WASAH & ANOR v. BAGU & ORS
(2021)LCN/15873(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 03, 2021
CA/A/531/2012
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. CLEMENT WASAH 2. EMEKA ONONAMADU APPELANT(S)
And
1. CHOM BAGU 2. INCORPORATED TRUSTEES OF COMMUNITY ACTION FOR POPULAR PARTICIPATION 3. YAKUBU ALIYU RESPONDENT(S)
RATIO
DISTINCTION BETWEEN FINDINGS OF FACT BASED ON THE CREDIBITY OF WITNESSES AND FINDINGS BASED ON AN EVALUATION OF EVIDENCE
However, a distinction must be drawn between the findings of fact based on the credibility of witnesses and finding based on an evaluation of evidence which has been accepted. In the latter case, a Court of Appeal is in as good a position to evaluate the evidence as the Court of trial, though it will, of course, give weight to the opinion of the trial judge.
As a general rule, when the question of evaluation of evidence is against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation. See the case of FATAI VS. STATE (2013) 10 NWLR (PT. 1361) 1 AT 21 SC. When it involves the credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanor in Court that is in the vantage position to believe or disbelieve witnesses; this can never be captured by an appellate Court that only has the cold printed record to contend with.
Having the above in mind, and the fact that the matter leading to this appeal was instituted by way of an originating summons, this Court will now evaluate the evidence placed before the trial Court and in doing so, this Court has to determine what the life issue before this Court is. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Originating Summons dated 5th July, 2020 which was further amended and filed on the 28th of September, 2010 by the Appellants as Plaintiffs at the Trial Court, wherein the following questions were raised thus:
i. Whether by the provision of Article 8 (iii) of CAPP’s Constitution, the Extra Ordinary meeting of the Governing Council of the 2nd Defendant convened and presided over by the 1st Defendant on 21st November 2009 was proper and thus legal.
ii. Whether any valid and legitimate decision can emanate from the said meeting of the 2nd Defendant held on 21st November 2009.
iii. Whether the congress of the 2nd Defendant held on the 5th day of December 2009 was properly convened.
iv. Whether the 3rd Defendant can validly claim to be president of the 2nd Defendant along with other persons elected as executives having not emerged from a properly and legally convened congress of CAPP thus empowered to act in that capacity.
The Appellants sought for the following reliefs:
i. A DECLARATION that the Emergency Governing Council meeting of the 2nd Defendant held on 21st November 2009 is in contravention of the 2nd Defendant’s constitution hence it is unlawful and illegal.
ii. A DECLARATION that all decisions taken at the said Emergency Governing Council meeting of 21st November 2009 are null, void and of no effect whatsoever.
iii. A DECLARATION that the purported congress of the 2nd Defendant held on 5th December 2009 is in contravention of the 1st Defendant’s constitution hence it is unlawful and illegal.
iv. A DECLARATION that all the decisions and actions including the election of the 3rd Defendant as President of CAPP along with other purported executives so elected at the said congress held on 5th December 2009 are illegal, unlawful, null, void and of no effect whatsoever.
v. The cost of this action as assessed by this Honourable Court.
Before going into the appeal, I wish to provide a summary of the facts involved in this appeal is provided hereunder.
The Appellants claims that the 1st Appellant joined CAPP as a founding member at its inception in 1993 and served in various capacities until I was appointed the Executive Director in 2001 after successfully passing an interview conducted for that office.
The Appellants claims that the 2nd Appellant is also a member of CAPP and was subsequently interviewed and employed as the accountant in 1996 and promoted to the position of Deputy Executive Director in May 2004.
The Appellants also claims that by virtue of the 1st Appellant’s position as the Executive Director of CAPP, he became the administrative head of the organization and has since discharged his duties without any blemish.
The Appellants also claims that the 1st Respondent as the then president of CAPP but contrary to the Constitution of CAPP suspended the 1st Plaintiff and the 2nd Plaintiff from their respective positions.
