HON. OKECHUKWU IGWE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR
(2012)LCN/5386(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2012
CA/OW/250/2011
RATIO
EVIDENCE: EFFECT OF AN UNSIGNED DOCUMENT
A fact that is trite is that an unsigned document is a worthless piece of paper and such a document cannot be admitted in evidence as it has no any probative value. This is so because a document which is not signed has no origin in terms of its makers. In other words, the identity of the person signing the document must be properly disclosed for the document to be competent in the eyes of the law. See Omega Bank Plc. V. OBS Ltd. (2005) 8 NWLR (PT 928) 547 @ 581; A. G. Kwara State v. Alao (2000) 9 NWLR (PT 671) 89 @ 104: Adighije v. Nwosu (2010) 12 NWLR (PT 1209) 419 @ 481: P.M.B. Ltd v. N.D.I.C. (2011) 12 NWLR (PT 1261) 253 @ 262 and Okafor v. Nweke (2007) 10 NWLR (PT 1043)531. The documents in contention are the Appellant’s Notice of Appeal and the Appellant’s brief of argument which clearly shows that the documents were signed by an undisclosed and unidentified person with no indication that same was signed by a lawyer or the Appellant personally.
In Edet v. Chief of Air Staff (1994) 2 NWLR (PT 324) 41, it was held that once a document is signed ‘for’ it became a document of that person. However, in that case, the person who signed the letter of compulsory retirement of the officer for Chief of Air Staff stated his name and designation. It is not therefore applicable to the facts circumstances of this case where the person who signed did not disclose his identity. The facts in the instant appeal are not the same also with the case of Okafor v. Nweke (2007) 10 NWLR (PT 1043) 521, where the law firm of JHC Okolo SAN & Co. issued and signed certain processes in its business name on behalf of its client, the Apex Court held that since the firm of JHC Okolo SAN & Co. was not a legal practitioner the Court processes were defective and incompetent. While in the case of P.M.B v. NDIC (2011) 12 NWLR (PT 1261) 253, the Court of Appeal annulled the Notice of Appeal signed on behalf of the Appellant’s Counsel by an unknown and unidentified person. PER UWANI MUSA ABBA AJI, J.C.A.
ORDER: ESSENCE OF NULLIFICATION OF ANY ORDER
In judicial and legal terms and con, the nullification of any order by a Court of law is to render such action or order void from the very beginning, abinitio, as if it had never taken place, happened or been made or issued as the case may be. Once, an action or order is nullified by a competent Court, then in law and all practical purposes to which it applies, the action has been erased, wiped out and had never ever happened or taken place originally. PER UWANI MUSA ABBA AJI, J.C.A.
COURT: WHETHER COURTS ACT ON SPECULATIONS
Courts of law do not act on speculation but on proved facts. Speculation is not in the character of the law and administration of justice. There was no any inquiry made by the learned trial Judge before his belief that these “other documents” were submitted by the 2nd Respondent to INEC. See Saliman v. Kwara Poly (2005) 5 NWLR (pt. 974) 477; Biyu v. Ibrahim (2006) 8 NWLR (pt. 981) 1 and Mori v. Tella (2006) 18 NWLR (pt. 1011) 207. PER UWANI MUSA ABBA AJI, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF IN AN APPEAL
The burden and onus of proof lies on a party against whom decision on the case will go if material evidence is not led. In this case, the burden could only shift to the Respondent when the Appellant had given sufficient evidence to warrant rebuttal. PER UWANI MUSA ABBA AJI, J.C.A.
JUDGMENT: WHEN WILL A PERVERSE DECISION ARISE
A perverse decision of a Court will arise where the Court misconceived the issue presented before it. The Supreme Court in Udengwu v. Uzegbu (2003) 13 NWLR (pt. 836) 136 held that a perverse decision of a Court can arise in any of the following several ways that is where the Court:
(a) Ignored the facts or evidence; or
(b) Misconceived the thrust of the case presented; or
(c) Took irrelevant matters into account which substantially formed the basis of its decision; or
(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or
(e) Committed various errors that faulted the case beyond redemption.
In all these, the Court went further, that the hallmark is invariably, a miscarriage of justice. Where such occurs, the decision must be set aside on appeal. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. HON. OKECHUKWU IGWE Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ENGR. ALPHONSUS GERALD IRONA Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court sitting at Owerri presided over by Hon. Justice F. A. Olubanjo delivered on the 6th day of June, 2011 in suit No. FHC/OW/CS/72/2011, whereby the Plaintiff (now Appellant) on the 14th day of March, 2011 by way of an originating summons, posed the following seven (7) questions for determination by the Court, to wit:
1. Whether by virtue of the judgments in Suit No. FHC/ABT/CS/168/07 Hon. Chief Lawrence Agbasoga v. Independent National Electoral Commission & Hon. Gerald Irona Suit No. HOW/141/2007. Engr. A. Gerald Irona v. Barr. Ken Uzoechi & Ors; Petition No. EPT/NA/IM/01/2007, PASCHAL Ikenna Ejiogu v. Hon. Alphonsus G. Irona & Ors and Appeal Nos. CA/PH/EPT/400/2007 & CA/PH/EPT/464/2007, Paschal Ikenna Ejiogu v. Hon. Alphonsus Gerald Irona & Ors. The status of the Government white paper indicting Alphonsus Gerald Irona has been determined by the pronouncement of the Court of Appeal in Appeal No. CA/A/159/2007, Hon Gerald Irona vs. Hon. Lawrence Agbasoga vs. Ors.
2. Whether the Administrative Panel of Inquiry set up by the Imo State Government in 2006 to investigate the allegations of fraud against Engr. Alphonsus Gerald Irona as the suspended Chairman of Oguta Local Government Council was fact finding Panel and was not politically motivated.
3. Whether the indictment of Engr. Alphonsus Gerald Irona was accepted by the Imo State Government.
4. Whether the three year statutory tenure (2004 to 2007) of Engr., Alphonsus Gerald Irona as the Chairman of Oguta Local Government was terminated in 2005 by impeachment.
5. Whether the expiration of tenure was the reason why Engr. Alphonsus Gerald Irona left office as the Chairman of Oguta Local Government Council in 2006.
6. Whether the taking of Oath of Office by Hon. Ndukwe Ottih as the successor of Engr. Alphonsus Gerald Irona on 18th August, 2006 effectively marks the end of the tenure of Engr. Alphonsus Gerald Irona as Chairman of Oguta Local Government Area Council.
7. If any of the questions 4, 5 and 6 above are answered in favour of the Plaintiffs, whether Engr. Alphonsus Gerald Irona submitted false information to the Independent National Electoral Commission in part B Paragraph D(1) titled Working Experience with dates and Part B Paragraph E Titled General, Sub Paragraph 6 (b) of the Affidavit sworn in support of personal particulars of persons seeking election to the office/membership which is Form CF001 and ought to be disqualified from contesting the 2011 general election.
The Plaintiff (Appellant herein) now sought the following reliefs,
1. A declaration that by virtue of the judgment in Suit No. FHC/ABJ/CS/168/07; Hon. Chief Lawrence Agbasoga v. Independent National Electoral Commission & Hon. Gerald Irona; Suit No. HOW/141/2007, Engr. A. Gerald Irona v. Barr. Ken Uzoechi & Ors; Petition No. EPT/NA/IM/2007 Paschal Ikenna Ejiogu v. Hon. Alphonsus G, Irona & Appeal Nos. CA/PH/EPT/400/2007 & CA/PH/EPT/464/2007 Paschal Ikenna Ejiogu v. Hon. Alphonsus Gerald Irona & Ors; the Status of the Government White Paper indicting Alphonsus Gerald Irona has been determined by the pronouncement of the Court of Appeal in Appeal No. CA/A/159/07, Hon. Gerald Irona vs. Hon. Lawrence Agbasoga & Ors.
2. A declaration that the Administrative Panel of Inquiry set up by the Imo State Government in 2006 to investigate the allegations of fraud against Engr. Alphonsus Gerald Irona as the suspended Chairman of Oguta Local Government Council was a fact finding panel and was not politically motivated.
3. A declaration that the indictment of Engr. Alphonsus Gerald Irona was accepted by the Imo State Government.
4. A declaration that the three year statutory tenure (2004 – 2007) of Engr. Alphonsus Gerald Irona as the Chairman of Oguta Local Government was terminated in 2006 by impeachment.
5. A declaration that the expiration of tenure was not the reason why Engr. Alphonsus Gerald Irona left office as the Chairman of Oguta Local Government Council in 2006.
6. A declaration that the taking of Oath of office by Hon. Ndukwe Ottih as the Successor of Engr. Alphonsus Gerald Irona on the 18th August, 2006 effectively marks the end of the tenure of Engr. Alphonsus Gerald Irona as Chairman of Oguta Local Government Area Council.
7. A declaration that Engr. Alphonsus Gerald Irona submitted false information to the Independent National Electoral Commission in Part B Paragraph D (1) Titled Working Experience with dates and Part B Paragraph E Title General, sub paragraph 6(b) of the Affidavit sworn in support of personal particulars of persons seeking election to the office/membership which is Form CF 001 and ought to be disqualified from contesting the 2011 General Election.
8. An order pursuant to Section 31 (9) of the Electoral Act 2010 disqualifying, Engr. Alphonsus General Irona from contesting the 2011 General Election owing to the false information contained in Form C, F. 001 which is the Affidavit sworn in support of personal particulars of persons seeking Election for membership to the House of Representative of Ohaji/Egbema/Oguta/Oru West Federal Constituency filed at the High Court Registry Port-Harcourt on the 28th day of January by the said Engr. Alphonsus Gerald Irona and submitted to the Independent National Electoral Commission (INEC).
