AGIDINGBADI BABATUNDE ABDULGANIYU V. POPOOLA SAHEED ADEKEYE & ANOR
(2012)LCN/5490(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2012
CA/IL/53/2011
RATIO
APPEAL: POWERS OF APPEAL JUDGES TO RAISE ISSUES SUO MOTU
it is now trite that judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. see Aduk vs Adejoh (1994) 5 NWLR (pt.346) and Barde Egwu vs Moses Ciroma Egwu (2007) 1 NWLR (pt.1014) 71 at 86. PER TIJJANI ABDULLAHI, J.C.A.
EVIDENCE: BURDEN OF PROOF IN A SUIT OF PROCEEDING
The law is now settled beyond paradeventure that “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; when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person; and and that burden of proof in a suit of proceeding lies on that person who would fail if no evidence at all were given on either side.” See section 131(1)(2) and section 132 of the Evidence Act, 2011. PER TIJJANI ABDULLAHI, J.C.A.
EVIDENCE: IMPLICATION OF UNCHALLENGED AND UNREBUTTED FACTS
It needs to be stressed also that the law is now settled that unchallenged and unrebutted facts in pleading is presumed admitted by the other party. See Ikare Community bank as Ademuwagun (2005) 2 FWLR (Pt.256) at 187. PER TIJJANI ABDULLAHI, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE WHEN THERE IS AN ASSERTION
He who asserts must prove as provided by section 137 of the Evidence Act. In the case of 1 B.A Imonike v. Unity Bank Plc (2011) 5 SCNJ, P.73 particularly at P.79, the apex court held as follows:
“…it is the law that he who asserts the affirmative has the duty to prove same. There is no duty generally on a party to prove the negative. PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
AGIDINGBADI BABATUNDE ABDULGANIYU – Appellant(s)
AND
1. POPOOLA SAHEED ADEKEYE
2. KWARA STATE INDEPENDENT ELECTORAL COMMISSION – Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Kwara State holding at Ilorin, coram T.S. Umar, (J) delivered on the 29th day of July, 2011.
The Appellant who was the claimant at the lower court sued the 1st and 2nd Respondents as defendants at the said Court praying for a declaration that the 1st defendant has given incorrect information in his nomination form; the 1st defendant is not qualified to contest the Local Government Chairmanship election of Offa Local Government of Kwara State and finally an order of injunction restraining the 2nd defendant from screening the 1st defendant or allowing him to contest the Local Government Chairmanship Election.
The facts of the case as can be gathered from the records of the lower court are that: The 1st Respondent herein on 11th of August, 2011 completed a nomination form- to -wit: (KWASIEC FORM 1) to contest the 2010 Kwara State Local Government Election, under the sponsorship of the Action Congress of Nigeria (ACN) for the position of the Chairmanship, Offa Local Government.
The 2nd Respondent to as the statutory body charged with the power to conduct elections in Kwara State, pursuant to the Kwara State Local Government Electoral Law, CAP K32, Laws of Kwara State, 2006 as amended, after screening the 1st Respondent’s nomination form and the attached documents and having found no fault therein came to the conclusion that the 1st Respondent was qualified to contest the election and duly cleared him.
The Appellant who was neither a candidate nor a nominee of any political party for the election, nevertheless took out a writ o summons challenging the clearance of the 1st Respondent by the 2nd Respondent to contest the said election, claiming the following reliefs:-
i. Declaration that the 1st Defendant has given incorrect information in his nomination form KWASIEC 001 which he declared on oath on the 11th day of August, 2010.
ii. Declaration that the 1st Defendant is not qualified to contest the Local Government Chairmanship Election in Kwara State slated for October, 2010 iii. Order of perpetual injunction restraining the 2nd defendant from screening the 1st defendant or allowing him to contest the Local Government Chairman Election in Kwara State slated for October, 2010.
Issues having been joined by the parties, the case was set down for trial during which the appellant testified for himself without calling any witness(es). The 1st Respondent also testified for himself, while the 2nd Respondent called one witness.
On the 29th July, 2011 the learned trial judge delivered his judgment wherein he held inter-alia thus:
“That is also my view that since the 1st defendant is found to have satisfied the condition in the guidelines he ought to be cleared to contest which was done by the 2nd Defendant.
On the whole, I find that the complaint, the 1st Defendant lied in the information supplied to KWASIEC to contest Chairmanship Election of Offa Local Government not proved and hereby dismiss the case of the claimant.”
Aggrieved by the decision of the lower court reproduced supra the appellant through his counsel filed a Notice of Appeal on the same date 29/07/2011 consisting of five grounds wherein he prayed for the following reliefs:
1. An order setting aside the finding of the lower court complained against.
2. An order setting aside the judgment of the lower court.
3. An order disqualifying the 1st Defendant from contesting the 2010 Kwara State Local Government Election.
4. An order granting all the claims of the Appellant before the lower court.
Parties, in compliance with the rules of this court, duly filed and exchanged their respective briefs. The Appellant counsel Mr. T Oladipo adopted his brief dated 5th day of September, 2011 but filed on 21st day of September, 2011. He equally adopted his reply brief dated and filed on 24th day of October, 2011. He adopted the two briefs as his arguments in this appeal and urged us to allow the appeal.
