JENKINS GIANE DUVIE GWEDE v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS LEGALPEDIA ELECTRONIC CITATION: LER[2014]SC.255/2013 AREAS OF LAW- ELECTION PETITION, JURISDICTION, PRACTICE AND PROCEDURE, APPEAL SUMMARY OF FACTS: The 2nd Respondent contested and won the primaries of the 4th Respondent, Democratic Peoples Party(DPP) to represent the party in the general elections into the Ughelli North Constituency II of Delta State House of Assembly. Subsequently, the 2nd Respondent withdrew his candidature via a notice in writing addressed to the 4th Respondent. The Appellant was duly substituted for the 2nd Respondent and the 2nd Respondent collected the mandatory deposit of N2million he had paid to the 4th Respondent in compliance with its conditions for sponsorship. The 1st Respondent (INEC)thereafter published a list of candidates for the election featuring the name of the Appellant as the candidate of the 4th Respondent. This was followed by another list by the 1st Respondent with the name of the 2nd Respondent instead of the name of the Appellant as the candidate of the 4th Respondent. The election was conducted and 4th Respondent was declared the winner. However, the 1st Respondent issued a certificate of return to the 2nd Respondent who had earlier withdrawn his candidature instead of the Appellant. Dissatisfied, the Appellant and the 4th Respondent took out an originating summons at the Federal High Court against the 1st and 2nd Respondents. The trial court not only declined jurisdiction in hearing and determining the matter but also dismissed the suit. Further dissatisfied with the trial court’s decision, the Appellant appealed to the lower court which resolved the issues as presented in favour of the Appellant but refused granting the reliefs sought by the Appellant and were consequently dismissed. The Appellant has further appealed to this court, whilst the 1st Respondent, 2nd Respondent and 4th Respondent cross appealed. HELD Appeal allowed, Cross appeal dismissed ISSUES FOR DETERMINATION Whether the learned Justices of the Court of Appeal were right when after holding that the appellant was used by the political party to substitute the 2nd respondent they refused to make consequential orders directing that the appellant be issued with a certificate of return for the Ughelli North II Constituency for the Delta State House of Assembly (Ground 1). Whether the learned Justices of the Court of Appeal were right to have dismissed the suit of the plaintiff before the trial court when the Court of Appeal actually resolved the two issues submitted for determination in favour of the appellant (Ground 2) Whether the learned Justices of the Court of Appeal were right when being fully aware that the case of the appellant was based on substitution to have gone ahead to invoke Section 32 of the Electoral Act, 2010 to deny the appellant the victory of the Democratic Peoples Party in the election into the seat of Ugelli North Constituency II in the Delta State House of Assembly (Ground 3). Whether the learned Justices of the Court of Appeal did not err in failing to acknowledge and accept the appellant as the candidate of the Democratic Peoples Party (Ground 4). CROSS APPEAL 1ST Respondent Whether the Court of Appeal in its majority decision was right to have set aside the decision of the trial Federal High Court declining jurisdiction to hear or determine a pre-election matter commenced and/or instituted after the actual or main election. (Distilled from grounds 1 and 2 of the grounds of cross-appeal). Whether the Court of Appeal was right when it reproached the 1st respondent/cross appellant for failing to act on an irregular substitution of candidate made by the 4th respondent (Distilled from ground 3 of the grounds of cross-appeal). 2nd Respondent Whether or not the court below was right in law when the court below (in the majority judgment) held that it is my firm but humble view on this issue that if a litigant is not guilty of inordinate delay as happened in Hassan v. Aliyu, he may file the action against his unlawful nomination or substitution within a reasonable time even after the election, and proceeded to hold that the trial court had jurisdiction to entertain and/or adjudicate over this pre-election dispute or matter instituted or commenced in the trial court after the main or actual election, thereby reversing the decision of the trial court, which declined jurisdiction in respect of a pre-election matter instituted and/or commenced after the actual or main election. Whether the court below was right in reversing the findings of fact of the trial court which held that the appellant did not prove that the 2nd respondent/cross appellant withdrew his candidature from the election, the subject matter of this appeal, and the court below proceeded to hold that the 2nd respondent/cross appellant withdrew his candidature from the election, the subject matter of this appeal. Whether the court below was right in law when the court below held that a counsel who represented a party in trial court, could file an appeal and conduct the appeal against the party, the said counsel represented as joint plaintiff in the trial court. 