to the conviction may be deficient and liable to be set aside by an appellate Court upon a proper Appeal against the judgment of the Upper Area Court; but it is nonetheless still a conviction. I am therefore unable to agree with the conclusion of the lower Court that no conviction was recorded. That approach smacks in my view of undue legalism and irrelevant hair-splitting in a case where the purpose of tendering Exhibit A was merely to show that the accused therein was convicted.

It was further ordered that the case be heard novo by another judge of the High Court of the Federal Capital Territory, Abuja.

As the plaintiffs/appellants and the 5th defendant were dissatisfied with the judgment and orders made by the Court below, both parties have further appealed to this Court as appellants and cross-appellants respectively. Pursuant thereto, the 5th defendant filed eventually an Amended Notice of Appeal dated the 1st day of August 2003 based upon the following grounds:-

“(1) The Court of Appeal erred in law in failing to focus its attention on the sole issue which was actually tried by the High Court with the agreement of the parties.

Particulars of Error

(a) At the trial in the High Court, that court, with the agreement of the parties decided to try (as a preliminary point) the sole issue of whether or not the proceedings before the Upper Area Court, Bwari, dated 28.9.95 (Exhibit ‘A’) is proof of the conviction of any person.

(b) It was further decided by the said High Court with the agreement of the parties that if, but only if the answer to the aforementioned sole issue is in the affirmative, then the High Court will proceed to try the issue whether the person convicted in Exhibit ‘A’ was indeed the 5th defendant (now appellant) herein.

(c) There was no appeal by the plaintiffs or any of the other parties interested in this suit from the decision of the High Court referred to in paragraphs (a) and (b) hereof; nor was there any complaint whatsoever by any of the parties against such decisions in the briefs before the Court of Appeal.

(d) In the premises the Court of Appeal ought not (as they in fact did) to have considered and decided the issue of the admissibility in evidence of Exhibit ‘A’ in so far as that document is relevant for the purpose of deciding –

(i) whether or not the 5th defendant (now appellant) was the person in fact convicted in the proceeding before the Upper Area Court, Bwari on 28.9.95;

Or

(ii) to comment upon and to criticize (as they in fact did) the course pursued by the High Court and the parties in agreeing to try the sole issue as a preliminary issue.

(2) Further and in the alternative, the Court below erred in law in failing to observe that its comments upon and criticism of the course pursued by the High Court (with the agreement of the parties) were unjustified.

SC. 193/2001