ABDULRAUF ABDULKADIR MODIBBO v. MUSTAPHA USMAN & ORS
(2019)LCN/13557(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/A/413/2019
RATIO
CAUSE OF ACTION: HOW CAN THE COURT DETERMINE THE CAUSE OF ACTION IN A SUIT
It is the principle of law that in the determination of what the cause of action is in a suit, the Court must look only at the statement of claim. In the case of BELLO VS. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (PART 45) PAGE 828, it was held:
“The law is settled that a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving a Plaintiff a substantive right to make the claim against the relief or remedy being sought. In other words, the factual situation on which the Plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. That is to say, the factual situation relied upon must constitute the essential ingredients of an enforceable right.”PER MOHAMMED BABA IDRIS, J.C.A.
CAUSE OF ACTION: DEFINITION
In the case of AKILU VS. FAWEHINMI (1989) 2 NWLR (PART 102) PAGE 122, it was held:
“concisely stated, an act on the part of the defendant which gives to he Plaintiff his cause of complaint is a cause of action.” The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR (PART 304) PAGE 128 at 136, it was held that:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
Also, in the case of OBIKA VS. OBIKA (2018) LPELR 43965, cause of action was defined thus:
“A cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought, Thus, the verifiable factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right, capable of being claimed or enforced against the defendant. In other words, the eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITION: WHEN DOES A CAUSE OF ACTION ARISE IN PRE-ELECTION MATTERS BASED ON SECTION 285(9) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
This is a pre-election matter and thus strict adherence must be made to the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act 2017. Its provision is clear and straightforward and it states thus:
“Every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”PER MOHAMMED BABA IDRIS, J.C.A.
JURISDICTION: WHICH DOCUMENTS SHOWS WHETHER OR NOT A COURT HAS JURISDICTION TO HANDLE A MATTER
It is trite law that to determine whether or not a Court has jurisdiction over a matter, recourse and focus must be had to the statement of claim.PER MOHAMMED BABA IDRIS, J.C.A.
COURTS: COURTS ARE NOT ALLOWED TO SPECULATE
In the case of ORHUE VS. NEPA (1998) 7 NWLR (PART 557) PAGE 187, it was held that:
“It is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR 44840, it was held:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything, Put simply, the Court has a duty not to speculate.”PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE: BURDEN OF PROOF: ON WHOM DOES IT LIE?
It is trite law that the burden of proof lies on the person that asserts. Section 131 and 132 of the Evidence Act 2011 provides thus:
131.
1. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.PER MOHAMMED BABA IDRIS, J.C.A.
FORGERY OR FALSIFICATION OF AGE: ON WHOME LIES THE BURDEN OF PROOF AND WHAT IS THE STANDARD OF PROOF
In the case of AGI VS. PDP & ORS (2016) LPELR 42578 (SC), the burden of proving an allegation of forgery/falsification of age and how same is discharged was stated as:
“In proving beyond reasonable doubt, it is not enough for an appellant qua plaintiff to demonstrate the act of falsification of age, it is also incumbent on him to establish that the act was intentional. In other words that it was done with the intention to gain an advantage by the alleged act of criminality.”PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE: THE VALUE OF AN UNSIGNED DOCUMENT AND WHETHER CERTIFICATION CAN CHANGE THE POSITION OF AN UNSIGNED DOCUMENT IN THE EYES OF THE LAW
Furthermore, in Evidence law an unsigned document is worthless. The mere fact that an unsigned document has been certified does not invalidate what is bad in law. In Udo v State (2016) 12 NWLR (PART 1525) 1 at 24 it was stated that the best evidence of the contents of a document is the document itself produced for the inspection of the Court; see also Fagbenro v Arobadi (2006) 7 NWLR (Part 978)172. PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITION: THE INTENTION OF THE CONSTITUTION AS REGARDS THE PRESENTATION OF FORGED CERTIFICATE TO INEC
I have read and digested the Supreme Court case of SALEH VS. ABAH (2018) ALL FWLR (PART 933) PAGE 944, relied on by the 1st Respondent to support his argument that the learned trial judge was right in making the above mentioned orders.