4th Respondent Whether in the circumstances of this appeal, the lower court was right when it concluded that the substitution of the appellant and his nomination are irregular and therefore not entitled to the reliefs sought in his originating summons (Ground 2, 3 and 4 of the Notice of Cross Appeal). RATIONES ISSUES FOR DETERMINATION - LEAVE OF THE COURT MUST BE OBTAINED WHEN RAISING FRESH ISSUE ON APPEAL ‘‘It is not against the law to raise fresh issue(s) for the first time on appeal. What is against the law is to raise such an issue without first seeking and obtaining the leave of the appellate court. This principle is trite law.’’ –PER. ONNOGHEN, J.S.C.: ISSUES FOR DETERMINATION- WHERE A RESPONDENT FILED NEITHER A CROSS APPEAL NOR A RESPONDENT’S NOTICE, HE DOES NOT HAVE AN UNBRIDLED FREEDOM TO RAISE ISSUES FOR DETERMINATION NOT RELEVANT TO THE GROUND(S) OF APPEAL FILED ‘‘In the case of Chomi Vs U.B.A. PLC (2010) 6 NWLR (Pt.1191) 474 at 496, I stated the position of the law, inter alia It is settled law that where a respondent filed neither a cross appeal nor respondents notice, he does not have an unbridled freedom to raise issues for determination which have no bearing or relevance to the ground(s) of appeal filed.’’ PER. ONNOGHEN, J.S.C. ISSUE FOR DETERMINATION - VALIDITY OF AN ISSUE FOR DETERMINATION “In any event the law is settled that for an issue to be valid and competent for consideration by the court, it must arise from a complaint against the decision/Judgment on appeal.’’ PER. ONNOGHEN, J.S.C. ISSUES FOR DETERMINATION - WHEN CAN AN ISSUE FOR DETERMINATION BE INCOMPETENT AND LIABLE TO BE STRUCK OUT? ‘‘Where an issue raised in a brief of argument of either the appellant or respondent(s) does not arise from any of the grounds of appeal, as in the instant case, the issue is incompetent and liable to be struck out - See Seagull Oil Ltd. Vs. Mom Pulo Ltd. (2011) 5 NWLR (Pt.525 at 540.” PER. ONNOGHEN, J.S.C. CANDIDATES FOR ELECTION - PUBLICATION OF THE LIST OF CANDIDATES TO CONTEST AN ELECTION BY INEC IS AN ADMINISTRATIVE ACT ‘‘This court has held that publication of the list of candidates to contest an election by INEC (1st respondent) is an administrative act which does not confer or take away validity from a duly nominated or substituted candidate.’’ PER. ONNOGHEN, J.S.C. NOMINATION OR SUBSTITUTION OF CANDIDATE FOR ELECTION - WHEN CAN THE NOMINATION OR SUBSTITUTION OF A CANDIDATE FOR ELECTION BE COMPLETE? ‘‘Nomination or substitution of a candidate is complete the moment INEC/1st respondent receives the necessary documents effecting same from the political party within the stipulated time. See Kubor Vs Dickson (2013) All FWLR (Pt 676) 392 at 426 - 427.’’ PER. ONNOGHEN, J.S.C. ISSUES FOR DETERMINATION - ISSUES RAISED SUO MOTU BY THE COURT MUST BE ADDRESSED BY COUNSEL FOR THE PARTIES. ‘‘Though it is settled law that a court may raise an issue suo motu but where it decides to base its decision on the matter on the issue so raised, the court is duty bound to invite counsel for the parties to address on it, particularly the party who would be adversely affected by the result of the exercise.’’ PER. ONNOGHEN, J.S.C. NOMINATION OF A CANDIDATE FOR ELECTION - NOMINATION OR SPONSORSHIP OF A CANDIDATE FOR ELECTION IS A DOMESTIC AFFAIR OF THE POLITICAL PARTY. ‘‘However, the law is settled that the issue of nomination or sponsorship of an election candidate, which includes substitution of such a candidate, remains within the domestic affairs of the political party and the courts have no jurisdiction to nominate a candidate for any political party.’’ –PER. ONNOGHEN, J.S.C. PRE- ELECTION MATTER- EFFECT OF DELAY IN INSTITUTING A PRE-ELECTION MATTER. ‘‘It has been held by this Court that in an election or related matter, such as pre-election matter, time is of the essence and that as a general rule where a party is guilty of undue delay in instituting a pre-election matter in the High Court, particularly after the conduct of the election in issue, the court will decline jurisdiction to hear and determine same – see Hassan v. Aliyu supra. This means that where the cause of action in a pre-election case arose before the conduct of the election but the party failed and or neglected to institute his action in the High Court for redress he may lose his right of action.’’ –PER. ONNOGHEN, J.S.C. PRE-ELECTION MATTER -THE PROPER VENUE FOR VENTILATING A PARTY’S GRIEVANCES AFTER THE CONDUCT OF THE ELECTION IS THE ELECTION PETITION TRIBUNAL ‘‘Where, however, the cause of action in the pre-election matter also constitutes one of the grounds on which to challenge the result of the election in question, the proper venue for ventilating a partys grievances after the conduct of the election and declaration of result is the Election Petition Tribunal, not the High Court - see the recent decision of this Court in appeal No. SC/44/2013 between Wambai v. Donatus & ors delivered on the 11th day of July, 2014.’’ –PER. ONNOGHEN, J.S.C. PRE-ELECTION MATTER – THE JURISDICTION OF THE HIGH COURT SUBSIST IN PRE-ELECTION MATTERS EVEN AFTER THE CONDUCT OF THE ELECTION ‘‘It is settled law that a pre-election matter instituted prior to the conduct of an election subsists and the High Court in which it was instituted continues to have jurisdiction to hear and determine same even after the conduct of the election - see Amaechi v. INEC (2008) All FWLR (pt. 407) 1; Odedo v. INEC (2008) 17 NWLR (pt. 1117) 554 at 622 - 623.” PER. ONNOGHEN, J.S.C. LIS PENDENS – PRINCIPLE OF LIS PENDENS “The above principle is founded on the principle of lis pendens which prevents any transfer of right or the taking of any step capable of foisting a state of complete helplessness/hopelessness on the parties or the court during the pendency of an action in a court of law - see Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR (pt. 622) 445 “. PER. ONNOGHEN, J.S.C. ELECTION – CRITERIA FOR CONTESTING AN ELECTION “It is settled law that in this country no one can contest an election without first and foremost being a member of a registered political party and, secondly, being sponsored by that party as a candidate for the election”. PER. ONNOGHEN, J.S.C. PRE-ELECTION MATTERS - PRE-ELECTION MATTERS WHICH CAN FORM GROUNDS FOR CHALLENGING AN ELECTION UNDER SECTION 138(1) OF THE ELECTORAL ACT, 2010. “It is clear that there are pre-election matters which can come within the grounds for challenging an election under Section 138(1) of the Electoral Act, 2010 as amended and others that may not. Where a pre-election matter is one which can be dealt with under Section 138(1) supra, the proper venue, after election, is the tribunal. Where, however the pre-election matter cannot so be accommodated after an election and the cause of action arose in the election or declaration of results and action is instituted timeously, the proper venue remains the High Court. In other words, an issue of qualification to contest an election under the Electoral Act, 2010, as amended, is both pre-election and an election matter which both the High Court and the relevant Election Tribunals have jurisdiction to hear and determine - see Dangana v. Usman (2013) 6 NW” PER. ONNOGHEN, J.S.C. SUBSTITUTION OF A CANDIDATE –WHEN IS SUBTITUTION OF A CANDIDATE FOR ELECTION COMPLETE? “Once there is evidence of withdrawal of a candidate and this followed by the act of forwarding same to INEC by the Political Party concerned the substitution is completed and effective. It has been quite settled that the nomination or sponsorship of a candidate is within the domestic affairs of a political party, the courts do not interfere readily. See Emeka V. Okadigbo (2012) 18 NWLR (Pt.1331) 55 at 108. Dalhatu V. Turaki (2003) 15 NWLR (Pt 843) 310.” PER GALADIMA, J.S.C. WITHDRAWAL OF A CANDIDATE FOR ELECTION - EFFECT OF WITHDRAWAL OF A CANDIDATE FOR ELECTION “Once a candidate has withdrawn his candidature, the person who nominated him and their nomination cannot be reckoned with any more. See Section 32(4) of the Electoral Act, 2010 (as amended)”, PER GALADIMA, J.S.C. PRE- ELECTION MATTER – PROPER VENUE TO SEEK REDRESS WHERE PRE-ELECTION MATTER CONSTITUTES ONE OF THE GROUNDS TO CHALLENGE ELECTION RESULTS “Where the cause of action in the pre-election matter also constitutes one of the grounds on which to challenge the result of the election the proper venue to seek a redress is the Election Petition Tribunal established for that purpose not the High Court. See Wambai v. Donatus & Ors (unreported) SC/44/2013 delivered on 11/7/2014. See further Uwazuruike V. Nwachukwu (2013) 3 NWLR (Pt.1345)”. PER GALADIMA, J.S.C. PRE-ELECTION MATTER - THE COURT WILL DECLINE JURISDICTION TO DETERMINE AN ACTION WHERE A PARTY IS GUILTY OF UNDUE DELAY IN INSTITUTING A PRE-ELECTION MATTER “Delay in instituting a pre-election matter in the High Court, after conduct of the election where a party is guilty of undue delay, the court will decline jurisdiction to hear and determine the action”. PER GALADIMA, J.S.C. NOMINATION OF CANDIDATE FOR ELECTION – NOMINATION OF A CANDIDATE FOR ELECTION IS THE EXCLUSIVE PRESERVE OF THE POLITICAL PARTY “An appellant can only be sponsored by a political party which must nominate him as a candidate. He cannot nominate himself since that is the prerogative of the political party being a process which is domestic internal affair of that political party stated differently is the fact that the matter of choosing a candidate is within the exclusive preserve of the political party to nominate and change a candidate nominated”. PER PETER-ODILI, J.S.C. NOMINATION OF A CANDIDATE - THE TIME FRAME FOR NOMINATING A CANDIDATE FOR ELECTION BY A POLITICAL PARTY CANNOT BE WHITTLED DOWN “The paramountcy of the political party to nominate and/or substitute within the time frame granted it cannot be whittled down or down played. See Kubor v. Dickson (supra) at 426, 427, 434 – 435”. PER PETER-ODILI, J.S.C. SUBSTITUTION OF A CANDIDATE FOR ELECTION – A PARTY IS AT LIBERTY TO SUBSTITUTE THE NAME OF ANY CANDIDATE FORWARDED TO INEC “It is the duty of a party to nominate their candidate for election and the party is at liberty to substitute the name of any candidate it had earlier forwarded to INEC provided the withdrawal is done within the stipulated period prior to the election. A candidate who is wrongly substituted can approach the courts for redress. The Commission cannot impose a candidate on the party”. PER AKAAHS, J.S.C. JURISDICTION – IMPORTANCE OF JURISDICTION “Jurisdiction is the lifeblood of any adjudication. Where a court lacks jurisdiction to entertain a cause or matter, its proceedings would amount to a nullity, no matter how well conducted. See: Akere & Ors. v. Governor of Oyo State (2012) 12 NWLR (PT.1314) 240 @ 267 B-D; Madukolu v. Nkemdilim (1962) 1 ANLR (pt. IV) 587; Obiuweubi v. CBN (2011) 7 NWLR (pt. 1247) 465 @ 506 C-D”. PER KEKERE-EKUN, J.S.C PRE- ELECTION DISPUTE - THE JURISDICTION TO HEAR AND DETERMINE PRE-ELECTION DISPUTES IS VESTED IN BOTH THE FEDERAL HIGH COURT AND THE STATE HIGH COURTS. “By the combined effect of Section 251 of the 1999 Constitution (as amended) and Section 87 (9) of the Electoral Act 2010 (as amended) the jurisdiction to hear and determine pre-election disputes is vested in both the Federal High Court and the State High Courts. See: Salim V. CPC & Ors. (2013) 6 NWLR (1351) 501 @ 520 - 521 H - C; 527 D - F.” PER KEKERE-EKUN, J.S.C PRE- ELECTION DISPUTE – PRE-ELECTION DISPUTE MUST BE INSTITUTED IN THE APPROPRIATE COURT BEFORE THE CONDUCT OF THE GENERAL ELECTION “It is well settled that in a pre-election dispute, time is of the essence. The suit must be instituted in the appropriate court before the conduct of the general election. The general rule is that once the election has taken place, the High Court or Federal High Court would cease to have jurisdiction”. PER KEKERE-EKUN, J.S.C CANDIDATE OF A POLITICAL PARTY – DETERMINATION OF A CANDIDATE OF A POLITICAL PARTY IS THE PREROGATIVE OF THE PARTY “The law is well settled that the determination of who the candidate of a political party is, is the sole prerogative of the party. So long as the partys rules, regulations and constitution have been complied with in the selection of a candidate, not even the courts would interfere. See: Olofu V. Itodo (2010) 18 NWLR (pt. 1225) 545 @ 575 B-C; Onuoha V. Okafor (2003) 15 NWLR (pt, 843) 310; Jano V. INEC (2004) 12 NWLR (Pt. 886) 145”.PER KEKERE-EKUN, J.S.C STATUTE REFERRED TO Constitution of the Federal Republic of Nigeria , 1999 Electoral Act 2011(as amended) TO GET ACCESS TO OVER 12,000 CASE SUMMARIES ON ANY OF YOUR DEVICES, CLICK HERE PEOPLES DEMOCRATIC PARTY (PDP) v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS LEGALPEDIA ELECTRONIC CITATION: LER[2014]SC.480/2014 AREAS OF LAW – ELECTION PETITION, LAW OF EVIDENCE, APPEAL, INTERPRETATION OF STATUTE, PRACTICE AND PROCEDURE SUMMARY OF FACT The Peoples Democratic Party herein the Appellant sponsored one Mr. Tony Nwoye to contest the gubernatorial election, while the 25th Respondent contested the election under the platform of the All Progressive Grand Alliance and 21 other political parties fielded candidates in the said election. The election was scheduled to take place on the 16th November, 2013. The election was conducted except in Obosi ward in Idemili North Local Government Area where it was conducted the next day. The said election was also postponed in 216 polling units