GLORY PETER IMOH V. MERCY PETER IMOH & ORS.
(2011)LCN/4712(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/C/91/2010
RATIO
IRRECONCILABLE AFFIDAVIT: HOW AFFIDAVITS THAT ARE IRRECONCILABLY IN CONFLICT OVER A MATERIAL ISSUE WILL BE RESOLVED BY THE COURT
It is of course the law that where a court is faced with affidavits that are irreconcilably in conflict over a material issue the judge should first hear oral evidence from the deponents or other witnesses the parties may want to call in order to resolve the conflict. See Falobi vs. Falobi (1976) NSCC 576; Akinsete vs. Akindutire (1966) All NLR 137; Atanda vs. Olarewaju (1988) 10 – 11 SC 1. The exception is where there are authentic documentary evidence in support of one of the affidavits that are in conflict, the court may not call oral evidence, See Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 588. PER ISAIAH OLUFEMI AKEJU, J.C.A.
DUTY OF COURT: DUTY OF THE COURT NOT TO ACT UPON EVIDENCE THAT IS INADMISSIBLE IN LAW EVEN WHERE SUCH EVIDENCE HAS BEEN ADMITTED
Obviously a court has a duty not to act upon evidence that is inadmissible in law even where such evidence has been admitted as a result of the consent of the opposite party or that the party failed to object at the right time. See Onochie vs. Odogwu (2006) All FWLR (Pt. 317) 544. PER ISAIAH OLUFEMI AKEJU, J.C.A.
INTERFERENCE WITH THE EXERCISE OF DISCRETON: CIRCUMSTANCE WHERE AN APPELLATE COURT WILL READILY INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE LOWER COURT
The applicable principle in a matter of evaluation of evidence is that such an exercise falls within the domain of the trial court that had the opportunity of seeing and hearing the witnesses in the case and the Appellate Court will not readily interfere with the lower court’s exercise of that power. However, where the trial is by affidavit and documentary evidence in an originating summons as in the instant case, the Appellate Court is itself in a good position to examine the evidence on record and interfere where there is established miscarriage of justice from the lower court’s evaluation of the evidence and ascription of probative value thereto. See Adegbite vs. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578; Adimorah vs. Ajufo (1988) 3 NWLR (Pt. 80) 1; Olufosoye vs. Olorunfemi (1989) 1 NWLR (Pt.98) 26. PER ISAIAH OLUFEMI AKEJU, J.C.A.
BURDEN OF PROOF: BURDEN AND STANDARD OF PROOF IN CIVIL CASES ; EFFECT OF THE FAILURE OF A PARTY MAKING AN ALLEGATION TO ADDUCE ADMISSIBLE MATERIAL AND PREPONDERATING EVIDENCE IN SUPPORT OF THAT ALLEGATION
In civil cases, the burden and standard of proof are governed by Sections 135, 136 and 137 (1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004. Thus the burden of proof rests on the party who substantially asserts the affirmative of the issue in dispute and who will fail if no evidence at all or no more evidence were given in the case, and it is when that party had discharged the burden by adducing concrete, cogent and satisfactory evidence, in support of the assertion, that the burden shifts to the adversary to adduce evidence that will tilt the imaginary scale in his favour and so on until the case is decided on the balance of probability or preponderance of evidence. Where the party alleging fails to adduce admissible material and preponderating evidence in support of that allegation, the decision must be against him. See Jack vs. Whyte (2001) 3 SC 122; Iroagbara vs. Ufomadu (2009) All FWLR (Pt. 491) 943. PER ISAIAH OLUFEMI AKEJU, J.C.A.
CONSEQUENTIAL ORDER: WHETHER A COURT CAN UNDER WHAT IS KNOWN AS A CONSEQUENTIAL ORDER GRANT A FRESH OR UNCLAIMED RELIEF TO A PARTY
The law is clear that a court cannot under what is known as a consequential order grant a fresh or unclaimed or unproven relief to a party. A consequential order can only relate matters adjudicated upon. See Inakoju vs. Adeleke (2007) All FWLR (Pt. 353) 1; Osuji vs. Ekeocha (2009) All FWLR (Pt. 490) 614. Since the order nullifying the election and preventing the Appellant from participating in subsequent elections were not sought, the orders should be, and they are overruled accordingly. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
GLORY PETER IMOH Appellant(s)
AND
1. MERCY PETER IMOH
2. PEOPLES DEMOCRATIC PARTY
3. AKWA IBOM STATE INDEPENDENT ELECTORAL COMMISSION Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): In the High Court of Akwa Ibom State, Eket Judicial Division, the 1st Respondent as plaintiff commenced Suit No. HEK/55/2008 through the originating summons filed on 21st May 2008. The Appellant and the 2nd and 3rd Respondents were the 1st, 2nd and 3rd Defendants. The following questions were set for determination by the plaintiff:
“1. Whether having regard to the Guidelines for Local Government General Elections issued by the 3rd Defendant, the guidelines and requirements issued by the 2nd Defendant for nomination of candidates for Local Government Elections and all other relevant enactments made for that purpose, the 1st Defendant is qualified to stand nomination and election as a councilor in the Local Government General Elections.
2. Whether having regard to the said guidelines requirements and enactments, the 2nd Defendant can present the 1st Defendant as a candidate for election as a Councilor in the Local Government General Elections as a Councilor.
3. Whether having regard to the said guidelines, requirements and enactments the 3rd Defendant can ignore same and accept the purported nomination of the 1st Defendant as a councillorship candidate for Ward 2, Oniong West Onna Local Government Area in utter disregard of the said guideline, requirements and enactments.”
The Plaintiff then sought the following reliefs against the defendants jointly and severally:
“1. A declaration that the 1st defendant is not qualified to stand nomination and election as a councilor in Local Government General Elections.
2. A declaration that it is unlawful, wrong, illegal and in breach of the 2nd Defendant’s guidelines and requirements, 3rd Defendant’s guidelines and the Constitution of the Federal Republic of Nigeria, 1999 and the relevant laws for the 2nd Defendant to nominate and present the 1st Defendant to 3rd Defendant as the candidate representing Oniong West, Ward 2, Onna Local Government Area.
3. A declaration that the plaintiff is the rightful candidate (nominee) of the 2nd defendant to represent Oniong West, Ward 2, Onna Local Government Area in the Local Government General Elections.
4. An order that the 1st Defendant’s/name should be replaced with that of the plaintiff as the candidate of the 2nd Defendants for election as Councilor representing Oniong West, ward 2, Onna Local Government Area in the June 2008 Local Government General Elections,
5. An order of injunction restraining the 1st Defendant from Parading herself as the candidate of the 2nd Defendant for election as councilor representing Oniong West Ward 2, Onna Local Government Area.
