Hon. Polycarp Effiom & Ors. V. Cross River State Independent Electoral Commission & Anor (2010)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

This appeal is against the decision of the Calabar Judicial Division of the Court of Appeal delivered on the 8th of July, 2008 dismissing the earlier appeal against the decision of M. O. Eneji J. of the Akamkpa Judicial Division of the High Court of Cross-River State on the 2nd of November, 2007.

The action itself was commenced at the trial High Court on the 23rd of October, 2007 by way of an originating summons. The Plaintiffs who were the Appellants at the court below and also the Appellants herein sued for themselves and on behalf of all other members of the Peoples Democratic Party (PDP) Akamkpa chapter, excepting the 2nd Defendant and his supporters. They were also described in the summons as aspirants to the position or office of the chairman of Akamkpa Local Government Council under the platform of the PDP for the 2007 Local Government Election and/or the party’s stalwarts in the Local Government Area.

In the summons the following four questions were set down for determination:-

1. WHETHER the 2nd defendant, who was dismissed from the service of the Nigeria Police Force, is qualified to contest election to the office of Chairman of Akamkpa Local Government Council.
2. WHETHER, in view of the provision of paragraph 4 (g) of the Guidelines Council Government Council elections, 2007 issued by the 1st Defendant, the 2nd Defendant can be cleared by the 1st defendant to contest the forthcoming Local Government election in Cross River State.
3. WHETHER it is proper for the 2nd defendant to be presented to the 1st defendant for clearance to contest the forthcoming Local Government Elections in November, 2007 considering the provisions of paragraph 2 (d) of the Peoples Democratic Party Special Ward and Local Government Congress Guidelines for 25 Ward Delegates, Councillorship Candidates or
4. WHETHER the presentation of the 2nd defendant to the 1st defendant by the Peoples Democratic Party (PDP) to contest the 2007, Local Government Elections in Akamkpa Local Government Area is not a contravention of the provision of paragraph 3 (d) of the PDP’s Guidelines for the Screening of candidates for the said election; paragraph 4 (g) of the CROSIEC Guidelines for Local Government elections and section 12 (1) (f) of the Cross River State Local Government Law, 2004.

And therein the Plaintiffs/Appellants sought against the Defendants/Respondents jointly and severally the following reliefs:-

1. A DECLARATION that the 2nd defendant, having been dismissed from the Public Service of the Federation, is disqualified from contesting election into the office of chairman of Akamkpa Local Government council and to hold the position of Chairman of the Local Government Council and/or such other Public Office.
2. A DECLARATION that the 1st defendant cannot lawfully present the 2nd defendant to contest the forthcoming Local Government Elections in Cross River State in view of the provisions of paragraph 2 (d) of PDP’s Special Ward and Local Government Congress Guidelines for election of 25 Ward Delegates, Councillorship and Local Government Chairmanship candidate; paragraph 4 (g) of the CROSIEC Guidelines for Elections, 2007 and section 12 (1) (f) of the Cross-River State Local Government Law, 2004.
3. AN ORDER OF MANDATORY INJUNCTION directing the 1st defendant to disqualify the 2nd defendant from contesting the forthcoming Local Government elections in Cross-River State and restraining the 1st defendant perpetually from putting forward the 2nd defendant as a candidate to contest the forthcoming Local Government Elections in Cross-River State or any other such elections or to hold any such public office.

Each of the 1st and 2nd Defendants/Respondents filed a counter affidavit on the 1st November, 2007. To the counter Affidavit of the 2nd Defendant/Respondent were attached Exhibits EA 1, EA 2, EA 3, and EA 4-EA 7. Earlier, on the 19th October, 2007 there were two counter-affidavits of disassociation deposed to by Lawrence Ogar and the other by Alhaji Ibrahim Iransina.

On behalf of the parties learned counsel submitted written as well as oral addresses. In its judgment on the 2nd of November, 2007 the trial court per Eneji J. struck out the suit for lack of clear proof.

The Plaintiffs were not satisfied with the said judgment and proceeded on appeal to the Court of Appeal by their Notice of Appeal dated the 2nd of November, 2007 but filed on the 8th November, 2007. Therein briefs were, on behalf of the parties, filed and exchanged and the appeal subsequently heard. In its unanimous judgment on the 8th of July, 2008 the appeal was dismissed.

