DECIDED TODAY! Latest S.C. Judgments, Feb. 7th, 2014

ALL PROGRESSIVE GRAND ALLIANCE (APGA) VS SENATOR CHRISTIANA N.D. ANYANWU & 2 ORS
 
LEGALPEDIA  CITATION: LER[2014] SC. 20/2013
 
AREA OF LAW- ELECTORAL MATTER, JURISDICTION

SUMMARY OF FACTS
The 2nd Respondent instituted an action under originating summons contending that the 1st Respondent’s name ought not to have been submitted to the 3rd respondent as the appellant’s senatorial candidate for the Imo East Senatorial Zone Election in the 2011 general election because at the time of the primary election which took place on 14th January 2011, the 1st Respondent was not a member of the Appellant but an active member of another party, P.D.P. The trial Court struck out the Appellant’s originating summons on the grounds that it lacked jurisdiction to entertain same as the suit was contentious in nature and since nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days’ time. Aggrieved, the 1st Respondent appealed to Court of Appeal while the 2nd Respondent also cross-appealed. The Court of appeal upheld the cross-appeal and dismissed the appeal of the Appellant and remitted the case to the Trial Court for retrial. Dissatisfied, the Appellant further appealed to Supreme Court.

HELD
Appeal allowed.

ISSUES FOR DETERMINATION
Is it correct for the court below to determine this appeal on merit without settling the challenge of jurisdiction of the court below to hear and determine the suit itself?
Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all?

RATIOS:
JURISDICTION-IMPORTANCE OF-EFFECT OF LACK OF JURISDICTION
“The law is by now well settled that jurisdiction is the lifeblood of any adjudication and where it is lacking it would render any proceedings, no matter how well conducted, liable to be set aside for being a nullity.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

JURISDICTION-FUNDAMENTAL NATURE OF
“Jurisdiction is so fundamental that once the court’s jurisdiction to hear a matter is challenged, it must be dealt with and resolved first before any other step in the proceedings. It is because it is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

LACK OF JURISDICTION- EFFECT OF
“The law is that where the court lacks jurisdiction to entertain a cause or matter, the entire process, no matter how well conducted, is an exercise in futility, for the proceedings are a nullity ab initio.” PER MOTONMORI OLATOKUNBO KEKERE- EKUN, JSC

JURISDICTION OF A COURT-DETERMINATION OF-PROCESSES THE COURT SHOULD CONSIDER
“The law is settled that in determining the jurisdiction of a court to entertain a cause or matter, the processes to be considered by the court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or as in the present case the originating summons and its supporting affidavit.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

DECISION OF COURT-DECISION NOT APPEALED AGAINST-EFFECT OF
“It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

POLITICAL PARTY-MEMBERSHIP OF-DOMESTIC AFFAIR OF THE PARTY-WHETHER THE COURTS WILL BE INVOLVED THEREWITH
“There is a plethora of decisions of this court to the effect that membership of a political party is the domestic affair of the party concerned and the courts will not be involved in deciding who the members of a political party are.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

CASES MENTIONED:
Adeyemi Vs Opeyori (1976) 9-10 SC 31:
Anyaduba & Anor. Vs N.R.T.C. Ltd. (1992) 5 NWLR (Pt.243) 535 @ 553 G – F:
Elabanjo Vs Dawodu (2006) 15 NWLR (Pt.1001) 76:
Inakoju Vs Adeleke (2007) 4 NWLR (PT.1025) 427 at 588F
Lado Vs C.P.C. (2012) ALL FWLR (Pt.607) 598 ® 622 – 623 C – D & F – H: (2011) 12 SC (Pt.III) 113 & 139 – 140
Ogunyade Vs Osunkeye (2007) All FWLR (Pt.389) 1175 @ 1206 – 1207 H – B:
Onibodu & Ors. Vs Akibu & Ors. (1982) 13 NSCC 199:
Onuoha Vs Okafor (1983) 2 SCNLR 244: (1983) NSCC 494:
P.D.P. Vs Sylva (2012) 13 NWLR (Pt.1316) 85
Tukur Vs Governor Gongola State (1989) 4 NWLR (Pt.117) 517
Unity Bank Nig. Plc. Vs Bouari (2008) 7 NWLR (Pt.1086) 372 @ 400 B-C
STATUTES REFERRED TO:
The Electoral Act 2010 (as amended)
The Court of Appeal Rules 2011
The 1999 Constitution of the Federal Republic of Nigeria

HON. GOODLUCK NANA OPIA VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR
                                                                                        
                 LEGALPEDIA  CITATION: LER[2014] SC. 16/2013
AREA OF LAW- ELECTORAL MATTER, JURISDICTION
The Appellant filed an Originating Summons under S.68 (1) (c) of the Electoral Act (2010) (as amended) at the Federal High Court challenging the conduct of the supplementary election as well as the return of the 2nd Respondent as the winner of the supplementary election for Ohaji/Egbema State House of Assembly Constituency held on the 6th May, 2011.
The 2nd Respondent filed a notice of preliminary objection challenging the jurisdiction of the Trial Court to entertain the suit as the relief sought by the Appellant has the similitude of a post- election matter. The Trial Court dismissed the suit for want of jurisdiction. Aggrieved, the Appellant appealed to Court of Appeal where the decision of the Trial Court was affirmed. The Appellant further appealed to Supreme Court.

HELD:

Appeal dismissed
ISSUES FOR DETERMINATION:
“Whether the Court of Appeal was right when it affirmed the decision of the trial court, wherein the said court declined jurisdiction to hear and determine the Appellants’ Amended Originating Summons.”
RATIOS:
PRINCIPLE OF LAW-PURPORT OF UBI JUS UBI REMEDIUM
“The basic, broad, and general principle of law is contained in the old latin maxim – UBI JUS UBI REMEDIUM.”JUS” here signifies the legal authority to do or demand something and REMEDIUM means the right of action, or the means given by law for the recovery or declaration. Simply put, wherever the law gives a right, it also gives a remedy conversely, wherever a plaintiff is claiming a remedy, that remedy must be joined on a legal right.” PER SULEIMAN GALADIMA, JSC
CAUSE OF ACTION-HOW DETERMINED
“A cause of action is determined by reference to the plaintiff’s statement of claim. The immediate materials a court should look at are the Writ of Summons and averments in the statement of claim.” PER SULEIMAN GALADIMA, JSC
COMPETENCE OF A COURT- HOW DETERMINED
“A court is competent when, inter alia, a case comes before it, initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. As well, the subject matter must be cognizable by the court or Tribunal”. PER JOHN AFOLABI FABIYI, JSC
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS RULE –MEANING OF
“This means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been excluded by implication. PER JOHN AFOLABI FABIYI, JSC

JURISDICTION-IMPORTANCE OF-WHEN SHOULD BE DETERMINED-EFFECT OF LACK OF JURISDICTION
“Jurisdiction is very basic in adjudicatory process. It has to be determined at the earliest opportunity, as done by the trial Federal High Court in this matter. Any defect in competence is fatal as same is extrinsic to adjudication”. PER JOHN AFOLABI FABIYI, JSC

GROUND OF APPEAL-NATURE OF
“A ground of appeal should be concisely and elegantly drafted and straight to the point so that the error complained of, be it of fact or law, is apparent on its face.” PER NWALI SYLVESTER NGWUTA, JSC

ELECTION DISPUTES-JURISDICTION OF COURT TO DETERMINE SAME
“Section 285(1] (d) of the 1999 Constitution, having specifically conferred the power to decide disputes arising from the conduct of election on the Election Tribunal to the exclusion of the regular Courts, including the Federal High Court, the latter lacks the vires to decide election disputes”. PER SULEIMAN GALADIMA, JSC

CASES MENTIONED:
Ajayi v. Adebiyi (2012) ALL FWLR (pt. 634)1 at 30 ‘D
Alhaji M. Abubakar V. Bebeji Oil & Allied Product Ltd & Ors (2007) 2 SCNJ. 170
Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291).
Buhari v. Dikko Yusuf (2003) 1 NWLR (Pt. 841) 446
Gabiri Ogbimi v. Beauty Ololo & Ors (1993) SC.447
Madukolu v. Nkemdilim (1962) 2 SCNLR 341
Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508
Oloruntoba-Ohu & ors v. Abdul-Raheem & ors (2009) 13 NWLR (Pt. 1157) 83.
PDP v. INEC (1999) 11 NWLR (Pt. 628) 200;
Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt 304) 139

STATUTES REFERRED TO
Electoral Act 2010 (as amended)
Supreme Court Act
The 1999 Constitution of the Federal Republic of Nigeria (as amended)
SENATOR CHRISTIANA N.D ANYANWU v HON. INDEPENDENCE CHIEDOZIEM OGUNEWE & 2 ORS
 