in Anambra state and concluded as supplementary election on 30th November 2013. The 25th Respondent was declared duly elected and returned by the 1st Respondent. The Appellant being dissatisfied with the outcome of the election filed a petition at the Governorship Election Petition Tribunal where the Tribunal dismissed the Appellant’s case. On a further appeal to the Court of Appeal, the lower court affirmed the decision of the Tribunal, hence this appeal by the Appellant. HELD Appeal Dismissed ISSUES FOR DETERMINATION Whether the appellant did not prove its allegation that the 25th respondent in violation of section 31(5) and (6) of the Electoral Act, 2010 (as amended) gave false information regarding his possession of multiple voters card and whether such allegation is a criminal allegation requiring proof beyond reasonable doubt Whether the Independent National Electoral Commission letter to the 25th respondent, Exhibit WO5, is a private document Whether the appellant proved that the acts of non-compliance with the provisions of the Electoral Act substantially affected the outcome of the election. RATIONES: GROUND OF APPEAL – WHERE NO ISSUE IS DISTILLED FROM ANY GROUND OF APPEAL, SUCH GROUND IS DEEMED ABANDONED “It is trite that where no issue is distilled from any ground of appeal, such a ground is deemed abandoned and liable to be struck out”. PER OKORO, J.S.C GROUND OF APPEAL – AN INCOMPETENT GROUND OF APPEAL SHALL BE STRUCK OUT ALONG WITH THE ISSUE DISTILLED FROM IT “Where any ground of appeal is found to be incompetent, it shall be struck out along with the issue distilled from it without necessarily writing a separate ruling on it”. PER OKORO, J.S.C INTERPRETATION OF STATUTES – CARDINAL PRINCIPLE IN THE INTERPRETATION OF STATUTES “The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole. See; Onashile V Idowu (1961) 2 SCNLR 53, Ugwu V Ararume (2007) 12 NWLR (Pt.1048) 367. Adejumo V Military Governor of Lagos State (1972) 3 SC 45; Ojokilobo V Alamu (1967) 3 NWLR (Pt.61) 377”. PER OKORO, J.S.C EXPRESSIO UNIS EST EXCLUSIO ALTERIUS – MEANING OF EXPRESSIO UNIS EST EXCLUSIO ALTERIUS “It is our law and practice that the express mention of something is to the exclusion of all others. The principle derives its life from the Latin maxim expressio unis est exclusio alterius, meaning, the express mention of one excludes any other which otherwise would have applied by implication with regards to the same issue. See Attorney-General of Abia State v. Attorney-General of the Federation (2005) ALL FWLR (Pt.275) 414, Attorney General of Ondo State v. Attorney General of Ekiti State (2001) ALL FWLR (Pt.79) 1431”.PER OKORO, J.S.C APPEALS IN ELECTION MATTERS – TIMEFRAME FOR HEARING AN APPEAL IN ELECTION MATTERS “This Court shall hear appeals from the Court of Appeal arising from election matters within sixty (60) days from the date of the delivery of the judgment appealed against”. PER OKORO, J.S.C GUBERNATORIAL ELECTION - REQUIREMENTS FOR QUALIFICATION TO BE ELECTED TO THE OFFICE OF A GOVERNOR OF A STATE “Section 177 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) sets out conditions a person must meet to be qualified to be governor of a state. It states: 177. A person shall be qualified for election to the office of Governor of a state if: (a) He is a citizen of Nigeria by birth. (b) He has attained the age of thirty-five years. (c) He is a member of a political party and is sponsored by that political party; and (d) He has been educated up to at least school certificate level or its equivalent. PER OKORO, J.S.C FINDINGS OF FACTS OF LOWER COURT – CIRCUMSTANCES WHERE THE SUPREME COURT CAN INTERFERE WITH FINDINGS OF FACTS OF LOWER COURTS “It is trite that the Supreme Court does not make a practice of interfering with such findings just like that. The court can only interfere where it is shown or demonstrated that the findings were perverse. Not having shown perversity in the concurrent findings of the two courts below, the appellant has failed in its bid to have the said findings disturbed. See Igwego V Ezeugo (1992) 7 SCNJ 284, Amadi V Nwosu (1992) 6 SCNJ 59, Odofin V Ayoola (1984) 11 SC 72, Ogundipe V Awe (1988) 1 NWLR (Pt.88) 188, Oke V. Mimiko (No.2) (2014) I NWLR (Pt.1388) 332”. PER OKORO, J.S.C SECTION 24 (1) OF THE ELECTORAL ACT, 2010 (AS AMENDED) – THE COMMISSION OF A CRIME IN ANY PROCEEDINGS, CIVIL OR CRIMINAL MUST BE PROVED BEYOND REASONABLE DOUBT “The section states that if the commission of a crime by a party to a proceeding is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. Since the decision of this court in Nwobodo V Onoh (1983) LPELR 804, Omoboriowo V Agasin (1984) LPELR 