6. An order of injunction restraining the 3rd Defendant, her privies, agents and representatives from recognizing, acepting and endorsing the 1st Defendant as the 2nd Defendant’s candidate for election as a councilor for Oniong West, Ward 2, Onna Local government Area for the June, 2008 Local Government General Elections.”
The trial or hearing of the action was by the affidavit and documentary evidence of the parties as well as the written address of their respective learned counsel. In the judgment delivered on 4th February, 2010, the learned trial judge held at pages 194-195 of the record of appeal as follows:
“I therefore hold that the 2nd Defendant breached its guidelines on exhibit 5 and the 3rd Defendant’s Guidelines (Exhibit 11) when it sponsored and nominated the 1st Defendant as its candidate over the Plaintiff for the June 2008 Local Government General Election in so far as the 1st Defendant did not disengage from her civil service job as stipulated by law.
But I cannot declare that the Plaintiff was nominated and sponsored by the 2nd Defendant for that Election, as there is no evidence of such nomination/sponsor by the 2nd Defendant. The affidavit of the 2nd Defendant was an express rejection of the Plaintiff as its candidate, though it admitted her as its member, who bought the nomination form and was cleared to stand for nomination.
This case therefore succeeds in part, I hereby declare that the 1st defendant is not and was not qualified to stand nomination and election as Councilor in the Local Government General Elections 2008 and that it was wrong, illegal and in breach of the 2nd and 3rd Defendants’ Guidelines and requirements and the Constitution of the Federal Republic of Nigeria for the 2nd Defendant to nominate and present 1st Defendant to 3rd Defendant for election as the 2nd Defendant’s candidate representing Oniong West, Ward 2, Onna Local Government Area.
The 1st Defendant is hereby restrained from Parading herself as the candidate of the 2nd Defendant for the Election or as the Elected Councilor representing Oniong West Ward 2, Onna Local Government Area.
I think the necessary consequential order that should follow from this is that 3rd Defendant shall declare the person who scored the highest votes at the said Local Government General Elections 2008 in Oniong West Ward 2, upon the nullification of the candidature of the 1st Defendant to stand the election, as the Councilor elected for the Oniong West, Ward 2, Onna Local Government Area, Akwa Ibom State.
Where there was no such winner, the 3rd Defendant shall conduct election to fill such vacancy, as specified by law. The 1st Defendant shall however not be qualified to stand such election going by her ignoble role outlined in this judgment.”
The 1st Defendant (who will now be called the Appellant) was dissatisfied with the judgment of the High court (hereinafter called the lower court) and appealed to this court through the Notice of Appeal filed on 11th February, 2010 containing 8 grounds of appeal.
In prosecuting the appeal before this court, the Appellant’s Brief of Argument settled by Okon A. Okon Esq. was filed on 19th October 2010 while the Appellant’s Reply Brief was also filed.
The plaintiff and the 3rd Defendant at the lower court (who will now be called 1st and 3rd Respondents) also filed their Briefs of Argument, but the 2nd Defendant now 2nd Respondent failed to file any Brief and the appeal was heard without the 2nd Respondent’s Briefs upon the application of the 1st Respondent.
At the oral hearing of the appeal on 1st June, 2011, the learned counsel for the Appellant, the 1st Respondent and the 3rd Respondent adopted and relied on their respective Briefs of Argument and urged that the appeal be allowed or be dismissed in line with each party’s interest.
In the Appellant’s Brief of Argument, the learned Appellant’s counsel, Okon A. Okon Esq, formulated five issues for determination as follows:
“1. Whether in the circumstances of this case, the Trial Court was right to have resolved the various conflicts in the affidavit evidence without calling for oral testimonies of the parties.
2. Whether the Trial Judge was right to have acted on Exhibit 6, 7, & 9 being uncertified public documents and making them the basis for concluding that Appellant did not resign her appointment in the public service before contesting the local government election of June 2008.
3. Whether the Trial Judge discharged his duty to correctly evaluate the evidence in the case and to appropriately ascribe probative value thereto.
4. Whether the Trial Judge was right in shifting the burden of proving the Appellant’s disengagement from public service on the Appellant and the 2nd and 3rd Respondents instead of the 1st Respondent who asserted the contrary, that is, Appellant’s non-resignation which was the plank of 1st respondent’s case before the lower court.
5. Whether the lower court had the competence and/or power to disqualify the Appellant from the future election ordered in the circumstances of this case particularly where no such prayer or relief was claimed,”
For the 1st Respondent, the learned counsel adopted the above issues formulated in the Appellant’s Brief except that he “re-couched” issue 1 to be:
“Whether there were conflicts in the affidavit evidence which ought to have been resolved by calling oral evidence.”
The 3rd Respondent’s Brief of Argument was signed by Barr. Bassey J. Ekanem of Ministry of Justice, Akwa Ibom State. It is quite brief, covering about half a page. The Statement of facts, issues for determination, argument and conclusion as set out in the Appellant’s Brief were fully adopted and this court was therein urged to adjudge the appeal as meritorious and to grant the reliets sought by the Appellant.
As I stated earlier in this judgment, the 2nd Respondent did not file any Brief of Argument, the implication of which is that it has accepted the issues set down by the Appellant as well as the argument thereon in so far as they are in line with the record of appeal, though the court must still consider the appeal on its merit.
In his argument on issue one, the learned counsel for Appellant contended that the Appellant as 1st Defendant affectively disputed, challenged and controverted the facts relied upon by the 1st Respondent as contained in the affidavit in support of the originating summons. He contended further that the crux of the 1st Respondent’s action was that the Appellant was still in the civil service or public service of Akwa Ibom state as at 26th January 2008 when primaries were held by the 2nd Respondent for nomination and selection of candidates for the Local Government Election into the position of the Councilor in Oniong West Ward 2 in Onna Local Government of Akwa Ibom State held in June, 2008.
According to the learned counsel, the 1st Respondent had sought to establish her allegation through Exhibits 6, 7 and 9 being pay Rolls for staff of Onna Local Government for January, February and March 2008 and by which the 1st Respondent alleged that the Appellant failed to comply with the guidelines of the 2nd and 3rd Respondents attached as exhibits 5 and 11 to the 1st Respondent’s affidavit in support of the originating summons which the Appellant denied and controverted through paragraphs 3 and 4 of the Appellant’s Counter Affidavit of 6/6/2008 where the Appellant had by the letter of 17th August 2007 written by Akwa Ibom State Local Government Service Commission attached as exhibit A shown that she left service with effect from 17th September, 2007 which fact the 2nd and 3rd Respondents also supported.