The plaintiffs were still not satisfied and have come to this court on further appeal. The Notice of Appeal was dated the 21st of July, 2008 and filed on the 24th of July 2008. Here again the parties have through their counsel filed and exchanged their briefs of argument. The joint Appellants’ Brief was settled by MBA E. Ukweni and it was filed on the 29th of October, 2008. He also settled the Appellants’ Reply Brief which was filed on the 26th of March, 2009. The brief of the 1st Respondent was prepared by Ikoi Ekpo Ikona and it was filed on the 2nd of April, 2009. That of the 2nd Respondent was prepared by Imo Inyang and it was filed on the 22nd of January 2009.

In the Appellants’ brief learned counsel formulated two issues for determination as follows:

1. WHETHER the learned Justices of the Court of Appeal were right when they suo motu raised and considered the propriety of the suit and locus standi of the Appellants to challenge the nomination of the 2nd Respondent to contest the election which were not live issues before them and for doing so without giving the parties, particularly the Appellants, the opportunity to address them on the points
2. WHETHER the learned Justices of the Court of Appeal had properly addressed the issues placed before them and applied the appropriate and applicable law to those issues.

The 1st Respondent adopted the issues formulated by the Appellants. The 2nd Respondent however formulated his own two issues which he couched in the following terms:

“1. WHETHER the learned Justices of the Court of Appeal were right in holding that the 2nd Respondent was not disqualified from contesting the election for the office of chairman of Akamkpa Local Government Council.

2. WHETHER the learned Justices of the Court of Appeal had power to suo motu raise and consider the issue of the competency of the suit and the locus standi of the Appellants and if not whether the same occasioned substantive miscarriage of justice justifying the reversal of their judgment.”

The 2nd Respondent also raised a preliminary objection to the competence of the appeal which was argued in his brief.

On the first issue it was the contention of the Appellants that there was no issue before the lower court which either challenged the competence of the suit or the locus standi of the Appellants to institute the suit, it was pointed out that the issue of the locus standi of the Appellants was only raised at the trial court and which was resolved therein in favour of the Appellants and against which there was no appeal to the court below. It was submitted that neither the parties nor the court was at liberty to go outside the issues presented to the court; reliance was placed on EGBEZIEM vs NIGERIAN RAIL WAY xxxxx ADENJI v. ADENJI (1972) 4 SC 10 at 17 and EASCUTTO vs ADECENTRO NIG. LTD. (1997) II NWLR (Part 529) 467 at 481. It was also the Appellants’ complaint that after the issue had been raised sou motu they were not given the opportunity to address on it, contending that had they been or given such opportunity they would have shown that they had the locus standi and that the suit was competent. It was Appellants’ submission that a court of law is not entitled to raise an issue and resolve it one way or the other without hearing the parties, They relied further on OSHODI vs OYIFUNMI (2000) 13 NWLR. (Part 684) 298; UGO vs OBIEKWE (1989) 1 NWLR and ALLI vs ALESINLOYE (2000) NWLR (Part 660) 177 at 211-212.

Still on this issue learned counsel for the Appellants further referred to section 32 (4) and (5) of the Electoral Act 2006 and argued that by virtue of the provisions thereof they had the right to give the information to the effect that the 2nd Respondent was dismissed from the Police Force and therefore not qualified to be a candidate for the 2007 Local Government Council Elections.

With respect to the 2nd issue for determination, the Appellants contended that the 2nd Respondent having being dismissed from the Nigerian Police since 5th of June, 1986 was disqualified in view of the provisions of (i) Paragraph 2 (d) of the Special Ward and Local Government Congress Guidelines Exhibit MEU-2 (ii) Paragraph 4 (g) of the CROSIEC Guidelines for Local Government Council Election 2007 and (iii) section 12 (I) (f) of the Cross River State Local Government Law 2004. The Appellants pointed out that their main ground for challenging the qualification of the 2nd Respondent was not because he was convicted by a court of law but because he was dismissed from the public service of Nigeria, that is, the Nigeria Police Force. According to the Appellants, it was not the duty of the court below to consider the merits of the dismissal. Rather it was its duty to apply and give effect to the governing laws. It was strongly contended that to allow the decision of the court below to stand will pose serious danger if not a destruction of discipline in our public and civil institutions through judicial interference. Appellants relied on ESIAGA vs UNIVERSITY OF CALABAR (2004) ALL F.W.L.R (Part 2006) 403.