LEGALPEDIA CITATION: LER[2014] SC. 21/2013
 
AREA OF LAW- ELECTORAL MATTER, JURISDICTION
SUMMARY OF FACTS
The 1st Respondent instituted an action under originating summons at the trial Court contending that the Appellant’s name ought not to have been submitted as the senatorial candidate for the Imo East Senatorial Zone Election in the 2011 general election because at the time of the primary election which took place on 14th January 2011, that the Appellant was not a member of the APGA but an active member of another party, P.D.P. The trial Court struck out the 1St Respondent’s originating summons on the grounds that the suit was contentious in nature and since nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days’ time. Aggrieved, the Appellant appealed to Court of Appeal while the 1st Respondent also cross-appealed. The Court of appeal upheld the cross-appeal and dismissed the appeal of the Appellant and remitted the case to the Trial Court for retrial. Dissatisfied, the Appellant further appealed to Supreme Court.
HELD:
Appeal allowed.
ISSUES FOR DETERMINATION
Whether the Appellant was given a fair hearing by the court below

Whether the Court of Appeal was right in holding that the issue of jurisdiction by the Federal High Court to hear the case was not properly raised in the Court of Appeal
Whether the Federal High Court has jurisdiction to hear the case as to justify the order of the Court of Appeal remitting the case to the Federal High Court for trial on the merit

RATIOS:

ISSUE OF JURISDICTION-FUNDAMENTAL NATURE OF
“The issue of jurisdiction is so fundamental to adjudication that it can be raised at any time and in any manner even for the first time on appeal and even viva voce.” PER MOTONMORI KEKERE-EKUN, JSC
JURISDICTION OF COURT-DETERMINATION OF –PROCESSES THE COURT SHOULD CONSIDER
“The law is settled that in determining the jurisdiction of a court to entertain a cause or matter, the processes to be considered by the court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or as in the present case the originating summons and its supporting affidavit.” PER MOTONMORI KEKERE-EKUN, JSC
DECISION OF COURT-DECISION NOT APPEALED AGAINST –EFFECT OF
“It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties.” PER MOTONMORI KEKERE-EKUN, JSC

POLITICAL PARTY-MEMBERSHIP OF-DOMESTIC AFFAIR OF THE PARTY-WHETHER THE COURTS WILL BE INVOLVED THEREWITH
There is a plethora of decisions of this court to the effect that membership of a political party is the domestic affair of the party concerned and the courts will not be involved in deciding who the members of a political party are.” PER MOTONMORI KEKERE-EKUN, JSC
JURISDICTION OF COURT -DUTY ON A COMPLAINANT
“It has been held that the jurisdiction of the court to entertain a complaint under this section is very narrow in scope. A complainant must bring himself squarely within the confines of the provision. He must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party.” PER MOTONMORI KEKERE-EKUN, JSC
POLITICAL PARTY-RESPONSIBILITY OF DETERMINING WHO ITS MEMBERS ARE-WHETHER THE COURTS HAVE BUSINESS IN DETERMINING SAME
“It is the prerogative of every political party to determine who its members are. The courts have no business delving into the issue as dearly stated in the authorities of Onuoha Vs Okafor.” PER MOTONMORI KEKERE-EKUN, JSC
ISSUE OF JURISDICTION-IMPORTANCE OF –WHEN CAN BE RAISED
“As issue of jurisdiction is very vital in adjudicatory process, it can be raised at any time in any manner by the parties or even by the court suo motu, which must, however, give parties chance to address it on same.” PER JOHN AFOLABI FABIYI, JSC

CASES MENTIONED:
Adeyemi Vs Opeyori (1976) 9-10 SC 31:
Elabanio Vs Dawodu (2006)15 NWLR (Pt.1001) 76:
Inakoju Vs Adeleke (2007)4 NWLR (pt. 1025) 427 at 588F
Isaac Obiuweubi Vs CBN (2011) K7 NWLR (Pt.1247) 465 ® 494 D – F
Lado Vs C.P.C. (2012)1 ALL FWLR Pt.6071 598 (3) 622 – 623 C – D & F – H: (2011)12 SC (Pt.111) 113 @ 139 – 140
Onuoha Vs Okafor (19831 2 SCNLR 244: (19831 NSCC 494:
P.D.P. Vs Svlya (20121 13 NWLR (Pt.13161 85
Petrojessica Enterprises Ltd. Vs Leventis Tech. Co. Ltd. (1992) 5 NWLR (Pt.244) 675:
Tukur Vs Governor Gongola State (1989) 4 NWLR (Pt.117) 517

STATUTES REFERRED TO
The Electoral Act 2010 (as amended)
The Court of Appeal Rules 2011
The 1999 Constitution of the Federal Republic of Nigeria

 

NICHOLAS CHUKWUJEKWU UKACHUKWU V. PEOPLES DEMOCRATIC PARTY & 3 ORS

  LEGALPEDIA  CITATION: LER[2014] SC 589/2013

AREAS OF LAW- ELECTORAL MATTERS, FAIR HEARING, COURT JURISDICTION, INTERPRETATION OF STATUTES SUMMARY OF FACTS:

This is an appeal against the judgment of the Court of Appeal which set aside the judgment of the trial court (the Federal High Court, Port Harcourt) in which the 3rd Respondent was held as not qualified to participate in the August 24th primaries of the 1st Respondent (Peoples Democratic Party). The Appellant was originally disqualified for irregularity of his tax payments. He was eventually cleared to contest after a review by the screening appeals panel of the Ist Respondent (PDP in Anambra State). The primaries was won by the 3rd Respondent, whereupon the Appellant challenged the eligibility of the 3rd Respondent to contest the primaries. The trial Court held in favour of the Appellant leading to the appeal by the 3rd Respondent against the decision of the trial court. At the appeal, the Appellant’s counsel filed his brief of arguments out of time and refused to move his motion to regularise same, but rather sought an adjournment without adducing any cogent reason. The court considered the motion for extension of time abandoned and struck out the same. Refusing the Court’s invitation to adopt his brief of arguments, the Appellant’s counsel disserted the appeal court without leave. The Appeal Court notwithstanding this breach of decorum proceeded to consider the appeal on its merit by deeming the Appellant’s brief as adopted and argued by his counsel. The appeal turned against the Appellant, setting aside the judgment of the trial court, whereupon the 3rd Respondent was declared the candidate for the election. The Appellant appealed to the Supreme Court .

HELD Appeal succeeds in part.

ISSUES FOR DETERMINATION

Issue 1:

Whether the judgment of the Court of Appeal leading to this Appeal was hinged on a non-existent Appellant’s Brief of Arguments, which in the course of the proceedings was filed out of time, with the motion for extension of time abandoned by counsel and consequently struck out, is not a breach of the present Appellant’s (then 1st Respondent’s) right to fair hearing, thereby nullifying the judgment of the court below?

Issue 2:

Whether the Court of Appeal was right when it held that the trial Federal High Court lacked jurisdiction to adjudicate on the complaint of the Appellant on the basis that his complaint did not come within the ambit of Section 87 (9) of the Electoral Act, 2010, as in the court’s view the reliefs sought were predicated on matters that were solely internal party matters and therefore not justiciable?

RATIOS FAIR HEARING- MEANING AND CONSTITUTIONALITY OF FAIR HEARING:

“The constitutionality of the right to fair hearing is not in doubt. Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus: “36 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING It is also well settled that any proceedings conducted in breach of a party’s right to fair  hearing, no matter how well conducted would be rendered a nullity”. PER KEKERE-EKUN JSC  BREACH OF FAIR HEARING-BURDEN OF PROOF-ON WHO LIES

“The law is also trite that the burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts and circumstances leading to the alleged breach. This is because the facts of the case and the facts only, determine acts which constitute non-compliance with the principles of fair hearing”. PER MAHMUD MOHAMMED JSC

INTERPRETATION OF STATUTES – GOLDEN RULE: “The golden rule of interpretation of statutes is that where the words used are clear and unambiguous they must, prima facie, be given their natural and grammatical meaning unless it would lead to absurdity”. PER KEKERE-EKUN JSC

INTERNAL AFFAIRS OF A POLITICAL PARTY NON JUSTICIABLE- SECTION 34 OF THE ELECTORAL ACT 2006 “The membership of a political party or the sponsorship of a candidate at an election are internal affairs of the party and therefore not justiciable. See: Onuoha Vs Okafor (1983) 2 SCNLR 244: (1983) NSCC 494. PER KEKERE-EKUN JSC

JUSTICIABLE RIGHTS OF AN ELECTORAL CANDIDATE – SECTION 87(9) OF THE ELECTORAL ACT: “The literal interpretation of Section 87 (9) of the Electoral Act is that an aspirant has a right to complain where the provisions of the Electoral Act and/or the guidelines of a political party have not been complied with in the selection or nomination of a candidate for election. He may exercise the right to seek redress notwithstanding the provisions of the said Act or rules of a political party. In other words no provision of the Electoral Act or any rule of a political party can take away this right. However, the provision is not at large. The complainant must be an aspirant who participated in the primary that produced the sponsored candidate”. PER KEKERE-EKUN JSC