Appellant’s counsel argued that in the face of these serious and conflicting affidavit evidence on crucial facts, the learned trial judge could not pick and choose which version to believe and act upon; the proper approach was to have called for oral evidence which the lower court failed to do. He urged court to answer this issue in favour of the Appellant.
On the second issue, the learned counsel stated that exhibits 6, 7 and 9 attached to the 1st Respondent’s Affidavit in support of originating summons were photocopies of pay rolls for January, February and March 2008 alleged to have originated from the Treasury Department of Onna Local Government, and by section 109 Evidence Act they are public documents. He submitted that the only secondary evidence of such document admissible in law is the Certified True Copy whether the evidence is given by affidavit in interlocutory proceeding or in the substantive action. He cited Fawehinmi vs. IGP (2000) FWLR (Pt. 12) 2015; Okoh vs. Igwesi (2005) All FWLR (Pt. 264) 891. He contended that the lower court treated this issue of inadmissibility of exhibits 6, 7 and 9 as a non-issue and placed heavy reliance on those documents. He submitted that a court of law is expected to admit and act only on legal evidence before it, citing Igbodim vs. Obianke (1976) 9 – 10 SC 179. He submitted that if these exhibits 6, 7 and 9 are expunged there would be no evidence upon which the 1st Respondent’s main allegation that the Appellant was still in public service at the time of the nomination conducted by the 2nd Respondent in January, 2008 would have been based. He cited Osho vs. Ape (1998) 60 LRCN 4077 and urged this court to resolve this issue in favour of the Appellant.
On the third issue the learned counsel submitted that the lower court did not correctly evaluate the evidence in this case and also did not ascribe appropriate probative value thereto. He referred to page 185 of the record of appeal and contended that contrary to the position expressed by the learned trial judge, the Appellant had by paragraphs 3, 4 and 5 of her Counter Affidavit shown that she had left service before the nomination was held on 26th January 2008, a fact that was buttressed by her letter of retirement described by the learned trial judge as a stranger to the case and very suspect. He contended that the failure by the Appellant to react to exhibits 6, 7 and 9, the uncertified public documents would not provide any legal justification for the lower court to act thereupon as the Appellant was still entitled to take benefit of the depositions in the Counter Affidavit of the 2nd and 3rd Respondents to the effect that the Appellant knew nothing about the Pay Rolls and never received salary after leaving service with effect from 17th September, 2007,
The learned counsel argued that the lower court failed to give probative value to the Appellant’s letter of retirement but wrongly excluded same for reason of its form, and ventured into conjectures and speculations about its authenticity and content. He submitted that the law frowns at courts conducting investigation into matters not canvassed by the parties at the trial as the duty of the court is to decide between the parties on the basis of the evidence they have presented, citing Onibudo vs. Akibu (1982) 7 SC 66.
The learned counsel submitted that exhibits 6, 7 and 9 do not contain anything showing that they were received and acted upon by the Spring Bank, Eket and nothing to show that the Appellant took benefit of the sums shown therein by making withdrawals from any such money after becoming aware, or at all. He submitted that the grant of a declaration is not based on admission but on proven and cogent evidence produced by the plaintiff who bears the burden of satisfying the court that he is entitled to the claim asserted, and the plaintiff in doing so must rely on the strength of his case and not on the weakness of the defence, citing Ewo vs. Ani (2004) 3 NWLR (Pt. 861) 611. He submitted also that a court of law does not embark on a voyage of discovery, speculation or imagination, citing Coker vs. Adetayo (1992) 6 NWLR (Pt.249) 615.
Appellant’s counsel submitted that after the 2nd and 3rd Respondents had admitted that the Appellant met the requirements and submitted relevant and necessary documents to back up her claims, the lower court had no business to disbelieve her as the court did on page 191 of the record. He submitted that the case of the 1st Respondent was that, based on exhibits 6, 7 and 9, the Appellant was still in service and drawing salaries at the time of nomination which the Appellant at the earliest opportunity denied through her Counter Affidavit and produced the letter of her employer showing that she actually disengaged from service, a fact that was not controverted by the 1st Respondent through a Counter Affidavit and which the lower court ought to have acted upon notwithstanding the observable want of form and semantics, relying on Fan Milk Ltd. vs. Edemeroh (2000) 9 NWLR (Pt. 627) 402.
On the fourth issue, the learned counsel stated that the main assertion of the 1st Respondent was that as at 26th January 2008 when 2nd (defendant) Respondent held its primaries for nomination of candidates for election as Councillor for the June 2008 elections the Appellant was still in the public service. He submitted that the burden was on the 1st Respondent as plaintiff to lead cogent and credible evidence to prove that assertion, being the party who would fail if no evidence is led. He relied on Section 137 Evidence Act and the cases of Onibudo vs. Akibu (1982) 7 SC 60; Odukwe vs. Ogunbiyi (1998) 60 LRCN 4001; Ndukwe vs. Acha (1998) 59 LRCN 378; UBN Plc vs. Ishola (2002) FWLR (Pt. 100) 1253; Emeonyonu vs. Udo (2000) 9 NWLR (Pt.671) 25.
He submitted that the 1st Respondent failed to discharge the burden on her to prove that the Appellant was still in service at the time she was nominated and contested the elections since the documents (exhibits 6, 7 and 9) retied upon by 1st Respondent were inadmissible evidence that could not sustain the claim, citing Jiaza vs. Bamgbose (1999) LRCN 1278. He submitted also that in the circumstances no burden shifted on the Appellant or 2nd and 3rd Respondents to prove that the Appellant was actually qualified, citing Barmani Ventures Ltd. vs. Kings Foam & Chemical Ind. Ltd. (2002) FWLR (Pt.124) 412. He referred to pages 190-191 of the record to contend that the learned trial judge shifted the burden of proving disengagement on the defendants when there was no valid or admissible evidence from the plaintiff.
On the fifth issue the learned counsel referred to the reliefs sought by the 1st Respondent as the plaintiff on page 4 of the record of Appeal and the reliefs granted by the same court on pages 194 and 195 thereof that the 1st Defendant (Appellant) “shall however not be qualified to stand such election going by her ignoble role outlined in this judgment.”
The learned counsel submitted that the 1st Respondent never prayed that the Appellant be disqualified from any election, a prayer which the lower court charitably made thereby making an order not sought by the parties, a practice the courts have long deprecated, citing Inyang vs. Ebong (2000) FWLR (Pt. 125) 703; Ekpeyong vs. Nyong (1975) 2 SC 71.