Consequent upon the objection by Counsel to the 2nd Respondent, regarding the propriety of commencing the contentious suit by way of originating summons, the Lower Court on the 31st of March, 2011 ordered that pleadings be exchanged by the parties. Parties compiled with this order of Court, save the 1st Respondent, who appeared only once and did not participate any further in the proceedings nor were any processes filed on its behalf.
Having joined issues, the matter went to trial and the 1st Appellant, who was the sole witness for the Plaintiffs, adopted his sworn depositions and tendered a total of nine Exhibits i.e. Exhibits A, B, C, D, E, F, G, H and I. (See page 568 – 575 of the Records).
The 2nd Respondent also testified for himself and tendered six Exhibits to wit, Exhibits J, K, L, M, N and O. (See pages 576 -627 of the Records).
In a considered judgment delivered on the 6th day of June, 2011, the Lower Court dismissed the Suit filed by the Appellant. At pages 354 – 355 of the Records the lower Court held inter alia.
“After considering the evidence and submissions of Counsel, I am unable to find that the 2nd Defendant presented false information to the 1st Defendant in Exhibit A within the circumstances of this case and this is even in the light of Exhibits B, C, K, L, M, N and O. I am furthermore of the view that even though this is a pre-election Suit, the issue of qualification has been overtaken by the event of the General Election of April, 2011 in which the 2nd Defendant was returned by the 1st Defendant as being duly elected into the seat of member representing Ohaji/Egbema/Oguta/Oru West Federal Constituency in the House of Representatives.
By virtue of Section 138 (1) (a) of the Electoral Act 2010 (as amended.) the proper venue or forum for the battle as to whether or not the 2nd Defendant is qualified to contest the election has now shifted from this Court to the Election Petition Tribunal. It is the said Tribunal which is now competent to adjudicate and declare the 2nd Defendant qualified or disqualified as the case may be. I no longer have the power to declare him disqualified … The Plaintiffs claim fails and this Suit is accordingly dismissed.”
It is against this decision that the Appellant appealed to this Honourable Court, vide a Notice of Appeal filed on the
5th day of August, 2011 upon the following eight (8) grounds of appeal, which are hereunder reproduced without their particulars.
GROUNDS OF APPEAL
1. The Learned trial Judge erred in law when he held that the issue of qualification has been overtaken by the General Election of April, 2011.
2. The Learned trial Judge erred in law when he held that the venue or forum for the contention as to whether or not the 2nd Defendant is qualified to contest the election has shifted to the Election Petition Tribunal.
3. The Learned trial Judge misdirected himself in his evaluation of fact when he held in page 18 of his judgment that “it would not be false for the 2nd Defendant to state in Paragraph E sub Paragraph 6(1) (11) that his indictment was politically motivated and was rejected by the state government” and on Rage 20 of the same judgment held that “I agree with my learned brother on the judgment in Exhibit E that the ghost of the indictment can only be permanently laid to rest by a decision of an Appellate Court.”
4. The Learned trial Judge erred in law when he proceeded to place reliance on and interpreted Exhibit L (Judgment in Suit No. HOW/141/2007 Engr. Alphonsus Gerald Irona v. Barr. Ken Uzoechi & Ors) in pages 17 to 18 of the judgment to the effect that the white paper never existed despite conceding and holding in pages 19 and 20 of the same judgment that he agreed that he had no powers to interpret the judgment of his learned brothers in Exhibits C, E, F, G, K and L or to sit on appeal over them.
The Learned trial Judge held:
“By virtue of the Supreme Court decision in INAKOJU (supra) that judgment in Exhibit K and L would be that the impeachment of 2nd Defendant is deemed to have never existed and the White Paper which took into account the indictment and suspension also never existed.”
The Learned trial Judge further held:
“I hasten to add that I must not be deemed to have acted as a Court of Appeal over any of the judgments of my learned brothers in Exhibits C, E, F, G, K and L or to have interpreted their judgment, I do not have powers to do so. See Race Auto Supply Co. Ltd. Akib (2006) NWLR (Pt. 327) 486 and NICON v. P.I.E. Company Ltd (1990) NWLR (Pt. 129) 697.”
5. The Learned trial Judge erred in law when he held that the decision of the Federal High Court in FHC/ABJ/CS/168/2007 was only to “disqualify the 2nd Defendant from contesting the 2007 General Election inter alia on the said indictment.”
6. The Learned trial Judge erred when he held that “I believe that other documents and particulars was submitted by the 2nd Defendant without the said document being tendered or evidence led by the 2nd Defendant to the existence of such document.
7. The Learned trial Judge erred in holding and concluding in favour of the 2nd Respondent in page 18 and 19 of the judgment in issue that “his (2nd Respondent) indictment was politically motivated and was rejected by the state government bearing in mind Exhibit “L” wherein the Court found that the panel of inquiry was biased and determined to punish and crucify him by not granting him fair hearing, and that the report of the panel of enquiry was not sent to the Imo State House of Assembly for adoption and ratification and therefore quashed the government White Paper (Exhibit “B”.
8. The Learned trial Judge misdirected himself in his evaluation of facts when he found in page 16 of his judgment that, “It is also apparent that the Government White Paper (Exhibit B) was presented to the Imo State House of Assembly on 8th May, 2007 (See Exhibit J) but was not accepted by the House of Assembly which rather remarked that there was a procedural error in the manner in which the document was forwarded to it.”
In line with the practice in this Court, parties filed and exchange briefs of argument, excluding the 1st Respondent i.e. the Independent National Electoral Commission (INEC).
The Appellant in his brief of argument settled by E. A. Nwa-Uwa Esq., and filed in this Court on the 10th of November, 2011 formulated five (5) issues from the eight grounds of appeal. These issues are:
1. Whether having regard to the evidence adduced at the trial of this suit, the particular circumstance of this case and the current state of the law, the trial Court ought not to have assumed jurisdiction and disqualified the 2nd Respondent from contesting the General Election of April, 2011 as a candidate.
2. Whether having regard to the totality of the evidence before the Lower Court the Court was right to hold that it would not be false for the 2nd Defendant/Respondent to state in Exhibit A that his indictment was rejected by the Imo State Government.
3. Whether having regard to the issues for determination reliefs sought and available evidence, the Lower Court rightly and competently held that the indictment and suspension of the 2nd Respondent never existed particularly in view of the pronouncement of the Court of Appeal in Exhibits F and G and the conflicting judgment against the 2nd Respondent in Exhibits C, D, E and H.
4. Whether the trial Court was right to have believed that the 2nd Respondent furnished other documents to the 1st Respondent which were never tendered in evidence.
5. Whether the trial Court was right when it reached the conclusion that the Government White Paper was rejected by the Imo State House of Assembly upon its presentation to the House of Assembly.
The 2nd Respondent in his brief filed in the registry of this Court on the 20th of January, 2012 but deemed properly filed on the 21st of February, 2012 and settled by Ken C. O. Njemanze, SAN identified three (3) issues for the determination of this appeal to wit:
1. Whether the Learned trial Judge was right when he held that the legal effect of the nullification of the impeachment of the 2nd Respondent and quashing of the Government White Paper on Report of the Administrative Panel of Enquiry on the allegation leveled against the 2nd Respondent would be that the impeachment and indictment are deemed never to have existed.
2. Whether the Learned trial Judge was right when he held that the 2nd Respondent did not present false information to the 1st Respondent.
3. Whether the Learned trial Judge was right when he held that the issue of qualification of the 2nd Respondent had been overtaken by the event of the General Election of April, 2011 in which the 2nd Respondent was returned by the 1st Respondent as elected into the seat of member representing Ohaji/Egbema/Oguta/Oru West Federal Constituency in the House of Representatives.
The 2nd Respondent also incorporated in his brief of argument a notice of preliminary objection to the competence of the Notice of Appeal and the Appellant’s brief of argument upon the grounds that the Notice of Appeal and the Appellants brief of argument are incompetent, having not being signed by the Appellants or their Counsel.
At the hearing of this appeal on the 22nd day of March, 2012, the Appellant’s Counsel adopted and relied on the Appellant’s brief as well as the Appellant’s Reply Brief to the 2nd Respondent’s Preliminary Objection filed on the 5th of March, 2012 and urged this Court to allow the appeal.
Counsel to the 2nd Respondent also adopted and relied on the 2nd Respondent’s brief of argument as well as the Preliminary Objection to the Notice of Appeal and the Appellant’s brief and urged this Court to dismiss the appeal.
Consequent upon the Notice of withdrawal of appeal filed on behalf of the 2nd Appellant on the 14th of December, 2011 as well as the fact that the 1st Respondent did not file any brief in this Court, this appeal shall be determined between the 1st Appellant and the 2nd Respondent.
The preliminary objection filed by the 2nd Respondent will be considered first since its outcome with determine whether or not the Court needs go further to consider the argument’s in support of the issues for determination in the appeal.
The 2nd Respondent gave notice of his intention to raise a preliminary objection to the competence of the Notice of Appeal and the Appellants Brief of Argument in this appeal, upon the grounds that both the Notice of Appeal and the Appellant’s Brief are incompetent having not been signed by the Appellants or their counsel.
He submitted that the law is settled that an unsigned document is a worthless piece of paper with no probative value. He relied on the authorities of: Omega Bank Plc. V. O.B.C. Ltd. (2005) 8 NWLR (pt. 928) 547, 581 C-D, A. G. Kwara State v. Alao (2000) 9 NWLR (Pt. 671) 88, 104; Adighije v. Nwogu (2010) 12 NWLR (PT 1209) 419 at 481, learned counsel submitted that it is fundamental for validity and efficacy that a document such as a Notice of Appeal and Brief of Argument must not only be signed but must be properly signed for it to be competent in the eyes of the law. The identity of the person signing the Notice of Appeal and the Brief of Argument must be disclosed for the jurisdiction of the Court to be properly activated.
