In The Supreme Court of Nigeria

On Friday, the 20th day of June, 2003

Suit No: SC.114/1999

 

Before Their Lordships

 

  

MUHAMMADU LAWAL UWAIS

....... Justice of the Supreme Court

MICHAEL EKUNDAYO OGUNDARE

....... Justice of the Supreme Court

UTHMAN MOHAMMED

....... Justice of the Supreme Court

ANTHONY IKECHUKWU IGUH

....... Justice of the Supreme Court

DAHIRU MUSDAPHER

....... Justice of the Supreme Court

 

 

 

 Between

AFRICAN CONTINENTAL BANK LTD.

Appellants

 

 

 

 And

    

SIMON U. IHEKWOABA

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

LAND LAW - SALE OF MORTGAGED PROPERTY: Whether undervalue alone is enough to set aside sale of mortgaged property

 

 

"Undervalue alone is not enough to vitiate the exercise of a mortgagee's power of sale. It must be shown that the sale was made at a fraudulent or gross undervalue. Indeed, it is well established that 'if a mortgagee exercises his power of sale bona fide for the purpose of realising his debt and without collusion with the purchaser, the court will not interfere even though the sale be very disadvantageous, unless the price is so low as in itself to be evidence of fraud." Per Ogundare, J.S.C. (P. 21, paras. C-E) - read in context

 

 

 

 

2

LAND LAW - SALE OF MORTGAGED PROPERTY: Obligation of the mortgagee on sale of mortgaged property

 

 

"The only obligation incumbent on a mortgagee selling under a power of sale in his mortgage is that he should act in good faith. Whether selling under an express or statutory power, he may generally conduct the sale in such manner as he may think most conducive to his own benefit, unless the deed contains any restrictions as to the mode of exercising the power, provided he acts bona fide and observes reasonable precautions to obtain not the 'best price' but 'a proper price'." Per Ogundare, J.S.C. (Pp. 21-22, paras. F-A) - read in context

 

 

 

 

3

LAND LAW - SALE OF MORTGAGED PROPERTY: Whether irregularity in the sale of mortgaged property will nullify the sale

 

 

"By virtue of Section 21(1) of the Conveyancing Act, 1881 (England) a statute of general application applicable in Imo State at all time relevant to this case, his title to the property cannot be defeated by the irregularity in the auction sale." Per Ogundare, J.S.C. (P. 24, paras. F-G) - read in context

 

 

 

 

 

 

 

 

M. E. OGUNDARE, J.S.C. (Delivering the Leading Judgment): By a writ of summons issued in suit No. HOW/243/87 in 1987 in the High Court of Imo State, the plaintiffs who are now respondents before us sued the 1st and 2nd defendants claiming various orders and a declaration. In the course of the proceedings plaintiffs sought and obtained an order of court joining the 3rd, 4th and 5th defendants. Pleadings were ordered, filed and exchanged and with leave of court, amended. By paragraph 27 of their amended statement of claim, the plaintiffs finally claimed:

"(1) An order setting aside the purported sale, on 3rd June, 1987, by 1st and 2nd defendants to 3rd defendant of the property of the plaintiffs situate at No.5 Christ Church Close, Owerri covered by deed of mortgage dated 21st December, 1982 and registered as No.55 at page 55 in volume 289 in the Lands Registry at Owerri, Imo State.

(2) A declaration that the purported statutory certificate of occupancy dated 1st December, 1987 granted by 4th defendant to the 3rd defendant was void irregularly issued and accordingly void.

(3) N650,000.00 (Six hundred and fifty thousand Naira) damages for wrongful and fraudulent exercise of power of sale by the 1st defendant whereby the plaintiffs were forced to incur legal and other expenses in connection with the prosecution of this case and in defending an action instituted by the 3rd defendant against the plaintiffs in suit HOW/118/88.

(4) An order of injunction restraining the 1st and 2nd defendants, their servants or agents from selling the said property and the 3rd defendant from taking possession thereof otherwise than through proper exercise of power of sale."

Meanwhile in suit No. HOW/118/1988 the plaintiff (Chukwumaeze Anele) sued the African Continental Bank Ltd., that is, the 1st defendant in HOW/243/87, the 2 plaintiffs in that suit (that is, Simon Ihekwoaba and Mrs. Caroline Ihekwoaba) and 8 other persons all as defendants claiming:

"1. Declaration that by virtue of auction sale dated 3/6/87 at Owerri the plaintiff is entitled to the STATUTORY CERTIFICATE OF OCCUPANCY dated 1/12/87 and registered as 82/82/179, Owerri in respect of the property with premises lying and situate at No.5 Christ Church Close, Owerri within jurisdiction with an annual value of N10.00 (Ten Naira).

2. Possession of the said property with premises lying and situate at No.5 Christ Church Close, Owerri. 

3. Order of the court for the 4th to 11th defendants to pay rent of N150.00 (One hundred and fifty Naira) per month or whatever monthly rent they paid previously to their former landlord to the plaintiff with effect from 3/6/87 or in the alternatively pay same to court until the substantive suit is finally determined. 

4. Order of the court for 2nd or 3rd defendant or both to pay over to the plaintiff such rent, if any received from any of 4th to 11th defendants as from the said 3/6/87 or pay same into court until the substantive suit is finally determined.

5. Failing 1, 2, 3 and 4 above, an order of the court for the 1st defendant to return the whole of the purchase money to the plaintiff with special and general damages assessed at N100,000.00 (One hundred thousand Naira)."

By a motion brought by the 2nd and 3rd defendants in suit No. HOW/118/88 who are plaintiffs in suit HOW/243/87 leave of court was sought, and obtained, to join the 3rd defendant in suit No. HOW/243/87, that is, Chief Okaka Mbadugha as a co-defendant in suit No. HOW/118/88. Pleadings were also filed and exchanged in this suit.

On the application of learned counsel for the plaintiffs in suit No. HOW/243/87 who are 2nd and 3rd defendants in suit No. HOW/118/88, the two actions were consolidated for hearing by order of court. By the same order the plaintiff in suit No. HOW/118/88 became the plaintiff in the consolidated suit while the defendants in that action, that is, HOW/118/88 remained defendants in the consolidated suit. The 4th and 5th defendants in suit No. HOW/243/87 remained defendants in the consolidated suits. At the trial of the consolidated suit, evidence was led on both sides in support of the facts pleaded by each party. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial Judge in a considered judgment adjudged as follows:

"1. It is hereby declared that by virtue of the auction sale conducted on 3rd June, 1987, the statutory certificate of occupancy issued in favour of the plaintiff and registered as No. 82 at page 82 in volume 179 of the Lands Registry, Owerri in respect of the property with the premises situate and lying at No.5 Christ Church Close, Owerri, Imo State was validly issued and registered. 

2. It is hereby ordered that the plaintiff is entitled to immediate possession, of the property together with all appurtenances situate and lying at No.5 Christ Church Close, Owerri, Imo State formerly registered as No. 42/42/678 but now registered as No. 82/82/179 at the Lands Registry Owerri, Imo State.

3. The claim by the plaintiff against the 1st defendant for return of the whole purchase money to the plaintiff is hereby dismissed.