He submitted that the order of the lower court disqualifying the Appellant from the possible election as ordered by that court amounted to conviction of the Appellant without trial which was a breach of Appellant’s right under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. He contended that the Appellant was entitled to the benefit of knowing the offence she committed followed by investigation, arraignment and trial in court before conviction all of which were denied to the Appellant. He submitted that the fact that the Appellant was not qualified for election in 2008 upon certain conditions would not mean that she was automatically not qualified thereafter, citing Chief Joshua Okotie Eboh vs. Manager (2010) EPRC 1. He urged this court to allow the appeal.
The learned counsel for the 1st Respondent, Francis N. Ekwere Esq. recouched the flrst issue in the Appellant’s Brief of Argument as follows:
“Whether there were conflicts in the affidavit evidence which ought to have been resolved by calling oral evidence.”
He contended that apart from the provision of letter of resignation of appointment or letter of acceptance of resignation of appointment or disengagement from the last employment, there are other requirements which the Appellant, 2nd and 3rd Respondents failed to provide evidence of fulfillment. He contended also that the issues submitted for determination brought into consideration and determination, the Guidelines, Requirements and Enactments while the relief of declaration sought also brought into consideration Guidelines and Requirements, and in paragraph 12 of the affidavit in support of the originating summons it was deposed that the Appellant did not satisfy the Guidelines And Requirements which the Appellant and the 2nd and 3rd Respondents did not controvert but concentrated only on disengagement from service while leaving out the other issues.
The learned counsel submitted that as the Appellant and the 2nd and 3rd Respondents did not join issues with the 1st Respondent on the fulfillment of the Guidelines and Requirements no conflict existed in the affidavit of the parties which called for resolution by oral evidence.
The learned counsel submitted that the filing of Counter Affidavit in this case did not make the proceedings hostile or raise conflict that required resolution by oral evidence. He submitted that where the conflicts in the affidavit are not material to the case or where the conflict can be resolved on available documentary evidence, the court is not saddled with the responsibility of calling oral evidence. He cited Ossai vs. Wakwah & Ors. (2006) All FWLR (Pt. 303) 239; Bob vs. Akpan (2010) All FWLR (Pt. 501) 896.
He said there was no conflict in the instant case since the Appellant and the 2nd and 3rd Respondents have not shown evidence of fulfillment or satisfaction of the Guidelines and Requirements in exhibits 5 and 11, and assuming the Appellant satisfied only one which is disengagement from service, the required documents and other things have not been shown by the Appellant and 2nd and 3rd Respondents to confirm compliance with Exhibits 5 and 11.
He urged that Section 149 (d) of Evidence Act be invoked against the Appellant, the 2nd and the 3rd Respondents and that issue one be resolved in favour of the 1st Respondent by holding that no conflict existed from the affidavit evidence of the parties that necessitated the production of oral evidence.
On the second issue, the learned counsel conceded that exhibits 6, 7 and 9 are public documents which should have been certified. He argued however that this second issue is unwarranted since the court had found and declared that the Appellant was not qualified to stand nomination and election and was in breach of the Guidelines and Requirements of 2nd and 3rd Respondents, this second issue has become academic.
The learned counsel expressed the same view point on issues three and four that a resolution of issue one in favour of the 1st Respondent would make those issues were academic exercise.
On the fifth issue of whether the lower court was competent to disqualify the Appellant from the future election ordered by that court in the absence of any such prayer, the learned counsel submitted that the lower court had rightly described the order disqualifying the Appellant as a consequential order. He argued that since the Appellant was found not qualified to stand nomination and election, the order was to give effect to the judgment and though not claimed by the 1st Respondent the order was necessary, incidental and flowing from the reliefs sought by the 1st Respondent and the judgment of the court. The order was therefore justified and proper. He cited PDP vs. INEC & Ors. (2004) ALL FWLR (Pt. 209) 1071; Ogunlade vs. FMBN Ltd. (2007) All FWLR (Pt.367) 944; Attorney-General of the Federation vs. A.I.C. Ltd. (2000) 10 NWLR (Pt. 675) 293, The learned counsel urged this court to dismiss the appeal.
In the Appellants Reply Brief, the learned counsel for the Appellant argued that having admitted practically and substantially in the Brief of Argument that the issue of non-disengagement from service alleged against the Appellant was not established by admissible evidence it has become too late and inappropriate for the 1st Respondent to invite this court on appeal to consider other requirements in 1st Respondent’s exhibits 5 and 11 which other requirements did not form the issue before the lower court. He submitted that an Appellate Court will not allow a different case from the one actually agitated at the trial court to be pursued on appeal, citing Nwokoro vs. Onuma (1999) 72 LRCN 3015. He submitted also that no court can make a new case for any party when the case of that party has collapsed, citing Bunyan vs. Akingboye (1999) 69 LRCN 1011.
The learned counsel argued further that though the 1st Respondent pleaded the 2nd and 3rd Respondents’ Guidelines generally, she only contested the issue of Appellant remaining in civil service supported by exhibits 6,7 and 9 which were conceded in the 1st Respondent’s Brief to be inadmissible. The breach of the other guidelines or regulations in exhibits 5 and 11 was not supported by any scintilla of evidence. He submitted that any averment in pleading not supported by evidence is deemed abandoned, citing Olorunfemi vs. Asho (2000) 74 LRCN 45; Fan Milk Ltd. vs. Edemeroh (2000) 9 NWLR (Pt. 672) 406.
The learned counsel argued that parties are bound by their pleadings and the fate of their case therefore depends upon what they have alleged in the pleadings, citing Jaza vs. Bamgbose (1999) 69 LRCN 1278. He submitted also that to allow the 1st Respondent set up one case at the lower court by pleadings and make a new case in the counsel’s address on appeal would defeat the ends of justice and the purport of the pleadings, citing Ifeanyi Chukwu Osondu Co. Ltd. vs. Akhigbe (1999) 11 NWLR (Pt. 625) 1.
The learned counsel also argued that the 2nd and 3rd Respondents did not have to go beyond the issue of disengagement of the Appellant from Civil Service to lead evidence of compliance with other guidelines or requirements in exhibits 5 and 11 which did not form part of the 1st Respondent’s case against the Appellant at the trial court. He submitted that Section 149(d) of Evidence Act is not applicable and urged that the appeal be allowed.
Before going into the niltty gritty of the appeal, I need to state that the 1st Respondent filed her suit as a pre-election action on the ground that she was the rightful person to have secured the nomination and sponsorship of the 2nd Respondent as its Councillorship Candidate in the Local Government Elections held in June 2008 in Akwa Ibom State as opposed to the Appellant who the 2nd Respondent nominated and sponsored and who eventually won the election. The case of the 1st Respondent was that the Appellant was not qualified to be nominated for the election as she failed to satisfy the Guidelines for the election specially that Appellant was still in civil service at the time of her nomination and sponsorship by the 2nd Respondent.