The Appellants further claim that the said suspension is unlawful having not emanated from the appropriate organ and therefore they ignored it and continued in their respective duties.
The Appellants further claim that to ensure that no other president of CAPP in future toe the illegal path of the 1st Respondent, the Appellants instituted an action against the 1st Respondent in the High Court of the Federal Capital Territory, Abuja and same is presently before the Court.
The Appellants also claims that the other members of the Executive Management Committee, a valid organ of the 2nd Respondent met and by resolution unanimously adopted its members convened an Extra Ordinary General Meeting of the 2nd Respondent which constitutionally should precede the congress of CAPP, wherein the date and venue of the meeting amongst others were decided and fixed for 26th and 27th November 2009.
The Appellants claim that the meeting fixed for the 27th and 28th was adjusted to the 21st November 2009 by the 1st Respondent without the knowledge of the Appellants and despite this fact being communicated to the Respondents but the Respondents went ahead to fix a congress meeting of the 2nd Respondent in clear contravention of the Constitution of CAPP on the 5th December, 2009.
The Appellants further claims that in the said illegal congress, the 3rd Respondent was purportedly elected as president of CAPP to lead others as CAPP’s executives.
The Respondents as Defendants at the trial Court, filed a Counter Affidavit to the Amended Originating Summons dated 13th July, 2011.
The Court heard the matter and the parties thereafter adopted their respective affidavits and written addresses and judgment was delivered.
The trial judge, Honourable Justice Ugochukwu A. Ogakwu delivered judgment in the Suit No. FCT/HC/CV/1961/2010 on the 3rd of November, 2011 partly in favour of the Appellants.
Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal on the 23rd December, 2011 comprising of two (2) grounds of appeal. Parties to the appeal before this Court filed and exchanged their respective briefs of argument.
In the Appellants brief of argument as settled by their counsel Godwin Sunday Ogboji Esq. and dated 10th February, 2014 and filed 12th February, 2014 June, 2020, the following issue for determination was distilled from the grounds of appeal as follows:
Whether the Judgment of the Trial Court upholding the General Congress and election of officers of the 2nd Respondent held on the 5th December 2009 was not perverse and against the law and the weight of evidence before the Trial Court and on record, thus occasioning miscarriage of justice against the Appellants having earlier held that the Extra-ordinary/Emergency Governor Council meeting which preceded the said General congress was unlawful, illegal and unconstitutional.
The Respondents filed their Respondents Brief of Argument on the 31st of November, 2016 as settled by its Counsel, Jacob M. Jai Esq. wherein he raised the following issue for determination:
Whether or not the Trial Judge was right in holding that the congress and the election of the 3rd Respondent and other executives’ officials of the 2nd Respondent held on the 5th December, 2009 was legal, lawful and valid where no evidence before the Trial Court to show that it was the Extra-ordinary/Emergency Governor Council meeting of 21st November, 2009 that fixed the date of the Congress.
The Respondents also made some preliminary observations which were argued in the Respondents Brief of Argument which shall be addressed in the decision of the Court.
The Appellants filed a Reply Brief in Response to the arguments in the Respondents Brief of Argument on the 6th of December, 2016.
The argument of Counsel shall be reflected in the decision of this Court. I now wish to adopt the issue for determination raised by the Appellants which I shall address hereon as follows:
Whether the Judgment of the Trial Court upholding the General Congress and election of officers of the 2nd Respondent held on the 5th December 2009 was not perverse and against the law and the weight of evidence before the Trial Court and on record, thus occasioning miscarriage of justice against the Appellants having earlier held that the Extra- ordinary/Emergency Governor Council meeting which preceded the said General congress was unlawful, illegal and unconstitutional.
The Appellants’ Counsel in arguing this issue argued that the holding of the trial Court that the emergency Governing Council Meeting of 21st November 2009 was illegal and no valid decision can arise from it, and the fact that the Governing Council Meeting which must precede the CAPP’s congress never held as found by the Court and supported by paragraph 18 of page 6.