264 and Abubakar V Yaradua (2009) ALL FWLR (Pt.457) 1, the position has not changed. See also Folami V Cole (1990) 2 NWLR (Pt.133) 445, Koiki v Magnusson (1999) 8 NWLR (Pt.615) 492”. PER OKORO, J.S.C DOCUMENT - EXAMPLES OF PUBLIC DOCUMENTS - SECTION 102 OF THE EVIDENCE ACT 2011 The following are public documents: (a) documents forming the official acts or records of the official acts, (i) of the sovereign authority, (ii) of official bodies and tribunals, (iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere. (b) Public records kept in Nigeria of private documents. By Section 103 of the Act, all documents other than public documents are classified as private documents”. PER OKORO, J.S.C PUBLIC DOCUMENTS – CATEGORIES OF PUBLIC DOCUMENTS THAT ARE ADMISSIBLE “The only categories of public documents that are admissible are either the original document itself or, in the absence of such original, certified copies and no other. See Minister of Lands Western Nigeria V. Azikiwe (1969) 1 ALL NLR 49, Nzekwu V Nzekwu (1989) 2 NWLR (Pt.104) 373, Iteogu v. LPDC (2009) 17 NWLR (Pt.1171) 614 at 631 paragraphs G – H”. PER OKORO, J.S.C ELECTION RESULTS - DUTY ON A PETITIONER CHALLENGING THE RESULT OF AN ELECTION ON GROUNDS OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT “The two provisions i.e. Sections 138 (1) (b) and 139 (1) of the Electoral Act, from the way they are couched, have placed a heavy burden of proof on any petitioner seeking to challenge the result of an election on the ground that the election did not comply with the provisions or principles of the Electoral Act. This is so because, apart from showing or proving that it did not comply with the provisions of the Act, such a petitioner must prove to the Tribunal or Court that the election was not conducted substantially in accordance with the principles of the Act and that the non compliance substantially affected the result of the election”. PER OKORO, J.S.C ELECTION - AN ELECTION IS PRESUMED CORRECT WHERE THE RESULT IS DECLARED BY THE ELECTION BODY “Where an election has been held and the result declared by the Election body, in this case, the Independent National Electoral Commission, that result, is, prima facie correct. See; Section 168 (i) of the Evidence Act, 2011 on the presumption of regularity. By Section 139(1) of the Electoral Act, 2010 (as amended), the Tribunal or Court shall not invalidate that result if it appears to it that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect the result of the election. It is clear that a petitioner seeking to challenge the outcome of an election on this ground has an uphill task. See CPC V. INEC (2011) 18 NWLR (pt. 1279) 493, Abubakar V. Yaradua (2008) 19 NWLR (pt. 1120) 1, Buhari V. Obasanjo (2005) 13 NWLR (pt. 941) 1, Oke V Mimiko No. 2 (2014) 1 NWLR (pt. 1388) 332.” PER OKORO, J.S.C PLEADINGS- PARTIES ARE BOUND BY THEIR PLEADINGS “It is trite law that at all times, parties are bound by their pleadings. A party will not be allowed to set up a new case on appeal other than that which was ventilated at the trial court. See American Cynamid Company V. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (pt. 171) 15, Osho V. Foreign Finance Corporation & Anor. (1991) 5 SC 59”. PER OKORO, J.S.C FINDINGS OF LOWER COURTS – AN APPELLATE COURT WILL NOT DISTURB THE FINDINGS OF TWO LOWER COURTS WHERE SAME HAS NOT OCCASIONED A MISCARRIAGE OF JUSTICE “The position of the law is that once findings of two lower courts are reasonably justified by evidence, and there is no error of law, or miscarriage of justice, or violation of some principle of law or procedure this court would not upset such findings, rather much weight would be given to the opinion of the two courts below. See Uwah v. Akpabio (2014) 17 W.R.N. p.61; DONG v. A.G. Adamawa State (2014) 14 W.R.N. P 46; Doma v. INEC (2014) 12 WRN P 47”. PER RHODES-VIVOUR, J.S.C STATUTES REFERRED TO Constitution of the Federal Republic of Nigeria 1999 (as amended) Electoral Act, 2010 (as amended) Evidence Act 2011 Practice Directions (Election Appeals to the Supreme Court) No. 33 of 2011 TO GET ACCESS TO OVER 12,000 CASE SUMMARIES ON ANY OF YOUR DEVICES, CLICK HERE INSPECTOR GENERAL OF POLICE & ANOR VS DR PATRICK IFEANYI UBAH & ORS LEGALPEDIA ELECTRONIC CITATION: LER[2014]CA/L/199A/2013 AREA OF LAWS Fundamental Right, fair Hearing, Evidence, Estoppel SUMMARY OF FACTS: The 1st and 2nd Applicants/Respondents instituted an action for enforcement of their fundamental right under the Fundamental Rights Enforcement Rules 2009 against the Respondents/Appellants at the Federal High Court, Lagos. They claimed for damages against the Appellants/Respondents in