4. The claim by the plaintiff against the 1st defendant for special and general damages is also dismissed. 

5. All the reliefs claimed of (sic) the 2nd and 3rd defendants in suit No. HOW /243/87 are hereby dismissed."

The 2nd and 3rd defendants in the consolidated suit who were plaintiffs in HOW/243/87 were naturally displeased with the judgment of the trial court and appealed to the Court of Appeal which latter court by majority decision, (Uwaifo and Katsina-Alu JJCA, as they were then; Nsofor JCA dissenting) allowed the appeal, set aside the judgment of the trial High Court and adjudged as hereunder:

"1. An order setting aside the sale on 3 June, 1987 of the property at No.5 Christ Church Close, Owerri subject matter of a deed of mortgage registered as No. 55 at page 55 in volume 289 in the Lands Registry in the office at Owerri having been conducted on an irregular auction and the sale is accordingly invalid, null and void. 

2. A declaration that the statutory certificate of occupancy No. 82 at page 82 in volume 179 in the Lands Registry in the office at Owerri issued in favour of the 3rd respondent by the 4th respondent on December 1, 1987 was irregularly issued and without foundation, and accordingly invalid, null and void."

The 1st and 2nd defendants in suit No. HOW/243/87 appealed to this court against the said judgment with leave of this court. The plaintiff in suit No. SC.118/88 who is 3rd defendant in suit No. HOW/243/87 also appealed to this court. An attempt was also made at the oral hearing of this appeal by the 4th and 5th defendants in HOW/243/87 to appeal but the attempt was unsuccessful; they did not take part in the Court of Appeal. All the other defendants in suit No. HOW/118/88 did not appeal neither did they take part in the appeal in the Court of Appeal. As things stand the parties to this appeal are the 1st to 3rd defendants in HOW/243/87 as appellants and the plaintiffs in that suit as respondents. They shall hereinafter be so referred to.

Before I proceed further with the consideration of the appeal now before us, I need to state the facts in a nutshell. The respondents took a loan from the 1st defendant and mortgaged their property situate at No. 5 Christ Church Close, Owerri by way of legal mortgage dated 21/12/82 and registered at No. 55 at page 55 in volume 289 at the deeds registry Owerri, Imo State. The property at the time was valued at N194,000.00. The respondents defaulted in the repayment of the loan in consequence of which the 1st appellant decided to sell the property to recover the money owed to it. The 2nd appellant a licensed auctioneer was engaged by the 1st appellant to sell the property. Public notices were issued and published in the statesman Newspaper of 3/4/87 to the effect that the sale would be effected on 6th April, 1987. There was an auction of the property on that day, that is, on 6th April, 1987 but the exercise was aborted as the highest bid of N61,000.00 was considered by the 1st appellant as too low. The respondents who knew of the highest bid made on the 6th April and the rejection of that bid by the 1st appellant wrote a letter dated 9th April, 1987 to the 1st appellant thanking the latter for rejecting the bid and asking to be given two weeks to repay the loan. In consequence of this letter the 1st appellant suspended the sale of the property. The respondent, however, failed to pay up the loan within the period they asked for in the letter. As a result of this failure the 1st appellant instructed the 2nd appellant to sell the property. 

The 2nd appellant who resided in Lagos came to Owerri on 3rd of June, 1987 and pasted notices for sale of the property on that same day. At the auction sale that followed a crowd numbering about 70 people gathered and made bids. The 3rd appellant came out with the highest bid of N115,000.00. The property was sold to him at that amount and a receipt was issued to him by the 2nd appellant. Subsequently a power of attorney was given by the 1st appellant to the 3rd appellant by which the 3rd appellant obtained a certificate of occupancy in respect of the property issued by  the Military Governor of Imo State. The respondents later took the action resulting in this appeal. The 3rd appellant being unable to gain possession of the premises also took an action against the 1st appellant and all occupants (tenants) of the premises. It was these two actions that were consolidated and tried together.

In the brief of argument of the 1st and 2nd appellants, the following 3 issues are raised for determination of the appeal to wit: 

"(i) Whether the 1st and 2nd defendants/appellants were right in selling the mortgaged property when the power of sale arose and if so was the Court of Appeal right in holding that there was fraud in the conduct and sale of the property and therefore there was no sale (Grounds 1 and 2).

(ii) Whether the Court of Appeal was right in holding that the irrevocable power of attorney issued to the 3rd defendant/respondent was wrong in law as well as the certificate of occupancy issued to him by the Imo State Government, that is, the Governor of Imo State following the grant of irrevocable power of attorney. (Grounds 3 & 4).

(iii) Whether it was right in law for the Court of Appeal to introduce extraneous matters to the case which were neither pleaded nor given in evidence at the trial as well as whether the judgment of the Court of Appeal was not against the weight of evidence. (Grounds 5 and 6)."

The 3rd appellant in his own brief formulated the following 2 issues: 

"1. Whether the Court of Appeal was right in setting aside the sale of the mortgaged property made in favour of the 3rd appellant?

2. Whether the Court of Appeal was right in holding that the certificate of occupancy granted to the 3rd appellant was irregularly issued and therefore invalid and void..."

The 2 issues raised by the 3rd appellant are subsumed in the 1st two issues formulated by the 1st and 2nd appellants. 

The respondents on their part formulated one issue in addition to the issues raised by the 1st and 2nd appellants and that additional issue reads: 

    "Whether or not this Honourable Court will interfere with the Court of Appeal's exercise of its judicial discretion, in its majority decision, to set-aside the decision of the learned trial Judge and to give judgment is (sic) favour of the respondents on a proper consideration of the facts, the law applicable and the issues before the court?"

In the respondents brief in answer to the 3rd appellant's brief, the issue raised by the respondent reads as follows: 

    "Whether or not this Honourable Court will interfere with the Court of Appeal's exercise of its judicial discretion, in its majority decision, to set aside the decision of the learned trial Judge and to give judgment in favour of the respondents on a proper consideration of the facts, the law applicable and the issues before the court? Or, 

    In the alternative,

    Whether the mortgagee exercised his power of sale bona fide, without corruption or collusion with the purchaser or with reckless impropriety as to tantamount to fraud and thereby render interference by the Court of Appeal proper?"

I may mention that the 1st and 2nd appellants filed a reply brief in answer to the arguments proffered in the respondent's brief. 

It would appear that during the pendency of this appeal the 1st respondent died. I say this because the respondents' brief in reply to the 3rd appellant's brief is titled "2nd respondent's brief of argument". As there is no formal notification to this court as regard the death of this respondent I make no further comments on it. 

From the pleadings, the evidence led by the parties, the judgments of the two courts below and arguments raised in the various briefs filed in this court, it will appear to me that the issues arising for determination in this appeal can be broadly classified under two questions, to wit:

1 . Is the sale of respondent's property effected on 3/6/87 valid?

2. Did the 3rd appellant acquire a good title to the property in dispute?

SALE OF PROPERTY: 

It is not in dispute that the property situate at No.5 Christ Church Close, Owerri belonged to the respondents. It is equally not in dispute that the respondents mortgaged the said property to the 1st appellant as security for a loan they raised from the latter. Equally not in dispute is the fact that the respondents defaulted in the repayment of the loan and were owing the 1st appellant a sum of over N81,000.00 as at April 1987. The 1st appellant decided to exercise its right of sale under the mortgage deed and instructed the 2nd appellant to carry out the sale of the respondents' said property. 