Before I go into the determination of this issue, it is important to address the preliminary issues raised by the Respondents’ Counsel in the Respondents Brief of Argument thus:
1. The Appellants issue for determination is not arising from grounds of appeal.
2. Introduction of fresh issue on appeal, issue of general congress.
The Respondents’ Counsel argued that the Appellants issue for determination does not arise from the grounds of appeal. The Respondents’ Counsel has argued that the grounds of appeal relate only to the issue of ‘Congress’ and error in law complained in the two grounds of appeal and nothing in the nature of ‘General Congress’ or judgment of the Court being perverse and against the weight of evidence as formulated by the Appellants.
The Respondents’ Counsel also argued that the Appellants have imported the strange words ‘General Congress’ to describe the congress of 5th December, 2009 and distilled the issue for determination outside the ground of appeal by alleging that the judgment of the trial Court is perverse and against the weight of evidence and that the couching and framing of the issue for determination by the Appellants is not only faulty but also ambiguous, misleading and mischievous.
The Respondents’ Counsel also argued the second preliminary issue that the word ‘Congress’ is different from the word ‘General Congress’ particularly when recourse is made to the 2nd Respondent’s Constitution. Counsel further argued that the argument of the Appellants on this appeal has been one from the argument at the Court below.
The Appellants’ Counsel on the other hand argued that the issue for determination formulated by the Appellants arose from the two grounds of appeal before this Court and that it is clear that the judgment of the trial Court is that the Congress of the 2nd Respondent held on 5th December, 2009 was valid and properly convened after having held earlier in the same judgment that the governing council meeting of the 2nd Respondent that preceded the congress have been declared illegal and unlawful and that the Appellants in couching the issues for determination in an appeal, is not expected to copy verbatim his grounds of appeal or particulars supporting the ground of appeal to show that he has confined himself to the grounds, rather he is expected to put in a nut shell, the issue in controversy which the Court is expected to resolve and that the issue in controversy in this appeal is the validity of the Congress of 5th December, 2009.
DECISION ON THE PRELIMINARY ISSUES RAISED BY THE RESPONDENT
In determining the preliminary issues raised by the Respondent, this Court would formulate a sole issue for determination thus:
Whether the Preliminary Issues raised by the Respondents can succeed on the strength of the argument by the Respondents Counsel canvassed before this Court.
From the arguments of the Respondents’ Counsel, it is obvious that one of the arguments is challenging that the issues for determination formulated by the Appellants does not arise from the grounds of appeal.
It is trite that you cannot put something on nothing and expect it to stand and in the same way issues for determination must spring from grounds of appeal which in turn must have arisen from the Court’s decision. It is settled law that a ground of appeal challenging the judgment of a Court (trial or appellate Court) cannot be founded on what the Court has never decided.
In the case of GARUBA & ORS VS. OMOKHODION & ORS (2011) LPELR – 1309 (SC), the Supreme Court reiterated thus:
“Also, it is settled that issues as the instant ones here formulated as arising for determination in an appeal must relate and arise from the grounds of appeal; and must be consistent with and within the scope and confines of the grounds relied upon, thus postulating that issues for determination ought not to be formulated in abstract legal issues with no concrete reference to the facts of the case as in this matter.”
It is clear then that a ground of appeal must be founded on what the trial Court decided and the issues for determination must also be from the ground of appeal which must have arisen from the decision of the trial Court.
The Respondents’ Counsel is not complaining of the grounds of appeal but of the issue formulated by the Appellants for determination. The question that comes to my mind now is whether the words “General Congress” and “congress” used in the Ground of Appeal and issue for determination formulated by the Appellants are one and the same thing.
The word “congress” as used in the Grounds of Appeal referred to the congress of the 2nd Respondent held on 5th December, 2009. The word “General Congress” used in the formulated issues for determination also referred to the congress of the 5th December, 2009. Both words are referring to the congress in the decision of the trial Court wherein it held that “the congress of the 2nd Respondent held on the 5th December, 2009 was valid and properly convened.” The ‘Congress’ and ‘General Congress’ to my mind means the same thing. The only difference is the way in which it was couched by the Appellants in formulating the issue for determination.