As the entire case was fought on affidavit evidence, I now set out the affidavit evidence of the parties.
The plaintiff’s Affidavit in Support of the Originating Summons contained 16 paragraphs deposed to by Mercy Peter Imoh, Female, Adult, Christian, Business person/politician, Nigerian citizen of No, 28, Okpongkpong Street, Eket as follows:
“1. That I am the plaintiff herein and do depose to this affidavit from my personal knowledge.
2. That I am a bonafide member of the 2nd defendant, a copy of my membership card is exhibited hereto as exhibit 1.
3. That on 3/9/2007 I bought the nomination form to contest nomination as the candidate of the 2nd Defendant to represent Oniong West, Ward 2, Onna L.G.A in the forth coming Local Government General Elections: a copy of the purchase receipt is exhibited hereto as Exhibit 2.
4. That I collected the nomination form, filled same and submitted to the 2nd Defendant and I was duly cleared to contest the nomination, copies of the clearance certificates are exhibited hereto as Exhibit 3 and Exhibit 4.
5. That before I submitted my nomination form, I had fulfilled all the requirements and guidelines for nomination by the 2nd Defendant, a copy of the document issued by the 2nd defendant stating requirements is exhibited hereto as Exhibit 5.
6. That having satisfied the requirements in Exhibit 5, I was cleared to contest the nomination.
7. That the 1st Defendant who is in the employment of Akwa Ibom State Government purportedly contested the nomination with me when she saw that I was going to be returned unopposed.
8. That at the time of the nomination which was held on January 26, 2008 the 1st defendant was still working a staff of Onna Local Government and had not disengaged from the services of the Akwa Ibom State Local Government service commission or Onna Local Government.
9. That the 1st Defendant received her salaries for the months of January, 2008, February 2008, March 2008 and even subsequently, and still had her name on the pay-roll for the months mentioned; see Exhibits 6, 7 and 9 particularly serial Nos. 188, 194 and 220 respectively.
10. That I had contested the eligibility of the 1st Defendant to stand nomination in a letter annexed hereto as Exhibit 10 but the 2nd Defendant did nothing about it even though she promised to redress the wrong.
11. That the 3rd Defendant’s guidelines for Local Government General Elections are contained in Exhibit 11 exhibited hereto particularly 5(f) and 6(2).
12. That the 1st Defendant is still and at the time of nomination or close of nomination was in the civil or public service of Akwa Ibom state and till date and did not satisfy the guidelines and requirements to be nominated and for election as Councilor.
13. That no other candidate apart from the 1st Defendant purportedly contested the nomination with me.
14. That in breach of the guidelines and requirements, the 2nd Defendant forwarded the name of the 1st Defendant to the 3rd Defendant as the candidate for councillorship election in Oniong West Ward 2, Onna Local Government Area.
15. That the 3rd defendant without adhering to the guidelines and requirements intends to accept the 1st Defendant as the 2nd Defendant’s candidate for the said election.
16. That I depose to this affidavit in good faith, sincerely believing same to be true and correct and in accordance with the Oaths Act.”
The 1st Defendant, (now Appellant) filed a Counter Affidavit of 6 paragraphs which is on page 57 of the record of appeal as follows:
“1. That I am the 1st Defendant herein.
2. That I am the nominated peoples Democratic Party Councillorship Candidate for my ward.
3. That I retired from Service on 17th September 2007.
4. That EXHIBIT A hereof is the letter from my employers accepting my resignation.
5. I have since not been in Government service.
6. That I depose hereto honestly and by virtue of the Oath Act.”
Also on pages 79 – 80 of the record, the 3rd Defendant’s (now 3rd Respondent) Counter Affidavit deposed to by one E. E. Uffot, a staff of Akwa Ibom State Independent Electoral Commission Uyo, is stated as follows:
“1. That I am a Chief Executive Officer in Akwa Ibom State Independent Electoral Commission, State Secretariat, Uyo, Akwa Ibom State.
2. That by virtue of my office as stated above I am conversant with the facts of this case.
3. That I have the consent and authority of the 3rd Defendant to depose to this Counter Affidavit on its behalf.
4. That the 3rd Defendant had been served with the Originating Summons and the Supporting Affidavit in this suit dated 20th and 21st May 2008 respectively. This Counter Affidavit is deposed to in reply thereto.
5. That paragraph 1 of the Affidavit is admitted.
6. That paragraphs 2, 3, 4, 5, 6, 7, 10 and 13 are not to my knowledge and are hereby denied.
7. That paragraphs 8, 9 and 12 of the Affidavit are false and are accordingly denied. All the documents submitted by the 1st and 2nd Defendants to the 3rd Defendant showed that the 1st Defendant duly disengaged from the services of Onna Local Government and had stopped receiving her salary more than 30 days before the Election.
8. That the 3rd Defendant confirmed that after the 1st Defendant disengaged from the services of Akwa Ibom State Local Government Service Commission, she never received any salary from the Commission.
9. That the 1st Defendant informed me and I verily believe that her name on Exhibit 6, 7 and 8 (sic) was not to her knowledge.
10. That the 1st Defendant’s name was duly submitted to the 3rd Defendant by the 2nd defendant as their Councillorship candidate for Oniong West Ward 2, Onna for the Local Government Election and that the said 2nd defendant followed all due procedures, without defaulting and made the submission in a regular manner as prescribed by law. The list of candidate including the name of the 1st defendant forwarded by 2nd Defendant to the 3rd Defendant in the prescribed manner and the list of personal particulars of candidates as supplied by the 2nd defendant are hereby attached as Exhibit A and B respectively.
11. That paragraphs 14 and 15 of the Affidavit are false and are hereby denied. The 2nd and 3rd Defendants followed all the guidelines and requirements for the Election.
12. That Bassey Ekanem Esq, of counsel informed me and I verily believe that this court lacks the jurisdiction to hear this case as it was wrongly commenced by way of originating summons when the facts are substantially disputable.
13. AND I swear to this Affidavit in good faith and in the interest of justice conscientiously believing its content to be true and correct according to my personal knowledge, information and belief and in accordance with the Oath Act.”
The 2nd Defendant (now 2nd Respondent) filed Counter Affidavit on pages 130 – 131 of the record to which Chief B. Dan-Abia, Legal Practitioner, Assistant Legal Adviser, PDP Akwa Ibom State Chapter deposed as follows:
“1. That by virtue of my position herein aforementioned, I am well seized of and have personal knowledge of the entire facts and circumstances of this instant suit.