The learned trial Judge found as a fact that:

    " ..... on the facts before me, I believe that the 12th defendant conducted a sale. Nothing else could attract as many as 70 persons except the process of sale. Soon after the sale and on payment of the purchase money by the plaintiff, to the 12th defendant he the 12th defendant then made out exhibits A and CC in accordance with the requirements of the law. I therefore find as a fact that the 12th defendant sold the property at No.5 Christ Church Close, Owerri, by public auction on 3rd June, 1987, to the plaintiff."

He also found that 1st appellant gave notice of the sale to the respondents as required by law and went on to find that even if such notice was not given "the 2nd and 3rd defendants who have already waived their right by exhibit V, cannot, thereafter complain." Other findings of fact made by the learned trial Judge in respect of allegations of fraud levied by the respondent against the 1st appellant in respect of the sale are:

1. "Again, there is no evidence by any party to these proceedings, to support the submissions made on behalf of the 2nd and 3rd defendants, that the 1st defendant instructed the 12th defendant to put up a mock auction, but privately invited the plaintiff to bring N115,000.00 which was deposited in the mortgage account of the plaintiff as purchase price. If the sale was fraudulent then the 2nd and 3rd defendants would be required to prove the fraud by the standard laid down in section 138(1) of the Evidence Act, namely, proof beyond reasonable doubt. But no attempt was made by 2nd and 3rd defendants to reach that standard. In any event if the 1st defendant did not act fraudulently in selling the property, it will be difficult to conceive how the plaintiff would act fraudulently in buying."

2. "Even, then that allegation has not been proved by valid evidence of 2nd and 3rd defendants that the 1st defendant acted fraudulently in selling the property in dispute. The property was not sold at under value when the agent of 1st defendant, the 12th defendant sold it at N115,000.00. There is no evidence by a valuer of what could have been the proper value of the property other

than what it was sold at. Rather, the presumption, which the 2nd and 3rd defendants put forward was that the value of the property must have appreciated from what it was in 1977, that is N194,000.00 to something else. But there should have been evidence by a valuer of the value of the property at the time of sale. The 2nd and 3rd defendants have the burden to establish the value

of the property at the time of sale and this they failed to do."

3. "I find, as a fact that there was no fraud, collusion or mala fide in the sale of the property and that the property was not sold at under value."

The Court of Appeal, in the majority decision of that court, per Uwaifo JCA, as he then was, found that public notices as required by section 19 of the Auctioneers Law Cap. 12, Laws of Eastern Nigeria 1963 applicable in Imo State, at the time relevant to this action, was given on 3rd June, the day the sale was purportedly effected. That court found that there was a breach of section 19, that, therefore, the sale effected on 3/6/87 was invalid. To this extent, I agree with their Lordships of the court below that there was a breach of section 19 of the Auctioneers Law but save that the effect of the breach is to render the sale irregular.

The court also found, however, that the sale effected on 3/6/87 was a sham. By this finding the Court of Appeal reversed the finding of the learned trial Judge who found that fraud was not proved.

In their amended statement of claim in HOW/243/87 the respondents pleaded as hereunder:

"18. On the 3rd of June, 1987 there were people outside and inside the said house, throughout that day, and they did not see the 2nd defendant or the 3rd defendant or any prospective purchasers attending any auction sale conducted at any time on that day. 

19. The plaintiffs contend that the alleged sale, carried out by the 2nd defendant on 3rd of June, 1987 on the instruction given by the 1st defendant on 3rd of June, 1987, as admitted by the 1st and 2nd defendants in paragraph 28 of the statement of defence of 17th June, 1992 and filed in this suit on 23rd June, 1992 was in breach of mortgagee's duty of care.

(a) To act in good faith 

(b) To have regard to the interest of the plaintiffs mortgagors and

(c) To properly advertise by properly published reasonably obtainable in the market.

(d) Not to sell to itself.

20.  The plaintiffs will rely on the following as particulars of breach by 1st defendant: 

(i) The alleged sale was conducted in manner calculated or designed to prevent competition and to depress the value of the said property so that sale will be affected below market price and at an under-value. 

(ii) That the purported sale to the 3rd defendant was a collusive and sham sale in truth and in fact it was selling the said property to the 1st defendant, itself, at an under-value. 

(iii) The sale of the said property, at a ridiculous sum of N115,000.00 (One hundred and fifteen thousand Naira) when it has been valued in 1977 at N194,000.00 and after it has appreciated in value to about N3,000,000.00 (Three Million Naira) in 1987, was at an under value. 

21. The plaintiffs will contend: 

(i) That the alleged sale, to the 3rd defendant was a camouflage for sale to the 1st defendant who actually bought the said mortgaged property using the 3rd defendant as a front by issuing power of attorney to the 3rd defendant, was accordingly null and void. 

(iii) That the said purported sale alleged by the 2nd defendant to the 3rd defendant did not take place at least seven days of alleged publication of 3rd June, 1987 and no report of return of the said sale was made to the Divisional Officer in the area contrary to sections 19 and 20 of Auctioneers' Law of Imo State Cap. 12 Laws of Imo State and accordingly, void."

It is clear from the pleadings of the respondents that the facts being relied on by them in alleging fraud are:

(1) Inadequate notice to the public as required by law

(2) Sale at under value

(3) That the sale was in fact made to the 1st appellant who used the 3rd appellant as a front.

The learned trial Judge found on the evidence before him - and I dare say rightly too - (1) that at the sale of 3/6/87 there were over 70 people present; (2) that the sale was not at under value; (3) that there was no proof of fraud against the appellants. On the evidence adduced at the trial the findings of the learned trial Judge that there were about 70 people present at the auction sale cannot be faulted. Again the reasons given by the learned trial Judge for coming to the conclusion that there was no sale at under value equally cannot be faulted. True enough there was evidence that the property was valued by a valuer at the time the mortgage was being executed at N194,000.00. But no valuer gave evidence as to the value of the property at the time of sale. A number of factors would have to be taken into consideration in determining whether the value of the property had appreciated or depreciated. This would depend on such factors as the state of repairs of the property at the time of sale and market value of real property at that time. The respondents led no evidence on these factors. They relied on the ipse dixit of the 1st respondent when he said in evidence: 

    "I did not hear that my property was sold. I did not hear that it was bought by the plaintiff. The auctioneer told me that the property had been sold. He also told me the name of the person that bought it - the plaintiff - the same auctioneer told me that the property was sold for N115,000.00. In 1987 I caused valuation of that property to be made. It was before the auctioneer gave me the information regarding the sale of the property. I had already done the valuation before 3rd April, 1987, the report was issued in May, 1987. I required it for my own purpose. That report was in my possession before I filed my suit. I did not refer to that report in my amended statement of defence. Also in my amended statement of claim I did not refer to it. The valuation report was available as at 17/1/96 when I filed the amendments, I did not make it for the purpose of prosecuting this case." 

Earlier in his evidence in chief, the 1st plaintiff had said: 

    "As at 1987, the property was worth N3 million caused a valuation of same to be made. This is the valuation report the valuer gave to me - IDI" 

I would find it difficult to disagree with the learned trial Judge that the respondents on whom lay the burden of proof that the property was sold at under value, discharged that burden on the evidence highlighted above. 