Counsel for the 1st respondent, Mr. Buhari adopted his brief dated 25/101/2011 but filed on 26/10/2011. Counsel for 2nd Respondent adopted his brief dated and filed on 17th October, 2011. He further relied on a list of additional authorities as well as the unreported case of Agidingbadi Babatunde Abdulganiyu v. Popoola Saheed Adekeye & Another in appeal No. CA/IL/53/2011 delivered on the 22nd day of December, 2011. Counsel for the 1st and 2nd Respondents urged us to dismiss the appeal as lacking in merit.
In a brief settled by Toyin Oladipo Esq learned counsel for the Appellant, distilled four issues for determination as follows:
1. Whether the High Court was wrong in its decision that the 1st respondent did not make false statements in his nomination form (KWASIEC form 001) and consequently disqualified from contesting the 2010 Kwara State Local Government Election.
2. Whether the 1st Respondent was not a member of People’s Democratic Party (PDP) when he contested the Kwara State Local Government Election under the banner of Action Congress of Nigeria (ANC).
3. Whether the final address of the 2nd respondent was filed out of time and consequently null and void.
4. Whether the 2nd defendant who did not argue issues 1 and 2 identified by the court during pre trial hearing is not deemed to have conceded to the superior argument of the Appellant.
Learned counsel in marrying the grounds with issues distilled supra stated thus:
“Issue 1 relates to grounds 1,3 and 6;
Issue 2 relates to grounds 2;
Issue 3 relates to ground 4;
Issue 4 relates to ground 5”
For his part, in a brief settled by the 1st Respondent his counsel, Mr. H.O. Buhari, Esq formulated two issues for determination to wit:
1. Whether the lower court was not right when it held that the allegation that the 1st Respondent lied in his nomination form was not proved, having regard to the pleadings and evidence before the lower court.
2. Whether the 1st Respondent was not eligible to have been cleared by the 2nd Respondent to contest the Chairmanship Election into the Offa Local Government Council of kwara State.
In a brief settled by A.O Adelodun SAN, learned counsel for the 2nd Respondent formulated four issues for determination thus:
1. Whether the holding by the learned trial judge that the 1st Respondent did not lie or give false information in the nomination form submitted to the 2nd Respondent for election into the office of the Chairman of Offa Local Government is correct. Ground 1,3 and 6.
2. Whether the 1st Respondent was a member of the People’s Democratic Party (PDP) as at the time of his sponsorship by the Action Congress of Nigeria for the election into the office of Chairman, Offa Local Government. Ground 2.
3. Whether the 2nd Respondent’s final address was filed within time and if not, whether any miscarriage of justice was occasioned to the appellant to warrant the setting aside of the judgment of the trial court. Ground 4.
4. Whether the trial court was not right when it held that the lone issue formulated by the 2nd Respondent in his address covers the 3 issues identified at the conclusion of pre-trial. Ground 5.
It is appropriate at this stage, before I proceed to consider the issues formulated by the respective counsel to state that, it is now trite that judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. see Aduk vs Adejoh (1994) 5 NWLR (pt.346) and Barde Egwu vs Moses Ciroma Egwu (2007) 1 NWLR (pt.1014) 71 at 86.
A hard look at the issues formulated by the parties would reveal the fact that they are not dissimilar to one another, for example issue one formulated by the Appellant is similar to the issue one formulated by the 2nd Respondent. Issue two formulated by the Appellant is the same with issue two formulated by the 2nd Respondent. Issue three formulated by the Appellant is the same with issue three formulated by the 2nd Respondent. Issue four formulated by the Appellant is not dissimilar with issue four formulated by the 2ndRespondent.
Again, looking at the issues formulated by the counsel to the parties would reveal the fact that the two issues formulated by the 1st Respondent are all encompassing and all the other issues formulated by the other parties can be subsumed into these two issues. The said two issues are apt and precise and would be used in determining th real question in this appeal.
At the risk of being repetitive, the issues are (1) whether the lower court was not right when it held that the allegation that the 1st Respondent lied in his nomination form was not proved, having regard to the pleadings and evidence before the lower court. (2) whether the 1st Respondent was not eligible to have been cleared by the 2nd Respondent to contest the Chairmanship Election into the Offa Local Government Council of Kwara State.
I would like to state at this juncture that to do justice to the competing interests of the parties, all issues and arguments put forward by counsel in their brief would be given ample consideration in this judgment. Let me start with the issues formulated by learned counsel for the Appellant
ARGUMENT OF ISSUES
ISSUE ONE
On issue one distilled by the Learned counsel for the Appellant which is whether the High court was wrong in its decision that the 1st Respondent did not make the false statements in his nomination form (KWASIEC form 001) and consequently disqualified from contesting the 2010 Kwara State Local Government election, learned counsel alluded to Exhibit A1 wherein the 1st Respondent filled in “West African Examination Council/Senior School Certificate December 1992 and submitted that West African Examination Council is not a Secondary School or a Teacher or Commercial or Technical School nor is it an institution which can be equivalent to a Secondary School.