He submitted that the purported signature at page 637 of the Record with the mark “ff” preceding the signature of the unidentified signatory is fatal to both the Notice of Appeal as well as the Brief of Argument and such failure is beyond mere technicality. He relied on the case of P.M.B Ltd. V. NDIC (2011) 12 NWLR (Pt.1261) 253 at 202. He relied also in Okafor v. Nweke (2007) 10 NWLR (PT 1043) 521 and urged this Honourable Court to find that both the Notice of Appeal and the Appellant’s Brief of Argument are incompetent and consequently strike out this appeal under Order 6 Rule 6 of the Court of Appeal Rules 2011.
In his reply to the preliminary objection, learned counsel to the Appellant submitted that the 2nd Respondent’s reliance on the authorities of Okafor V. Nweke Supra as well as P.M.B. v. NDIC Supra are misplaced and misleading, as the facts of this appeal are not on all fours with the above cited authorities. He distinguished this appeal with the case of Okafor V. Nweke supra where the law firm of JHC Okolo SAN & Co issued and signed certain processes in its business name on behalf of its client and the Apex Court held that since the firm of “JHC Okolo SAN & Co was not a legal practitioner, the Court processes were defective and incompetent.
His further submission is that the Court need not go beyond its record to see that the name E. A. Nwa-Uwa and O. J. Obumneme under the signatures in the Notice of Appeal and Appellants Brief of Argument are persons on the roll of legal practitioners empowered to practice law in Nigeria within the contemplation of Section 2 (1) and Section 24 of the Legal Practitioners Act CAP 207 LFN 1990 and consistent with the provisions of Section 222 (2) (J) of the Evidence Act 2012. He relied on the following authorities: Edet v. Chief of Air Staff (1994) 2 NWLR (PT 324) 41; Dalhatu v. Dikko (2005) ALL FWLR (PT 242) 483 at 495; Ezeonwu v. Onyechi (1996) 3 NWLR (PT 438) 499 at 528; Ogundele & Anor v. Agiri (2009) 18 NWLR (PT 1173) 219, Ogunsakin v. Agiri (2008) 6 NWLR (PT 1082) 1 @ 21 – 22 to submit that in the absence of proof to the contrary, the processes were signed by the registered legal practitioners whose names appear on the processes.
It is further contended that there are facts placed before this Honourable Court which disclose that the disputed signature on the Notice of Appeal and Appellant’s Briefs of Argument is the signature of one I. A. Nwamadu, Esq., the Plaintiffs Counsel on the originating summons shown at page 4 of the Records. He referred this Honourable Court to pages 16, 18, 36, 291 and 294 of the Records where the said signature appeared in different processes before the Lower Court as that of one I. A. Nwamadu who in pages 328, 334, 335, 356, 362, 363, 365, 373, 379 and 382 of the Record showed numerous appearances for the Plaintiff/Appellant.
He therefore urged this Honourable Court to discountenance the preliminary objection of the 2nd Respondent and hold that the decisions in Okafor v. Nweke Supra and P.M.B. V. NDIC Supra relied on by the 2nd Respondent are clearly distinguishable from the facts of this case and overrule the objection.
The contention here is not the issue of whether the documents were not signed at all but whether a document signed ‘for’ by an unidentified or undisclosed person is valid in law. Several factors may account for such situation. A fact that is trite is that an unsigned document is a worthless piece of paper and such a document cannot be admitted in evidence as it has no any probative value. This is so because a document which is not signed has no origin in terms of its makers. In other words, the identity of the person signing the document must be properly disclosed for the document to be competent in the eyes of the law. See Omega Bank Plc. V. OBS Ltd. (2005) 8 NWLR (PT 928) 547 @ 581; A. G. Kwara State v. Alao (2000) 9 NWLR (PT 671) 89 @ 104: Adighije v. Nwosu (2010) 12 NWLR (PT 1209) 419 @ 481: P.M.B. Ltd v. N.D.I.C. (2011) 12 NWLR (PT 1261) 253 @ 262 and Okafor v. Nweke (2007) 10 NWLR (PT 1043)531. The documents in contention are the Appellant’s Notice of Appeal and the Appellant’s brief of argument which clearly shows that the documents were signed by an undisclosed and unidentified person with no indication that same was signed by a lawyer or the Appellant personally.
In Edet v. Chief of Air Staff (1994) 2 NWLR (PT 324) 41, it was held that once a document is signed ‘for’ it became a document of that person. However, in that case, the person who signed the letter of compulsory retirement of the officer for Chief of Air Staff stated his name and designation. It is not therefore applicable to the facts circumstances of this case where the person who signed did not disclose his identity. The facts in the instant appeal are not the same also with the case of Okafor v. Nweke (2007) 10 NWLR (PT 1043) 521, where the law firm of JHC Okolo SAN & Co. issued and signed certain processes in its business name on behalf of its client, the Apex Court held that since the firm of JHC Okolo SAN & Co. was not a legal practitioner the Court processes were defective and incompetent. While in the case of P.M.B v. NDIC (2011) 12 NWLR (PT 1261) 253, the Court of Appeal annulled the Notice of Appeal signed on behalf of the Appellant’s Counsel by an unknown and unidentified person.
Learned Counsel for the Appellant argued that the position in the instant case is different in that in this case, there are sufficient materials before the Court to reveal the identity of the person who signed the processes on behalf of the counsel, to determine that he is a legal practitioner. He urged us relying on the authority of Eze C. Nwanosike V. Madam Angela E. Udopen (1993) 4 NWLR (PT. 290) 684 @ 693 to refer to the records of appeal at pages 4, the originating process, page 16, the Appellant’s statement of claim, the list of witnesses at page 18, the list of documents to be relied upon at page 36, reply to the 2nd Respondent’s statement of Defence at page 291 and list of documents i.e. at page 294 to submit that a comparison of the disputed signature and the admitted signature on the records before the Court will confirm the identity of the person that signed the signatures as one I. A. Nwamadu, Esq. He urged us to compare the signatures on the authority of Tomtech (Nig.) Ltd V. F. H. A. (2009) 18 NWLR (PT 1173) 358 @ 381. He also urged us to refer to pages 328, 334, 335, 356, 359, 362, 363, 365, 373, 379 and 382 of the records of appeal showing the numerous appearance of the said I. A. Nwamadu, Esq. for the Plaintiff/Appellant before the Court and urged the Court to hold that I. A. Nwamadu, Esq. who physically signed the processes is a legal practitioner enrolled to practice law in Nigeria.
The relevance of the disclosure of the identity of the person who signed a document filed in Court is to assist the Court to confirm that the person who signed the document is a legal practitioner or the Appellant. It is glaring that the mischief which the rule of disclosure of the identity of the person who signs a Court process on behalf of a legal practitioner intends to cure is to avoid a situation where a person who is not a legal practitioner signs Court processes which are to be filed in Court, See P.M.B. Ltd v. NDIC (Supra). This objective is satisfied in this case as borne out by the Record of Appeal before this Honourable Court.
However, I just wish to add that if the Counsel has done what he is supposed to do, there is no basis for the Court to go through the entire record to compare signature of the person who signed the Notice of Appeal and the Appellant’s brief of argument. The Court cannot be expected to go on a voyage of discovery to determine who signed the processes by comparing the process filed and the records. If the Counsel did his work right by making sure that he signs the document against his name, this would not have happened. Counsel should be up and doing. The work of a Counsel does not end with preparing documents only. He must ensure that it is properly signed. There is a duty on him to ensure that it is properly signed and there is a duty on him to see that any document is correctly signed. Signing ‘for’ is not acceptable where the identity of the person is not disclosed.
Be that as it may, I agree with the Learned Counsel for the Appellant that considering the facts and circumstances of this case, the application of the cases of Okafor v. Nweke (Supra) And P.M.B. Ltd. v. NPIC (Supra) will result in an undue extension of the rules of technicalities beyond any reasonable limit.
The duty of the Court at all times is to ensure it does substantial justice between the parties, and in that regard the rules of Court must be interpreted as to prevent undue adherence to technicalities. See Bello vs. A. G. Oyo State (1986) 12 SC 81 (1986) 5 NWLR (PT 45) 828; Ekanem v. Akpan (1991) 8 NWLR (PT 211) 916 and Fawehinmi v. Akilo (1989) 3 NWLR (PT 112) 643.
It is for the reasons therein above stated that I overrule the preliminary objection on the competence of the Appellant’s Notice of Appeal and the Appellant’s Brief of Argument.
In coming to this conclusion, I have taken into consideration the judicial authorities cited in the application and the issue of substantial justice which is balanced on the other side of the scale of justice with the need to do substantial justice between the parties.
Onnoghen JSC admonished legal practitioners when he observed as follows in Okafor v. Nweke (supra) that,
“the issue of substantial justice must be balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents particularly processes for filing in the Courts have not been receiving serious attention they deserved from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged.”
Now to the main appeal, I have considered the issues for determination formulated by the respective Counsel and I am of the firm view that the issues formulated by the Appellant will be apt in resolving the issues in controversy, in this appeal, I therefore adopt them in the determination of this appeal.
ISSUE NO 1:
Whether having regard to the evidence adduced at the trial of this suit, the particular circumstances of this case and the current state of the law, the trial Court ought not to have assumed jurisdiction and disqualified the 2nd Respondent from contesting the General Election of April, 2011 as a candidate.
In arguing the issue, Learned Counsel referred to Section 31 (5) and (6) of the Electoral Act 2010 as amended to submit that the Section confers a right on “any person” who has reasonable grounds to believe that any information given by a candidate is false to file a suit and submitted further that the use of the word “any person” by the Act should be given its literal meaning. Reliance was placed on the following case: UTB Nig. Ltd. V. Ajabule (2006) 2 NWLR (PT. 965) 447 @ 486; Toriola v. Williams (1982) 750, 27 and Bronik Motors V. Wema Bank (1983) SC 296.
He submitted that the Appellants in the exercise of this right invoked the jurisdiction of the Federal High Court to look into personal particulars and historical data of the 2nd Respondent to determine whether his affidavit in INEC Form CF001 (Exhibit A) submitted to the 1st Respondent contains any false information.