The learned Justices of the court below, with profound respect to them, based their conclusion on mere speculation rather than on evidence. Uwaifo, JCA in his lead judgment opined: 

    "Ordinarily, the property valued at N194,000.00 in 1977 would have appreciated reasonably ten years later in 1987. The economic history of this country tells us that in 1977 the exchange rate of the Naira to the pound sterling was almost at par. We cannot feign ignorance of that. With the known devaluation of the Naira in 1987, the least the sum of N194,000.00 in 1977 would have been considered worth in 1987 would be upwards of three times. That would easily make it about N600,000.00 (N582,000.00 if three times). This does not take account yet of the expected appreciation of the property itself over the years. We sometimes ignore such prospects only at the risk of being regarded as unfamiliar with (perhaps better to say ignorant of) basic knowledge or common principles to help us decide these matters: unrealistic in our approach to circumstances which should normally be taken for granted; or as if, in some extreme opinion, we appear to live in a cocoon. I admit that what cannot be stated definitively as facts and figures owing to the absence of concrete evidence is the exact valuation. But that should not deter the making of a comparative use of the accepted value of N194,000.00 of the property as at 1977 when the property was purportedly sold in 1987 for N115,000.00 to see, at least, what might represent a proper value." 

I have scanned through the record of appeal and do not find that any evidence of economic history of this country was led at the trial. Indeed the premise upon which the learned Justices of the Court of Appeal came to the conclusion that: 

    "Taking all these into consideration, it would be difficult not to regard the price of N115,000.00 as gross undervalue of the property in question. There can hardly be any pretence about these matters." 

was based on mere speculation unrelated to any evidence adduced at the trial. It must be borne in mind at all times that: 

    "It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled - see Zaria v. Maituwo (1966) NMLR 59; Oroke v. Edex (1964) NNLR 118." 

per Karibi-Whyte, JSC in Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484; (1985) ANLR 240 at 248. 

The law as to sale under under-value is laid down by this court in Ekaele v. Nigeria Housing Development Society Ltd. (1973) 6 SC 183 at 198 in these words:

    "We think it is now beyond controversy that undervalue alone is not enough to vitiate the exercise of a mortgagee's power of sale. It must be shown that the sale was made at a fraudulent or gross undervalue. Indeed, it is well established that 'if a mortgagee exercises, his power of sale bona fide for the purpose of realising his debt and without collusion with the purchaser, the court will not interfere even though the sale be very disadvantageous, unless the price is so low as in itself to be evidence of fraud.' (See Warner v. Jacob (1882) 20 Ch. D.220) In Coote on Mortgage, Vol. 2, 9th ed., at p.927, the law on this point is stated as follows: 

    'The only obligation incumbent on a mortgagee selling under a power of sale in his mortgage is that he should act in good faith. Whether selling under an express or statutory power, he may generally conduct the sale in such manner as he may think most conducive to his own benefit, unless the deed contains any restrictions as to the mode of exercising the power, provided he acts bona fide and observes reasonable precautions to obtain not the "best price" but "a proper price".'

    We think the learned editors of this treatise have correctly stated the law and we agree with them on the point. 

    It is worthy of note that the mortgagee is expected to obtain not the 'best price' but 'a proper price'." 

With profound respect to their Lordships of the court below who gave the majority decision, I cannot agree that on the evidence, sale at under value was disclosed. 

The court below made a lot of fuss over the execution of a power of attorney by the 1st appellant to the 3rd appellant instead of a deed of transfer. True enough what the 1st appellant ought to have given the 3rd appellant is a deed of transfer with the Governor's consent but I am not prepared to say that by giving irrevocable power of attorney to the 3rd appellant the 1st appellant had acted fraudulently. I have read the power of attorney, I can see nothing in it to suggest that the 1st and 3rd appellants acted in collusion. On the contrary, that power recited exactly what happened, that is, that the property in dispute was sold at public auction to the 3rd appellant who paid for it. It must be borne in mind that under the Land Use Act, the 3rd appellant would need a certificate of occupancy to perfect his title to the property. I can see nothing in the evidence led in this case to justify the strictures passed by Uwaifo, JCA on the 1st appellant for giving a power of attorney to the 3rd appellant instead of a deed of transfer. If anything, the 1st appellant must have acted under a wrong legal advice. I think the less said about this aspect of the case the better. On the evidence available at the trial and on the findings of the learned trial Judge who saw and heard the witnesses, there was a sale of the property on 3/6/87 which could not in any sense be described as sham. It was irregular for the simple reason that the 7 days statutory notice before the sale was not given, other wise everything was done properly, in my respectful view, and as disclosed by the credible evidence led at the trial. 

The court below appeared to have overlooked a letter written by the 1st respondent to the 1st appellant following the aborted sale exercise of 6/4/87: In that letter the 1st respondent wrote: 

    "I am pleased to express my thanks for your rejection of auction price of N61,000.00 placed on the above property today.

    In view of that kindness of your bank, I am asking for two weeks of grace to come and lodge half of our indebtedness to the account."

This letter could not have portrayed the 1st appellant as someone who had acted in bad faith or fraudulently in the sale of 3/6/87. From all I have been saying above, I cannot agree with the court below that fraud was proved in this case against the appellants. Consequently I set aside that finding of the court below and affirm the findings of the learned trial Judge that there was no fraud or collusion in the sale of the property and that the property was not sold at undervalue.

TITLE OF THE 3RD DEFENDANT:

Armed with the power of attorney given him by the 1st appellant (exhibit B), the 3rd appellant applied to the Military Governor of Imo State for the grant of statutory right of occupancy. The Military, Governor (4th defendant in suit No. HOW/243/87) approved the application and granted to the3rd appellant a statutory right of occupancy to the property in dispute and evidenced this with a certificate of occupancy (exhibit C). The trial court found that the certificate of occupancy issued in favour of the 3rd appellant was validly issued and registered. The Court of Appeal held to the contrary because, according to it, the sale to the appellant was tainted with fraud. I have earlier disposed of the issue of fraud; I need not say more on that anymore. I have equally found that the auction sale was irregular being in breach of section 19 of the Auctioneers Law of Eastern Nigeria. There is evidence that there was a sale and that the 3rd appellant was the highest bidder and the sale was to him and that in consequence of the sale to him he obtained a grant of statutory right of occupancy from the Military Governor. By virtue of section 21(1) of the Conveyancing Act, 1881 (England) a statute of general application applicable in Imo State at all time relevant to this case, his title to the property cannot be defeated by the irregularity in the auction sale of 3/6/87. Section 21(1) provides: 

    "Where a conveyance is made in professed exercise of the power of sale conferred by this Act the title of the purchaser shall not be impeached on the ground that no case has arisen to authorise the sale, or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the powers."

From the findings of the learned trial Judge the 3rd appellant is obviously a bona fide purchaser for value without notice of the irregularity of non-compliance of section 19 by the 2nd appellant. As the property in question has been duly granted to the 3rd appellant following the auction sale and in accordance with the provisions of the Land Use Act, his title to the property remains valid. SeeSanusi v. Daniel (1956) SCNLR 288 at 291; (1956) 1 NSCC 85 at 88; (1956) 1 FSC 93 at 95 where Jibowu Ag. FCJ as he then was, said: 

    "The appellant's complaint is against an irregular exercise of the power of sale on the ground that there was a contravention of section 19(1) of the Sales by Auction Ordinance. It seems to me that the title of the 2nd respondent cannot be impeached since the property was conveyed to him, and that the appellant's remedy is in damages against the 1st respondent as provided by section 21(2) of the Conveyancing Act, 1881. Both the Supreme Court of Nigeria and the West African Court of Appeal came to the same conclusion in Momodu Raji v.M. Williams & Ors. 16 NLR 149 above referred to, and with the views expressed in the case by their Lordships I respectfully agree."