APPEALS: WHERE FINDINGS OF THE COURT OF APPEAL OR TRIAL COURT ARE NOT APPEALED AGAINST

“The law is trite that the findings of the Court of Appeal or trial Court in respect of which there is no appeal, the findings remain valid and in full force”. PER MAHMUD MOHAMMED JSC

 ISSUES-WHERE NOT RAISED BY A PARTY-ATTITUDE OF THE SUPREME COURT THERETO

 “Where an issue has not been raised by the Appellant, it is not the business of this Court to concern itself with the issue…” PER MAHMUD MOHAMMED JSC

CASES MENTIONED:

Tsokwa Motors (Nig.) Ltd. Vs U.B.A. Plc. (2008) All FWLR (Pt.403)1240 @ 1255 A – B:

Adiaun Vs A.G. Oyo State ((1987) 1 NWLR (Pt.53) 674:

Okafor Vs A.G. Anambra State (1991) 3 NWLR (Pt.200) 59:

Leaders & Co. Ltd. Vs Bamaiyi (2010) 18 NWLR (Pt.1225) 329

Nwokoro Vs Onuma (1990) 3 NWLR (Pt.136) 22 (5) 32 A – B

Ugwu Vs Ararume f2007) ALL FWLR (Pt.377) 807 (9) 884 A — P:

MarwaVs Nyako (2012) 1 SC (Pt.III) 44:

Nafiu Rabiu Vs The State (1980) 8 -11 SC 130 @ 149.

Onuoha Vs Okafor (1983) 2 SCNLR 244: (1983) NSCC 494

Lado Vs C.P.C. (2012) ALL FWLR (Pt.607) 598 @ 622 – 623 F – H (2011) 12 SC (Pt.III) 113 @ 139 – 140

Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503 @ 526 E – G

Buhari vs. Obasanjo (2005) 13 N.W.L.R. (Pt. 941) 1 at 138

Oyibo Iriri & Others v. Eseroraye Emrhodare & Anor (1991) 3 S.C.N.J 1

Maikyo v. Itodo (2007) 7 N.W.LR. (Pt. 1034) 443  

STATUTES REFERRED TO:

The Electoral Act 2010 (as amended)

The Court of Appeal Rules 2011

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Just Decided – Latest Supreme Court Cases – Jan 31st, 2014.

ORHENA ADUGU GBILEVE & ANOR VS MRS. NGUNAN ADDINGI & ANOR
 
LEGALPEDIA  CITATION: LER[2014] SC 193/2012
 
AREAS OF LAW: PRE-ELECTION MATTER, JURISDICTION, DOCUMENTARY EVIDENCE
SUMMARY OF FACT
The Plaintiff/1st Respondent won the primaries as the candidate to represent Buruku Constituency of Benue State House of Assembly in the general election. Irrespective of the press release confirming the Plaintiff/1st Respondent’s emergence as the winner, the State Secretariat of the party replaced her name with the 1st Respondent/Appellant’s name as having won the election and a certificate of return was issued to him. Dissatisfied, Plaintiff/1st Respondent filed an originating summons at the Federal High Court, for the determination of five questions and the grant of seven reliefs. The suit was resolved on the basis of the affidavit evidence before the Court and judgment was entered in favour of the Plaintiff/1st Respondent. The Court ordered that the Plaintiff/1st Respondent’s name be returned as the lawful aspirant and that she should be issued with a certificate of return. The Respondents/Appellants’ appeal to the Court of Appeal was dismissed and the judgment of the trial court affirmed, hence they  further appealed to the Supreme Court.
HELD
Appeal dismissed
ISSUES FOR DETERMINATION
Whether the lower court was correct to have affirmed the jurisdiction of the trial court to entertain 1st Respondent’s suit (Grounds 6 & 7)
Having regards to the facts and evidence adduced in this case coupled with the applicable law, did the 1st Respondent prove her case to be entitled to judgment as decided by the trial court and affirmed by the lower court? (Grounds 1, 5 & 8)
Whether the lower court acted correctly in agreeing with the trial court when it failed or refused to order pleadings and / or take oral evidence to resolve the obvious material conflicts in the competing affidavits and counter affidavit of the parties before proceeding to judgment against the appellants. (Grounds 2)
RATIOS
 
DOCUMENTARY EVIDENCE –WHEN ORAL EVIDENCE CAN BE DISPENSED WITH IN RESOLVING CONFLICTS IN EVIDENCE
“Where the conflicting evidence can be resolved from the documentary evidence the need to call oral evidence becomes unnecessary”. PER UMAI BAYANG AKAAHS
 
DOCUMENTARY EVIDENCE-PURPOSE OF
“Documentary evidence is used as a hanger from which to test the veracity of the evidence whether given orally or by deposition”. PER UMAI BAYANG AKAAHS
 
EVALUATION OF EVIDENCE – WHEN AN APPELLATE COURT CANNOT INTEREFERE
“Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the appellate court cannot interfere”.   PER UMAI BAYANG AKAAHS
CONCURRENT FINDINGS OF LOWER COURT – ATTITUDE OF THE SUPREME COURT- WHEN TO  DISTURB
“The law is now fully established that the Supreme Court will not normally disturb the concurrent findings of two lower courts except it is shown that it has occasioned a miscarriage of justice or it is perversely arrived at”.  PER CLARA BATA OGUNBIYI
 
ISSUE OF JURISDICTION-WHERE AN ORIGINATING PROCESS DOES NOT CONFER JURISDICTION ON A TRIAL COURT – EFFECT ON PROCEEDINGS
“The issue of the jurisdiction of the trial court to entertain the originating summons ab initio is fundamental to the competence of the appeal before this court. Where the originating process at the trial court is found not to confer jurisdiction on the court, the proceedings are a nullity. The absence of jurisdiction has a ripple effect and taints the appellate courts, which would equally lack jurisdiction to entertain appeals arising from the null proceedings. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE -EKUN
JURISDICTION OF COURT – LACK OF – WHETHER PARTIES CAN CONFER JURISDICTION BY CONSENT OR ACQUIESCENCE
“It is also trite that where the court lacks jurisdiction, parties cannot confer jurisdiction by consent or acquiescence”. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE -EKUN
 
 
CASE MENTIONED
Adesola Vs Abidoye (1999) 14 NWLR (Pt.637) 28:
Akpagbue VS Ogu (1976) 6 SC. 63
Amadi VS Nwosu (1992) 5 NWLR (Pt.241) 273;
Bunge VS Gov. River State (2006) 12 NWLR (Pt. 995) 573″
Enang VS Adu (1981) 11 – 12 SC 25;
Ezekwesili VS Agbapuonwu (2003) 9 NWLR (PT. 825)337;
Fashanu VS Adekoya (1974) 6 SC. 84;(1974) 1 ALL NLR (Pt.l) 35;
Jadesimi Vs Okotie-Eboh (1986) 1 NWLR (Pt.16) 264;
Obiuweubi Vs CBN (2011) 7 NWLR (Pt.1247) 465
Onyejekwe V. The State (1992) 3 NWLR (Pt. 230) 444
Posu V. State (2011) All FWLR (Pt. 565) 234
SLB Consortium Ltd. Vs NNPC (2011) 9 NWLR (Pt.1252) 317
Woluchem VS Gudi (1981) 5 SC. 291;
 