In conclusion the Appellant urged finally that the appeal be allowed.

On behalf of the 1st Respondent the following arguments were submitted. With respect to the issues of the competence of the suit and the locus standi of the Appellants, it was the submission of the 1st Respondent that the issues were those of jurisdiction and which the court can therefore suo motu raise. Reliance was placed on DREXEL ENERGY LTD vs TIB (2008) NSCQR 1219 at 1260-1261; IORSHAGHER vs OLORUNTOBI (2004) ALL FWLR (Part 228) 801 NDIC vs CBN (2002) FWLR (Part 99) 1021. It was contended that the propriety of the suit and the standing of the Appellants to institute the suit have been topical issues right from the trial court. The Appellants referred to the 3rd and. 4th questions and the 2nd relief of the originating summons and argued that they touched on the competence of the suit and the locus standi of the Appellants to file same.

With respect to the 1st issue for determination, the 1st respondent drew the court’s attention to Exhibit MEU 4 and MEU 5-53 attached to the affidavit in support of the originating summons and Exhibit EA 2 attached to the counter-affidavit of the 2nd Respondent and submitted that the entire case was duly examined by the two courts below before it was struck out on the ground of contradictions. It was the further submission on behalf of the 1st Respondent that the disqualification of any candidate seeking election must be based on conviction and not on an indictment or dismissal by an administrative body. In support of this submission reliance was placed on A.C vs INEC (2007) 30 NSCQR 12ss 1280; ROTIMI AMAECHI vs INEC (2008) ALL F.W.L.R (Part 407) 1. It was further submitted that non-compliance with a Political Party’s Guidelines or section 12 (1) (f) of Cross River State Local Government Law 2004 or CROSIEC Guidelines 2007 are all subject to section 36 (5) of the 1999 Constitution which presumes the innocence of the 2nd Respondent and his qualification to contest an election unless and until the proof of his conviction by a competent court of law.

The 1st Respondent’s argument on the 2nd issue was just a repetition of the argument on the 1st issue.

On behalf of the 2nd Respondent a notice of preliminary objection was filed and argued. The substance of the argument is that the appeal raises issues of facts or mixed law and facts for which leave of the court ought to have been sought and obtained. In the absence of such leave sought and obtained ground one of the Notice of Appeal is incompetent and that the said ground and issue No.2 derived there from be struck out for incompetence.

As regards the 1st. issue for determination the 2nd Respondent referred to the provisions of section 12 (1) (1) of the Cross River State Local Government Law 2004 and submitted that for an indictment for the embezzlement or fraud of a person to constitute his disqualification to the office of chairman or vice chairman of a Local Government Council there must be proof of his trial and conviction in a court of law in support of this submission. He relied on SOFEKAN vs AKINYEMI (1981) INCLR 135 at 146; ACTION CONGRESS vs INEC (2007) 12 N. W. LR. (Part 1048) 222; AMAECHI vs INEC (2008) ALL FWLR (Part 407) 1. It was argued that the orderly room trial upon which the dismissal is predicated was not a judicial body and therefore that its decision cannot be the basis of the 2nd Respondent’s disqualification. In support of this, the 2nd Respondent relied on BUBARI vs INEC (2008) ALL FWLR (Part 437) 42 of 49 pointing out that section 137 (1) of the 1999 constitution is in pari materia with section 12 (1) (f) of the Cross River State Local Government Law 2004.

With respect to the question of whether the 2nd Respondent was dismissed it was contended that although the 2nd Respondent was initially dismissed after his orderly room trial, upon his protests and representations by his solicitors the punishment was subsequently reduced to discharge. It was submitted therefore that paragraph 2 (d) of the POP’S Special Ward and Local Government Congress Guidelines for Election of 25 Ward Delegates, Councillorship and Local Government Chairmanship Candidate, Exhibit MEU-2, paragraph 4 (g) of the Guidelines for Local Government Council Election 2007 and Section 12 (1) (f) of the Cross River State Local Government law 2004 do not apply.