Learned Counsel submitted that by Section 31 (5) of the Electoral Act, 2010 as amended, the Appellants have the Locus Standi to bring the action and they have reasonable cause of action predicated on reasonable grounds of belief that the 2nd Respondent supplied false information on Oath. He therefore submitted that the forum for the trial of pre-election matters was statutorily circumscribed to the regular Courts and it is erroneous for the trial Court to hold that the issue of qualification of candidates pursuant to section 31(5) of the Electoral Act has been overtaken by the event of the General Election of April 2011. He relied on the cases of Amaechi V. INEC (2008) 2 NWLR (pt. 1080) 227; Odedo v. INEC (2008) 17 NWLR (pt. 1117) 554: Agbakoba v. INEC (2008) 18 NWLR (pt. 1119) 489, to further submit that a pre-election dispute does not become a post-election dispute by the holding of election. He submitted that the National Assembly introduced this novel section to deter person (s) of questionable antecedents such as the 2nd Respondent herein from contesting election into public office by lying about their antecedents.
Learned Counsel submitted further that Section 138(1) of the Electoral Act deals with determination of Election Petitions arising from elections and is different from Section 31(6) of the Electoral Act which empowers Court to disqualify any candidate found to have lied on Oath on any material particular in the affidavit in support of Personal Particulars Form CF 001 submitted to INEC.
He therefore submitted that the trial Courts decision that the issue of qualification or forum for its determination has been over taken by the event of the General Election of April 2011 and shifted to the Election Petition Tribunal is a misconception of the law and therefore untenable and relying on the case of Ejiogu V. Irona (2009) 4 NWLR (pt. 1132) 513 at 561 urged the Court to declare that the 2nd Respondent did not participate in or contested the April 2011 Election as he was not legally and lawfully qualified to have contested the said election and to declare the 2nd Respondent disqualified.
In response, Learned Senior Counsel for the 2nd Respondent Ken C.O. Njemanze, SAN, submitted that the learned trial Judge in his Judgment held that by virtue of Exhibits ‘K’ and ‘L’, the purported impeachment and indictment of the 2nd Respondent had been nullified and or quashed and therefore he is deemed ab initio not to have been impeached or indicted and further held that the 2nd Respondent did not give false information in Exhibit A. He submitted that the learned trial Judge assumed jurisdiction, heard and determined all the issues placed before the court on the merit in relation to the alleged false information under Section 31(5) and (6) of the Electoral Act 2010 as amended and in view of the fact that Election had held and the 2nd Respondent returned elected as member representing the Federal Constituency in the House of Representatives, the Court held that the issue of qualification, non qualification or disqualification of the 2nd Respondent has now moved to the Election Petition Tribunal which is exclusively within its Jurisdiction as the Federal High Court lacked the Jurisdiction to entertain the matter. Reliance was placed on the following cases;
Olofu v. Itodo (2010) 18 NWLR (PT. 1225) 545 @ 577 – 578; Udeagha v. Omegara (2010) 11 NWLR (PT. 1204) 168 @ 203 – 204; Peters v. David (1999) 5 NWLR (PT. 603) 486 @ 497, Bayo v. Njidda (2004) 8 NWLR (PT. 876) 544 @ 596 and Imam v. Sheritt (2005) 4 NWLR (pt. 914) 80 @ 168 – 169.
It is submitted that, the learned trial Judge having decided the pre-election matter, was right when he held that the battle as to whether or not the 2nd Respondent is qualified to contest the election has shifted to the Electoral Tribunal.
In his reply to this submission, learned Counsel for the Appellants submitted that the action of the Appellants was brought under Section 31(5) and (6) of the Electoral Act 2010 as amended as a pre-election mater before the election and that the Suit was pending and undetermined before the lower Court when the election took place and it is submitted that the election was caught up by the doctrine of lis pendis the legal maxim being ‘Pendent lite nihil innovetur’ meaning, during litigation nothing new should be introduced and the 2nd Respondent cannot contend otherwise. He relied on Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 at 266.
The Electoral Act 2010 as amended in Section 31 (5) and (6) provides that:-
31(5) “Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
(6) “If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election”.
A combined reading of these sub paragraphs of the Act confers a right on any person who has reasonable grounds to believe that any information given by a candidate is false to approach the Court for declaration that the information given by a candidate in affidavit accompanying the list of candidates is false and if the Court determines that the information given is false, shall issue an order disqualifying the candidate from contesting the election.
The Appellant herein in the exercise of this right invoked the Jurisdiction of the Federal High Court to look into the personal particulars and historical data of the 2nd Respondent to determine whether his affidavit in INEC Form CF 001 (Exhibit A) submitted to the 1st Respondent herein contains any false information and sought various reliefs thereof and an order disqualifying the 2nd Respondent for allegedly giving false information in Exhibit A.
The National Assembly introduced this novel section to deter person(s) of questionable antecedents from contesting election into public office by lying about their antecedents and also empower any citizen who has reasonable grounds of belief of the falsity of the contents of the affidavit to procure and file a suit in the High Court or the Federal High Court for a declaration that the information contained in the affidavit is false. This is a pre-election dispute which encompasses the stage of conducting party primaries to holding of actual election which lies within the Jurisdiction of the trial Court. While this case was pending before the trial Court, election was conducted and the 2nd Respondent was elected into the seat of member of the House of Representatives. The Learned Trial Judge in his Judgment held that by virtue of Exhibits ‘K’ and ‘L’, the purported impeachment and indictment of the 2nd Respondent has been nullified and or quashed and therefore the 2nd Respondent is deemed abinitio not to have been impeached or indicted. The Court went further to hold that even-though this is a pre-election suit, the Issue of qualification has been overtaken by the event of the General Election of April 2011 in which the 2nd Respondent was returned by the 1st Respondent as being duly elected into the seat of member representing Ohaji/Egbema/Oguta/Oru west Federal Constituency in the House of Representatives.
In the circumstances of this case, would this finding by the trial Court be a misconception of the law? I think not. The Learned Trial Judge assumed jurisdiction over the Appellant’s Suit, heard and determined all the issues placed before it and made clear and un-impeachable findings of facts and decisions on all the Issues including the Issues of the alleged indictment and impeachment and dismissed the Appellant’s Claim. That to my mind laid the matter to rest. The pronouncement by the trial Court that the issue of qualification has now shifted to the Election tribunal could only be an obiter dictum.
It is settled that the Federal High Court is a creation of statute and its powers and or jurisdiction are clearly defined by the 1999 Constitution as amended, the Electoral Act 2010 as amended and other statutes. By Constitutional arrangement, Election matters are the exclusive concern of Election tribunals by virtue of Section 285 (1) of the 1999 Constitutions as amended and not the regular Courts and proceedings under section 31(5) and (6) of the Electoral Act 2010 as amended are pre-election disputes subject to the exclusive jurisdiction of both the High Courts of a State and the Federal High Court.
The pronouncement by the learned trial Judge that the issue of qualification has been overtaken by the event of the General Election of April 2011 in which the 2nd Respondent was returned by the 1st Respondent as duly elected, the proper venue or forum for the battle as to the qualification for the 2nd Respondent has now shifted to the Election Tribunal does make the Judgment of the trial Court inconclusive nor has such occasioned any miscarriage of justice. The trial Court has decided the issues before him when he held that the information given by the 2nd Respondent in Exhibit A is not false. The learned trial Judge has decided the Issues before him to its logical conclusion. The 2nd Respondent having not been found culpable of lying on oath, by the trial Court, his election to the seat of member Federal House of Representatives cannot be impeached by the doctrine of lis pendis. This issue is resolved against the Appellant.
ISSUE No. 2
Whether having regard to the totality of the evidence before the lower Court, the Court was right to hold that it would not be false for the (2nd Defendant/Respondent) to state in Exhibit A that his indictment was rejected by the Imo State Government.
In arguing this Issue, Learned Counsel for the Appellant referred to the Judgment of the Lower Court at pages 352 – 353 of the records to submit that the case of the Plaintiff/Appellant which the trial Court was called upon to determine are:-
(i) Whether the 2nd Respondent correctly and truthfully answered the question put to him on/oath in INEC Form CF 001.
(ii) Whether the indictment of the 2nd Respondent was rejected by the Imo State Government.
(iii) The effect of failure and/or refusal of the 2nd Respondent to supply the evidence of the outcome of Government acceptance or rejection (of the indictment) and
(iv) The consequences of concealing such vital information from INEC (by the 1st Respondent (sic) herein).
Learned Counsel submitted that the information required in INEC Form CF 001 was to be given on oath and the consequences of lying on oath is treated with punitive sanctions and in this case disqualification. Section 31 (5) and (6) of the Electoral Act 2010 as amended was referred to.
Learned Counsel also submitted that the 2nd Respondent had under cross examination admitted being indicted and also admitted that the panel of inquiry report that indicted him was accepted by the Government of Imo State in Exhibit B. It is submitted, having admitted his indictment, the 2nd Respondent is precluded from refusing to disclose the fact of Government acceptance in Exhibit B, the white paper on the grounds of quashing of Exhibit B.
It is also his view that the phrase “politically motivated” and was rejected by the State Government repeatedly used by the trial Court is neither an answer to the question put to the 2nd Respondent in INEC Form CF001 paragraph ‘E’ sub paragraph 6 (a) and (b) (Exhibit A) nor is it answer supplied by the 2nd Respondent. That the setting aside or otherwise of the white paper does not mean that it was rejected by the state Government i.e. Imo State House of Assembly.