STATUTES REFERRED TO
Electoral Act 2010 (as amended)
The Constitution of the Federal Republic of Nigeria 1999 (as amended)
AKUNNE BOSA MBANEFO VS. MOFUNANYA ACBU & ANOR
                 LEGALPEDIA  CITATION: LER[2014] SC 179/2007
AREAS OF LAWLAND LAW-CERTIFICATE OF OCCUPANCY, TRESPASS, APPEAL, LAW OF EVIDENCE-BURDEN OF PROOF
SUMMARY OF FACT:
The Plaintiff/Appellant instituted a claim against the 1st and 2nd Defendants/Respondents that after selling the land in dispute to him, the Defendants/Respondents failed to obtain Governor’s consent under Section 22 of the Land use Act but have resold the land to another person.  The trial Court struck out the name of the 2nd Defendant/Respondent from the suit and entered judgment for the Plaintiff/Appellant. Dissatisfied, the 2nd Defendant/Respondent appealed to Court of Appeal whiles the Plaintiff/Appellant also cross-appealed. The lower Court dismissed the Plaintiff/Appellant’s cross-appeal and dismissed the case of the trial court. Dissatisfied, the Plaintiff/Appellant has appealed to Supreme Court.
HELD:
Appeal dismissed.
ISSUES FOR DETERMINATION:
Were the learned Justices of the Court of Appeal not grossly in error when they held that in the circumstances of this case it was the duty of the purchaser of land to obtain the consent of the Governor
Were the learned Justices of the Court of Appeal not grossly in error when they held that the appellant was put in possession of the land and therefore had taken title to the land
Were the learned Justices of the Court of Appeal not grossly in error when they held that the 1st respondent only acted as a legal practitioner in the sale of land transaction in this case
RATIOS:
CERTIFICATE OF OCCUPANCY-WHEN GOVERNOR’S CONSENT IS REQUIRED
“It is clear that it is only whenever certificate of Occupancy has been granted or is deemed granted and a holder of such certificate is desirous to transfer, assign, mortgage, lease and sublease of the land that is subject of such certificate that the Governor’s consent is required under the said section”. PER CHUKWUMA- ENE J.S.C.
TRESPASS -MEANING OF- WHEN AN ACTION IN TRESPASS WILL LIE
“It is settled law that trespass is an infraction of the right of exclusive possession to land and as the appellant there has been put in exclusive possession of the aforesaid land, an action in trespass is certainly maintainable by him by virtue of his rights against any trespass who in law cannot claim to be in possession by mere entry which is complained of by the appellant”. PER CHUKWUMA-ENE J.S.C.
BURDEN OF PROOF –ON WHO LIES
“It is trite that he who asserts must prove”. PER AKAAHS, JSC
ISSUES-IMPROPRIETY OF PARTIES RAISING NEW ISSUES ON APPEAL
“The law is trite that a party will not be allowed to introduce an issue in this Court which was not raised and pursued in the Courts below thereby setting up an entirely new case in his appeal before his Court”. PER MOHAMMED, JSC
CASES MENTIONED:
Adegoke Motors Ltd. V. Adesanya (1989) 3 N.W.L.R. (Pt. 109) 250 at 266
Owoniboys Technical Services V. Union Bank of Nigeria (2003) 15 NWLR (Pt. 844)545 at 583
Philips v. Ogundipe (1967) 1 ANLR 258
STATUTES REFERRED TO:

The Land Use Act, 1979

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INOGHA MFA & ANOR V. MFA INONGHA

AREA OF LAW-CONSTITUTIONAL LAW-FAIR HEARING, PROLIFERATION OF ISSUES

 

SUMMARY OF FACTS:

The Plaintiff/Respondent, who was the father of the Defendants/Appellants, instituted an action against the Defendants/Appellants claiming title to the land in dispute. The case was adjourned severally at the instance of the Defendants/Appellants to enable them open their case. The Defendants/Appellants failed to do so and the trial Court closed the defense of the Defendants/Appellants on the application of the Plaintiff/Respondent and adjourned the matter for judgment. The Defendants/Appellants filed an application to call further evidence and stay delivery of the judgment. The application was granted and the trial Judge adjourned the matter for ruling and continuation. But on the said adjourned date, the Defendants/Appellants applied that the case should be referred to the Chief Judge for re-assignment to another Judge on the ground of bias. The trial Court dismissed the application and asked the Defendants/Appellants to proceed with defense but the their counsel sought for an adjournment on the ground that he only came to court for ruling and  would like to take the result of the ruling to his master. The trial Judge refused the application for adjournment and went ahead to deliver its suspended judgment. Piqued by the trial Court’s judgment, the Defendants/Appellants appealed to Court of Appeal and subsequently to Supreme Court on the ground of fair hearing.

HELD

Appeal dismissed

ISSUES

Whether the justices of the Court of Appeal were right in holding that the trial Judge closed the case of the defendants before proceeding to judgment (Ground 3)

Whether the learned Justices of the Court of Appeal were right in holding that the constitutional rights of the appellants were not breached even when the trial Judge did not formally close the defendants’ case and afford them the opportunity of presenting a final address? (Grounds 4 & 5)

Whether the learned Justices of the Court of Appeal were right in striking out five of the six grounds of appeal for alleged failure to formulate issues from the said grounds?”

RATIOS:

APPLICATION FOR ADJOURNMENT-WHETHER AN APPLICATION FOR ADJOURNMENT CAN BE DENIED BY THE COURT

“…the need for Counsel to take the message, whatever the message is, does not constitute application, based on valid grounds, for adjournment. Also continuous absence of Counsel in a case he is handling as shown in the record of the trial Court amounts to obstruction of the cause of justice and therefore contempt of Court. See McKown v. R (1971) 16 DLR 390; Izuora v. R (1953) 13 A WACA 313. When an application for adjournment is unnecessary or not reasonable, the Court may deny same and proceed with the case.” PER NGWUTA, J.S.C.

BREACH OF FAIR HEARING- EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING

“It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig.) Ltd. V. U.B.A. Plc. (2008) All FWLR (pt. 403) 1240 @ 1255 A-B; Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 674; Okafor v. A.G. Anambra State (1991) 3 NWLR (pt.200) 59; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in the recent decision of this court in: Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 469: “The law is indeed well settled that fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro V. Oruma (1990) 3 NWLR (Pt.136) 22. The effect of a denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the court, become a nullity.” PER KEKERE-EKUN, J.S.C.

DISCRETION OF THE COURT-WHETHER THE COURT HAS THE DISCRETION TO GRANT OR DENY AN ADJOURNMENT

“The Court has a duty to guard against an attempt by any of the parties to make an ass of the law and its rules of procedure. If Counsel’s desire to take a message to his principal is an application for adjournment then the trial Court rightly rejected same and read its judgment, as no cogent reason was advanced. Adjournment is a matter within the discretion of the Court and in this case the discretion was exercised in the overall interest of justice, See Shonekan v.  P. G. Smith (1967) 1 All NLR 329 at 333. The exercise of judicial discretion on the facts of the case was in accord with commonsense.” PER NGWUTA, J.S.C.

FAIR HEARING-PRINCIPLE OF FAIR HEARING

“The process of fair hearing is a two-edged sword and it cuts both ways – appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the appellants could  not substantiate their allegation of denial of fair hearing.” PER NGWUTA, J.S.C.

FAIR HEARING-CONCEPT OF FAIR HEARING

“…it is equally trite that once a party has been afforded the opportunity to present his case and he fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached. This was made very clear in the case of: Pam & Anor. V. Nasiru Mohammed & Anor. (2008) 16 NWLR (Pt.1112) 1 @ 48 E – G where the concept of fair hearing was explained by Oguntade, JSC as follows: “The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties every opportunity to put their case to the court before the court gives its judgment. … A complaint founded on denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all parties before it.” PER KEKERE-EKUN, J.S.C.

 FAIR HEARING-WHAT DETERMINES IF A HEARING HAS BEEN FAIR

“In order to determine whether the hearing has been fair, the test to be applied is the impression of a reasonable man present at the trial and whether from his observation justice was done in the case” PER KEKERE-EKUN, J.S.C.

PROLIFERATION OF ISSUES-WHETHER MORE THAN ONE ISSUE CAN BE RAISED FROM A GROUND OF APPEAL

“The Court frowns at proliferation of issues for determination distilled from grounds of appeal. An issue arises from one or more grounds of appeal. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566. It is proliferation of issues to raise more then one issue from a ground of appeal.” PER NGWUTA, J.S.C

RELIANCE ON TECHNICALITIES- ATTITUDE OF COURT TO TECHNICALITY AND COMPLIANCE WITH RULES OF COURT

“In the immortal words of my noble Lord, the philosopher Jurist, Oputa, JSC: “The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid of justice… “PER NGWUTA, J.S.C.

RIGHT TO FAIR HEARING-WHETHER A PARTY WHO REFUSES OR FAILS TO TAKE ADVANTAGE OF THE FAIR HEARING ENVIRONMENT CREATED BY THE COURT CAN ACCUSE THE COURT OF DENYING HIM FAIR TRIAL

“The right to fair hearing entrenched in S.36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, in its first pillar of justice is the Audi alterem partem which means “hear the other party”. The Court has no business pursuing a recalcitrant party in order to hear him. All the Court is required to do is to create an enabling environment for the party to present his case and be heard. A party who refuses or fails to take advantage of the fair hearing environment created by the Court cannot accuse the Court of denying him fair trial.” PER NGWUTA, J.S.C

FAIR HEARING-WHERE A PARTY FAILS TO DEFEND HIS CASE-EFFECT OF

“A party cannot be compelled by the court to present or defend his case when he has no such desire. In the circumstances where a party refuses or neglects or fails to take advantage of the fair hearing environment so created by the court, he (the party in default) cannot be heard to accuse the court of a denial of his right to fair hearing. He has himself to blame”. PER ONNOGHEN, J.S.C

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ALHAJI SAFIANU AMINU & 2 ORS VS ISIAKA HASSAN & 2 ORS

SUMMARY OF FACT

The Plaintiffs who are Respondents in this appeal brought an action against the Defendants/ Appellants claiming that they are entitled to the grant of Certificate of Occupancy in respect of a land, damages for trespass committed by the Defendants and an injunction retraining the Defendants/Appellants from further acts of trespass. The Defendants/Appellants filed their statement of defence and counter claimed seeking some reliefs. After consideration of the evidence before the court, the Trial judge delivered judgment in favour of the Defendants/Appellants. Not satisfied the Plaintiffs/Appellants appealed to the Court of Appeal. The Court below set aside the judgment of the trial court. The Defendants/Appellants have now appealed to the Supreme Court.