2. That I have the consent and authority of the 2nd Defendant to make this oath for and on its behalf.
3. That the 1st Defendant was duly nominated by the 2nd Defendant as its councillorship candidate for Oniong West, Ward 2, Onna Local government Area at the 2008 Local Government Council Polls.
4. That the 2nd Defendant’s candidate aforesaid met every stipulated requirement, tendered every requisite information and document required of her, particularly her application letter for retirement from service, dated 10th August, 2007 and the reply thereto from the Local Government service commission, acknowledging receipt thereof and accepting her retirement, dated 17th August, 2007. The 2 letters aforementioned are annexed hereto as EXHIBITS RETIREMENT “1” AND “2 ” respectively.
5. That 1st Defendant, under and by virtue of the 2 letters herein aforementioned, particularly the letter (sic) had properly and effectively disengaged from the service of her previous employer and was therefore accordingly cleared by the 2nd Defendant to seek nomination, and election in the manner and for the purpose herein aforementioned.
6. That the 1st Defendant contested the April 2008 Local Government Council Polls as the 2nd Defendant’s Councillorship candidate for Oniong West, ward 2 and was duly returned as winner and was subsequently sworn into office.
7. That on 6th July, 2009 after applying, for an obtaining copies of the Plaintiff’s originating processes and Supporting Affidavit, I invited 1st Defendant to the party office at No. 149, Ikot Ekpene. Road, Uyo whereat I confronted her with the affidavit of the Plaintiff, particularly the averments in paragraph 9 thereof and she told me and I verily believe her, that upon her retirement as averred herein above, she had effectively ceased to be on the payroll of the Local Government Commission or Council and does not receive or encourage payment of salary or any patronage whatsoever howsoever, particularly in the manner and for the purpose alleged by the Plaintiff.
8. That the Plaintiff herein did not contest the party primary or nomination on 26th January, 2008 in Oniong West, Ward 2, Onna Local Government Area and accordingly could never have been nominated by the 2nd Defendant as its standard bearer at the 2008 Local Government Council polls.
9. That I have painstakingly conducted a search and also confirmed from available records at the 2nd Defendant’s Secretariat that the Plaintiff, beyond the purchase of nomination form and obtaining of clearances, actually did not participate in the party primaries of 26th January, 2008.
10. That in the light of the foregoing, the 1st Defendant was duly returned/nominated as the 2nd Defendant’s standard bearer for the April, 2008 Local Government Council Polls.
11. That I make this oath bonafide, conscientiously believing same to be true, correct and in accordance with the provisions of the Oaths Law.”
The Appellant had formulated five issues in the Appellant’s Brief which were adopted by the 3rd Respondent while the 1st Respondent merely recouched issue one. I intend to follow those issues in the consideration and determination of this appeal.
The first issue is whether there was conflict in the affidavit evidence of the parties that should have required the calling of oral evidence by the lower court. It is of course the law that where a court is faced with affidavits that are irreconcilably in conflict over a material issue the judge should first hear oral evidence from the deponents or other witnesses the parties may want to call in order to resolve the conflict. See Falobi vs. Falobi (1976) NSCC 576 Akinsete vs. Akindutire (1966) All NLR 137; Atanda vs. Olarewaju (1988) 10 – 11 SC 1. The exception is where there are authentic documentary evidence in support of one of the affidavits that are in conflict, the court may not call oral evidence, See Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 588.
The 1st Respondent had alleged that the Appellant remained in civil service at the time of her nomination and sponsorship by the 2nd Respondent.
The 1st Respondent attached exhibits 6, 7 and 9, the photocopies of the payroll of Onna Local Government for the months of January, February and March, 2008. The Appellant denied that allegation in her Counter Affidavit and attached as exhibit A, a letter from Akwa Ibom State Local Government Service Commission to support her position that her voluntary retirement had been approved by her employer and she was no longer in service. Both documents therefore emanated either directly or by implication from the Local Government Service Commission of Akwa Ibom State which by law Supervises Onna Local Government.
What was the way out? That is the question to be asked. A full resolution of issue No. 1 will entail a consideration of issues 2 and 3 with this issue in view of the authorities I have called in aid above on resolution of conflict in affidavit evidence.
Contrary to the argument of the 1st Respondent on the requirements to be satisfied by the Appellant from exhibits 5 and 11, the lower court considered the requirement of evidence of leaving service as the one in contention in this case from the list of requirements. This is what the learned judge said at pages 183 – 184 of the record.
“On the question that the case is capable of being enmeshed in serious disputes or controversies as to facts, that fear appears to have been allayed by the learned counsel for the 2nd and 3rd Defendants themselves, when they narrowed the main issued (sic) for determination, and rightly so, to that of the 1st Defendant’s disengagement from service as required by the Guideline produced by the 2nd and 3rd Defendants, for standing nomination and election as Councilor in the Local Government General Elections in June 2008.
I do not think that fact raises or opens to serious disputing to warrant the parties concerned to line up witnesses and call oral evidence and be cross examined to prove that 1st Defendant, in fact, disengaged from her civil service work before standing nomination and election as required by the Guidelines. I do not therefore see any intractable disputing of facts (or reason for same), to establish that the 1st Defendant complied with the Guidelines requiring her to resign her previous appointment or disengage from service to qualify her to stand nomination and election.
This is because such fact (s) is (are) not to be presented in different languages to convince a jury, but is expected to come in valid document or “hard copy” to establish itself.
The Akwa Ibom State Independent Electoral Commission Guideline for Local Government General Elections (Exhibit 11 attached to the Plaintiff’s affidavit) article 6 thereof, specifies the requirements each candidate nominated or sponsored by a party to stand the election must have in the file folder LGE001, submitted to the 3rd defendant, namely:
(i) Two colour passport photographs, and
(ii) Photocopies of the following additional documents in respect of each candidate sponsored by the parties.
(1) Curriculum Vitae
(2) Letter of disengagement from the last employment,
(3) Tax receipts or tax clearance certificate showing evidence of tax payment as and when due for the past three years before the date of the election,
(4) Birth Certificate or affidavit of declaration of age;
(5) Voters registration Card,
(6) Party membership card,
(7) Educational qualifications.
Of all the documents listed above, the one in contention in the case is the 2nd – letter of disengagement from the last employment.”