Learned Counsel referred to Part B of Exhibit A to submit, that the falsehood in “was rejected by the State Government (Imo State House of Assembly” is amplified by the facts of earlier admission of being indicted by the 2nd Respondent. Learned Counsel contended that the 2nd Respondent provided false information in INEC form CF001 that he submitted to INEC for the purpose of contesting the April, 2011 General Election and that in proof of this point, the Appellants tendered Exhibit A INEC Form CF001 and Exhibit B, Government White Paper accepting the findings and recommendations of the Administrative panel that indicted the 2nd Respondent.
It is submitted that the 2nd Respondent conceded that he was impeached and indicted but tendered Exhibits K and L which nullified his impeachment and quashed the White Paper. The view of the Learned Counsel is that the 2nd Respondent refused to admit or state the consequences of the White Paper before the purported quashing which was the outcome required by Form CF001.
Learned Counsel also referred to page 13 paragraph 3, 4, 3 sub paragraph 6 and paragraph 3, 4, 3, 1 sub paragraph (i) of the White Paper (Exhibit B) to submit that contrary to the disposition of the 2nd Respondent in his INEC Form CF001 (Exhibit A) he provided false information when he stated that his indictment was rejected by the Imo State Government. It is the view of Learned Counsel that it is within the purview of the Imo State Government to publish the White paper, in this case accepting the reports of the administrative panel of inquiry indicting the 2nd Respondent. On what a White Paper is, he referred to the case of Diamond Bank Ltd. v. Ogochukwu (2008) 1 NWLR (PT 1067) 1 @ 12.
Learned Counsel further submitted that Exhibit “K” the judgment that quashed the White Paper is a clear admission that the findings and recommendations of the Administrative panel of inquiry was accepted by the Imo State Government. He placed reliance on the case of Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182 @ 190.
He further submitted that as long as there is a White Paper, it is an acknowledgment of the acceptance of Government of the report that gave rise to the cause of action and hence Suit No. HOW/141/2007. That it is also the same report that formed the basis of Suit No. PHC/ABJ/168/2007 to disqualify the 2nd Respondent in 2007 General Election. He further submitted that the Election Petition Tribunal in Petition No. EPT/NA/IM/01/2007, Pascal Ikenna v. Hon. Alphonsus Gerald Irona & Ors also followed the decision of the Federal High Court Abuja to disqualify Engr. Alphonsus General Irona, the 2nd Respondent herein for the 2007 General Election.
Learned Counsel thus submitted that the required evidence of the outcome of Government acceptance or rejection (White Paper) that ought to have been given in INEC Form CF001 was craftily and fraudulently concealed by the 2nd Respondent. It is also the submission of Learned Counsel that votes and proceedings of Imo State House of Assembly, Exhibit 1 at pages 576-580 of the records relied on by the 2nd Respondent to contend that the indictment was rejected makes no reference to rejection rather it took Legislative Notice of the White Paper, and that there is nothing in the votes and proceedings of the Imo State House of Assembly (Exhibit 1) that shows rejection of any part of the White Paper.
Learned Counsel further submitted that the suspension of the 2nd Respondent from office which was the reason for leaving office was neither set aside addressed nor revealed in INEC Form CF001 paragraph D(1) and that this amount to concealment of material facts, falsehood and lying on oath having done so on oath.
Learned Counsel referred to Black’s Law Dictionary 6th Edition which defines concealment as follows:
“a withholding of something which one knows and which one, is duty bound to reveal.”
He also cited Okocha v. CSC Edo State (2004) 3 NWLR (pt. 861) 494 @ 496 where “cover up” was defined and submitted that the 2nd Respondent having admitted in his pleadings and during cross examination that he was indicted and that Exhibit B is an acceptance of the indictment by the Imo State Government, the trial judge should have evaluated his evidence with the answer furnished by the 2nd Respondent in paragraph E sub-paragraph 6(a) and (b) and held that the answers are evasive and that the word ‘rejected’ as used in the said form is a lie. Learned Counsel concluded on this issue that since the 2nd Respondent deliberately concealed the information required in Form CF 001 by failing to disclose information, personal particulars and furnish documentary evidence as required by the mandatory statutory Section 14 (2) (b) of the 1999 Constitution but rather chose to lie on oath by submitting false information, he ought to be disqualified from contesting the 2011 General Election pursuant to Section 31(6) of the Electoral Act 2010 as amended.
In his response to this issue as formulated in his issue No. 2 for determination, Learned Senior Counsel for the Respondent submitted that the burden of proof is upon the party who substantially asserts the affirmative of an issue and who would fail if no evidence were adduced, citing Imana v. Robinson (1979) 3 – 4 SC 1 @ 9 and Sections 131- 132 and 133 of the Evidence Act. He submitted that it is incumbent on the Appellant to prove the alleged falsity of the information in Exhibit ‘A’ by relevant and necessary evidence citing also George v. Uba (1972) 8 – 9 SC 264 @ 280 and Woluchem v. Gudi (1981) 5 SC 291 and Appellant is bound to prove the falsity of the information beyond reasonable doubt, falsification of document being a criminal offence. He also referred to Nwankere v. Adewunmi (1966) 1 ALL NLR 125 @ 131 – 132.
It is his view that the Appellants having asserted that the information stated in Exhibit A are false, namely, that the indictment of the 2nd Respondent was politically motivated, that the indictment was quashed by the Owerri High Court, and that the indictment was not accepted by the Imo State House of Assembly and also that the 2nd Respondent left office in 2007, it is the duty of the Appellants to establish otherwise.
Learned Senior Counsel referred particularly to judgments of Owerri High Court admitted as Exhibits ‘K’ and ‘L’ and the finding of the learned trial Judge thereon to submit that the Appellants did not establish the falsity Exhibit A. Learned Counsel also submitted that by Exhibits ‘K’ and ‘L’ the purported impeachment and indictment of the 2nd Respondent were nullified and or quashed by the Imo State High Court. He also submitted that as a result of the nullification of the purported impeachment and indictment of the 2nd Respondent, his tenure of office was deemed not to have been affected by the various purported impeachment and indictment. It is his view that there is abundance evidence that the Imo State House of Assembly did not adopt or ratify the White Paper as required by law which is a condition precedent to its validity.
Learned Counsel further argued that in determining whether or not 2nd Respondent lied to the 1st Respondent, the actual proof of falsehood would have to be proffered firstly in criminal trial for perjury to properly find that the 2nd Respondent perjured himself. It is his view that only Exhibit A (the INEC data form) has been proffered in these proceedings in which the 2nd Respondent allegedly lied under oath and that Exhibit ‘I’ the campaign booklet/manifesto produced by the Appellants is not a statement under oath and that it is not even a signed document which makes it worthless in the eyes of the law. Reliance was placed on the following; Edico (Nig) Ltd v. UBA Plc (2000) FWLR (PT 21) 792: and A.C.B. Plc v. Haston (Nig) Ltd. (1997) 8 NWLR (PT 515) 110 @ 125 – 126 and also that the said document has not been front loaded pursuant to order 20 Rule 3 of the Federal High Court (Civil procedure) Rules 2009.
It is the view of the Learned Senior Counsel that the legal effect of the nullification of the impeachment of the 2nd Respondent and the quashing of the indictment in the white paper by Imo State High Court Exhibits ‘K’ and ‘L’ clears the 2nd Respondent of all blemishes as though the impeachment and indictment in the White Paper never happened or existed. That the 2nd Respondent was retroactively paid his arrears of salaries and entitlements for the duration which the impeachment and indictment subsisted by the Government, Exhibits ‘M’ and ‘N’ which fact was also admitted by the 1st Appellant under cross examination that the 2nd Respondent was paid his severance allowance.
Learned Counsel therefore submitted that it is not incorrect for a person who was impeached but later nullified the impeachment in a Court of Law to state that he served the full duration of his tenure in office and this Court was urged to so hold and to resolve this issue against the Appellant.
In his reply, Learned Counsel for the Appellants submitted that the Appellants have in proof of false information tendered the Government White paper (Exhibit B) to show that the Government accepted the indictment of 2nd Respondent as a White Paper is the official gazette through which the Government makes a public statement of Government policy, citing Diamond Bank Plc. V. Ogochukwu (2008) 1 NWLR (pt. 1067) 1 @ 12 and it is the White Paper that give rise to a cause of action citing Cookey v. Fombo (2005) 15 NWLR (PT 947) 182 @ 190.
Learned Counsel also submitted that where there is proof of a commission of crime beyond reasonable doubt in a civil case, the burden of proving reasonable doubt is shifted on the Defendant, citing Section 135 (3) of the Evidence Act 2011 and thus submitted that on the face of Exhibit J (votes and proceedings of the Imo State House Assembly of Tuesday 8th May, 2007), there is nothing to show that the House Assembly rejected the indictment and in view of the overwhelming of evidence against the 2nd Respondent he has failed to discharge the burden of proof imposed on him by law to prove reasonable doubt, citing Section 133 (1) of the Evidence Act. It is also submitted that a criminal trial need not be initiated before a proof of falsehood can be sustained by the Court. That it is only a belief on a reasonable ground of the falsity of any information given by a candidate in the affidavit or any document submitted that is enough to warrant the institution of a suit at the High Court seeking an order to disqualify such a candidate. Section 31 (5) and (6) of the Electoral Act.
On the issue of admissibility of Exhibit ‘I’, Learned Counsel referred to Section 83 (1) of the Evidence Act and submitted that what determines admissibility of a document is the Evidence Act and not the Rules of Court and that the criteria which govern admissibility of a document are whether the document is pleaded, relevant to the enquiry being tried by the Court and whether it is admissible in law or in the form required by law. Reliance was placed on the following: Okenji v. Njokanma (1999) 14 NWLR (pt. 638) 250 @ 254; Duniya v. Jimoh (1994) 3 NWLR (pt 334) 609 and Oyediran v. Alebiosu II (1992) 6 NWLR (pt. 249) 550.
I have considered the submissions of Learned Counsel under this issue and it appears to me that the gravemen of the Appellants complaint is that the 2nd Respondent gave false information to the 1st Respondent in the affidavits sworn in support of personal particulars seeking election to office or membership Form CF001.