 HELD

Appeal dismissed

ISSUE

Whether the learned justices of the Court of Appeal were right to have held that Exhibit E was inadmissible on the ground that it was not pleaded, and did not comply with section 34 of the Evidence Act and could not operate as res judicata against the respondents

Whether the learned justices of the Court of Appeal were right to have held that Exhibits G – G1 were inadmissible on the ground that they were not pleaded”

RATIOS

ADMISSIBILITY OF A DOCUMENT- WHETHER A TRIAL COURT OR PARTIES TO AN ACTION HAVE THE POWER TO ADMIT WITHOUT OBJECTION, A DOCUMENT THAT IS NOT ADMISSIBLE IN LAW

“Neither a trial court nor the parties to an action has any power to admit without objection, a document that is in no way and under no circumstances admissible in law. If such a document is wrongfully received in evidence before the trial court, an appellate court has an inherent jurisdiction to exclude it even where no objection was raised to its going in at the Lower court. PER PETER-ODILI, JSC

ADMISSIBILITY OF DOCUMENT- WHETHER THE APPELLATE COURT HAS JURISDICTION TO EXCLUDE AND DISCOUNTENANCE A DOCUMENT WHICH WAS UNLAWFULLY RECEIVED IN EVIDENCE AT THE TRIAL COURT EVEN THOUGH COUNSEL AT THE TRIAL DID NOT OBJECT TO ITS GOING INTO EVIDENCE

“It is not the law that once a document is received in evidence without objection by a party, then such a party is forever automatically stopped, even in the appellate court from raising the issue of its admissibility. Thus, if a document is unlawfully received in evidence at the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though counsel at the trial did not object to its going into evidence. It goes without saying therefore that although a document was unlawfully received in evidence without objection by or on behalf of the appellant, it would still be open to him in the appellate court especially where such an appellant has in fact suffered injustice as a result, or a miscarriage of justice occasioned as a result, to object to it since it is the duty of the appellate court to excluded that inadmissible evidence which was wrongly received in evidence at the trial. PER PETER-ODILI, JSC

BURDEN OF PROOF- ON WHO LIES THE BURDEN TO PROVE IN CIVIL CASES

“… I would like to reiterate what applies in practice and that is seen in the case of: Oyovbiare v Onamurhomu (1999) 10 NWLR (Pt. 621) 23 at 34 – 35 (SC) wherein it was held that the general rule in civil cases is that the burden of proof rests upon the party who substantially asserts the affirmative before the evidence is gone into. The position therefore is that the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Also in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence were produced in respect of those facts. Once that party produces the evidence that would satisfy the court then the burden shits on the party against whom judgment would be given if no more evidence were adduced.” PER PETER-ODILI, JSC

DOCUMENTARY EVIDENCE-WHETHER DOCUMENTARY EVIDENCE MUST BE PLEADED TO BE ADMISSIBLE IN EVIDENCE

“It is to be said that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are or any part thereof are material.” PER PETER-ODILI, JSC

 

EVIDENCE OF A WITNESS-WHETHER EVIDENCE GIVEN BY A WITNESS IN A JUDICIAL   PROCEEDING   IS   RELEVANT  FOR THE PURPOSE OF PROVING, IN A SUBSEQUENT JUDICIAL PROCEEDING, OR IN A LATER STAGE OF THE SAME JUDICIAL PROCEEDING

“It was seriously contested that Exhibit E is not admissible being substantially the record of evidence in a previous case in respect of which there was no compliance with section 34 of the Evidence Act. Section 34(1) of the applicable Evidence Act reads as follows:-”34(1) Evidence given by a witness in a judicial proceedings, or before any person authorized by law to make it is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case, the court considers unreasonable. Provided:- (a) That the proceeding was between the same parties or their representatives in interest. (b) That the adverse party in the first proceedings had the right and opportunity to cross-examine, and (c) That the questions in issue were substantially the same in the first as in the second proceedings.” It should be noted here that the appellants did not establish that the witnesses who testified in Exhibit E were dead or cannot be found, or were incapable of giving evidence, or were kept out of the way by the respondents or that their presence could not be obtained without such delay or expense as the court would have considered unreasonable. There was no attempt to comply with the conditions in the above proviso to section 34 of the Evidence Act. It has been pronounced with force long ago by this court in Alade v. Aborishade (1960) 1 NSCC 111 at 115 per Abbot, FJ ‘that evidence given in a previous case can never be accepted as evidence by a court trying a later case where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but is of no higher value than that. The judgment in an earlier case frequently is used perfectly properly in a later case, the classic instance being, of course, on a plea of res judicata but it can properly be used there provided the incidents necessary to support such a plea are fully observed’. PER FABIYI, JSC

 

INTERFERENCE WITH FINDING OF FACT OF THE LOWER COURT- INSTANCES WHERE AN APPELLATE COURT WOULD DISTURB THE FINDING OF FACT OF A TRIAL COURT

“In respect to the matter of laches and acquiescence which the Court of Appeal departed from the view of the trial court on the plea of laches and acquiescence. The court below was right to hold that the trial court had failed to properly appraise the evidence with regard to the appellants (now respondents) plea of laches and acquiescence and so had no difficulty in reverse the finding of the trial court that the plea did not apply in the counter-claim. In this regard, this is one of those instances where an appellate court would disturb the finding of fact of a trial court. See the case of Oyovbiare v Omamurhomu (1999) 10 NWLR (Pt. 621) 23 at 35 & 41 SC. An appellate court should be slow to disturb a finding of fact made by a trial court which is supported by evidence unless it is satisfied that such finding is unsound. Lengbe v Imale (1959) WNLR 325.” PER PETER-ODILI, JSC

 

OBJECTION TO THE ADMISSIBILITY OF A DOCUMENT- WHEN SHOULD OBJECTION TO THE   ADMISSIBILITY OF A DOCUMENT SOUGHT TO BE TENDERED IN EVIDENCE BE RAISED AND EFFECT OF NOT RAISING SAME

“The rule of evidence and practice in civil as well as in criminal cases prescribes that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when it is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible for failure to comply with the provisions of such law, the rule remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document or other evidence, the document or evidence would be admitted and the opposing party would for all time hold his peace and cannot complain thereafter about that admission. PER PETER-ODILI, JSC

 

 PLEA OF ESTOPPEL PER REM JUDICATAM- CONDITIONS THAT MUST BE MET BEFORE A PLEA OF ESTOPPEL PER REM JUDICATAM CAN ARISE

“Where although there was a valid subsisting judgment on the same subject matter the issues are not the same or the right and capacity in which the present suit is being fought is not the same with those in the previous suit, it does not mean that the previous suit is completely valueless for purposes of the instant suit. Although the present defendant cannot take advantage of it as res judicata, it still goes to strengthen the defendant’s case in the present suit as it is accepted are a good evidence of acts of possession which the parties thereto can now take advantage of along with other facts established by evidence. Uluba v Sillo (1973)1 SC 37; Ajuwa v Odili (1985) 2 NWLR (Pt.9)710; Kobina Ababio III v Priest De-Charge Catholic Mission 2 WACA 380 at 381 – 382; Chinwendu v Mbamali (1980) 3 – 4 SC 31 at 50. Again, to be said is that a plea of estoppel per rem judicatam to apply as in this instance certain conditions must apply first. A plea of estoppels per rem judicatam in a land case can be dealt by the party and the court in one of two ways, viz:- (a) where the decision in the previous suit is clear and self-sufficient, then it is usually taken up in linier, often as the only issue. In that case, the success of the party’s usually depends entirely on the success of the plea; or (b) where, as is often the case when the previous suit being relied upon for the plea is a decision of a nature tribunal in which there was no plea or pleadings the court first hears the whole evidence before it can reach its decision on the rightness, or otherwise of the plea, In this latter case, one of two situations may arise. (i) It may be that when all the fact of the previous and present suit have been ascertained from the evidence, it becomes clear that all the ingredients of a successful plea of res judicata emerge; (ii) It may turn out that, although there was a valid and subsisting judgment on the same subject matter as at present in litigation the present defendant cannot take advantage of it as res judicata either because the issues are not the same or because the right and capacity in which the current suit is being fought is not the same with those in the previous suit even if the subject-matter is the same.” Per PETER-ODILI, J.S.C

PLEADINGS- OBJECT OF PLEADINGS

“Let me say it right away that the object of pleadings is to require each party to give notice to his opponent with clarity and precision of the case which he is to meet. Each party is expected to place his cards on the table face-up. This is essential to prevent any of the parties from being taken by surprise and enable them frame and prepare their cases for trial”. PER FABIYI,JSC

 