To establish this issue of resignation that was in contention, the plaintiff (1st Respondent) deposed in paragraphs 7, 8, 9 and 12 of the affidavit in support of the summons that the Appellant was still in service and in proof whereof she attached three documents as exhibits 6, 7 and 9. The 1st Respondent had deposed in paragraphs 9 and 12 of the affidavit:
“9. That the 1st Defendant received her salaries for the months of January, 2008, February 2008, March 2008 and even subsequently and still had her name on the pay-roll for the months mentioned, see Exhibits 6, 7, and 9 particularly serial Nos. 188, 194 and 220 respectively.
12. That the 1st Defendant is still and at the time of nomination or close of nomination was in the civil or public service of Akwa Ibom State and till date and did not satisfy the Guidelines and Requirements to be nominated and for Election as Councilor.”
The 1st Respondent challenged the jurisdiction of the lower court to hear and determine the action on the basis that the facts therein were disputable and conflicting and should not have been commenced by way of Originating Summons. That application was overruled and the 1st Respondent thereafter filed a Counter Affidavit on 6th June 2008 and deposed in paragraphs 3 and 4 thereof as follows:
“3. That I retired from service on 17th September,
4. That EXHIBIT A hereof is the letter from my employers accepting my resignation.
5. I have since not been in Government Service.”
The learned counsel for the Appellant had argued on issue 2 that exhibits 6, 7 and 9 were photocopies of public documents and were therefore inadmissible in evidence having not been certified. In his own issue no. 2, the learned counsel for 1st Respondent said:
“We concede that Exhibits 6, 7 and 9 are public documents and ought to have been certified.
By the provisions of Section 109 of Evidence Act, Cap E 14 Laws of the Federation of Nigeria, 2004, the following are public documents:
“(a) documents forming the acts or records of the acts,
(i) of the sovereign authority,
(ii) of official bodies and Tribunals, and of public offices, legislative, Judicial and executive, whether of Nigeria or elsewhere;
(b) Public records kept in Nigeria of private documents.”
By Section 96 of Evidence Act, documents are to be proved by primary evidence except in the cases mentioned in Section 97(1) which stipulates the the cases in which secondary evidence may be given of the existence, condition or contents of a document one of which cases is (e) i.e. “when the original is a public document within the meaning of Section 109 of this Act.” Section 97(2) then states the type of secondary evidence that is admissible of the original of documents, and in 97(2)(C) which relates to public documents, the admissible secondary evidence is a certified true copy of the document, “but no other kind of secondary evidence is admissible.”
The above provisions of the Evidence Act received judicial attention and interpretation by the Apex Court in Onubruchere vs. Esegine (1986) (Pt. 1) NSCC 343; Araka vs. Egbue (2003) L7 NWLR (Pt. 848) 1.
It is quite clear from pages 184 – 189 of the record and (pages 17-22 of the judgment) that the lower court placed heavy reliance on the uncertified and therefore inadmissible documentary evidence of the 1st Respondent.
Now at page 190 of the record the learned trial judge said:
“The counsel for the 2nd and 3rd Defendants made very strong arguments against Exhibits 6, 7 and 9, saying that they are not admissible or are of probative value not being certified, being public documents.
Of course, the question of admissibility does not arise, since this case is fought on affidavit evidence and the documents are already before the court as exhibits. It was the 1st Defendant, not the 2nd and 3rd Defendants who had a duty to react to the claims in Exhibits 6, 7 and 9 and to deny not being paid the salaries for the months of January to March 2008 by cheques as alleged.”
At pages 185 – 186, the learned Judge said concerning the Appellant then as 1st Defendant:
“She never reacted to Exhibits 6, 7, and 9, the said pay Roll (earlier referred) whereof the salary of the 1st Defendant was paid by cheques into her account with Spring Bank plc, she did not also deny receiving salaries from January, February and March, 2008 and even beyond.”
I have the view that in the above finding of the learned judge, the case of Fawehinmi vs. IGP (2000) 7 NWLR (Pt. 665) 481 did not come to his lordship’s mind because it was made clear in that case that even in interlocutory applications, the only admissible evidence of a public document is the certified true copy.
Obviously a court has a duty not to act upon evidence that is inadmissible in law even where such evidence has been admitted as a result of the consent of the opposite party or that the party failed to object at the right time. See Onochie vs. Odogwu (2006) All FWLR (Pt. 317) 544.
The third issue that the lower court did not discharge the duty to evaluate the evidence in the case and to ascribe probative value thereto still falls in line with the two issues considered herein before since it relates to the same evidence.
On this issue, the learned counsel for the 1st Respondent said in the brief of argument that a decision on issue no. 1 in favour of the 1st Respondent makes this issue (no. 3) an academic exercise.
The applicable principle in a matter of evaluation of evidence is that such an exercise falls within the domain of the trial court that had the opportunity of seeing and hearing the witnesses in the case and the Appellate Court will not readily interfere with the lower court’s exercise of that power. However, where the trial is by affidavit and documentary evidence in an originating summons as in the instant case, the Appellate Court is itself in a good position to examine the evidence on record and interfere where there is established miscarriage of justice from the lower court’s evaluation of the evidence and ascription of probative value thereto. See Adegbite vs. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578; Adimorah vs. Ajufo (1988) 3 NWLR (Pt. 80) 1; Olufosoye vs. Olorunfemi (1989) 1 NWLR (Pt.98) 26.
Again it is stated here that the Plaintiff (1st Respondent) based her allegation of the Appellant remaining in service upon the fact that Appellant still earned salaries up to March, 2008 the evidence in support of which is exhibits 6, 7, 9 pay rolls of the Local Government for the months of January, February and March 2008. Those exhibits had been proved to be inadmissible documentary evidence that the court ought not to place reliance upon. In respect of those exhibits, the learned trial judge said at page 189 of the record.
“Exhibits 6, 7 and 9 appear to constitute such “bleating of the sheep” in this case, striping the masquerade. Why did the 3rd Defendant not produce and tender those documents submitted by the 1st and 2nd Defendants, if in fact they had been submitted to it.
The 3rd Defendant also alleged “that the 1st Defendant informed me and I verily believe that her name on Exhibits 6, 7 and 9 was not to her knowledge,” (Paragraph 9 of 3rd Defendant’s Counter Affidavit). But she did not deny those averments when she swore to her Counter Affidavit. Did she return the salaries when she came to have knowledge of her name in the Exhibits and the payments?”
From the foregoing it is clear that the lower court placed unnecessary and undue reliance on the inadmissible documentary evidence of the 1st Respondent in the evaluation of the evidence and in holding that no conflict existed to warrant the calling of oral evidence. I therefore resolve issues 1, 2 and 3 in favour of the Appellant.