See also Andrew N. Okonkwo v. Co-operative & Commerce Bank Nig. Plc & Ors. SC.58/1998 delivered on 28/2/2003 per Uwaifo, Jsc.

From all I have said above, I have come to the conclusion that there is merit in the appeals of the appellants which I hereby allow. I set aside the judgment of the Court of Appeal and restore the judgment of the trial High Court. The 3rd appellant is entitled to N2,000.00 costs of the trial in the High Court as awarded by that court against the respondents. Each set of appellants is entitled to N2,000.00 costs of the appeal in the Court of Appeal against the respondents and N10,000.00 costs of this appeal also against the respondents. 

M. L. UWAIS, C.J.N.: I have had the opportunity of reading in draft the judgment read by my learned brother, Ogundare, JSC. I entirely agree with him that the appeal has merit. Accordingly, I too hereby allow the appeal and make order as to costs as contained in the said judgment.

U. MOHAMMED, J.S.C.: I have had a preview of the opinion of my learned brother, Ogundare, JSC, in the judgment just read, and I agree with him that this appeal has merit and ought to be allowed. I agree that the title of the 3rd defendant/appellant cannot be impeached. By virtue of the provisions of section 21(1) of the English Conveyancing Act 1881, which being a statute of general application is applicable to the dispute in this case the only remedy for the respondents is to sue for damages. I therefore allow the appeal, set aside the majority judgment of the Court of Appeal and restore the judgment of the High Court. I abide by all the consequential orders made in the lead judgment. 

A. I. IGUH, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Ogundare, JSC and I agree with the reasoning and conclusions therein reached. I have nothing more to add. Consequently, I, too allow the appeals of the appellants. The judgment of the Court of Appeal is set aside and that of the trial court is hereby restored. I endorse all the orders as to costs made in the leading judgment.

D. MUSDAPHER, J.S.C.: I was privileged to have read before now the judgment of my Lord Ogundare, JSC just delivered. I respectfully agree with the reasoning and the conclusion arrived.

For the same reasons, which I adopt as mine, I too, allow the appeal. I set aside the decision of the Court of Appeal and restore the judgment of the trial court.

Appeal allowed.

     Appearances       

L. Uzoukwu, SAN (with him, E. Enyinnia, Esq.) - for the 3rd Appellant 

E. Duruiheoma, Esq. -for the 3rd and 4th Respondents 1st and 2nd Appellants absent and unrepresented

For the Appelants

       

Y.A. Agbaje, SAN (with him, K. Adeosun, Esq.) - for the 1st and 2nd Respondents

For the Respondents

 

 

AFRICAN CONTINENTAL BANK LTD V P.O. EWARAMI

CITATION: (1978) LPELR-201(SC)

 

 

 

OTHER CITATIONS:

1

(1978) All N.L.R 257

2

A.C.B. v. Ewarami (1978) 4 S.C. 71

 

 

 

Read Full Judgment in E-Book Format

 

In The Supreme Court of Nigeria

On Saturday, the 8th day of April, 1978

Suit No: SC.428/75

 

Before Their Lordships

 

  

DARNLEY ARTHUR RAYMOND ALEXANDER

....... Justice of the Supreme Court

GEORGE SODEINDE SOWEMIMO

....... Justice of the Supreme Court

AYO GABRIEL IRIKEFE

....... Justice of the Supreme Court

 

 

 

 Between

AFRICAN CONTINENAL BANK LTD

Appellants

 

 

 

 And

    

P. O. EWARAMI

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

ACTION - AMENDMENT OF PLEADINGS: Effect of amendment of pleadings

 

 

"The amendment made being one merely to bring the pleadings into line with evidence already given was clearly within the competence of the learned trial judge. Such an amendment to the pleadings would supersede the claim on the writ. See UDECHUKWU v. OKWUKA 1 F. S. C. pg.70." Per IRIKEFE, J.S.C (P. 10, paras. D-F) -read in context

 

 

 

 

2

JUDGMENT AND ORDER - DECLARATORY JUDGMENT: Whether the power of court to make declaratory judgments is unlimited?

 

 

"We are satisfied that the learned trial judge had an unfettered judicial discretion to make the order the subject of this appeal. In HANSON v RADCLIFFE U.D.C. -1922 CHANCERY -p.490 at 1507 - Lord STERNDALE - M.R. had this to say on declaratory judgments: The power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; and I might say only limited by its own discretion. The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide" Per IRIKEFE, J.S.C. (Pp. 11-12, paras. G-B) - read in context

 

 

 

 

 

 

 

 

A. G. IRIKEFE, J.S.C. (Delivering the Leading Judgment): At the end of counsel's submissions in this appeal, we indicated there and then that it was dismissed, and promised that we would give our reasons later. This we now do. By the amended writ the respondent herein claimed against the appellants thus:

"The plaintiffs claim against the defendant is for the sum of N20,000.00 (Twenty-Thousand-Naira) being special and general damages for wrongful dismissal in that on or about the 13th November, 1973 at  Benin City within the jurisdiction of this Honourable Court, the defendant wrongfully dismissed the plaintiff from the service of the defendant company" The plaintiff also claims a declaration that the purported dismissal is wrongful, illegal and unconstitutional.

PARTICULARS OF DAMAGE

Salaries due to plaintiff for the months of July - November, 1971;

     (a) N80.00 per month...........................N400.00

    (b) Leave Bonus due Plaintiff 1972/3.........  50.00

    (c) General damages .......................N19,550.00

                                                       N20,000.00

After the proceedings had been adjourned for judgment, the respondent moved the court for an amendment of the relief sought in his  statement of claim. The said amendment, although strenuously opposed by the appellants was granted on terms. In view of the above, the relief sought under paragraph 29 of the statement of claim now reads as follows: 

The plaintiff avers that by reason of the said wrongful dismissal he has suffered damages. Whereof the plaintiff claims that the dismissal of the plaintiff by the defendant company is wrongful and a declaration that the plaintiff is still in the employment of the defendant company.

The plaintiff therefore claims N20,000 (Twenty-Thousand Naira) general damages. OR IN THE ALTERNATIVE The plaintiff claims as special damages his salary from July, 1973 to January, 1975.

(a) N80.00 per month...N1,440.00

(b) Leave bonus.......         50.00

    TOTAL                   N1,490.00

The facts found by the lower court which were not challenged as the appellants elected not to call evidence, show that the respondent was employed by the appellants on 21st March, 1964.

Thereafter, he served at various branches of the appellants banking houses and at the commencement of this suit in February, 1974, was a member of the permanent staff of the appellants in the post of" ARCHIVIST".

In 1972 the appellants sued one Chief F.S. YESUFU, a customer, in the Benin High Court in SUIT No. B/10/72. Upon the application of the said Chief YESUFU, the respondent was served with a subpoena requiring him to appear and give evidence at the Benin High Court in the pending suit on 14th June, 1973. The respondent appeared in court on the stated date, but no evidence was taken in the matter that day.

It was then adjourned to 2nd July, 1973. On 25th June, 1973 the respondent received a letter from the appellants transferring him from their RING ROAD BRANCH in BENIN-CITY, where he then worked, to their JOS BRANCH. By some strange co-incidence, the date of the respondent's resumption of duty at JOS was 2nd JULY, 1973; the same date to which the YESUFU suit in which a subpoena had been served on him had been adjourned.