It is the submission of the learned counsel that in realizing the mistake he made the 1st Respondent gave evidence in the course of hearing of this case to the effect that he attended Oyun Baptist High School Ijagbo and tendered a statement of result, (Exhibit E)
Learned counsel for the Appellant urged us to hold that it was really immaterial that the statement of result was produced before the trial court because the complaint of the Appellant in the claim and the essence of this offence in section 21(4) of the Kwara State Local Government Electoral law (as amended) is not in possession or not possessing the Secondary School Certificate but in making a false statement on oath in the nomination form.
It is the contention of the learned counsel that the 1st Respondent under column simply filled in this member Governing Council Kwara Polytechnic Ilorin. Learned counsel urged us to note that the 1st Respondent did not state that he was a past or present member of the People’s Democratic Party (PDP). He equally failed to state that he once served as the secretary of the Offa Local Government. All these omissions he admitted while he was being cross-examined. Learned counsel urged us to note that the information which the 1st Respondent conveniently omitted from the nomination form are specifically required to be indicated.
It is the submission of the learned counsel that the learned trial judge contradicted himself when he said that the answers supplied by the 1st Defendant were not accurate and were not lies. Learned counsel is of the view that if a person deposes to an inaccurate statement of fact under oath that person has made a false statement.
Learned counsel submitted that it is immaterial that no document was produced by the appellant to challenge the 1st Defendant’s claim about his educational qualification. However by the admissions of the 1st Defendant himself, the claim was substantiated. He submitted that the claim of the 2nd Defendant that in its view the documents submitted to it by the 1st Defendant satisfied its requirement is a non sequitor. It is not within the discretion of the 2nd Defendant to use its whims and caprice to qualify an unqualified candidate for any election under the Kwara State Local Government Electoral Law.
Learned counsel alluded to section 21(4) of Kwara State Local Government Electoral Law, Cap K32 as amended and submitted that the language of section 21(4) of the law (as amended) is very clear. It does not admit of any exception or excuse. It is trite law that the court is bound to give a law its ordinary meaning once the words are clear and unambiguous as in the case of section 21(4) of the Electoral Law. See Progress Bank Plc v. OK contact Point Holdings Ltd 2009 All FWLR ((pt.489) 461 at 473-474, Federal Ministry of Health v. Comet Shipping Ltd 2009 All FWLR (pt.483) 1260 at 1276 and Ayantola v. Action Congress 2009 All FWLR (pt.475) 1794 at 1821 (Per Nwaeze JCA) and Agbai v. INEC All FWLR (Pt.449) 594 at 605, where the court of appeal (Per Garba JCA).
Learned counsel urged us to resolve this issue in their favour and allow grounds 1, 3 and 6 of the Notice of Appeal.
ISSUE TWO
The 2nd issue for determination is whether the 1st Respondent was not a member of People’s Democratic Party when he contested the Kwara State Local Government Election under the banner of Action Congress of Nigeria (ACN). Learned counsel contended that as can be seen from some of the paragraphs of the statement of claim, the claimant challenged the qualification of the 1st Respondent to contest the 2010 Kwara State Local Government Election based on the fact that he was at all material time a bonafide People’s Democratic Party member.
Learned counsel further contended that in response to the challenge of his competency to contest the said election the 1st Respondent in paragraphs, 2 and 5 of statement of claim, claimed to have resigned his membership of the PDP, but learned counsel submitted that the said purported letter of resignation being a public document is inadmissible as the only copy that is admissible is a certified true copy. That aside, learned counsel went on, the 1st
Respondent was unable to show that the said letter had actually been been served on the appropriate officer of the People’s Democratic Party (PDP).
Learned counsel submitted that the excuse for not serving the letter on PDP is quite clearly an afterthought because apart from lacking in material particulars concerning when attempt was made and the particular PDP member who refused to accept, it is not contained in either his statement of defence or his statement on oath. Learned counsel further submitted that the excuse being a material fact ought to have been pleaded. It was not. It contravenes the principle of pleading and therefore goes to no issue. See UBN v. Okoror (2002) 10 NWLR (pt.774) 1 at 13-14, Chukwuocha v. Onuoha (1991) 4 NWLR (pt.184) 234 at 243, Nwawuba v. Enemuo (1988) 19 NSCC (pt.1) 930, Dina v. New Nigerian Newspaper (2001) 3 NWLR (Pt.Pt.700) 389 at 402.
Learned counsel urged us to resolve this issue in their favour and allow ground 2 of the Notice of Appeal.
ISSUE THREE
Issue three is whether the final address of the 3rd Respondent was filed out of time and consequently null and void. Learned counsel after his computation of the time allowed by the trial judge for filing addresses of counsel submitted that the final addresses of the 2nd Respondent was filed out of time. In support of his submission, learned counsel relied on the case of Ayantola v. Action Congress & Ors (2009) All FWLR (Pt.475) 1795 at 1823, where the court according to the learned counsel defined the preposition “from” as a functional word which is used to indicate a starting point, in reckoning or in a statement of limits. Learned counsel argued that counting therefore from 11/5/2011 when the claimants (Appellant) final address was served on the 2nd Respondent, it had only up till 25/05/2011 to file its final address.