I hereby align myself with the position of His Lordship, Bage, JSC where he stated in the said case that:
“The intention of the constitution is that anyone who had presented a forged certificate to INEC should stand automatically disqualified for all future elections if as in this case, a Court or tribunal finds the certificate to have been forged, and it matters not whether or not such facts is further fraudulently or desperately concealed in subsequent elections or declaration forms. No decent system or polity should condone or through judicial policy and decisions, encourage the dangerous culture of forging certificates with impunity to seek electoral contest.PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
ABDULRAUF ABDULKADIR MODIBBO Appellant(s)
AND
1. MUSTAPHA USMAN
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on the 5th of November, 2018, before the Federal High Court sitting at the Federal Capital Territory, Abuja, the 1st respondent as Plaintiff instituted the action giving rise to this appeal wherein he sought before the Court the determination of the following questions:
1. Whether having regards to the provisions of Section 31 (2)(5) & (6) of the Electoral Act 2010 (as amended), Section 66(1) of the 1999 Constitution (as amended) and the deposition on oath as contained in the various affidavits and documents personally deposed to or signed by the 1st Defendant – Abdulrauf Abdulkadir Modibbo; some of which he submitted to the 3rd Defendant thereof as contained in FORMS CF001, CF002 and the sworn affidavit thereto, the 1st Defendant’s personal information as supplied/contained therein is not false and or forged?
2. If the answer to question 1 hereof is in the affirmative, whether the 1st Defendant is qualified to have been nominated by the 2nd Defendant hereof- All Progressive Congress (party) to represent her as her candidate
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representing Yola South/ Yola North/Girei Federal Constituency of Adamawa state in the 2019 general elections?
3. If the answer to question 2 hereof is in the negative, whether in the circumstances; the Plaintiff should not be declared the winner of the primary election of the 2nd Defendant- All Progressive Congress (APC) of the Yola South/Yola North/Girei Federal Constituency of Adamawa state which held on the t of October, 2018, whose name should be submitted to INEC for the purpose of contesting in the 2019 general elections?
4. Whether in view of the status of the 1st Defendant as a youth corps member under the National Youth Service Corps (NYSC) scheme at the time he was cleared to contest and actually contested the primary election of the 2nd Defendant- All Progressive Congress (party) for the Yola South Yola North/Girei Federal Constituency of Adamawa state held on the of October, 2018, he was disqualified from so doing by virtue of the Ninth 9th paragraph of Section 4 of the National Youth Service Corps Act Bye-law (Revised 2011).
RELIEFS SOUGHT
1. A DECLARATION that going by the depositions on oath as contained in the various
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affidavits and documents personally deposed to or signed by the 1st Defendant-Abdulrauf Abdulkadir Modibbo; some of which he submitted to the 3rd Defendant- Independent National Electoral Commission (INEC) as contained in FORMS CF001, CF002, and the sworn affidavit thereto, the 1st Defendant’s personal information as to his actual age and primary school certificate therein is false.
2. A DECLARATION that the 1st Defendant- Abdulrauf Abdulkadir Modibbo, is not qualified to have been nominated as the 2nd Defendants’ All Progressive Congress (Party) candidate for the Yola South/ Yola North/Girei Federal Constituency of Adamawa state in the 2019 general elections.
3. AN ORDER DISQUALIFYING the 1st Defendant Abdulrauf Abdulkadir Modibbo from participating in the 2019 general elections as a candidate of the All Progressive Congress (party) 2nd Defendant for the Yola South/Yola North/Girei Federal Constituency of Adamawa state.
4. A DECLARATION that in view of the disqualification of the 1st Defendant- Abdulrauf Abdulkadir Modibbo, the Plaintiff- Mustapha Usman who polled the 2nd Highest votes in the primary election of the 2nd Defendant- All
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Progressive Congress (party) for the Yola South/ Yola North/Girei Federal Constituency of Adamawa state which held on the 7th of October, 2018 is the lawful winner of the primary election and therefore the candidate of the 2nd Defendant- All Progressive Congress (party) for the Yola South/ Yola North/Girei Federal Constituency of Adamawa state for the 2019 general elections.
5. A DECLARATION that given that the 1st Defendant was a youth corps member under the National Youth Service Corps (NYSC) scheme at the time he was cleared to contest and when he contested the primary election of the 2nd Defendant- All Progressive Congress (party) for the Yola South/ Yola North/Girei Federal Constituency of Adamawa state held on the 7th of October, 2018, he was disqualified from so doing by virtue of the N