I do not agree with the argument of the Respondents’ Counsel that the use of the word “General Congress” was deliberate, fallacious and deceitful on the part of the Appellants. There is also nowhere in the argument of the Appellants’ Counsel on the issue for determination where the Appellants’ Counsel wanted this Court to believe that the use of the word “General Congress” is to make the Court believe that ‘GC’ used in Exhibit ‘D’ means General Congress. This line of argument to me is misconceived and a total importation of ideas to confuse the mind of this Court and I so hold.
I also hold that the argument of the Respondents’ Counsel that the use of the word “General Congress” has introduced a fresh issue or point on appeal is technical. This Court has always frowned at technicalities and would always uphold and apply substantial justice in the determination of cases before it. The use of the word “General Congress” is only a misuse of words as all the arguments of the Appellants’ Counsel still not only arose from the grounds of appeal, it also relates to the fact of the case and also arose from the judgment of the trial Court.
Having in mind my findings above therefore, I am of the humble view that the preliminary issues raised by the Respondents cannot succeed on the strength of the argument canvassed before this Court. The said preliminary issue raised by the Respondents’ Counsel is thus dismissed in its entirety.
I will now proceed to determine the issue for determination which I have adopted in this appeal.
MAIN JUDGMENT
The Appellants have argued that the trial Court shut its eyes to the obvious facts on record and therefore the judgment of the Court is perverse and has occasioned a miscarriage of justice. The Appellants has therefore called this Court to invoke its powers under Section 15 of the Court of Appeal Act.
This Court is always hesitant to evaluate evidence which the trial Court is in the best position to so do. However, a distinction must be drawn between the findings of fact based on the credibility of witnesses and finding based on an evaluation of evidence which has been accepted. In the latter case, a Court of Appeal is in as good a position to evaluate the evidence as the Court of trial, though it will, of course, give weight to the opinion of the trial judge.
As a general rule, when the question of evaluation of evidence is against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation. See the case of FATAI VS. STATE (2013) 10 NWLR (PT. 1361) 1 AT 21 SC. When it involves the credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanor in Court that is in the vantage position to believe or disbelieve witnesses; this can never be captured by an appellate Court that only has the cold printed record to contend with.
Having the above in mind, and the fact that the matter leading to this appeal was instituted by way of an originating summons, this Court will now evaluate the evidence placed before the trial Court and in doing so, this Court has to determine what the life issue before this Court is.
The Appellants complain of the decision of the trial judge wherein it held that the congress of the 2nd Respondent held on 5th December, 2009 was valid and properly convened after having held that the Governing Council meeting of the 2nd Respondent which preceded the said congress was unlawful and illegal.
It seems to me therefore that this is the live issue and this Court is left now to determine whether there was sufficient evidence before the trial Court to show that it was the extra ordinary/emergency meeting of the General Council held on the 21st November, 2009 that fixed the date of the congress of the 2nd Respondent held on 5th December, 2009.
In consideration of the third and fourth questions raised for the determination of the Originating Summons by the trial Court, the trial Court held at page 54 of the judgment that there is nothing in the processes filed which shows the decisions reached at the extra-ordinary/emergency Governing Council meeting which took place on 21st November, 2009. It is now pertinent to reproduce the evidence of the Appellants in paragraphs 6, 14, 17, 18, 19 and 20 of the originating summons as contained at page 6 of the Record of Appeal.
“6. The 3rd Defendant who is also a member of CAPP was purportedly elected as CAPP’s president at an illegal and unlawful congress convened and presided over by the 2nd Defendant on the 5th day of December, 2009.