It is the submission of the learned counsel that under the present High Court Rules, a party is not allowed to extend time for himself for the doing of anything either limited by the Rules of Court. He cited and relied on order 10 Rule 4 of Kwara State High Court Rules and the case of UBN v. Odusote (1995) 9 (Pt.421) 558 at 516 to buttress his submission on this point. Learned counsel urged us to resolve this issue in their favour by holding that the said address was filed out of time.
ISSUE FOUR
Issue four is whether the 2nd Defendant (respondent) who did not argue issues 1 and 2 identified by the trial court in its pre-trial report is not deemed to have conceded to superior argument of the appellant. Learned counsel began his consideration of this issue by alluding to the pre-trial conference wherein three issues were identified by the learned trial judge.
Learned counsel contended that though the 2nd Respondent agreed with the issues as identified nonetheless he did not proffer any arguments in respect of the 1st and 2nd issues but rather concentrated on the 3rd issue only. Learned counsel went on to contend that his submission that the 2nd Defendant is deemed to have conceded to the superior argument of the claimant concerning the issues in those issues, was not accepted by the learned trial judge.
Learned counsel alluded to order 33 Rule 6 of the Kwara State High Court Civil Procedure Rules wherein same provides:
“6. After a pre-trial conference or series of pre-trial conferences, the judge shall issue a Report. This Report shall guide the subsequent course of the proceedings unless modified by the trial court.” Learned counsel submitted that the word shall is evidence that the parties have no discretion in the subsequent course of the proceedings including the issues that must be addressed by the parties as arising for determination. Learned counsel further submitted that the only exception is where the court itself modifies it. The course of proceedings in this case learned counsel went on was not modified throughout the proceedings in this case.
It is the submission of the learned counsel that the above rule cannot admit of any other interpretation unless, it is intended to turn the pre-trial hearing conference procedure part of the High Court Rules which is made to be obeyed, not just by the litigants but also the Court.
Learned counsel contended that the lower court should have upheld his submission that failure of the 2nd Defendant’s counsel to argue issues 1 and 2 must be considered as concession by the 2nd Defendant to the arguments of the claimant’s counsel under those issues. In support of this contention, Learned counsel relied on the case of FCMB Ltd v. SAIC Ltd (2007) All FWLR (pt. 363) 133 at 147-148. We were urged to determine the issue in the affirmative and allow ground 5 of the Notice of Appeal.
Responding to the submissions of the learned counsel to the Appellant, learned counsel for the 1st Respondent submitted that the substratum of the Appellant’s case is that the 1st Respondent gave false information in his nomination form submitted to the 2nd Respondent for Local Government Chairmanship Election scheduled for October, 2010. According to the Appellant the 1st Respondent gave false information with regards to his educational qualification, his political experience and party membership and as such he is not qualified for the election. Learned counsel is of the view that to determine the veracity of the claims above re-produced, it is necessary to know what is contained in the said form vis-a-vis the statement of defence of the 1st Defendant/Respondent. Learned counsel then re-produced in extenso, the contents of the nomination form and statement of defence from paragraphs, 2, 4-12 as can be seen on pages 3-6 of the 1st Respondent’s brief and submitted that all the positive averments in those paragraphs were neither controverted nor challenged by the Appellant.
It is the submission of the learned counsel that the law is now settled that unchallenged and unrebutted facts in pleading is presumed admitted by the other party. For this submission, learned counsel relied on Ikare Community Bank v. Ademuwagun (2005) 2 FWLR (pt.256) at 187 and Mr. Sunday Adegbite Taiwo v. Serah Adegboro & Ors (2011) 5 SCNJ 125 at 130.
Learned counsel further submitted that in addition to the positive averment in his statement of defence the 1st Respondent gave cogent and unimpeached evidence at the trial. Learned counsel went on to posit that aside the evidence he gave, the 1st Respondent backed up his defence with documentary evidence as contained in Exhibit D-H. This can be seen on pages 31-4 1 of the record. In the light of the foregoing, learned counsel urged us to resolve this issue in favour of the 1st Respondent and against the Appellant.
The 2nd issue canvassed by the 1st Respondent is whether the 1st Respondent was not eligible to have been cleared by the 2nd Respondent to contest the Chairmanship Election into the Offa Local Government Council of Kwara State. In arguing this issue, learned counsel opined that it is imperative to know the legal requirements for qualification for election for chairman seat.
Learned counsel went on to contend that to qualify for election into the seat of Chairman of the Local Government, Kwara State Local Government Election Law (2004) as amended in section 5 (e) and (g) provide inter-alia thus:
“5(e) He has been educated up to at least School Certificate level or equivalent;
5(g) He is a member of a political party and is sponsored by that party.”
Learned counsel alluded to exhibit A 1 on page 2 of the Exhibit and contended that the 1st respondent gave the information to the effect that he had both primary and senior certificate. This, learned counsel went on can be seen on page 11 of the record of the lower court.
On party membership and sponsorship the 1st Respondent stated in clauses 7 and 8 of Exhibit A1, that he is a member of Action Congress of Nigeria (ACN) and that the party has sponsored him to contest the election. This learned counsel went on can be seen on page 12 of the record of the lower court.
In view of the foregoing, learned counsel urged us to uphold the decision of the lower court to the effect that the Appellant has failed to prove that the 1st Respondent was qualified to contest the election. We were urged to resolve this issue in favour of the 1st Respondent.