PLEADINGS-DUTY OF THE TRIAL COURTS TO DISCOUNTENANCE EVIDENCE GIVEN IN RESPECT OF FACTS NOT PLEADED

“It is basic that in civil cases, issues are settled on pleadings and courts should not allow evidence to be given in respect of facts not pleaded. If such evidence is inadvertently received, it is the duty of the trial judge to discountenance it as it goes to no issue”. PER PETER-ODILI, JSC

 

PLEADINGS- DUTY OF THE TRIAL COURT NOT TO ALLOW EVIDENCE TO BE GIVEN IN RESPECT OF FACTS NOT PLEADED

“It is settled law that in civil cases, issues are settled on the pleadings, and the court should not allow evidence to be given in respect of facts not pleaded. If however, such evidence is inadvertently received, it is the duty of the trial judge to discountenance it because it goes to no issue. Parties are bound by their pleadings, and the issues joined therein. Thus, the court must be on its guard so that it does not deviate from the case made by each party in the pleadings; otherwise it will unwittingly be making for the parties an entirely new case. PER PETER-ODILI, JSC

 

 PRESUMPTION OF OWNERSHIP- PRESUMPTION OF OWNERSHIP WITHIN THE PURVIEW OF SECTION 146 OF THE EVIDENCE ACT, CAP E14 OF THE LAWS OF THE FEDERATION

“This must be looked at within the purview of Section 146 Evidence Act which prescribes thus: “146. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.” The situation on ground seem to make relevant and applicable the decision of this court in Raphael Udeze & Ors v. Paul Chidebe & Ors. (1990) 1 SC. 148 per Nnaemeka-Agu JSC wherein he stated at pages 160 – 161 thus: “It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to prove such tenancy. It is significant to note that a customary tenants is in possession of his holding during good behavior and until it is forfeited for misbehavior. Once it is the case that such a person is a customary tenant and therefore in possession, then like any other person in possession of land, there is a presumption of ownership in his favour. Although the presumption is rebuttable to due proof of a tenancy, the onus is on the adversary to rebut it if he can.” PER PETER-ODILI, JSC

PRESUMPTION OF OWNERSHIP- WHETHER THE LAW PRESUMES THAT DEFENDANTS IN EXCLUSIVE POSSESSION OF A LAND IN DISPUTE ARE OWNERS OF THE LAND UNTIL THE CONTRARY IS PROVEN

“It is a settled principle of law that a claim which seeks a declaration that the defendants are customary tenants of the plaintiff and other consequential reliefs emanating there from postulates that the defendants are in exclusive possession of the land in disputes. And by the operation of Section 146 of the Evidence Act, Cap E14 of the Laws of the Federation, there is presumption that the defendants in such exclusive possession are the owners of the land in dispute until the contrary is proved to rebut that presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. That is the danger of a plea founded on the allegation of customary tenancy.” PER PETER-ODILI, JSC

RES JUDICATA- WHAT CONSTITUTES RES JUDICATA

“The appellants attempted to rely on Exhibit E as constituting res judicata which has been defined as ‘a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and so to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. A matter once judicially decided is finally decided – To be applicable, requires identity in thing sued for; identity of cause of action, persons and parties to the action’ PER FABIYI, JSC

 

RULE OF PLEADINGS-WHETHER MATERIAL   FACTS   MUST   BE   PLEADED   TO BE ADMISSIBLE IN EVIDENCE

“It is known to be a cardinal rule of pleadings that material facts, to be admissible in evidence must be pleaded. Consequently, none of the parties is allowed to raise at the trial of a suit, an issue of fact which has not been pleaded by him. Therefore, where such facts are not pleaded, they are in law inadmissible in evidence and where inadvertently or wrongly admitted go to no issue and should be disregarded as irrelevant to issues properly raised by the pleadings”. PER PETER-ODILI, JSC

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INTEGRATION (NIGERIA) LIMITED VS. ZUMAFON (NIGERIA) LIMITED

 AREAS OF LAW-LAW OF CONTRACT, INJUNCTION, STAY OF EXECUTION OF JUDGMENT

SUMMARY OF FACTS:

 The Plaintiff/Respondent brought an action against the Defendant/Appellant at the trial court seeking for specific performance of the contract between the Plaintiff and the Defendant, an order of perpetual Injunction, loss of profit, and general damages for breach of contract. Judgment was entered in favour of the Plaintiff /Respondent and the sum of (N8, 000,000.000) (Eight Million Naira) was awarded as general damages. The Defendant appealed to the lower court and also filed a motion for stay of execution which was granted but the Defendant being not satisfied with the terms of the stay of execution order, appealed to the Court of Appeal, Enugu division to have the stay of execution reversed. The application was refused by the court hence this appeal to the Supreme Court.

 HELD:

Appeal dismissed

ISSUES:

Whether the Court of Appeal acted judiciously and judicially by refusing to interfere with the discretion of the lower court exercised in favour of the appellant

 RATIOS:

STAY OF EXECUTION OF JUDGMENT-MEANING OF STAY OF EXECUTION OF JUDGMENT

“What is it to stay execution of a judgment? This is the postponement, halting or suspension of judgment of a court.” PER ARIWOOLA, J.S.C

APPLICATION FOR STAY OF EXECUTION- CIRCUMSTANCES UNDER WHICH THE COURT WILL EXERCISE ITS DISCRETION TO GRANT STAY OF EXECUTION OF A JUDGMENT ALREADY DELIVERED

“Again to be said in line with the decision of the Supreme Court in Utilgas Nigeria & Overseas Co. Ltd v Pan African Bank Ltd (1974) NSCC 393, is that though the courts including the Apex Court have a wide discretion in granting or refusing an application for stay of execution of a judgment already delivered but such discretion should be exercised judiciously and it would be so exercised where it is demonstrated that the appeal involves substantial point or points of law necessitating that the parties and matters be kept in status quo until the legal issues are resolved.” PER PETER-ODILI, J.S.C

APPLICATION FOR STAY OF EXECUTION-WHAT AN APPLICANT IS EXPECTED TO SHOW IN ORDER TO OBTAIN A STAY OF EXECUTION OF JUDGMENT

“Ordinarily, for an unsuccessful litigant to succeed in an application for stay of execution of judgment, he must show clearly that there exist special or exceptional circumstances showing the balance of justice in his favour.” PER ARIWOOLA, J.S.C

INTERFERENCE WITH THE EXERCISE OF DISCRETION-INSTANCES WHERE AN APPELLANT COURT WILL INTERFERE WITH EXERCISE OF JUDICIAL DISCRETION OF THE TRIAL COURT

“It is now basic that this court will only interfere with the exercise of discretion of the lower court which affirmed that of the trial court where same is manifestly wrong, arbitrary, reckless and injudicious”. PER FABIYI, J.S.C

STAY OF EXECUTION- PRINCIPLE GUIDING THE ORDERING OF A STAY OF A JUDGMENT OF COURT

“The guides are well stated in the oft quoted decision of this court in Vaswani Trading Company v. Savalakh & Company(1972) NSCC 692 at 695 per Coker JSC and they are as follows: “When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order for stay is granted destroy the subject -matter of the proceedings or foist upon the court especially the court of appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the order, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.” PER PETER-ODILI, J.S.C

 STAY OF EXECUTION-WHAT NEEDS TO BE PREDICATED BY A PARTY TO OBTAIN A STAY OF EXECUTION OF A JUDGMENT AGAINST A SUCCESFUL ADVERSARY

“It must not be lost sight of in all these that at the root of it all is the basic fact that a party to obtain a stay of execution of a judgment against a successful adversary must show substantial reasons to justify the denial of that successful party of the fruit of his judgment by the court. To state the above differently is to emphasie that a judgment that is executory should have no hindrance from the delivery of the judgment to the effecting of the order or orders of court emanating therefrom. A basic rule and sacrosanct and so to restrain the immediate execution of that judgment some special circumstances or unique occurrence must exist to hold back the hand of the court. See Balogun v. Balogun (1969) ALL NLR 341. The principles above recanted situated in the present circumstances of this case throw up the fact that what is being called up right here and now is the exercise of the discretion of the trial High Court endorsed by the court of appeal which translates to a concurrent decision of the two courts below. In this regard is a reiteration of the fact that this court in its appellate jurisdiction will rarely interfere with the exercise of its discretion by the lower courts. It can only be done where such an exercise is based on extraneous issues or where the exercise of such discretion is not bona fide.” PER PETER-ODILI, J.S.C

STAY OF EXECUTION-WHAT A COURT SHOULD TAKE INTO CONSIDERATION BEFORE GRANTING AN APPLICATION OF STAY OF EXECUTION

“It is settled law that a stay of execution of a judgment will only be granted by the court, if it is satisfied that there are special or exceptional circumstances to warrant doing so. The reason being that the law is that a judgment of a court of law is presumed to be correct and rightly given until the contrary is proved or established. The courts have refused to make it a practice of depriving a successful litigant of the fruits of his success in court.” PER ARIWOOLA, J.S.C