INEC Form CF001 was designed pursuant to Section 31 (2) of the Electoral Act 2010 as amended and it is intended to capture the historical personal data of candidates seeking elective position. The Electoral Act in section 31 (5) amplifies the power of the electorate or any person to approach the Court and obtain an order disqualifying any candidate whom he believes presented a false statement to INEC. Therefore the duty of screening as well as ensuring that dishonest candidate does not wrangle their way into the corridors of powers, have now gone beyond INEC and has been statutorily extended to the Electorate through the Courts.
The falsehood provided by the 2nd Respondent on his INEC data Form CF001 according to the Appellant is as contained in the question and his answer on part B paragraph E6 (a) and (b) of INEC Form CF.001 (Exhibit A) thus:-
Question:
6(a): Have you ever been indicted for embezzlement or fraud by a Judicial Commission of inquiry or an Administration Panel of Inquiry? If yes give details,
Answer:
Yes. Politically motivated but quashed by High Court Owerri…”
Question:
Was the indictment accepted by the Federal or State Government as the case may be? (provide evidence of outcome)
Answer:
Was rejected by State Government (Imo State House of Assembly) and consequently quashed by Owerri High Court.
The falsehood according to the Appellant is “was rejected by the State Government (Imo State House of Assembly)” According to the Counsel, if 2nd Respondent admitted acceptance of indictment but added that it was quashed, then there would not have been a cause of action thereof. I think I do not agree with the Appellant’s Counsel on this contention. I would come to that later.
The Appellants also contended that the 2nd Respondent admitted under cross examination before the trial Court that the Imo State Government considered and “accepted” the findings and recommendations of the Administrative panel of inquiry and directed the immediate implementation of same vide its White Paper No. GPO – 272/07/07/300 tendered as Exhibit “B” page 13 paragraph 3.4.3 sub-paragraphs 6 and paragraph 3.4.3. Sub-paragraph (1) of Exhibit B States thus:
“3.4.3 General Recommendation to move Oguta Local Government forward.
6. The Panel confirmed the allegation leveled against the suspended Chairman of Oguta Local Government, Engr. Gerald Irona and recommended his immediate removal from office in accordance with Section 36 of the Imo State Local Government Administration Law No. 15 of 2000.
3.4.3.1 Comment
(c) Government accepts recommendations 1, 4, 5 and 6 above and directs the immediate application of due process for recommendation (6).” See page 105 of the records.
Appellants contended that the 2nd Respondent in INEC Form CF001 provided false information when he stated that his indictment was rejected by the Imo State Government.
It is clear from the records and evidence adduced at the trial that the 2nd Respondent admitted his impeachment and indictment. His contention is that he nullified the impeachment and quashed the White paper that accepted his indictment and in proof thereof he tendered Exhibit ‘K’ the judgment of Owerri High Court nullifying the impeachment and Exhibit L that quashed the White Paper. Again the Appellant contended that the 2nd Respondent refused to admit or state the consequences of the White Paper in Form CF001.
Now coming to the issue of the White Paper which the 2nd Respondent stated in evidence that it was rejected. Would the use of the word “rejected” by the 2nd Respondent in reference to the White Paper amount to given false information or lying on oath as contended by the Appellant? It is clear from the records of appeal that the White Paper “Exhibit B” was neither adopted nor rejected by the Imo State House of Assembly. Since it was not so adopted by the house, would the employment of the word “rejected” be totally misplaced.
Moreover, the 2nd Respondent successfully quashed the white paper indicting him vide Suit No. HOW/141/2007 Between Engr. Alphonsus General Irona v. Barr. Ken Uzoechi & Ors which culminated in Exhibit K. Appellant argued that this is a clear admission that the findings and recommendations of the Administrative Panel of inquiry were accepted by the Imo State House of Assembly. In this respect, I am of the considered view that whether the White Paper was adopted or rejected, one undeniable fact about the White Paper is that it was quashed vide Exhibit “K” the judgment of High Court Owerri. The 2nd Respondent did not deny the existence of the White Paper before it was quashed. Therefore this gives the 2nd Respondent a right of action or a cause of action to go to Court to have the White Paper quashed which was just what he did. In the circumstances therefore, it is also my considered view that the employment of the word “rejected” to describe the White Paper that was quashed does not amount to or constitute false information or lying on oath.
The judgment of the Federal High Court Abuja in Suit No. FHC/ABJ/CS/168/2007, Hon. Lawrence Agbasoga v. INEC & Hon. Gerald Irona, that disqualify Engr. Alphonsus Gerald Irona in the 2007 elections based on his indictment in the White Paper Exhibit ‘B’, and the election petition No. EPT/NA/IM/01/2007 that followed the decision of the Federal High Court in Suit No. FHC/ABJ/CS/168/2007 to disqualify Engr. Alphonsus Gerald Irona for the 2007 General Election were heard and determined before Exhibit K which quashed the White Paper. It is clear that Exhibit K came later in time after the Federal High Court No. FCH/ABJ/CS/168/2007 and EPT/NA/IM/01/2007. There is therefore no conflict of judgments as contended to by the Appellant.
Another question that rear its head is whether in the circumstances, the use of the word “rejected” in reference to the White Paper by the 2nd Respondent amount to given false information on oath that would warrant the disqualification of the 2nd Respondent from contesting the April, 2011 General Election under Section 31 (6) of the Electoral Act 2010 as amended. I think there must be more to it before us for this to qualify as false information on oath or to say that he lied under oath.
What details is the 2nd Respondent expected to state than what he has correctly stated in INEC Form CF 001? I believe Part B of Form CF001 does not require a narration of the whole incident that leads to the indictment, by the Administrative Panel of inquiry and the Government White Paper thereof. Failure to state all these detailed facts will not amount to concealment of material facts, falsehood or lying on oath. What is important in the circumstances is the outcome which he has clearly stated. I do not therefore agree with the Appellant that the 2nd Respondent must provide details of his suspension as Local Government Chairman, his impeachment and the Government White Paper thereon.
It is sufficient to say here too that Exhibits ‘K’ and ‘L’ cleared the 2nd Respondent from all blemishes and it is in evidence that the Imo State Government recognized and accepted Exhibits ‘K’ and ‘L’ and the 2nd Respondent was paid his arrears of salaries and entitlement for the duration when the impeachment and indictment subsisted. See Exhibits ‘M’ and ‘N’. The Appellant admitted these facts. This could not be true if the 2nd Respondent lied in Form CF001 because if the White Paper was accepted, the 2nd Respondent would have been dismissed from his office and a different story would be told by now.
The Learned trial Judge has this to say on the effect of Exhibits ‘K’ and ‘L’ judgments of High Court Owerri, at page 352 of the records thus:-
By virtue of the Supreme Court decision in Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423, the effect of the judgments in Exhibits ‘K’ and ‘L’ would be that the impeachment of the 2nd Defendant is deemed never to have existed and the White Paper which took into account the indictment and suspension also never existed. Therefore, even if the Imo State Government Stated in the White Paper (Exhibit B) that it accepted the indictment, since the White Paper has been quashed, all actions taken by the Imo State Government including the acceptance would be deemed never to have existed by virtue of Exhibits ‘K’ and ‘L’.”
I am of the firm view that this judgment cannot be impeached.
In as much as Section 31 (5) and (6) of the Electoral Act 2010 as amended confers a right on any person who has reasonable grounds to believe that any information given by a candidate is false to file a Suit and for the Court to disqualify the candidate if the information provided is false, in the instant case, it would not be false to state in paragraph E sub-paragraph 6 (i) and (ii) that his indictment was politically motivated and was rejected by the State Government in view of Exhibits ‘K’ and ‘L’. This issue is therefore resolved against the Appellant.
Issue no.3
“Whether having regard to the issues for determination, reliefs sought and available evidence the Lower Court rightly and competently held that the indictment and suspension of the 2nd Respondent never existed particularly in view of the pronouncement of the Court of Appeal in Exhibit ‘F’ and ‘G’ and the conflicting judgment against the 2nd Respondent in Exhibits C, D, E and H.”
In arguing this issue, Learned Counsel for the Appellants submitted that reliance on Exhibit ‘L’ as justification for the 2nd Respondents’ denial of the Imo State Government acceptance of his indictment by trial Court is unfortunate and so also the reliance by the learned trial Judge on the case of Inakoju v. Adeleke (2007) 4 NWLR (PT 1025) 423. He posed the question as to what the 2nd Respondent went to Court to do with Imo State Government being one of the Defendants in Suit No. HOW/141/2007, Engr. Alphonsus Gerald Irona v. Barr. Ken Uzoechi & Ors if the impeachment of the 2nd Respondent is to be deemed never to have “existed” and the White Paper which took into account the indictment and suspension also ‘never existed’. Learned Counsel submitted that the suspension of the 2nd Respondent was a fact that predated the Government White Paper and lasted to the end of the 2nd Respondent’s tenure and was not set aside by Exhibits ‘K’ and ‘L’ but concealed by the 2nd Respondent which amounts to falsehood. His view is that the Court cannot pick and choose from the conflicting decisions of the Courts, Exhibits ‘K’ and ‘L’, to hold that the impeachment of the 2nd Respondent is deemed never to have existed and the White Paper which took into account the indictment and suspension also never existed. His view is that the trial Court does not have the jurisdiction to review or sit on appeal over the judgment of his learned brothers in the Federal High Court, National Assembly Election Tribunal and the State High Court. It is also his view that even though the trial Court realized this fact, it picked and chose to apply Exhibits ‘K’ and ‘L’ at the expense of other judgments and thus reached a decision per incuriam in the face of the Court of Appeal, Port-Harcourt Division decision in Exhibit ‘F’ which affirms Exhibit ‘E’ (Judgment of Election Petition Tribunal) that examined Exhibit ‘L’.