Learned senior counsel for the 2nd Respondent began his consideration of the issues that call for determination by submitting that it was nomination form i.e (KWASIEC FORM 001) filled by the 1st Respondent that the Appellant has lashed upon, interpreted in his own way, to form the view that the 1st Respondent had lied and/or given false information especially with regard to his educational qualification and political experience to premise his approach to the court pursuant to section 21(4) of the Kwara State Local Government Law, 2006 as amended.
Learned senior counsel submitted that upon a juxtaposition of the information contained in KWASIEC FORM 001, contained on pages 10- 14 of the record with the evidence of the 1st Respondent at the trial there is nothing to support the Appellant’s contention that the 1st Respondent lied or gave any false information.
Learned senior counsel further submitted that the assertion of the 1st Respondent in the nomination form as regard his educational qualification was that he possesses a “West African Examination Council Senior School Certificate, December 1992” which categorical assertion the Appellant has failed to dislodge or impugn. Equally undislodged is the 1st Respondent’s testimony that he attended Oyun Baptist High School Ijagbo, which School the Appellant admitted knowing whilst being cross-examined on page 90 of the record.
Learned senior counsel contended that he failed to appreciate that mere omission to state some details does not render false that what is stated permeates the totality of the Appellant’s argument under this issue. It extends even to the issues of the Primary School attended by the 1st Respondent, wherein he listed CAP Primary School Latona Osogbo 1983. The appellant would have saved everybody’s valuable time by simply serving a subpoena on the school authority to appear in court to refute the 1st Respondent’s assertion but No. The Appellant would not do that. The Appellant would rather engage flimsy argument such as “in all probability, the 1st Respondent did not attend a primary school” to substantiate this rather weighty assertion.
Learned senior counsel is of the view that reliance by the Appellant on KWASIEC FORM 001 to contest the qualification of the 1st Respondent and to premise the baseless allegation of giving false information, is in law hair-splitting and misplaced.
In so far as the qualification to contest the Local Government election in Kwara State Local Government Electoral law which, for ease of reference is herewith reproduced:
“5. Notwithstanding the provisions of any other law, a person shall be qualified to contest the local Government Election if;
(e) he has been educated up to at least School Certificate level or equivalent;
(g) he is a member of a political party and is sponsored by that party.”
Learned senior counsel submitted that once a person meets the foregoing requirement as in the instant case, he is qualified to contest the Local Government election, regardless of any shortcoming(s) on the nomination form, including but not limited to omissions to state the name of Secondary School attended, past Political activities and so on.
We were urged to resolve this issue against the Appellant and in favour of the Respondent.
On the 2nd issue for determination which is whether the 1st respondent was a member of People’s Democratic Party (PDP) as at the time of his sponsorship by the Action Congress of Nigeria for election into the office of Chairman, Offa Local Government, Learned senior counsel alluded to the pleadings where the appellant himself in paragraphs 6 and 7 of the statement of claim in very categorical terms averred that the 1st Respondent was as at 11th August, 2010, a card-carrying member of the People’s Democratic Party, (PDP) and not a card-carrying member of the Action Congress of Nigeria (ACN) which was the party that sponsored him for the local Government election in October, 2010.
Learned senior counsel contended that the foregoing assertions having been stoutly denied by the Respondents vide paragraphs 4 and 3 of the 1st and 2nd Defendant’s statements of defence respectively, needed to be proved through the calling of credible evidence as required by sections 136, 137 and 139 of the Evidence Act.
It is submission of the Learned senior counsel that in the face of the evidence before trial court that the 1st Respondent was presented to the 2nd Respondent by the Action Congress of Nigeria as its candidate, the Appellant had the duty to do more than he did to show that the 1st Respondent was indeed a member of the PDP as at the time of his presentation as ACN candidate. Learned senior counsel further submitted that having failed to do so he urged us to resolve this issue against the Appellant and in favour of the Respondent.
Issue three is whether the 2nd Respondent’s final address was filed within time and if not, whether any miscarriage of justice was occasioned to the Appellant to warrant the setting aside of the judgment of trial court. Learned senior counsel contended that following the conclusion of evidence on the 19th May, 2011, the learned trial Judge adjourned the matter till 8th June, 2011 “for adoption of written addresses.”
Learned senior counsel further contended that the court did not ascribe any particular number of days to any of the parties, even though the parties asked specific number of days, within which to file addresses.
In the circumstance, Learned senior counsel submitted that the Appellant is wrong in elevating the mere application of the parties to the status of a court order or decision. Simply put, there is no order of the learned trial Judge commanding the 2nd Respondent to file its written address within 14 days, as claimed by the Appellant in his Brief of Argument.
Learned senior counsel is of the view that assuming without conceding, that the 2nd Respondent was out of time by one (1) day as contended by the Appellant at page 13 of his Brief of Argument, he humbly submitted that is at best a case of non-compliance which is a mere irregularity that cannot vitiate the judgment of the trial court. He refer us to order 4 Rule 1 of the same Kwara State High Court (Civil Procedure) Rules, 2005, which for ease of reference provides:
“Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or other therein.” (Underlining supplied for emphasis
For this submission learned Junior counsel relied on the case of Olaniyan v. Oyewole (2008) 5 NWLR (pt.1079) p.114 Bob v. Akpan (2010) All FWLR (pt.501) 896 at 932-933 and Elder Aniete Uko v. Okon Ekpenyong (2006) All FWLR (Pt.324) 1927 at 1946.