A discussion between the respondent and the manager of the appellants' RING ROAD BRANCH in Benin City failed to resolve the crisis created by the conflicting demands for the respondent's presence at the Benin High Court and at JOS on the same day. It would appear that when YESUFU got wind of the respondent's impending transfer to JOS, he moved the Benin High Court for an order restraining the appellants from doing so until SUIT B/10/72 was disposed of. This order was made on 29th June, 1973 and the manager of the appellants'  RING ROAD BRANCH in BENIN CITY who was present in court told the respondent that he would have to wait for another order of posting in view of the court's order. Soon after the making of the above order, the respondent took ill and was attended to by one DR. OVIASU who issued him with a sick leave certificate dated 30th June, 1973 and which was admitted at the hearing at the court below as  exhibit "D".

No evidence was taken in SUIT NO. B/10/72 on 2nd JULY, 1973. It was adjourned to 9th July, 1973 and again to 10th July, 1973 when the respondent's evidence was taken. Although his evidence had been taken, no formal application was made for his discharge by the court.

The respondent thereafter stayed away from work on the strength of medical sick-leave certificates. Efforts made by him to receive his salary from the appellants' RING ROAD, BENIN-CITY BRANCH met with no success.

This was how matters stood when the respondent instructed a solicitor to write a letter dated 25th September, 1973 to the appellants.

It was in their reply dated 13th November, 1973 to the above letter that the respondent learnt for the first time that another letter dated 3rd August,1973 had issued to him from the appellants instructing him to again proceed on transfer to Jos.

The refusal by the appellants to pay the respondent's salary had apparently been due to the view which they had formed that the respondent had been guilty of gross insubordination by refusing to proceed on transfer to Jos consequent upon the issue of their letter dated 3rd August, 1973.This much was alleged in their statement of defence.

The case at the lower court thus turned on the narrow issue as to whether the respondent had been lawfully dismissed, as indeed he could, by his employers, for insubordination, or whether a case for dismissal had not been made out in the absence of proof that he had received the letter of 3rd August, 1973 re-confirming his earlier transfer to Jos. After a most careful appraisal of the only evidence before him (since the appellants elected not to offer any evidence), the learned trial judge (OKI, J.) accepted the respondents case and relying on the claim as amended, held that:purported dismissal from the employment of the defendant company is null and void" and declared: "that he is still in the employment of the defendant company. "This appeal is against the above decision.

A number of grounds of appeal both original and additional were filed, but the appellants specifically relied on the following:

(a) The learned judge erred in law by granting a declaration that the plaintiff/respondent was still in the employment of the defendant/appellant when -(a) he had no jurisdiction so to do; and (b) the admissible evidence was not in support of the declaration.

(b) The learned judge erred in law by granting the plaintiffs application dated 3rd February, 1975 to amend the statement of claim in view of the fact that the amendment introduced new reliefs not cognizable under the claim endorsed on the writ of summons and in view of the legal objections raised in opposition to the application.

(c) The learned trial judge having accepted as proved the allegation in paragraph 9 of the amended statement of defence erred in law:

(a) In entering judgment for the plaintiff who was in breach of contract by absenting himself from duty.

(b) in holding that "the defendants ought to have given evidence to show that absence from duty in their company is regarded as a serious breach of contract of service to warrant termination of appointment," when the onus is on the plaintiff to prove that his termination or dismissal was wrongful.

(d) The learned trial judge erred in law by holding and assuming

(a) That the parties were governed by the common law "and the practice within the defendant company" when

(i) There is evidence before him that there are conditions of service governing the parties;

(ii) There is no evidence of the practice within the defendant company.

(b) That the condition of service was not in writing when there is no such evidence before the court.

(e) The learned trial judge erred in law in granting the plaintiff the declaration sought after holding that the parties were governed by the common law when declaratory judgements are unknown to the common law and/or the only remedy at common law for breach of contract of service or wrongful dismissal is the award of damages.

(f) The learned trial judge erred in law in holding that the dismissal of the plaintiff by the defendant was null and void when the defendant was competent to dismiss the plaintiff.

(g) The learned trial judge having held that "before the court, however, there was no evidence of dismissal" erred in law in entering judgment for the plaintiffs and declaring his dismissal from the employment of the defendant company null and void when the plaintiff's claim ought to have been dismissed or non-suited for failure to prove the basis of his claim - i.e. the dismissal.

(h) The learned trial judge erred in law in ordering a declaration not asked for when he decreed - "that he (plaintiff) is still in the employment of the defendant company"

Learned counsel representing the appellants relying on the above grounds argued that the decision arrived at by the court of trial could not be supported by the evidence. He further argued that the trial court having held that the parties were governed by the common law, erred in granting the declaration sought, since, according to counsel, declaratory judgments were unknown to the common law and the only remedy available to a servant against his master for wrongful dismissal was an action for damages. The effect of the order made in these proceedings, learned counsel argued, was to compel the appellants to retain the services of the respondent; whereas at common law, a master could not be so compelled.

     Counsel was however prepared to concede that, where the employment was statutory, one had to look at the statute itself in order to determine what the rights of the parties are, in which case, a declaratory order in the form of an injunction could issue in an appropriate case to preserve such rights. Learned counsel was also critical of the amendment made to the statement of claim after the hearing had been adjourned for judgment. For the respondent, it was submitted that the order made by the lower court was appropriate having regard to the circumstances of this case.

We note that after the trial court had granted the amendment of the respondent's statement of claim in spite of objection, learned counsel representing the appellants asked for a short adjournment to enable him decide on what steps to take.

At the next hearing, counsel intimated to the court that he no longer desired to re-open the cross-examination of the respondent but would rather like to expand upon the address he had earlier made before the amendment. The record shows that this concession was granted to counsel.

The amendment made being one merely to bring the pleadings into line with evidence already given was clearly within the competence of the learned trial judge. Such an amendment to the pleadings would supersede the claim on the writ. See UDECHUKWU v. OKWUKA 1 F. S. C. pg.70.

It is accordingly our view that the complaint lacks substance.

By virtue of Order 35 Rule 10 of the High Court (Civil Procedure) Rules (1953) of the defunct Western Region of Nigeria, which rules were applicable in the similarly defunct Mid- Western State of Nigeria during the entire course of the proceedings now on appeal, the High Court of the  latter State could have recourse to the rules for the time being in force in the High Court of Justice in England.

The said rule reads - "Where no provision is made by these rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England shall so far as they can be conveniently applied, be in force in the court: provided that no practice which is inconsistent with these rules shall be applied"

Order 15 Rule 16 (Supreme Court Practice) 1976 provides that - 

"Non action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be.

As we had stated earlier on in this judgement, the appellants elected not to call evidence. At the end of the hearing therefore, the lower court had before it only the evidence of the respondent which itself was based on his amended pleadings. There was no material before the court from which it could hold that the respondent had been insubordinate by failing to proceed on transfer to JOS pursuant to a letter of 3rd August, 1973 from the appellants directing that he should do so.

We take the view that the onus of establishing the existence and service of this letter was on the appellants and that they had failed to do so.

Given the above state of affairs, we are satisfied that the learned trial judge had an unfettered judicial discretion to make the order the subject of this appeal.