The 2nd Respondent further referred to the invitation by the Appellants to this court to consider the issue of whether or not the 2nd Respondent was dismissed from the Nigeria Police Force and submitted that the invitation was without any legal foundation. The reason, it was argued, is that the question of whether or not the 2nd Respondent was dismissed is a question of fact and that this’ court would only be competent to consider it if the leave of this court or the below was sought and granted to raise and argue it and which leave was however not granted. It was also argued that section 12 at the Cross River State Local Government Law makes comprehensive provisions for qualification and disqualification and which do not include “dismissal from service”

It was the further submission of the 2nd respondent that neither the 1st Respondent, (CROSIEC) nor the 2nd Respondent (PDP) has any legal authority to make provisions for qualifying or disqualifying a candidate from contesting chairmanship or councillorship elections of a Local Government Council, contending that only the Local Government Law provides for such qualifications and disqualification. 2nd Respondent argued therefore that qualifications and disqualifications contained in manuals and guidelines are ultra vires the powers vested in such bodies. Reliance was placed on INEC vs MUSA (2003) FWLR (Part 145) 729. The powers of disqualification are only as provided for in section 10 (c) of the Cross River State independent Electoral Commission Law 2004 and section 12 (1) (f) of the Local Government Law 2004. The 2nd Respondent further relied on BUHARI vs OBASANJO (2005) 2 NWLR (Part 910) 241 AGBEJE vs AJIBOLA (2002) FWLR (Part 92) 1677; AMAECHI vs INEC (supra). It was further submitted that the discretion and the decision as to which candidate a political party would sponsor for an election is entirely the domestic affair of the political party and that neither the Electoral Commission nor the courts can make that political decision for the party. In support of the submission reliance was placed on ADEGOROYE vs ALLIANCE FOR DEMOCRACY (2003) FWLR (Part 176) 604; DALHATU vs TURAKI (2003) FWLR (Part 174) 247 at 261-262 and 271-272. It was urged finally that this issue be resolved in favour of the Respondents.

With respect to the 2nd issue of whether the court was right to raise the issue of locus standi of the Appellants it was submitted that locus standi being a jurisdictional issue can be raised at any time and even on appeal and reliance was placed on ANSA vs RT.P.C.N (2008) ALL FWLR (Part 405) 1681; ADERANYE vs COMPTROLLER OF PRISONS (2000) FWLR (Part 8) 1258; GALADIMA vs TAMBAI (2000) FWLR (Part 14) 2369; Even the parties cannot by agreement confer jurisdiction on a court and so it can be raised at anytime counsel argued. He cited EKERE vs NWAIGWE (2008) FWLR (Part 127) 1101 at 1106 and MATARI vs DANGALADIMA (1993) 2 SCNJ 121; STATE vs ONAGORUWA (1992) 2 NWLR (Part 221) 33.

2nd Respondent further submitted that the court was at liberty to take up a point suo motu if it sees it fit to do so. It was argued that it was not enough to complain that the court raised the issue suo motu and that the Appellant had a duty to go further to prove that by raising the issue suo motu the court occasioned a miscarriage of justice. In support or this argument 2nd Respondent cited SAUDE vs ABDULLAHI VOL 3 ACLS 144 and MADOZIE vs MBAGWU LTD (2006) ALL FWLR (Part 296) 771.

It was urged finally that the appeal be dismissed for lack of merit.

In the Appellants’ reply brief, the Appellant re-acted to the notice of Preliminary objection by reproducing the said ground and contended that the ground 1 and the issue derived there from both complain of the lower court’s none application of the applicable law to the issue placed before it and that it had nothing to do with facts or mixed law and facts and relied on OGBECHIE