Learned senior counsel further submitted that the learned trial judge ordinarily has the inherent powers, nay the duty to suo motu extend the time within which the 2nd Respondent could file his address up to the day it was filed and to deem same as property filed. See UBA Ltd. & Ors vs Dike Nwora (1977-78) NSCC 519 at 525. This power which although was not exercised in this instance underscores the hollowness of the Appellant’s complaint under this issue, which is at best a storm in a tea-cup.
Learned senior counsel urged us to resolve this issue against the Appellant and to refuse the invitation to disturb the rather sound judgment of the learned trial Judge.
Last but not the least issue formulated by the learned senior counsel for which argument has been proffered is issue four which is whether the trial court was not right when it held that the lone issue formulated by the 2nd Respondent in his address covers the three issues identified at the conclusion of pre-trial. This issue relates to ground 5 of the grounds of appeal.
Learned senior counsel contended that at the outset of this matter during the pre-trial conference, the parties filed issues for determination based on their respective perception of the case. The learned trial Judge in his report/ruling or 23rd November, 2010 identified 3 issues as arising for determination. These issues are set out on page 85-86 of the record.
Learned senior counsel further contended that in the fulfilment of counsel’s task of assisting the court, formulated alone issue which in the counsel’s view sufficient and adequately disposed of the substantive controversies before the court. The Appellant on the other hand, learned counsel went on stuck to the three issues earlier identified by the court. After reproducing the issues in his brief for ease of reference learned senior counsel submitted that the contention of the Appellant that by formulating only one issue as against the three issues identified at the pre-trial, the 2nd Respondent is deemed to have conceded to the argument of the Appellant in respect of the other two issues. It is respectfully submitted that this submission is misconceived and lacking in any legal basis, statutory or judicial.
Learned senior counsel further submitted that contrary to the rather strange submission on behalf of the Appellant, the settled position of the law is that, the essence of formulating issue(s) for determination is to project clearly and concisely the substance of the case before the court. For this submission, learned senior counsel cited and relied on the cases of Jambo v. Governor River State (2007) All FWLR (pt.394) 312 and Ebo v. N.T.A (1996) 4 NWLR (pt.442).
Learned senior counsel urged us to resolve this issue against the Appellant and dismiss the entire appeal for lacking in merit. We were urged also to affirm the decision of the lower court.
RESOLUTION OF ISSUES
In resolving the issues that call for determination in this Appeal, my first port of call is issue number one as formulated by the 1st Respondent. I have alluded to this issue in this Judgment wherein I stated inter-alia that the two issues formulated by the said Respondent would be used in resolving the controversies between the parties to the Appeal under consideration.
The issue at the risk of being repetitive is whether the lower court was not right when it held that the allegation that the 1st Respondent lied in his nomination form was not proved having regard to the pleadings and evidence before the court. The law is now settled beyond paradeventure that “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; when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person; and and that burden of proof in a suit of proceeding lies on that person who would fail if no evidence at all were given on either side.” See section 131(1)(2) and section 132 of the Evidence Act, 2011.
It is in the light of the above postulations that I reproduce some of the relevant averment as contained in the statement of defence of the 1st Respondent which read as follows
(2.) The 1st Respondent admits paragraph 3 of the statement of claim to the extent that he was formally in P.D.P but denies that he was in P.D.P until he submitted his Nomination Form to contest the Chairmanship seat in the Offa Local Government under the banner of Action Congress of Nigeria (A.C.N.) during the forthcoming October, 2010 Election. (4.) The 1st Respondent specifically denies paragraph 6,7 ,8,9, 10, 11 , 1 2, 13, 15 and 16 of the statement of claim and put the claimant to the strictest proof thereof.
(5.) The 1st defendant avers that contrary to the averments of the claimants in paragraph 3,6,7 while it is true he was in PDP he resigned from the P.D.P. well before he became a member of A.C now A.C.N and became the party’s candidate for the Chairmanship seat of Offa Local Government in the forthcoming Local Government Election. The 1st defendant hereby pleads his letter of resignation from PDP and his membership card of A.C now A.C.N.
(6.) The 1st defendant avers that contrary to the claimant’s assertion in paragraph 8,9, 10 of the statement of claim, he is educated up to Secondary School level and thus qualifies to contest for the Chairmanship seat of Offa Local Government.
(7.) The 1st defendant avers that he first of all sat for the Senior Secondary School Examination in November/December, 1990 at Oyun Baptist High School, Ijagbo, Kwara State. The statement of result issued by Oyun Baptist High School, Ijagbo dated 6th May, 1991 is hereby pleaded.
(8.) The 1st defendant avers that because he did not do very well in the 1990 examination, he had to seat for the November/December, G.C.E. in 1992 as an external candidate at School for Basic Remedial Courses Oke-Aro, Akure. The Certificate No. NGSP 0340248 dated December, 1992 issued by West African Examination Council is hereby pleaded.