In HANSON v RADCLIFFE U.D.C. -19222 CHANCERY -p.490 at 1507 - Lord STERNDALE - M.R. had this to say on declaratory judgments:

The power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; and I might say only limited  by its own discretion.

The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide" .

Some years before the above decision, BANKES L. J. when considering the scope of this rule was no less emphatic when he said

"There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as  possible."

See - GUARANTY TRUST COY OF NEW YORK Vs. HANNA Y & COY 915 - 8 K B. p.556 at p.572. See also -IBENEWEKA v. EGBUNA 1964 1. W. L. R. 219.

The order made by the learned judge, was one, which in our view, he could make having regard to the evidence before him.

As the lower court did not rule that a case for unlawful dismissal had been made out, we would refrain from expressing an opinion on whether at common law only an action for damages would lie.

We were in no doubt that this appeal lacked merit and dismissed it. For the avoidance of doubt, we hold that the learned trial judge was right in deciding as he did, and that the respondent must be deemed to have been still in the employment of the appellants and thus entitled to his normal salaries and/or benefits until 13th December, 1977 when we dismissed this appeal and reserved our reasons till a later date. Costs of N153.00 are awarded against the appellants.

And the foregoing shall be the judgment of the Court.

     Appearances       

G. O. Giwa-Amu

For the Appelants

       

Dr. Mudiaga Odje

For the Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In The Court of Appeal

(Kaduna Judicial Division)

On Thursday, the 20th day of December, 2012

Suit No: CA/K/18/C/2010

 

Before Their Lordships

 

  

AMIRU SANUSI

....... Justice, Court of Appeal

ABDU ABOKI

....... Justice, Court of Appeal

THERESA NGOLIKA ORJI-ABADUA

....... Justice, Court of Appeal

 

 

 

 Between

ZAKARI YA'U

Appellants

 

 

 

 And

    

THE STATE

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

CRIMINAL LAW AND PROCEDURE - ARRAIGNMENT OF AN ACCUSED PERSON:When the issue of non arraignment is to be raised

 

 

"The issue of non arraignment of the Appellant is an issue of jurisdiction which can be raised at any point in time and even at the hearing of an appeal."PER ABOKI, J.C.A. (P. 22, Paras. A-B) - read in context

 

 

 

 

2

CRIMINAL LAW AND PROCEDURE - ARRAIGNMENT OF AN ACCUSED PERSON:What an arraignment comprises and effect of non compliance

 

 

"..In practice, arraignment comprises reading over the charge or allegation over to the accused and his making a plea thereto. See Oyediran v. Republic (1967) NMLR 122. Arraignment is the most crucial stage of any criminal proceedings because criminal trials commence at arraignment. See: Fawehinmi v. Inspector-General of Police (2000) FWLR (Pt. 12) 2015. In Edibo v. State (2007) 13 NWLR (Pt. 1051) page 306 at 326. The Supreme Court, per Tabai JSC said: "The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the read for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted without the plea of the accused person first and properly taken is a nullity". See: Sanmabo v. The State (1967) NMLR 314; Alake v. The State (1991) 7 NWLR (Pt. 205) page 567; The State v. Madokola (1972) 2 ECSLR 426. In Nwafor Okegbu v. State (1979) 11 SC 1 at 9 the Supreme Court held per Irekefe JSC: "It is only when an accused pleads either guilty or not guilty as the case may be, that issues are joined in criminal trial, and until this happen, he is technically outside the pace of the Court's jurisdiction". In criminal trials before the High Court, the criminal procedure code made specific provision as follows: 187"(1). When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged" (2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused" PER ABOKI, J.C.A. (Pp. 31-32, Paras. C-G) -read in context

 

 

 

 

3

CRIMINAL LAW AND PROCEDURE - ARRAIGNMENT OF AN ACCUSED PERSON:Requirements of a valid arraignment

 

 

"The requirement for arraignment is not optional but mandatory. The failure by a Court to observe the procedure would render the entire proceedings a nullity ab initio. See Sanmabo v. The State (supra). In Udo v. State (2006) 15 NWLR (Pt. 1001) 179 at 189-190 the Supreme Court reiterated the requirements of a valid arraignment as follows: "(a). That the accused must be placed before the Court unfettered: (b). The charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the Court. (c). The accused shall then be called upon to plead instantly to the charge, unless there is a valid reason not to do so". These three requirements above must co-exist and failure to comply with any one of them will render the trial a nullity. See: Amanchukwu v. Federal Republic of Nigeria (2007) 6 NWLR (Pt. 1029) page 1 at 16 - 17; Kalu v. State (2002) 3 LRC NCC vol. 3 page 39; Idemudia v. State (1999) 7 NWLR (Pt. 610) page 202; Kajubo v. State (1988) 1 NWLR (Pt. 73) page 721 These requirements are mandatory provisions must be strictly complied with in all criminal trials. See: Solola v. State (2005) 2 NWLR (Pt. 937) page 460; Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385. In Olabode v. State (2009) 11 NWLR (Pt. 1152) Page 254 it has been held that the requirement that the charge shall be read and explained to the accused person to the satisfaction of the Court is not violated by reason only that the record of proceedings failed to indicate that the judge was so satisfied." PER ABOKI, J.C.A. (Pp. 32-43, Paras. G-A) - read in context

 

 

 

 

4

CRIMINAL LAW AND PROCEDURE - CHRGES: Effect of reading a charge to an accused person

 

 

"The law is firmly settled that in the absence of any evidence to the contrary, when a charge is read to the accused person and he makes his plea which is recorded by the Court before proceeding to trial, the presumption is that the Court is satisfied that the charge was explained to the accused to its satisfaction. Thus it is only desirable and not mandatory to have the satisfaction of the Court on record. In Solola v. State (2005) 2 NWLR (Pt, 937) page 460 at 493 - 494, the Supreme Court held per Edozie JSC: "In the absence of any evidence to the contrary, when a charge is read to the accused and he makes his plea and the Court records his plea and thereafter proceeds to trial, the presumption is that the Court is satisfied that the charge was explained to the accused to its satisfaction" In the instant case it is the contention of the appellant that he was not arraigned by the Court and that his plea was never taken."PER ABOKI, J.C.A. (P. 34, Paras. A-F) - read in context

 

 

 

 

5

CRIMINAL LAW AND PROCEDURE - CONVICTION OF CO-ACCUSED: Whether a court of law can convict a co-accused and discharge another co-accused on same or similar evidence

 

 

"It is trite that where persons who are charged together for committing a crime have a common base for their defence, the acceptance of the Defence to the benefit of one of them should also result in its acceptance for the benefit of the others. See: Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) page 367; Okobi v. State (1989) 7 SC page 47; Ulwimmemuo v. State (1989) 4 NWLR (Pt. 114) page 131; Kalu v. State (1988) 4 NWLR (Pt. 90) page 503 and Akpan v. State (2002) 12 NWLR (Pt. 780) page 189. It has been further held in the case of Ebri v. State (2004) 11 NWLR (Pt. 885) 589 at 384 that a Court of law cannot convict a co-accused and discharge another co-accused on same or similar evidence"PER ABOKI, J.C.A. (Pp. 45-46, Paras. G-C) - read in context

 

 

 

 

6

ACTION - COUNSEL'S SUBMISSION: Whether a counsel's submission can metamorphose into evidence

 

 