the sum of ten Billion Naira for the injury suffered as a result of their unlawful detention by the 1st Applicant/Respondent. The 1st and 2nd Respondents/Appellants and the 3rd and 4th Respondents filed separate notices of preliminary objection. The trial court over-ruled the preliminary objections and granted all the reliefs claimed by the 1st and 2nd Applicants/Respondents, it also awarded ten Million Naira as damages against the Respondents/Appellants. Dissatisfied with the judgment of the trial Court, the Respondents/Appellants appealed to the Court of Appeal. HELD: APPEAL ALLOWED ISSUES: Whether the lower court in the circumstances of this case can grant order of perpetual injunction restraining the Appellants from arresting, detaining, instituting or continuing any criminal proceedings against the 1st and the 2nd Respondents in connection with any criminal complaint by the 4th Respondent or Presidential Committee on Verification and Reconciliation of Subsidy payments. Whether based on the evidence before the lower court, there was a breach of the 1st Respondents fundamental human rights arising from his detention between 9th to 19th October 2012 that will warrant the award of N10 million as damages in favour of the 1st Respondent for the unlawful breach of his fundamental right. Whether the lower court was right to have refused to consider the issue of whether or not Exhibits COG3 and C0G4 were public documents which require certification in accordance with section 105 of the evidence Act 2011 before same can be admissible and relied on by the lower court. Whether the lower court was justified when it set aside the interim investigation report (Exhibits COG3 and COG4) dated 2nd and 3rd November 2012 issued by the 2nd Appellant and addressed to the 1st Appellant when the certified true copies of the said investigation report were not before the lower court. Whether the lower court was justified to have held that the preliminary objection filed by the Appellants was devoid of any merit even though same was unchalleneged. RATIONES: IMPROPRIETY OF COURT INTERFERING WITH POLICE INVESTIGATION - A COURT DOES NOT HAVE THE POWER TO STOP THE POLICE FROM INVESTIGATING A CRIME “It is trite that no court has the power to stop the police from investigating a crime and whether to or how it is done is a matter within the discretion of the police. See Fawehinmi V I.G.P (2002) 7nwlr (Pt. 767, 606; Agbi V Ogbe (2005) 8 NWLR (Pt. 926) 40; Christlieb PLC V Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V Okenwa (2010) 7 NWLR; Hassan E.F.C.C (2013) LPELR (CA).” PER IYIZOBA, JCA MALICIOUS PROCESS - DEFINITION OF MALICIOUS PROCESS “Malicious process has been defined as a civil wrong separate from malicious prosecution, which entails instituting a legal process short of prosecution without probable cause and with malice. (See Police Misconduct Legal Remedies by Harrison, Cragg and Williams 4th edition 2005; Clayton Tomlinson, Civil Actions Against the Police, 3rd Edition, Thomson Sweet & Maxwell, 2004 paras 8-083 to 8-089.” PER IYIZOBA, JCA RATIONAL FOR MISFEASANCE IN PUBLIC OFFICE- THE RATIONAL FOR MISFEASANCE IN PUBLIC OFFICE IMPLIES THAT THE EXECUTIVE OR ADMINISTRATIVE POWER MAY NOT BE EXERCISED FOR IMPROPER PURPOSES BUT FOR PUBLIC GOOD “The rational for misfeasance in public office is that executive or administrative power may be exercised only for public good and not for ulterior or improper purposes. (see Jones V Swansea City Council (1990) 1 WLR 54, 85F).” PRESUMPTION OF INNOCENCE - PRESUMPTION OF INNOCENCE ARISES ONLY WHEN THE ACCUSED IS CHARGED TO COURT AND NOT AT THE STAGE OF INVESTIGATION “For there to be an infringement of the right to be presumed innocent until proved guilty under Section 36 (5), the accused must have been charged to court. Presumption of innocence on the part of the prosecution during investigation does not arise because their business is to ascertain whether there is sufficient evidence to sustain the charges and then to prosecute the offender. Presumption of innocence arises after the accused has been charged to court.” PER IYIZOBA, JCA POLICE- POWER OF POLICE UNDER SECTION 4 OF THE POLICE ACT Section 4 of the Police Act provides: “The Police shall be employed for the prevention and detection of crimes, the apprehension of offenders, the preservation of law and order, the protection of life and property and enforcement of laws and regulations which they are directly charged and shall perform such duties within or without Nigeria as may be required by the, or and under the authority of this or any other Act.” PER IYIZOBA, JCA THE RIGHT TO FAIR HEARING OF THE ACCUSED UNDER