(9.) The 1st defendant avers that the minimum qualification requirement to contest for the office of the chairmanship is School Certificate Level. The 1st Respondent pleads specifically section 41(e) at page 11 of the Kwara State independent Electoral Commission, Guideline for the conduct of 2010 Local Government Elections.
(10.) The 1st defendant avers that he did not fill the secondary school he attended because he used the certificate he obtained as an external candidate.
(11.) The 1st defendant avers that he was not given letter of appointment as secretary to Offa Local
Government, hence his not filling it in the Nomination Form.
(12.) The 1st defendant avers that he was a member of the Governing Council of Kwara State Polytechnic between 2004-2007. The letter of appointment dated 27th February, 2004 is hereby pleaded.
It is instructive to note that all the positive averments, weighty as they are, were neither controverted nor challenged by the Appellant despite the fact that it is he who would loose if no evidence at all were given on either side. It needs to be stressed also that the law is now settled that unchallenged and unrebutted facts in pleading is presumed admitted by the other party. See Ikare Community bank as Ademuwagun (2005) 2 FWLR (Pt.256) at 187.
It is also to be observed that in addition to the positive averment in his statement of defence reproduced above the 1st Respondent gave cogent and unimpeachable evidence at the trial. He also backed up this defence with documentary evidence as contained in exhibit D-H. (See 31 to 40 of the record).
The question to be asked at this juncture is whether it can be said that with these avalanche of both written, oral and documentary evidence and facts, can it be said that the 1st Respondent gave false information? I answer this question in the negative. For avoidance of doubt based on the pleadings of the parties, the evidence adduced by both sides, oral and documentary it cannot be said that the 1st Respondent gave false information at the time he was filling the Nomination Form 001.
That aside the duty of proving that the claim of the 1st Respondent is false rests squarely on the Appellant and the onus was never discharged by the Appellant. He who asserts must prove as provided by section 137 of the Evidence Act. In the case of 1 B.A Imonike v. Unity Bank Plc (2011) 5 SCNJ, P.73 particularly at P.79, the apex court held as follows:
“…it is the law that he who asserts the affirmative has the duty to prove same. There is no duty generally on a party to prove the negative. In the instant case, it is the Appellant who asserted the affirmative or positive and therefore has the burden of proving same, particularly as the Respondent denied what was pleaded. See also Owodele Ashabi Eya & Ors v. Alhaja Risikatu Olapade & Anor (2011) 5 SCNJ 98.”
Needless to say the Appellant who has asserted that the 1st Respondent gave false information has a bouden duty to prove that assertion by reading credible evidence. This is rooted in the settled position of our law that the burden of proof in a suit or proceedings lies on the party who will fail, if no evidence is adduced on either side. see section 131, 132 and 133(1) of the Evidence Act, 2011. see also the case of Famurati vs Agbeke (1991) 5 NWLR (pt. 189); Ogbunyiya v. Okudo No. 2 (1990) 4 NWLR (Pt.146) 551 and University of Ilorin v. Oluwadare (2009) All FWLR (Pt.452) 1175 “1214 para B.
In the light of the foregoings, I am of the considered view that the lower court was on a firm legal pedestal when it held at page 133 of the record that:
“besides, by alleging 1st Defendant did not attend Primary and Secondary Schools, it is in a way saying he either forged the certificate or impersonated. Apart from the fact that there is no such evidence, allegation of criminal cases must be proved beyond reasonable doubt.”
Again, in the case of Owodele Ashabi Eya & Ors v. Alhaja Risikatu Olapade & Anor (2011) 5 SCNJ, 98, the Supreme Court held at p.119 Per Onnoghen JSC that:
“Where the commission of a crime is directly in issue in any proceeding whether civil or criminal, in this case, forgery, the alleged crime must be proved beyond reasonable doubt, and it is the Appellant in this case who asserts the commission of forgery who have the burden of proving, by adducing sufficient evidence to establish same.”
In view of the foregoing one would not be wrong to have held that the Appellant has failed woefully to prove the falsity of the claim of the 1st Respondent with regards to his educational qualification and other sundry allegations. This issue is therefore resolved in favour of the 1st Respondent and against the Appellant.
The next issue for determination is whether the 1st Respondent was not eligible to have been cleared by the 2nd Respondent to contest the Chairmanship Election into the Offa Local Government Council of Kwara State.
In considering this issue, it is imperative to know the legal requirement for qualification for election into the office of a Chairman of a Local Government. This brings me to the examination of Kwara State Local Government Election Law (2004) as amended. The relevant section for the purpose of this appeal is section 5, e and g and for ease of reference, same is reproduced below:
“5 notwithstanding the provisions of any other law, a person shall be qualified to contest the Local Government Election if;
(e)he has been educated up to at least School Certificate level or equivalent;
(g) he is a member of a political party and is sponsored by that party.”
The provisions of section 5(e) and (g) reproduced supra are unambiguous and self-explanatory and one needs no aid to interpret them. Given its ordinary meaning, one would not be wrong to say that once a person meets the foregoing requirements as in the instant case, he is qualified to contest the Local Government Election, regardless of any shortcoming(s) on the nomination form, including but not limited to omissions to state the name of Secondary School attended, past Political activities and so on.