STAY OF EXECUTION-DISCRETIONARY POWER OF THE COURT A STAY OF EXECUTION  

“It is however trite law that the grant or refusal of stay of execution of judgment by the court   is purely discretionary, though the discretion must be exercised both judicially and judiciously but certainly not arbitrarily.” PER ARIWOOLA, J.S.C

 STAY OF EXECUTION- WHEN WILL AN APPEAL FROM A DECISION MADE IN THE EXERCISE OF A TRIAL JUDGE’S DECISION BE ALLOWED

“An appeal from a decision made in the exercise of a trial judge’s discretion is to be allowed when, in exercising his discretion the trial judge has acted under a mistake of Law, or in disregard of principle or under a misapprehension of the facts has taken into account irrelevant matters or on the ground that injustice could arise.” MUHAMMAD, J.S.C

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OREDOLA OKEYA TRADING CO. & ANOR VS. BANK OF CREDIT & COMMERCE INTERNATIONAL & ANOR

SUBJECT MATTER – INTERLOCUTORY APPLICATION

SUMMARY OF FACT:

The Appellant/Applicant filed an application at the Supreme Court seeking to substitute the 2nd Appellant who was deceased. The Appellant/Applicant also sought to substitute the 1st Respondent-Bank of Credit & Commerce International (which subsequently became known as the African International Bank Limited) with Nigeria Deposit Insurance Corporation on the ground that the license of 1st Respondent has been revoked by the Central Bank of Nigeria and that by the provisions of Section 40 of the Nigeria Deposit Insurance Corporation Act 2006 and Section 425 of the Companies and Allied Matters Act, Cap. C.20 LFN, 2004, the Nigeria Deposit Insurance Corporation shall be deemed to have been appointed the provisional liquidator of the 1st Respondent with power to defend any legal proceeding on behalf of the 1st Respondent. The substitution of the 2nd Appellant was not opposed but however the 1st Respondent filed a counter-affidavit to oppose the substitution of the 1st Respondent with Nigeria Deposit Insurance Corporation. The Supreme Court held that the revocation of license of the 1st Respondent by the Central Bank on 16th January, 1998, did not necessarily remove the “life”, so to say, of the 1st Respondent thereby making it incapable of suing or being sued or barring   it from becoming an appellant or a respondent in the appeal process.

 

HELD:

The application for substitution was partially granted.

ISSUE FOR DETERMINATION

Now the central issue for determination in this application, going by the facts contained in the affidavit evidence is substitution: (a) for Alhaji Sikiru Amolegbe to substitute the 2nd appellant, Alhaji Yesufu Alabi Amolegbe and (b) for Nigeria Deposit Insurance Corporation to substitute Bank of Credit and Commerce International, 1st respondent on record.

RATIOS:

ADMITTED FACT-WHETHER AN AVERMENT IN AN AFFIDAVIT WHICH HAS NOT BEEN CATEGORICALLY DENIED WILL BE DEEMED TO BE ADMITTED BY THE OPPONENT

“It is trite as well that any averment in an affidavit which has not been categorically denied or controverted is deemed to be admitted by the opponent”. PER MUHAMMAD, J.S.C.

BURDEN OF PROOF- WHETHER THE LAW ALWAYS PLACE THE BURDEN OF PROOF IN CIVIL MATTERS ON THE PLAINTIFF/CLAIMANT /PETITIONER/APPLICANT, TO SATISFY THE COURT BY LEADING CONCRETE EVIDENCE WITH A VIEW TO ESTABLISHING HIS CLAIM

“It is pertinent for me, my lords, to reiterate the position of the law that in our adversarial system of litigation, the law, always places the burden of proof in civil matters on the plaintiff/claimant/petitioner/applicant, as the case may be, to satisfy the court by leading concrete, cogent and valid evidence with a view to establishing his claim. The Evidence Act is very clear on this and provides as follows: “135 (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist. 136 the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”  PER MUHAMMAD, J.S.C

 

SECTION 417- INTERPRETATION OF SECTION 417 OF THE COMPANIES AND ALLIED MATTERS ACT CAP.59

“S. 417 of the Companies and Allied Matters Act “Cap. 59 desirable. S. 417 ‘If a winding-up order is made or a provisional liquidator is appointed no action or proceeding shall be proceeded with or commenced against the company except by leave of the court given on such terms as the court may impose.’ My understanding of this section is that the fact of winding-up of a Company or the appointment of a liquidator does not by itself result in the death of a corporate body thereby removing its legal personality.” PER MUHAMMAD, J.S.C.

WINDING UP-DISTINCTION BETWEEN LIQUIDATION OF A COMPANY AND DISSOLUTION OF A COMPANY

“Now, winding up of a company involves the liquidation of the company/corporation so that assets are distributed to those entitled to receive them. Campell Black, says, liquidation is quite distinguishable from dissolution which is the end of the legal existence of a corporation. Liquidation may precede or follow dissolution (p.839 of Black’s Law Dictionary 5th ed.) thus, mere revocation of banking license of a bank, without more, as claimed by the applicant cannot bring to an end the juristic life of a bank or corporation. Likewise where a bank or corporation ceases to operate or closes its business that does not determine the   legal   existence of such   a   bank or corporation.” PER MUHAMMAD, J.S.C.

 WINDING UP-MODES OF WINDING UP A COMPANY

“In general, there are (3) three known modes of winding up a company viz: (a) by the court; (b) voluntarily; or (c) subject to the supervision of the court.” PER MUHAMMAD, J.S.C.

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CHARLES EGBIRIKA VS THE STATE

AREA OF LAW

CRIMINAL LAW AND PROCEDURE-DEFENCE OF ACCIDENT, APPEAL- GROUNDS OF APPEAL, LAW OF EVIDENCE-STANDARD OF PROOF, INTERPRETATION OF STATUTES

SUMMARY OF FACTS:

The Appellant was arraigned and convicted at the trial court on a single count of manslaughter contrary to Section 235 of the Criminal Code Law Cap. 29 Laws of Ogun State of Nigeria 1978. Dissatisfied with the judgment of trial court the Appellant appealed to the Court of Appeal and the Court affirmed the decision of the trial court. The Appellant has further appealed to this court.

HELD

Appeal dismissed

ISSUES:

Whether the prosecution proved a case of manslaughter against the appellant sufficient to warrant a conviction by the trial court? (Ground 1 & 2)

RATIOS:

MANSLAUGHTER- DEFINITION OF THE TERM “MANSLAUGHTER”

“In Ejeka V. The State (2003) 7 NWLR (Pt.819) 408 @ 423 F, this court per Tobi, JSC held: “Manslaughter is an unintentional killing of a human being. Such a killing is not pre-meditated but accidental, in the sense that it was not intentional.” PER KEKERE-EKUN, J.S.C

DEFENCE OF ACCIDENT-AT WHAT POINT WILL AN EVENT OR AN ACT COMMITTED BE DEEMED ACCIDENTAL

“Negligent act of the appellant in this case can be inferred from the prevailing circumstances. The learned trial Judge rightly inferred negligence in the act of the appellant who shot the deceased who was retreating. The Court below at page 133 of the record agreed with the finding of the learned trial Judge in this regard. The Appellant who was in close proximity to the deceased should have uncorked his rifle, if as he stated, he had no intention to fire it. The defence of accident as raised by the appellant under Section 24 of the said Criminal Code Law of Ogun State.

States thus. “….a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident.” Applying the objective test to this case in determining whether or not the shooting of the deceased was an accident or not, it cannot be said that the shooting of the deceased occurred independently of the exercise of the appellant’s will or by accident. In MAIYAKI v. STATE (supra) at page 204, this Court held as follows: “An event is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, in the circumstances in which it is done, to take reasonable precautions against it.” It is in the case of APUGO v. THE STATE (2007) 2 NCC. 32 at 41 this Court per my brother ONNOGHEN JSC, reviewed clearly the provisions of section 315 of the Criminal Code, (supra) when he held thus: “From the above provisions of Section 315 of the Criminal Code it is very clear that for a killing to amount to manslaughter it must not only be unauthorized or unjustified or not excused by Law, it must also result from the direct or indirect act of the accused person. In short the death must be caused by the unlawful act of the accused person.” PER GALADIMA, J.S.C

GROUNDS OF APPEAL- WHETHER PARTICULARS OF GROUNDS OF APPEAL CAN STAND INDEPENDENT OF THE GROUNDS OF APPEAL

“The law is settled that the particulars of a ground of appeal must not be an independent complaint from the ground of appeal itself but should be ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced.” PER