SECTION 36 OF THE CONSTITUTION – THE RIGHTS OF THE ACCUSED TO FAIR HEARING ARISES IN THE COURT “Section 36 of the Constitution (right to fair hearing) concerns proceedings before a court or other tribunal. It does not cover the activities of the Police. Their job (the Police) is to investigate and if there is sufficient evidence, to prosecute the suspect. Common sense dictates that it is out of place for a suspect to go to court and seek to stop the investigation of a criminal offence on the ground that the complaints are biased and they influenced the police to proceed on the basis that the suspect is guilty. No matter what the police do, the final decision as to the guilt of the accused is that of the Judge before whom the suspect is brought.” PER IYIZOBA, JCA IMPROPRIETY OF COURT STOPPING INVESTIGATION BY POLICE- APPLICANT CAN SUE FOR THE INFRINGEMENT OF THE FUNDAMENTAL RIGHTS BUT CANNOT SUE TO STOP POLICE INVESTIGATION “Where there is infringement of the fundamental rights of the applicant, he sues for redress and damages if applicable. He does not sue to stop investigation of an alleged criminal offence or to stop prosecution where there are grounds for such prosecution.”PER IYIZOBA, JCA EFFECT OF PROPER ARREST BY POLICE- PROPER ARREST BY POLICE CANNOT AMOUNT TO A BREACH OF FUNDAMENTAL RIGHT “An arrest properly made by the police cannot amount to a breach of fundamental rights.”PER IYIZOBA, JCA PROOF OF PUBLIC DOCUMENT- PUBLIC DOCUMENT SHOULD BE PROVED BY THE PRODUCTION OF A COPY OF THE DOCUMENT CERTIFIED BY THE OFFICER WHO MADE THE PRODUCTION “By Section 106 (ii) of the Evidence Act, such public document may be proved by the production of a copy of the document certified by the officer who made the production or issued such official communication or section 106 (iii) by the records of the government department concerned certified by the head of the Department.” PER IYIZOBA, JCA ADMISSIBILITY OF PUBLIC DOCUMENT- ONLY A CERTIFIED COPY OF SECONDARY EVIDENCE OF A PUBLIC DOCUMENT IS ADMISSIBLE “By Section 90 (c) of the Evidence Act 2011 only a certified copy of a public document and no other type of secondary evidence is admissible.” PER IYIZOBA, JCA ADMISSIBILITY OF SECONDARY EVIDENCE OF A DOCUMENT - SECONDARY EVIDENCE OF A DOCUMENT IS ADMISSIBLE WHERE THE ORIGINAL IS IN THE POSSESSION OF A PERSON AGAINST WHOM IT IS TO BE USED OR NOTICE IS GIVEN TO A PERSON WHO IS LEGALLY BOUND TO PRODUCE IT BUT HE HAS FAILED TO DO SO Section 89 of the Evidence Act provides: “Secondary evidence may be given of the existence, condition or contents of a document when- a. The original is shown or appears to be in the possession or power- (i) Of the person against whom the document is sought to be proved, Or Of any person legally bound to produce it, and when after the notice mentioned in Section 91 such person does not produce it.” PER IYIZOBA, JCA RES JUDICATA - ONCE JUDGEMENT HAS BEEN GIVEN IN A CAUSE ONE CANNOT RELITIGATE SAME “The law is that if a party brings an action against another for a particular cause and judgment is given on it, he cannot institute another suit against the same party for the same cause. However, within one cause of action, there may several issues. Once an issue has been raised in a case and is determined between the parties, the same issue cannot be raised again by either of the parties in the same or subsequent proceedings. See Ladegha V Durosimi (1978) 3 SC 82; BaMISHEBI v Faleye (1987) 2 NWLR (Pt. 54) 51; Adigun V Gov Osun State (1995) 3 NWLR (Pt. 385) 513.” PER IYIZOBA, JCA APPLICABILITY OF ISSUE ESTOPPEL - ISSUE ESTOPPEL APPLIES ONLY WHERE THE PARTIES AND THE SUBJECT MATTER ARE THE SAME. “The law is that for issue estoppel to apply the parties and the subject matter must be the same.” PER IYIZOBA, JCA NO RIGID PROCEDURE FOR POLICE INVESTIGATIONS - POLICE INVESTIGATIONS ARE CARRIED OUT BY THE DISCRETION OF THE POLICE BASED ON THE STRENGTH OF THE INFORMATION GIVEN TO THEM “There is no fixed or stipulated order of procedure for Police investigations of crimes. The established position is that criminal investigations are carry out by the Police based on the strength of the information at the disposal of the Police investigator. The Police investigator then uses his discretion to determine how to carry out the investigation. See Olatinwo V State (2013) 8 NWLR (Pt. 1355) 126.” PER IKYEGH, JCA STATUTES REFERRED TO: Section 4 of the Police Act Section 89 of the Evidence Act 2011 Section 90 ( c ) of the Evidence Act 2011 Section 36 of the 1999 Constitution Section 106 (ii) of the Evidence Act 2011
Posted on: Mon, 24 Nov 2014 22:17:26 +0000
Trending Topics
Recently Viewed Topics
© 2015