On the records, the 1st Respondent is educated up to at least School Certificate and he was even on the admission of the Appellant, sponsored by a political party to wit: A.C.N. he has thus met the basic stipulations of section 5 of the Kwara State Local Government Electoral Law, and cannot be disqualified on account of KWASIEC FORM 001, which is a mere data form, provided for in the Second Schedule to the Kwara State Local Government Electoral Law.
The law is settled that a schedule cannot override the provisions in a statutes. In the case of F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106 p.652 at 663, the apex Court Per our erudite Jurist Oputa JSC held inter-alia, that “Schedule, tables and forms are useful in the provisions in the body of a statute. In case of ambiguity, they become useful handmaid to interpretation. But they will not over-rule the plain words of the statute. If there is any contradiction, the enacting clause will prevail. It would be quite contrary to recognized principles of construction of statutes to restrain the operation of clear and ambiguous words of sections by reference to what appears in a schedule, tables or forms.”
(Underlining supplied for emphasis).
See also Awuse vs Odili (2004) 8 NWLR (pt.876) 481 at 494.
I am of the considered view that applying the foregoing principle of law to the case in hand the Appellant’s reliance on the schedule to the Kwara State Local Government Electoral Law in complete oblivion to the substantive law is an exercise in futility as any proven case(s) of non-compliance with the schedule, which in fact has not been established in this case, will not affect the qualification of the 1st Respondent, who has patently satisfied the substantive law.
Again, in addition to the above are exhibits H, the A.C.N membership card. Exhibits D 1 and E the evidence of his School Certificate Education. In view of the above facts, I am of the strong view that the learned trial judge was right when he held that:
“I am also of the view that since the 1st Defendant has the requisite qualification to contest and is dully cleared to contest by the 2nd Defendant, the 1st defendant is qualified to contest.” see page 135 of the record.” In the light of the foregoings, this issue like the previous issue is resolved in favour of the Respondent and against the Appellant. In conclusion, with the two issues having be resolved in favour of the Respondents and against the Appellant, this appeal fails and it is hereby dismissed accordingly with N140,000.00 costs in favour of the 1st Respondent and against the Appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the illuminating Judgment of my Lord the learned Honourable T. Abdullahi, P.J. and I completely agree with his reasoning and conclusion that this Appeal is unmeritorious.
By the provisions of the Sections of the Evidence Act on the burden of proof and the authorities relied upon in so holding, I am also in tandem with my Lord, that the Appellant failed woefully to prove that the Respondent gave false information in the relevant KWASIEC Form 001 or that he forged the certificates that qualified him to contest the Offa Local Government Chairmanship Election.
The learned trial Judge was therefore right when he held that he was satisfied that the 1st Defendant/Respondent was found to have satisfied the conditions in the Guidelines for the Local Government Election and was duly cleared for the Election by the 2nd Defendant/Respondent.
The learned trial Judge also rightly held that the 1st Defendant/Respondent did not lie in the information supplied to KWASIEC to contest the Chairmanship Election of Offa Local Government and that the allegation by the Appellant in that direction was not proved.
Appellant’s claim was therefore dismissed with the impunity it deserved and in the same vein the Appeal is also dismissed.
I abide by all other consequential orders including costs as set out in the lead Judgment of my Learned presiding Justice.
OBANDE OGBUINYA, J.C.A.: I have had the privilege of reading, in draft, the succinct leading judgment delivered by my learned brother, Tijjani Abdullahi, PJCA. I, completely, concur with him in his reasons and conclusions that the appeal is bereft of any merit.
Let me, on the premise of ex abundant cautela, concede to the appellant that his assertion, that the first respondent was not qualified to contest the election into the office of the Chairman of Offa local Government Area, is a negative one which, in the eyes of the law, does not laden him with any burden of proof, see Agagu v. Mimiko (2009) 7 NWLR (pt.1140) 342. Nevertheless, that concession will still not relieve him of the evidential burden of establishing that weight of allegation after the first respondent had shown that he met the requirement of the provision of section 5(e) and (g) of the Kwara State Local Government Law, as amended. The reason is simple. The respondent having, amply, demonstrated, by dint of viva voce and documentary evidence placed before the lower court, he was qualified to contest that election, the ever oscillating evidential burden of proof, entrenched in section 133(2) and 136(1) of the Evidence Act, 2011, will reside in him to dislodge the first respondent’s evidence of due qualification by showing the opposite with any contrary evidence.
Having failed to proffer that contrary evidence, a desideratum, to demolish the first respondent’s proved qualification to vie for the election, the appellant could not expect his action to sail through in the lower court. This is because, he did not discharge the burden of proof he is saddled with by law. In the result, the lower court’s verdict, declaring the appellant’s action a non-starter, remains unassailable and unworthy to be tinkered with in any manner favourable to him, the appellant.
It is for the above reason, in addition to the more comprehensive reasons offered in the leading judgment, that I, too, visit dismissal on the appellant’s appeal. I abide by the consequential orders made in the leading judgment.
Appearances
Toyin Oladipo Esq. For Appellant
AND
Mr. H.O Buhari with him is Mrs. A.A Agbetola for the 1st Respondent.
A Abdulkareem Esq for the 2nd Respondent. For Respondent