Learned Counsel submitted also that the case of the Appellant is that the 2nd Respondent refused to disclose and hence lied about the fact of the acceptance of his indictment by the Imo State Government, despite the requirement of details of the outcome of the indictment on INEC Form CF001. It is his further view that the case of Inakoju v. Adeleke (Supra) is not applicable to the circumstances of this case in that, this case deals with deliberate refusal of the 2nd Respondent to truthfully supply factual historical data of himself pursuant to Section 31 (5) of the Electoral Act 2010, failure of which has sanctions as provided in Section 31 (6) of the Act.
Learned Counsel further submitted that where there is a conflict in the decision of two inferior Courts, a pronouncement affirming one of the judgments by a Superior Court gives Superiority to the one affirmed by a Superior Court over the other. Reliance was placed on the following cases: Bob-Manuel V. Woji (2010) 8 NWLR (pt. 1201) 1 @ 16. He thus submitted that an order striking out Appeal No. CA/A/159/2007 amounts to such a pronouncement to resolve this issue. It is further submitted that the 2nd Respondent was not qualified for election to the House of Representatives and the Court was urged to so hold.
In his response, Learned Senior Counsel for the 2nd Respondent submitted that it is a fact that the 2nd Respondent was suspended and impeached as Chairman Oguta Local Government on allegations of fraud and was indicted in the Government White Paper. However, he submitted that the impeachment and indictment were nullified by the High Court of Imo State in judgments in two separate Suits he instituted, Exhibits ‘K’ and ‘L’. He also submitted that he did not present false information to the 1st Respondent as alleged and that the Imo State House of Assembly did not ratify the decisions contained in the said White Paper as required by law.
It is also his view that trial a conviction by a Court of law is the only constitutionally permitted way to prove guilt and the only ground for imposition of criminal punishment of embezzlement or fraud and not an Administrative Panel. He cited Action Congress v. INEC (2007) 12 NWLR (pt. 1048) 222. That section 66 (1) (h) of the 1999 Constitution is no longer extant having been deleted by the amendment to the 1999 Constitution in 2010, and that Exhibits ‘K’ and ‘L’ (Judgments of Imo State High Court in Suit No. HOW/427/2006 and HOW/141/2007 knocked the bottom off the case of the Appellants. He relied on the following cases; INEC v. Nyako (2011) 12 NWLR (PT. 1262) 439 @ 513 – 514; Labour Party v. INEC (2009) 6 NWLR (pt. 1137) 315.
In his reply, Learned Counsel for the Appellant submitted that they are not concerned with the proof of guilt and imposition of punishment as argued by the 2nd Respondent but are interested in the enforceability of Section 31 (5) and (6), of the Electoral Act 2010 as amended. He submitted that the Court of Appeal, Port-Harcourt, judgment Exhibit F took judicial notice of the White Paper in affirming the judgment relied on the White Paper in disqualifying the 2nd Respondent for the 2007 General Election. It is also submitted the judgment of the Court of Appeal Exhibit G took judicial notice of the White Paper in affirming the judgment of the Federal High Court, Abuja Exhibit H which relied on the White paper in disqualifying the 2nd Respondent. It is therefore his view that the argument that the White Paper never existed is a direct attack on Exhibits E, F, G and H.
The gravamen of the Appellant’s complaint under this issue concerns the findings of the learned trial judge wherein he held that the indictment and suspension of the 2nd Respondent never existed particularly in view of the pronouncement of the Court of Appeal in Exhibits C, D, E and H.
From the available evidence on record, it is clear that the root of the assertion that the 2nd Respondent was purportedly indicted for alleged fraud are Exhibits ‘B’ and ‘C’, the Imo State Government White Paper and the Federal High Court judgment in Suit No. FHC/ABJ/CS/168/2007.
In Exhibit ‘B’ the Imo State Government accepted the findings and recommendations of the Panel of Inquiry that the 2nd Respondent was guilty of the alleged fraud and the decision in Exhibit ‘C’ was based on Exhibit ‘B’ that disqualified the 2nd Respondent to contest the election in 2007.
In Suit No. HOW/427/2006 (Exhibit ‘K’) 2nd Respondent challenged his purported impeachment as the Chairman Oguta Local Government before the Imo State High Court and the Court granted the reliefs sought by the 2nd Respondent including a declaration that the purported impeachment of the 2nd Respondent as the Chairman Oguta Local Government by the Defendants is null and void and of no effect and also set aside the purported impeachment of the 2nd Respondent as Chairman Oguta Local Government by the Defendants.
Also in Suit No. HOW/141/2007 (Exhibit ‘L’) the 2nd Respondent applied for the High Court Imo State by way of certiorari of an order quashing or setting aside the said Government White Paper (Exhibit B) including the findings and recommendations of the panel of inquiry. This was granted.
It is observed that Exhibits ‘K’ and ‘L’ were not considered and applied by the Federal High Court because Exhibit C was delivered on the 19th April, 2007 while Exhibit ‘L’ that quashed the white paper Exhibit ‘B’ was delivered on the 13th July, 2007. The question that now follows is, what is the legal effect of Exhibits ‘K’ and ‘L’ on the impeachment and indictment of the 2nd Respondent and the Government White Paper thereof? No doubt the impeachment was set aside and the White Paper nullified. Therefore, they are null and void acts. This takes us to the effect of null and void acts or quashed orders. What then is the meaning and effect of a nullity?
A nullity in law is defined as a, void act or an act that has no legal consequence. It is an act that is not only bad but incurably bad. It is as if nothing happened. When a thing is a nullity, it is as if the thing never existed. The position of the law therefore is that every proceeding which is founded on a void act is also bad and incurably bad. One cannot put something on nothing and expect it to stay there. See Uduko v. Govt. Ebonyi State (2004) 13 NWLR (PT. 891) 487; Okafor v. A.G. Anambra State (No.1) (1991) 6 NWLR (Pt. 200) 659; Sale v. Monguno (2006) 15 NWLR (pt. 1001) 26; Amaechi v. INEC (2007) 9 NWLR (pt. 1040) 504; Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423; Labour Party v. INEC (2009) 6 NWLR (pt. 1137) 315; INEC v. Nyako (2011) 12 NWLR (pt. 1262) 439 @ 513 – 514.
Where an act or decision is declared null and void, what it means is that the act or decision binds no one and is incapable of given rise to any right or obligation under any circumstances. If an act or a thing is declared a nullity, the law regards that act or thing as having not existed at all. See Ishola v. Ajiboye (1998) 1 NWLR (pt. 532) 71; Adefule v. Olulaja (1996) 9 NWLR (PT. 475) 668. In the same vein where an act is quashed, it simply means to a null or to make void or to terminate.
In the instant case, the effect of the nullification of the Government White paper Exhibit ‘B’ by the judgments of Imo State High Court in Exhibit K and L is to completely wipe out the impeachment of the 2nd Respondent or to obliterate, remove, undo, erase or render it in effective or unless as if it had never been in the first. The White paper that was quashed has the same effect. In judicial and legal terms and con, the nullification of any order by a Court of law is to render such action or order void from the very beginning, abinitio, as if it had never taken place, happened or been made or issued as the case may be. Once, an action or order is nullified by a competent Court, then in law and all practical purposes to which it applies, the action has been erased, wiped out and had never ever happened or taken place originally.
In the circumstances therefore, the learned trial Judge could not be wrong in relying on the authority of Inakoju v. Adeleke (Supra) where the Supreme Court held that the flawed Constitutional action of the Oyo State House of Assembly is legally deemed not to have happened. The consequences of null acts cannot be distinguished with the circumstance of the present appeal as the effect of nullification is to obliterate, the negative consequences of the impeachment to erase or wipe it out as it had never happened or existed before as in the illustration given by the Appellant with a Presidential Pardon in this brief of argument.
In the circumstances therefore, the reliance by the learned trial Judge on the case of Inakoju v. Adeleke (2007) 4 NWLR (PT 1025) 423 to hold that the effect of the judgments in Exhibits ‘K’ and ‘L’ would be that the impeachment of the 2nd Respondent is deemed never to have existed and the white paper which took unto account the indictment and suspension also never existed. The judgment cannot be impeached. The factual history of the impeachment and indictment of the 2nd Respondent which the Appellants contended the 2nd Respondent refused to disclose and therefore lied on oath never existed and therefore he cannot be said to have lied on oath.
In the circumstances of this case also, there cannot be said to be any conflict in the decisions of the two inferior Courts. The Federal High Court Abuja in Exhibit ‘C’ disqualified the 2nd Respondent from the General Election of 2007 based on Exhibit B and upheld on Exhibits E, G and H because at the material, the impeachment of the 2nd Respondent was still subsisting and not annulled by Exhibits K and L which came later in time. It is to be noted there is no appeal against Exhibits ‘K’ and ‘L’ and Exhibit K and L having come later in time, there cannot be said to be any conflict in the judgments of the Lower Court and the learned trial Judge rightly held that the impeachment and suspension of the 2nd Respondent never existed. This issue is resolved against the Appellant.
Issue Nos. 4 and 5 will be considered together
4. Whether the trial Court was right to have believed that 2nd Respondent furnished other documents to the 1st Respondent which were never led or tendered in evidence.
5. Whether the trial Court was right when it reached the conclusion that the Government White Paper was not accepted by the State House of Assembly upon its presentation to the House of Assembly.
In arguing the issues, Learned Counsel for the Appellant submitted that the learned trial Judge disbelieved the 1st Appellant on oath that his counsel applied for all documents of personal particulars of the 2nd Respondent submitted to INEC, yet believed the 2nd Respondent on existence of other documents relating to his indictment apart from Exhibit A, INEC Form CF001 without the documents being put in evidence and that the Court ought to have relied on Exhibit A and not other documents in speculation, The following cases were cited in support, Saliman v. Kwara Poly (2009) 5 NWLR (PT. 974) 477 @ 488; Biyu v. Ibrahim (2006) 8 NWLR (Pt. 981) 1 @ 21; Agbi v. Ogbeh (2006) 11 NWLR (PT. 990) 65 @ 135; Ilori v. Tella (2006) 18 NWLR (pt. 1011) 207 @ 288-289.