KEKERE-EKUN, J.S.C

ISSUES FOR DETERMINATION- WHETHER MORE THAN ONE ISSUE CAN BE DISTILLED FROM A SINGLE GROUND OF APPEAL

“…it is by now well settled that the proliferation of issues for determination is always frowned upon by the appellate courts. While an issue for determination may be distilled from more than one ground of appeal, it is improper to formulate more than one issue from a single ground of appeal. A. ground of appeal must also be predicated upon the decision appealed against. As far back as 1990 this court in Egbe V. Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part I) 306 @332 held: “Issues for determination in the appeal must be consistent and fall within the scope of the grounds of appeal filed. The issues cannot be formulated to be wider than the grounds of appeal from which they derive their existence. Indeed the grounds of appeal must relate to the decision and should be a challenge to the validity of the ratio of that decision.” Also in: Agbetoba V. Lagos State Executive Council (1991) 4 NWLR (Pt.188)664; (1991) 6 SCNJ 1 @ 12, Karibi-Whyte, JSC stated: “This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues” PER KEKERE-EKUN, J.S.C

OFFENCE OF MURDER OR MANSLAUGHTER- EFFECT OF SECTIONS 315, 316 & 317 OF THE CRIMINAL CODE

“Section 315 of the Criminal Code provides: “Any person who unlawfully kills another is guilty of an offence, which is called murder or manslaughter, according to the circumstances of the case.” Section 316 sets out the circumstances in which an unlawful killing would amount to murder. Section 317 provides: “A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.” In a review of the above provisions this court in: Apugo v. The State (2007) 2 NCC 30 @ 41 E held per Onnoghen, JSC: “From the above provisions of Section 315 of the Criminal Code it is very clear that for a killing to amount to manslaughter it must not only be unauthorised or unjustified or not excused by law, it must also result from the direct or indirect act of the accused

person. In short the death must be caused by the unlawful act of the accused person. In the case of: Uyo V. A.G., Bendel State (1986) 1 NWLR (pt.17) 418: (1986) All NLR 126 this court referred to and relied upon the dictum of the West African Court of Appeal (WACA) in R. V. Oledinma (1940) 6 WACA 202 that: “To establish a charge of murder or manslaughter, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did” The position of the law is that no matter how reckless the conduct of the accused might be, so long as the killing that resulted from his act was not intended, the act would not fall within the provision of Section 316 of the Criminal Code and therefore would not constitute murder.See: Omini V. The State (1999) 12 NWLR(pt.630) 168 @ 182 A. See also: Shosimbo v. The State (1974) All NLR 603; (1974) 10 SC 69 wherein it was held that in establishing the offence of manslaughter, it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased, which harm caused his death. “PER KEKERE-EKUN, J.S.C

STANDARD OF PROOF-ON WHOM LIES THE BURDEN OF PROVING ITS CASE BEYOND REASONABLE DOUBT AGAINST THE ACCUSED

“The duty of the prosecution is to establish its case against the accused person beyond reasonable doubt as enjoined by Section 135 (1) of the Evidence Act 2011 (as amended). Section 135 (3) of the Act provides that if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt shifts to the defendant. The position of the law is that the legal burden of proving its case against the accused person beyond reasonable doubt rests squarely on the prosecution and never shifts. However the burden of introducing evidence on an issue, known as the evidential burden, may be placed by law on either the prosecution or the defence depending on the facts and circumstances of the case. See: Esangbedo V. The State (1989) NWLR (Pt.113) 57 @ 69 – 70 H – A.; Woolmington V.D.P.P. (1935) A.C. 462. Where the evidential burden placed on a party in respect of a particular issue is not discharged, the issue would be resolved against the party without much ado.” PER KEKERE-EKUN, J.S.C

TAINTED WITNESS- THE MEANING OF TAINTED WITNESS

“It has been held that a tainted witness is a witness who may or may not be an accomplice but who by the evidence he gives (whether as witness for the prosecution or for the defence) may be regarded as having some purpose of his own to serve.” PER KEKERE-EKUN, J.S.C

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MOHAMMED ABACHA VS. FEDERAL REPUBLIC OF NIGERIA

AREAS OF LAW: CONSTITUTIONAL LAW-IMMUNITY, COURT- JURISDICTION, INTERPRETATION OF STATUTES

 SUMMARY OF FACT:

The Respondent through the Attorney General of the Federation  instituted  an action at the High court  of the Federal  Capital  Territory, Abuja against the Appellant and one other for charges relating to offence of conspiracy, receiving stolen property dishonestly and concealing stolen money, all pursuant to Sections 97(i), 317 and 319 of the Penal Code. At the trial Court, the Appellant and the other filed several applications before their plea could be taken. One of which bordered on the jurisdiction of the trial Court to entertain the action. The application was dismissed and the trial court affirmed that it had jurisdiction to entertain same.  The Appellant also brought a motion of notice praying for the suspension of consideration of the application and delivery of its ruling thereof by the trial Court and to refer to the Court of Appeal three questions of law which were objected to by the Respondent. The application was granted by the trial court referring the questions to the lower court. The court answered the questions referred to it in the negative against the Appellant. Being dissatisfied the Appellant has brought this appeal before this court.

HELD

Appeal dismissed

ISSUES FOR DETERMINATION

Whether the Court of Appeal was right when it held that the Forfeiture of Assets etc. (Certain Persons) Decree No. 53 of 1999 did not absolve the appellant Mohammed Abacha and all other persons mentioned in the schedule to the said law from further prosecution in the face of the clearer wordings of the said legislation and the previous interpretation given in identical circumstances to the said law by the State? (Grounds 1, 2 and 3).

Whether the court below can be said to be correct when it rejected the appellant’s submission that the totality of the effect of Decree No. 53 of 1999 amounted to Executive or State promise not to prosecute any of the persons listed in the schedule to the said decree (Appellant inclusive) and that Government was thereby stopped from prosecuting in respect of any issue arising from compliance with the law in issue? (Grounds 4 and 5).

 Whether the court below was right when it held that the office of the late Head of State – General Sani Abacha (deceased) the nature of his government, the privileges and immunity enjoyed by him did not have any bearing on the charges filed by the state against the appellant in this matter to the extent that they are made up of facts and allegations that PRIMA FACIE do not constitute any of the offences alleged? (Grounds 6, 7, 8 and 9)

RATIOS

“DEAL WITH”- MEANING OF THE PHRASE “DEAL WITH”

“The phrase – “deal with” means “to take action on, to be about or concern with” PER ARIWOOLA, J.S.C.

”FORFEITURE”- MEANING OF THE WORD “FORFEITURE”

”The word “forfeiture” means – “the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”. It follows that, “title in those assets and properties forfeited is instantaneously transferred to another, such as the government”. PER ARIWOOLA, J.S.C.

”INDEMNIFY”- MEANING OF THE WORD ‘INDEMNIFY’

”To indemnify is to reimburse another for a loss suffered because of a third party’s or one’s own act or default. Or to promise to reimburse another for such a loss.” PER ARIWOOLA, J.S.C

AGGRIEVED PERSON-WHO IS AN AGGRIEVED PERSON

”To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something ” PER ARIWOOLA, J.S.C

IMMUNITY-WHETHER THE IMMUNITY GRANTED THE PRESIDENT, VICE PRESIDENT, GOVERNOR AND DEPUTY   GOVERNOR BY SECTION 308 OF THE 1999 CONSTITUTION IS FOR LIFE

”It is true that the Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office. See; Section 308 of the 1999 Constitution.   Indeed, the provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial. ” PER ARIWOOLA, J.S.C

IMMUNITY-THE PURPOSE OF IMMUNITY AS GUARANTEED BY SECTION 308 OF THE 1999 CONSTITUTION

”The purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency.” PER ONNOGHEN, J.S.C

JURISDICTION- WHAT JURISDICTION ENTAILS

”Jurisdiction in contrast to judicial power is the authority or legal weapon which a Court must possess to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. ” PER ONNOGHEN, J.S.C

JURISDICTION- THE NATURE OF JURISDICTION

”Jurisdiction may be limited as to the kind and nature of actions which a particular court may entertain or as to the area over which its judicial powers extend, or both.  PER KEKERE-EKUN, J.S.C

RULE OF INTERPRETATION OF STATUTE-DUTY OF COURT TO INTERPRET THE PROVISIONS OF STATUTE CLEARLY BY GIVING THE PLAIN WORDINGS THEIR ORDINARY INTERPRETATION

”In the interpretation of Statutes, the cardinal rule is that where the provisions of a Statute is clear and unambiguous, the duty of the court is to simply interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a court of law to bend backwards to sympathise with a party in a case in the interpretation of a statute merely for the reason, that the language of the law seems harsh or is likely to cause, hardship. PER ARIWOOLA, J.S.C.

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NICHOLAS CHUKWUJEKWU UKACHUKWU VS PEOPLES DEMOCRATIC PARTY & 3 ORS

SUBJECT MATTER

APPEAL, ELECTION, COURT

ABUSE OF COURT PROCESS-WHAT AMOUNTS TO

ABUSE OF COURT PROCESS-CONCEPT OF

ABUSE OF COURT PROCESS-DUTY ON COURTS THERETO

“To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of court process and it does not matter whether the matter is an appeal or not, as long as the previous action has not been finally disposed of. It is the subsequent action that is in abuse of the process of the court”. PER WALTER SAMUEL NKANU ONNOGHEN, JSC

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