vs ONOCHE (1980) 2 NWLR (Part 123) 484; ACB LTD vs OBMIAMI BRICK and STONES (NIG) LTD (1993) 5 NWLR (Part 224) 399; USA vs G.M.B.N (1989) 3 N.W.L.R (Part 110) 374; NWADIKE vs IBEKWE (1987) 4 N.W.L.R (Part 67) 718; FOLBOD INVESTMENT LTD vs ALPHA MERCHANT BANK LTD (1996) 10 N.W.L.R (Part 478) 344 at 354-355: BWAI vs UBA PLC (2002) P.W.L.R (Part 119) 1538 at 1554 and ALAMIEYESEIGHA vs C.J.N (2005)1 NWLR (Part 906) 60 at 76. It was Appellants’ further contention that even if the ground one of the ground of appeal is incompetent the remaining three grounds are competent grounds to sustain the appeal. On this submission he relied on MOHAMM ED vs OLAWUNMI (t 990) 2 NWLR (Part J 33) 458.

On the propriety of the Court of Appeal’s selling aside of the 2nd Respondent’s dismissal from the Nigeria Police when there was no counterclaim or cross action before them, the Appellant insisted that the court below was wrong since there was no counter-claim nor a cross-action that sought such a setting aside order. It was their further submission that a counter affidavit would not suffice to justify such an order.

On the claim of the 2nd Respondent that his dismissal from the Nigeria Police was subsequently reduced to a discharge, the Appellants referred to Exhibit EA 1 elated 26/5/1987 at pages 61-63 of the record and Exhibit EA 2 dated 20th of April, 1993 and contended that Exhibit EA 2 could not in all probability, have been referring t0 Exhibit EA 1 made six years earlier and therefore that the claim was false. The Appellants also claimed that the 2nd Respondent served at Oron in the Akwa Ibom Command of the Nigeria Police until his dismissal and that at no time was he transferred to the Cross River Command. According to the Appellants” it was curious therefore for Exhibit EA1 to be addressed 10 the Commissioner or Police Cross River State Police Head Quarters Diamond Hill Calabar. The Appellants urged again that the appeal be allowed.

I have given a careful consideration to the issues raised and the submission of the counsel for the parties. Let me first dispose of the preliminary objection. It was the content ion or learned counsel for the 2nd Respondent that ground 1 of the Notice of appeal is one either of facts or mixed law and facts and for which competence therefore there should be leave either of this Court or the Court below. There is no doubt that that is the effect of section 233 (3) of the Constitution which provides to the effect that subject to the provisions of subsection (2) of this section, an appeal lies from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court Subsection (2) of the section itemises the type of questions to be raised in the ground or appeal to qualify the appeal to lie as of right to the Supreme Court, The question now in whether ground one of the Notice of Appeal is one of facts or mixed law and facts to warrant the leave either of this Court or the Court of Appeal first sought and obtained I am inclined to answer this question in the negative. The said ground ONE states:

“The learned Justices of the court of Appeal erred in law when they relied on the cases of SOFEKUM vs AKINYEMI (1981) 1 NCLR 135; GARBA vs UNTVERSITY OF MAIDUGURI 91986) 1NWLR (Part 18) 550 ACTION CONGRESS vs INEC (2007) 12 NWLR (Part 1048) 222 in Coming to the conclusion that:

“The 2nd Respondent cannot be disqualified from contesting the election for tile chairman of Akamkpa Local Government council based solely on the dismissal from service through Orderly Room trial and conviction procedure”

thereby failing to give due consideration and effect to the provisions of:

(1) Paragraph 2 (d) of the Peoples Democratic Party Special Wards and Local Government Congress Guidelines of 25 Wards Delegates councillorship candidates.

(2) Paragraph 4 (g) of CROSJEC Guidelines for Local Government Elections and

(3) Section 12 (1) (J) of the Cross River State Local Government Law 2004.

which conclusion has occasioned a miscarriage of justice”

I have taken a hard look at the above ground of appeal and I cannot find anything which makes it come within the meaning of a ground of appeal on facts. The ground merely complains of errors of law and does not involve or question the lower court’s assessment of facts. It merely alleges, in addition, the lower court’s wrong application of the principles in SOFKUN vs AKINYEMI (1981) NCLR 135; GARBA vs UNIVERSITY OF MAIDUGURI (1986) 1 NWLLR (Part 18) 550; and ACTION CONGRESS vs INEC (2007) 12 NWLR (Part 1048) 222 and the failure to interpret and give effect to the PDP Guidelines, paragraph 4 (G) of CROSIEC Guidelines for Local Government Elections and section 12 (1) (1) of the Cross River State Local Government Law 2004. In the circumstances therefore it was in my considered view not necessary for the leave either of this Court or the Court of Appeal to render it a competent ground. I hold therefore that the objection was misconceived and same in accordingly struck out.