He further submitted that it is trite that pleadings do not constitute evidence and any fact in a pleading which is not supported by evidence is deemed abandoned and therefore of no consequences citing in support the case of Agbi v. Ogbe (Supra) @ 1797. He submitted that is not tenable for the trial Court to hold that the testimony of the 2nd Respondent as to existence and submission of other documents are not impeached or contradicted under cross examination. His view is that pleading not substantiated by evidence go to no issue. He referred to the cases C. A. P. Plc V. Vital Inv. Ltd. (2006) 6 NWLR (pt. 976) 220 @ 241. UTB Nig. Ltd. V. Ajagbule (2006) 2 NWLR (pt. 965) 447 @ 425 – 476 to submit that the 2nd Respondent ought to have produced the documents apart from Exhibit ‘A’. Learned Counsel referred to Section 131 (1) of the Evidence Act to submit that the findings of the trial Court in reaching a decision on unproved facts and unsubstantiated evidence is perverse and the Court was urged to resolve this issue in favour of the Appellant.
On the 5th issue, Learned Appellant’s Counsel adopted his argument on issue 2 to submit that there is nothing on the proceedings of the State House of Assembly (Exhibit J) of 8th May, 2007 which showed a rejection of the White paper and that a treatment of the White Paper as Legislative Notice by the Imo State House of Assembly does not amount to a rejection. His view is that there is no law requiring approval of a State House of Assembly to make a Government White paper effective and that no evidence was led before the Court below on proof of such law. He referred to the cases of Etuk V. Nkop (2006) 9 NWLR (Pt. 984) 81 @ 100 and UTB Nig. Ltd v. Ajagbule (2006) 2 NWLR (Pt. 965) 446 @ 475.
Learned Counsel further submitted that the Legislature Speaks through resolutions and Acts and in such a case it must be communicated to the Executive. That its decisions must be passed as resolutions or Acts and that Exhibit J does not in any way disclose rejection of the White Paper by the Imo State House of Assembly but it took a Legislative Notice of the fact that the Government has issued a White Paper and it is the acceptance of the White paper that gave rise to the various Suits before the Court as reflected in the various exhibits tendered before the Court.
In his response, Learned Counsel for the 2nd Respondent submitted that the 2nd Respondent duly testified that apart from the information data from Exhibit ‘A’ which he deposed to and submitted to INEC, he also submitted various other documents evidencing his cleared status and eligibility to contest the election such as the afore said judgments exculpating him from wrong doing. He submitted that the averments were not challenged under cross examination and deemed proved and even then the Appellant admitted under cross examination that they had no knowledge of the investigative and verification-practices used by the 1st Respondent (INEC) in screening candidates and would not know if or how the 2nd Respondent’s candidacy and eligibility was verified and established by the 1st Respondent.
The main complaint under the issues argued therein above concerns the none tendering of other documents by the 2nd Respondent which the trial Court believed were submitted to the 1st Respondent (INEC) by the 2nd Respondent. It is submitted by the Appellant that the other documents referred to by the 2nd Respondent were not tendered in evidence. It therefore follows that not being tendered in evidence before the Court, the trial Judge could not have made use of them in the determination of the case between the parties. It is clear from the available evidence on record that the learned trial Judge made use of only the available evidence on record to determine the case between the parties and no other document. There is no evidence of any speculation by the learned trial Judge on such other documents to determine the case of the parties before him. Courts of law do not act on speculation but on proved facts. Speculation is not in the character of the law and administration of justice. There was no any inquiry made by the learned trial Judge before his belief that these “other documents” were submitted by the 2nd Respondent to INEC. See Saliman v. Kwara Poly (2005) 5 NWLR (pt. 974) 477; Biyu v. Ibrahim (2006) 8 NWLR (pt. 981) 1 and Mori v. Tella (2006) 18 NWLR (pt. 1011) 207.
In the instant case, the trial Judge conducted the case based on the pleadings and the evidence adduced in open Court. In fact, it is in evidence before the Court that the 2nd Respondent apart from Exhibit ‘A’, he also submitted various other documents such as the judgments which exculpated him from any wrong doing.
The fact that the learned trial Judge held that he believed the existence of “other documents” submitted to INEC is something which he could draw inference from the evidence before him which he could either believe or disbelieve. This does not metamorphose into reliance on such other documents. The belief which he held is that the 2nd Respondent actually submitted copies of the judgments and other documents that cleared him from wrong doing in order to give the Independent National Electoral Commission (the 1st Respondent) the true picture of what transpired. Indeed there is evidence before the Court that 2nd Respondent testified to this fact and not cross examined by the Appellant. The ‘belief’ which the learned trial Judge held will not amount to speculation.
A Court can make inferences or analytical deductions from certain established facts and situations before the Court but the Court must never speculate. Speculation is a mere imaginative guess which even when it appears plausible should not be allowed by Court to fill any gab in the evidence before it. See Ibori v. FRN (2009) 3 NWLR. (Pt 1127) 94: Olalomi Ind. Ltd v. Nig. Ind. Dev. Bank (2009) 99 WRN 1 @ 37.
In the instant case also, the contention that the written statement of 2nd Respondent was curled out from his pleadings does not deprived the statement of its status as a statement on oath as the Appellant is trying to contend. It is trite that pleadings do not constitute evidence and where there is no evidence in support of any pleading that pleading or averment is deemed to have been abandoned. See Olarewaju v. Bamigboye (1987) 3 NWLR (PT 60) 353; Bola v. Bankole (1986) 3 NWLR (pt. 27) 141; and Agbi v. Ogbeh (Supra). It is the law that averments in pleadings need to be proved by evidence. They are not evidence or equivalent to evidence. Pleadings constitute mere notice of the Plaintiffs allegations.
In the instant case, it is alleged that the 2nd Respondent curled his written statement on oath from his pleadings. Is written statement on oath where adopted not amount to evidence? I think it is.
The burden and onus of proof lies on a party against whom decision on the case will go if material evidence is not led. In this case, the burden could only shift to the Respondent when the Appellant had given sufficient evidence to warrant rebuttal. In the instance case, even though the 2nd Respondent stated that other documents were submitted to INEC in addition to Exhibit ‘A’ did not rely on the said other documents to establish his case before the trial Court but for the Court to know that in addition to Exhibit ‘A’ other documents were also submitted to INEC and the Court believed him. There is no burden on him to call INEC to establish this fact in as much he has documents which he could defend his case before the trial Court.
The reason for the ‘belief’ by the learned trial Judge was explained in his decision and the judgment cannot be said to be perverse in the circumstances. A perverse decision of a Court will arise where the Court misconceived the issue presented before it. The Supreme Court in Udengwu v. Uzegbu (2003) 13 NWLR (pt. 836) 136 held that a perverse decision of a Court can arise in any of the following several ways that is where the Court:
(a) Ignored the facts or evidence; or
(b) Misconceived the thrust of the case presented; or
(c) Took irrelevant matters into account which substantially formed the basis of its decision; or
(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or
(e) Committed various errors that faulted the case beyond redemption.
In all these, the Court went further, that the hallmark is invariably, a miscarriage of justice. Where such occurs, the decision must be set aside on appeal. In the instant case, the trial Court unquestionably evaluated the evidence and justifiably appraised the facts, the finding cannot be said to be perverse. See Nwangwu v. FBN Plc. (2009) 2 NWLR (pt. 1125) 203 @ 229. The Appellant has not shown any miscarriage of justice which he suffered by the Court’s belief of existence of other documents. This issue is therefore resolve against the Appellant.
On the finding of the trial Court that the Government White Paper was not accepted by the State House of Assembly upon its presentation to the State House of Assembly is of no moment. Indeed when the Government White Paper was presented to the State House of Assembly, it was neither adopted nor rejected. It is the issuance of the White Paper and not its acceptance by the House of Assembly that gave the 2nd Respondent a right of action. The House of Assembly only issued a legislative Notice on the White Paper submitted to it by the Government.
Exhibit ‘J’ the proceedings of the House of Assembly of 8th May, 2007 showed that the letter by which the Government White Paper was forwarded to the House has procedural error and the speaker explained that it was a legislative notice to the house. That means there was no deliberation on the White Paper by the House of Assembly as it was neither accepted nor rejected by the House. In any case, it is the White Paper on the recommendation of the Administrative panel of Inquiry that gives rise to a cause of action and not its rejection or acceptance by the State House of Assembly, See Cookey v. Fombo (2005) 15 NWLR (PT 947) 182. The Learned trial Judge could not be wrong when he stated that the White Paper was not accepted by the State House of Assembly. This issue is also resolved against the Appellant.
On the whole, having resolved all issues in this appeal, the appeal fails as it has no merit. It is hereby dismissed, The judgment of the Lower Court delivered on the 6th day of June, 2011 is hereby affirmed. There shall be costs of N50, 000.00 in favour of the 2nd Respondent against the Appellant.
MOJEED A. OWOADE, J.C.A.: I agree.
HARUNA M. TSAMMANI, J.C.A.: Having had the advantage of reading before now, the judgment delivered by my learned brother, UWANI MUSA ABBA AJI, JCA, I am in agreement with the reasoning and conclusions arrived thereat.
This appeal has no merit. It should be and is hereby dismissed. Accordingly, the judgment of the lower court delivered on the 6th day of June, 2011 is hereby affirmed.
I abide by the order on costs.
Appearances
E. A. Nwa-Uwa, Esq with J. O. Obumneme, Esq and I. A. Nwamadu, Esq.For Appellant
AND
C. O. N. Njemanze, SAN, with Chief L. A. Njemanze, Esq. and C. H. Ajare, Esq.For Respondent