14. The Plaintiffs and other members of the executive management committee, a valid organ of the 2nd Defendant met and by resolution unanimously adopted by its members convened an extra ordinary council meeting of the 2nd Defendant which constitutionally should precede the congress of CAPP, wherein the date and venue of the meeting amongst others were decided upon and fixed for 26h and 2ih November 2009. Attached as Exhibit “D” is a copy of the said resolution.
17. That to the Plaintiffs shock and surprise a week or thereabout after this illegal Governing Council meeting presided over by the 1st Defendant and despite the pendency of suit challenging the suspension of the 1st Plaintiff, this illegal meeting went ahead to fix a congress meeting of the 2nd Defendant in clear contravention of the constitution of CAPP.
18. That despite the failure of the 2nd Defendant to hold a valid and legal Governing Council meeting which must precede the holding of CAPP’s congress, a purported congress was convened on the 5th day of December 2009.
19. That in the said illegal congress, the 3rd Defendant cannot validly claim to act as president.
20. That I know as fact that having purportedly emerged at an illegal congress, the 3rd Defendant cannot validly claim to act as president.”
The above reproduced paragraphs show chronicles of the grievances of the Appellants about the purported illegal Congress held on 5th December 2009 a date fixed at the General Council meeting.
The Respondents on the other hand stated in paragraphs 4 (d), (i) and (m) of the counter affidavit to the affidavit in support of the originating summons reproduced below as follows:
“(d) That contrary to the depositions of Chioma Okwara in paragraph 6 of her affidavit, the 3rd Defendant was validly nominated and unanimously elected at a valid congress of the organization held on the 5th Day of December, 2009.
(i) That the decision to hold the congress in Jos was taken at the Biennial Congress of the 2nd Defendant held in Suleja in Niger State in December, 2005.
(m) That at one of the 2 ordinary meeting of the Governing Council meeting held at Hydro Hotel in Minna in Niger State with the Plaintiffs in attendance, a congress committee was constituted and given powers to seek an appropriate venue for the congress in Jos.”
The above reproduced clearly shows that the Respondents disagree with the deposition of the Appellants that the Congress of 5th December, 2009 was fixed at the General Council.
I agree with the opinion of the trial judge that any difference in the facts contained in the affidavit deposed to by the parties shall be resolved from the documentary exhibits attached to the affidavits. See also the case of EZECHUKWU & ANOR VS. ONWUKA (2016) LPELR – 26055 (SC).
The Appellants had made reference to an attachment of Exhibit D at paragraph 14 of the affidavit in support of the originating summons which is contained in page 22 of the Record of Appeal and which is instrumental to resolving the conflicts in the affidavit in support of the originating summons and the counter affidavit in opposition to same. This Exhibit D reveals that the Congress of 5th December, 2009 was not fixed at the Emergency/Extraordinary Meeting of the General Council but had been fixed even before the meeting was slated to hold on the 4th to 6th of December, 2009 in Jos, Plateau State. I agree with the opinion of the learned trial judge that this is in tandem with the deposition of the Respondents in paragraph 4(m) of the counter affidavit in answering questions three and four raised for determination of the originating summons.
From the fore-going therefore, it is my view that the trial judge considered and appropriately evaluated the evidence before it and I totally agree with his opinion and the decisions made therein in its entirety and the orders made thereto. It is therefore my well-considered view that the judgment of the trial Court upholding the General Congress and election of officers of the 2nd Respondent held on the 5th December, 2009 was not perverse and against the law and the weight of evidence before the trial Court and on record. Thus, it did not occasion any miscarriage of justice against the Appellants having earlier held that the Extra-ordinary/Emergency Governing Council Meeting which preceded the said General Congress was unlawful, illegal and unconstitutional. This issue is thus resolved in favour of the Respondents.
It is therefore my unshaken view that this appeal lacks merit and it is therefore hereby dismissed. I make no order as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in agreement with his reasoning and conclusion arrived at therein.
Appearances:
G. S. OGBOJI, ESQ., with him, S. AKPENPUM, ESQ. For Appellant(s)
J. M. JAI, ESQ., with him, E. EKAIGWU, ESQ. For Respondent(s)