Let me now take the 2nd Respondent’s first issue which in my View, effectively accommodates the Appellant’s 2nd issue. The combined effect of the Appellant’s 2nd issue arid 2nd Respondent’s first issue is:

“whether from the totality of the affidavit evidence on record there was any conclusive proof that the 2nd Respondent was disqualified from contesting tire election for Chairman of Akamkpa Local Government Council’

The resolution of this issue necessarily admits of two questions. The first is whether there is conclusive proof that following the 2nd Respondent’s Orderly Room trial, he was dismissed from the Nigeria Police Force The second is whether, assuming that the 2nd Respondent was dismissed from the Nigeria Police Force following an Orderly Room Trial, such a dismissal, without more, is enough to disqualify him from contesting election for chairman of Akarnkpa Local Government Council

On the first question of whether there is conclusive proof that following an Orderly Room Trial, the 2nd Respondent was dismissed from the Nigeria Police Force the Plaintiffs/Appellants relied o Exhibits MEU-4 and MEU-5 attached to the affidavit in support of the originating summons. Exhibit MEU-4 is a letter from the office of the Assistant Inspector General of Police, Nigeria Police Zone 6 Headquaters Calabar dated 26th of September, 2007and addressed to the People’s Democratic Party, Akamkpa chapter Cross River State. The body of the letter reads:-

“RE-AN APPEAL TO KNOW IF POLICE CONSIABLE MATTHEW OLORY WAS RETIRED OR DISMISSED FROM THE NIGERIA POLICE FORCE I refer to your letter Ref No. AKM/PDP/VOL.2/005 dated 19th September, 2007 and hereby confirm that EX FINO. 112831 PC Mathew Olory who was attached to Police Division Oron, Akwa Ibom State was dismissed from service of the Nigeria Police Force in a case of stealing money, the sum of N2,900.00 (two thousand nine hundred naira) only on 5/6/86”

Exhibit MEU-5 is a letter from the Divisional Police Headquaters, the Nigeria Police Oron and addresses to the Assistant Inspector General of Police, the Nigeria Police Zone 6 Headquatcrs Calabar and dared the 25th or September. 2007. It reads:

“RE-APPEAL TO KNOW IF MATTHEW OLORY WAS RETIRED OR DISMISSED. NO. 112831 PC MATTHEW OLORY

I refer to Commissioner of Police Akwa Ibom State Command Letter No. AH 7370/AIS/VOL. TI/10 dated 24/09/2007 and forward herewith photocopies of Orderly Room proceedings, appeal letter against wrongful dismissal and police investigation report on a case of stealing money against PC Matthew Olory.

Furthermore from the records available at this office Matthew Olory was dismissed from the force on 05/06/86 while the actual Orderly Room proceedings of his dismissal was not traced as a result of the fact that the police file may have been eaten up by termite

Above for your information and necessary action please.”

On his part the 2nd Respondent relied on his Exhibit EA 2 dated the 26th of April, 1993 from the office of the Commissioner of Police the Nigeria Police Headquarters Calabar Cross River State, The said letter states:

“RE NO.112831 MATTHEW SAMUEL OLORY

With reference to your letter dated 2/4/93. I wish to inform you that your client Mr. Matthew Samuel Olory was enlisted into the Nigeria Police on 1/2/81 as a recruit constable who was allocated with force No. 112831 Matthew Olory

1. He served for about six years before he was dismissed the force on the ground of having pending criminal case at Oron Division where he was then serving until he was dismissed the force on 31/12/86 and was published in Cross River State Order No. 24/86 in compliance with directives front Inspector General of Police Office.
2. However, we have found out that your client was consequently discharged please”