On the fourth issue, of shifting the burden of proving the Appellant’s disengagement from service on the Appellant, and the 2nd and 3rd Respondents instead of the 1st Respondent, I have recourse to page 191 of the record where the learned trial judge stated that:
“I do not therefore find anything in the affidavits of the Defendants to support their claim that they had complied with the Guidelines of the 2nd and 3rd Defendants in respect of the requirement for the 1st Defendant to submit photocopies of her letter of disengagement from the last employment to the 3rd Defendant to be acceptable to stand nomination and election in the Local Government General Elections 2008.
I do not therefore believe the 1st Defendant that she complied with the Guidelines by disengaging from service, when she purportedly stood nomination and election as Councilor in the June 2008 Local Government General Elections.”
In civil cases, the burden and standard of proof are governed by Sections 135, 136 and 137 (1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004. Thus the burden of proof rests on the party who substantially asserts the affirmative of the issue in dispute and who will fail if no evidence at all or no more evidence were given in the case, and it is when that party had discharged the burden by adducing concrete, cogent and satisfactory evidence, in support of the assertion, that the burden shifts to the adversary to adduce evidence that will tilt the imaginary scale in his favour and so on until the case is decided on the balance of probability or preponderance of evidence. Where the party alleging fails to adduce admissible material and preponderating evidence in support of that allegation, the decision must be against him. See Jack vs. Whyte (2001) 3 SC 122; Iroagbara vs. Ufomadu (2009) All FWLR (Pt. 491) 943.
It was the 1st Respondent who alleged that the Appellant was still in public service when she secured the nomination and sponsorship by the 2nd Respondent and it was the 1st Respondent who had the onus of proving that which she asserted. The 1st Respondent relied on uncertified and obviously inadmissible documentary evidence as support of that allegation and therefore failed to prove. The Appellant therefore did not bear the burden of proving the allegation for the 1st Respondent and no burden shifted on the Appellant as erroneously placed on her by the lower court in the judgment. This issue is also resolved in favour of the Appellant.
The contention of the Appellant on the 5th issue is that the lower court granted a relief that the 1st Respondent did not seek, particularly that the Plaintiff (1st Respondent) did not ask that the Appellant be disqualified from any future election. The learned counsel argued that the court acted charitably, a practice that has been deprecated by the courts.
The reliefs sought by the 1st Respondent are declarations and injunctions as well as an order that the Appellant’s name be replaced with her own name as the 2nd Defendant’s candidate.
At page 194 of the record, the learned trial judge held inter alia, that:
“But I cannot declare that the plaintiff was nominated and sponsored by the 2nd Defendant for that Election, as there is no evidence of such nomination/sponsorship by the 2nd Defendant, The affidavit of the 2nd Defendant was an express rejection of the Plaintiff as its candidate, though it admitted her as its member, who bought the nomination form and was cleared to stand for the nomination.”
The implication of the above is that the Appellant was the only candidate whose name was forwarded to the 3rd Respondent by the 2nd Respondent their Political Party. The name of the 1st Respondent was not at anytime forwarded to the 3rd Respondent, and she did not at anytime contest the election that was conducted by the 3rd Respondent.
The learned counsel for the 1st Respondent had described the order of the lower court as a consequential order.
The facts of this case simply show that it was a battle for the nomination and/or sponsorship of candidate by the 2nd Respondent for the Local Government Elections in Akwa Ibom State held in June 2008 organized by the 3rd Respondent. By paragraph 13 of her affidavit in support of the Originagng Summons the 1st Respondent deposed that the contest was between the Appellant and herself. The 2nd Respondent preferred the Appellant, nominated her and sponsored her for the elections at which the Appellant won the Councillorship seat of Oniong West Ward 2, Onna Local Government Area of Akwa Ibom State. It was not a case of substituting or replacing one for the other as in the cases such as Ugwu vs, Ararume (2007) 6 SC (Pt. 1) 88, (2007) All FWLR (Pt. 377) 807; Ezeigwe vs. PDP (2010) 51 WRN 1 and other cases in that line which called for interpretation of Sections 32 and 34 of the Electoral Act 2006 and other relevant Laws.
In the instant case, the lower court found and held that it could not declare that the Plaintiff (1st Respondent) was nominated and sponsored by the 2nd Defendant (2nd Respondent) for the election as there was no evidence of such nomination or sponsorship. In otherwords there was no other candidate nominated or sponsored by the 2nd Respondent than the Appellant. The lower court in its judgment after about two years the election had been held and won by the Appellant ordered that she was restrained from parading herself as the “candidate” of the 2nd respondent for the election or as the Elected Councilor representing her ward. See page 195 of the record.
This was followed by the order nullifying the election and making the “consequential order” that the 3rd Defendant should declare “the person who scored the highest votes at the said election” as the elected person. “Where there was no such winner, the 3rd Defendant shall conduct election to fill such vacancy as specified by law. The 1st Defendant shall however not be qualified to stand such election going by her ignoble role outlined in this judgment.”
It can be gleaned from the record that the above order of the lower court was not derivable from the claim of the 1st Respondent and amounted to granting a relief not claimed by the parties, which the courts have always deprecated. See Ugo vs. Obiekwe (1989) 3 NWLR (Pt. 99) 565.
The law is clear that a court cannot under what is known as a consequential order grant a fresh or unclaimed or unproven relief to a party. A consequential order can only relate matters adjudicated upon. See Inakoju vs. Adeleke (2007) All FWLR (Pt. 353) 1; Osuji vs. Ekeocha (2009) All FWLR (Pt. 490) 614.
Since the order nullifying the election and preventing the Appellant from participating in subsequent elections were not sought, the orders should be, and they are overruled accordingly. I resolve this issue also in favour of the Appellant.
I have resolved all the issues in this appeal in favour of the Appellant. The appeal therefore succeeds and it is allowed. The judgment of the lower court is set aside.
I make no order as to costs.
KUMAI BAYANG AKAAHS, J.C.A.: I agree with the leading judgment just delivered by my learned brother, Akeju, JCA that the appeal is meritorious. I have nothing useful to add. I too set aside the judgment of the lower court.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: Having had the privilege of reading in draft form, I do not consider it wise or compelling to add a jot to the detailed lead judgment, just delivered by my learned brother, Isaiah Olufemi Akeju, JCA, in the instant appeal matter.
I agree entirely with the review, reasoning resolution of issues and conclusion therein, which I most respectfully adopt as mine. Thus, for the fuller and more robust exposition of applicable principles of law, brilliantly and diligently conducted by my learned brother in the said lead judgment, I also find value and merit in this appeal and accordingly allow it. I also abide by all the consequential orders made therein, inclusive of the one on costs.
Appearances
Okon A. Okon Esq.For Appellant
AND
Francis N. EkwereFor Respondent