On this question of whether the 2nd Respondent was dismissed from the Nigeria Police Force Exhibits MEU-4 and MEU-5 on the one hand and Exhibit EA 2 on the other are in conflict. While Exhibits MEU-4 and MEU-5 are to the effect that the 2nd Respondent was dismissed, Exhibit EA 2 is to the effect that although he was dismissed, the dismissal was eventually reduced to a discharge. All the three documents are from the Nigeria Police Force. One may be tempted to ask which of these documents supercedes the others The learned trial judge also asked himself this question when at page 154 of the record he asked “(a) which of these documents (Exhibits EA 2 and MEU-4) takes precedence over the other At the same Pages 154-155 the learned trial judge reasoned as follows:-

“Since the Police made all Exhibits MEU-4, MEU-5 and EA 2 it could have certainly helped ‘his court to reach a true and just conclusion in this case, if the Nigeria Police was joined as a party in this action. The Nigeria Police Force is not a party to tit is suit. They are not represented by any officer or counsel in this case. No police officer has come to this court to attest to the issuance and existence of the original copies of Exhibits MEU-4, MEU-5 filed by the Plaintiffs. The 2nd defendant on the other hand has shown this court all original copy of Exhibit EA 2. Again that alone is not enough, he ought to have taken steps to certify it. Based on the aforesaid shortcomings in the Exhibits filed and relied by the Plaintiffs and the 2nd Defendant I hold that it will be extremely dangerous to uphold or sustain the Plaintiff’ claim that the 2nd defendant was dismissed front the Police Force in the face of glaring and unresolved conflicts contained in Exhibits MEU-4 and EA 2.

Neither the Plaintiffs nor the 2nd Defendant has satisfied me as to the effect of the 2nd Defendant’s discharge or dismissal from the Police Force. I therefore, with all sense of responsibility decline from disqualifying the 2nd Defendant as prayed by the Plaintiffs from contesting election into tile office of Chairman of Akamkpa Local Government of Cross River State Nigeria as prayed in the Plaintiffs’ originating summons.

Based on the above reasoning the trial court struck out the originating summons. The court below tended to fault the above reasoning or the trial court. I do not, with respect, see anything wrong with the above opinion and reasoning of the trial court. On this question of whether the 2nd Respondent was dismissed or merely discharged following the Orderly Room trial, the parties joined issues. The three documents, Exhibits MEU-4, MEU-5 and EA 2 in Exhibit EA 2. In the absence of such elimination the onus still remains with all from the Nigeria Police are in conflict. The Plaintiffs/Appellants who allege the dismissal have a duty to eliminate the authenticity of the factual situation in Exhibit EA 2. In the absence of such elimination the onus still remain with the Appellants to prove that following the Orderly Room trial, the 2nd Respondent was dismissed.

Let me now examine the more fundamental question in this appeal.

Assuming without conceding that following an Orderly Room trial for stealing the sum of N2,900.00 (two thousand, nine hundred naira) only the 2nd Respondent was dismissed from the Nigeria Police Force, would that fact, without more, constitute his legal disability from contesting election for chairman of Akamkpa Local Government Council. The Appellants founded their claim mainly on section 12 (1) (f) of the Cross River State Local Government Law 2004 which provides:-

12 (1) A person shall not be qualified to hold the office of the Chairman or Vice Chairman if:-

(f) He has been indicted for embezzlement or fraud by a Judicial commission of inquiry or an Administrative Panel of Inquiry whose findings have been confirmed by Government. ”

They also relied in paragraph 4(g) of the Guidelines for Local Government Election 2007 issued by the Cross River State Independent Electoral Commission (CROSIEC) which provides-

‘(4) A person shall not be qualified as a candidate to contest the Local Government Council Ejection if (g) He has been dismissed from the public service of the federation or State or Local Government or Area Council or from any employment from the private sector.”

The Appellant have all along insisted on the 2nd Respondent’s disqualification by virtue of the foregoing provisions. Relying on the cases of SOFEKUN vs AKINYEMI (1981) 1 NWLR (Part 18) 550 and ACTION CONGRESS vs INEC (2007) 12 NWLR (Part 1048) 222: the Court of Appeal per Akaahs JCA at Page 200 of the record reacted to the above provisions in the following terms:

“The courts have consistently maintained that trial and conviction by a court is the only constitutionally permitted why to prove the guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. An indictment is no more than Oil accusation. ”

And at Page 261 of the record the court concluded:

“The 2nd Respondent cannot be disqualified front contesting the election for chairman of Akamkpa Local Government Council based solely on his dismissal front service through Orderly Room Trial and conviction procedure. Since the alleged offence involved theft of money he should have been subjected to the criminal process where his right to fair hearing is guaranteed. Although probity should be enthroned in our public life we owe it a duty to abide strictly by the rule of law.”

I agree entirely with the above reasoning, The ground upon which the Appellants founded their allegation of the 2nd Respondent’s disqualification is that he was, while serving at the Oron Police Division of Nigeria Police, dismissed from the Force on the 5th day of June, 1986 in connection with a case of stealing the sum of N2,900.00 (Two Thousand, Nine Hundred Naira) only.

Section 12 (l) (11 of the Cross River State Local Government Law which I have reproduced above is, in substance, to the same effect as section 137 (1) (i) of the 1999 Constitution of the Federal Republic of Nigeria. It provides:

“137 (1) A person shall not be qualified for election to the office of president if:-

(i) he has been indicated for embezzlement or fraud by a Judicial commission of inquiry or a Tribunal set lip under tile Tribunal of Inquiry Act, a Tribunal of Inquiry Law or any other law by tile Federal or state Government which indictment has been accepted by the Federal or State Government respectively.”

For the purpose of establishing a person’s disability from holding an elective public office such as President, Governor, Chairman of Council therefore etc, it is not enough to allege that the person had been indicted for embezzlement or fraud by a Judicial Commission or Inquiry or an Administrative Panel of Inquiry or a tribunal. Such an assertion remains a mere allegation and no more.

To amount to a disability, it must be established that the person claimed to have been so indicted was tried and found guilty for the alleged embezzlement or fraud by a court or other tribunal established by law as stipulated in sections 6 and 36 of the 1999 constitution.

This principle was again articulated by this court in ACTION CONGRESS vs INEC (supra) where at Page 260, Katsina Alu JSC (as he then was) emphasised:-

“The trial and conviction by a court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an Administrative panel of inquiry implies a presumption of guilt contrary to section 36 (5) of the constitution of the Federal Republic of Nigeria 1999. I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to Judicial Power…”

Clearly therefore an Orderly Room trial procedure and punishment inflicted thereby cannot form the basis or a person’s disqualification. For the foregoing reasons I resolve the first and main issue in favour or the Respondents.

On the issue of whether it was proper for the court below to raise the issue of locus standi of the Appellants suo motu and determine same without hearing from the parties, it has long been settled that no court is entitled to do so, The elementary principle is that it is wrong for a court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it.

This is so because the court is bound by and therefore confined to the issues raised by the parties.

Where however the court raises an issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See AJUWON vs AKANI (1993) 9 NWLR (Part 316) 182 at 190; AJAO vs ASHIRU (1973) 11 S.C. 23 at 39-40, ATANDA vs LAKANMI (1974) 3 S.C. 109; KUTI vs JIBOWU (1972) 1 ALL N LR (Part 11) 180; R.T.E.A.N vs N.U.R.T.W (1992) 2 NWLR (Part 224) 381; FINNIH vs IMADE (1992) 1 NWLR (Part 219) 511 at 537.

While the court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE (1993) 9 N.W.L.R (Part 316) 159 at 178; OLUDODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282.

As I indicated above this principle that the court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances the court call mise, in issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKOR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the court.

In the instant case therefore the court below would be at liberty to raise the issue of locus standi of the Appellants if such an issue was relevant to the proper determination of case. It is to be noted however that the issue of the locus standi of the Plaintiffs/Appellants was raised at the trial court and effectively determined therein in favour of the Appellants. The Respondent did not appeal against it and so it was not an issue before the court below. It was irrelevant surprising therefore that the Appellants have not shown in any wav that they suffered any miscarriage of justice by the lower court’s deliberation on the issue of their locus standi. Accordingly this issue is also resolved against the Appellants.

On the whole, this appeal lacks merit and same is accordingly dismissed with costs which I access at N50,000.00 (Fifty Thousand Naira) only in favour of the 2nd Respondent.

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SC.289/2008