"It is now trite law that no matter how brilliant and persuasive counsel's submission may be, it can never metamorphose into evidence. See: Nig. Arab Bank Ltd. v. Femi Kane Ltd. (1995) 4 NWLR (Pt. 387) page 100 at 106 Chukwujekwu v, Olalere (1992) 2 NWLR (Pt. 221) page 86 at 93" PER ABOKI, J.C.A. (P. 43, Paras. A-B) - read in context

 

 

 

 

7

APPEAL - GROUNDS OF APPEAL: Whether arguments can be canvassed on ground of appeal

 

 

"It is settled principle that arguments are to be canvassed on the basis of the issues formulated and not on the ground of appeal. See. Aja vs Okoro (1991) 7 NWLR (Pt 203) page 260. Adeyeri II vs Atanda (1995) 5 NWLR (Pt 397) page 512 at 518, Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) page 126. Koya vs UBA Ltd (1997) 1 NWLR (Pt 481) page 251at 253. Amadi vs NNPC (2000) 6 SC (pt 1) page 66. In an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue more often than not, it takes a combination of such facts or grounds to raise an issue. The test is whether the legal consequences of that ground or fact or a combination of those grounds or facts as framed by Appellant, if decided in his favour will result in a verdict in his favour. See. Ibori vs Agbi (2004) 6 NWLR (Pt 868) page 78."PER ABOKI, J.C.A. (P. 23, Paras. B-G) - read in context

 

 

 

 

8

APPEAL - ISSUES FOR DETERMINATION: Effect of issues of determination not based on grounds of appeal

 

 

"It is trite that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. It is only when issues are not related to any ground of appeal that they become irrelevant and go to no issue. I am of the opinion that where they are related to any ground of appeal which can be located from the grounds of appeal such issues are arguable and should not be struck out, particularly when such issues concern substantial issue of law such as jurisdiction."PER ABOKI, J.C.A. (Pp. 23-24, Paras. G-B) - read in context

 

 

 

 

9

APPEAL - ISSUES FOR DETERMINATION: What is an issue for determination

 

 

"An issue for determination is a combination of fact and circumcises. It includes the law on a particular point which when decided one way or the other affects the fate of an appeal. See. Onifade vs Olayiwola (1990) 7 NWLR (Pt 161) page 130. In Admin. Gen, Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) page 366 it has been held that an issue for determination in an appeal is a substantial question of law or fact or both arising from the ground of appeal filed in the appeal which, when resolved one way or the other, will affect the result of the appeal."PER ABOKI, J.C.A. (P. 24, Paras. C-F) - read in context

 

 

 

 

10

APPEAL - OMNIBUS GROUND OF APPEAL: Whether an omnibus ground can sustain or give rise to a specific point of law

 

 

"It is settled that omnibus ground cannot sustain or give rise to a specific point of law such as arraignment of the Appellant. See. Bhojsma Plc vs Daruel-kaho (2006) 5 NWLR (Pt 973) page 330; Calabar East Corporative v. Ikot (1999) 14 NWLR (Pt.638) page 225"PER ABOKI, J.C.A. (P. 21, Paras. E-F) - read in context

 

 

 

 

11

JUDGMENT AND ORDER - ORDER FOR RETRIAL: When the court would order a retrial

 

 

"The position of the law is that where all diligent efforts, to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial. See: Haastrop (W.A) Ltd v. Welding Engineering Co. (Nig.) Ltd (1996) 9 NWLR (Pt. 470) page 92. First Bank of Nigeria Plc v. May Medical and Diagnostic (2001) 27 WRN 162. Uwecha v, Obi (1973) 2 SC 1 at 6" PER ABOKI, J.C.A. (P. 42, Paras. C-E) -read in context

 

 

 

 

12

JUDGMENT AND ORDER - ORDER OF RETRIAL: Conditions under which a Court can order for a fresh trial in a criminal matter

 

 

"It is trite that where an error of a lower Court cannot be corrected by an appellate Court based on the evidence on the record without injustice to either of the parties, an order of the retrial is most appropriate. See: Fatoyinbo v. Williams (1956) SCNLR 274 Igwe v. Kalu (2002) 4 NWLR (Pt.761) page 678i Sanusi v. Ameyogilu (1992) 4 NWLR (Pt. 237) page 527; Okoye v. Kpajie (1973) 6 SC 176 The conditions under which a Court can order for a fresh trial in a criminal matter has been enunciated in the case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 as follows: "(a). that there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, (b). that, leaving aside the error or irregularity, the evidence taken as a whole discloses as substantial case against the appellant; (c). that there are no such special circumstances as would rendered it oppressive to put the appellant on trial a second time; (d), that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and (e). that to refuse an order for a retrial would occasioned a greater miscarriage of justice than to grant it": In Moshood v. State (2004) 14 NWLR (Pt. 893) page 422 at 428, the Court held that: "A retrial order is made when there had been an error in law of an irregularity in the procedure that does not make the trial a nullity nor create a miscarriage of justice. The Court must be satisfied that: (a) The evidence taken may otherwise disclose the commission of the offence substantially, (b). there is no special circumstance that wilt render it oppressive to put the accused back on trial and that to refuse a retrial would result in a greater injustice"PER ABOKI, J.C.A. (Pp. 43-45, Paras. G-C) - read in context

 

 

 

 

13

APPEAL - PRELIMINARY OBJECTION: Effect of preliminary objection raised in a respondent's brief of argument

 

 

"It is trite that where a Respondent as in the present case raises a preliminary objection in his brief of argument the objection must be considered first before any further step is taken towards the determination of the Appeal. See Adetoro vs Ogo Oluwa Kitan Trading Co. Ltd (2000) 9 NWLR (Part 771) page 157. Iwara vs Itam (2009) 17 NWLR (part 1170) page 337 at 372-378. It will therefore be most prudent to consider the preliminary objection raised by the Respondent before taken a look at the issues raised by parties to this appeal for determination." PER ABOKI, J.C.A. (P. 18, Paras. B-E) - read in context

 

 

 

 

14

INTERPRETATION OF STATUTE - S. 187(1)&(2) OF THE CRIMINAL PROCEDURE CODE: Effect of failure to comply with the provisions of section 187(1) & (2) of the criminal procedure code

 

 

"The failure to comply with the provisions of section 187(1) & (2) of the criminal procedure code is an issue of jurisdiction which is a thrash hold issue which can be raised at any time even at the Supreme Court for the first time. Since the trial Court lacks jurisdiction to adjudicate over the matter, its decision delivered on 28/10/2005 is a nullity and it is hereby set aside."PER ABOKI, J.C.A. (P. 43, Paras. C-E) - read in context

 

 

 

 

 

 

 

 

ABDU ABOKI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court delivered on 28/10/2010 by G.I. Kurada J whereby the appellant was convicted and sentenced to death for the offence of Armed Robbery.

The charge against the Appellant who was the 3rd accused person and three other accused persons he charged along with, is adumbrated as follows:

THE CHARGED:

"COUNT ONE:

That you MOHAMMED IBRAHIM (M), YAKUBU UMAR (M), ZAKARIYA'U (M), HUSSAINI (M) (at large) on or about the 22nd of March 2001 at Tafa village Kagarko Local Government Area of Kaduna State conspired together to rob LIBABATU ABDULAHI (F), HADIZA MUSA (F) and HADIZA AHMADU (F) and thereby committed an offence punishable under section 97 of the penal code law and triable by the High Court of Justice, Kaduna State.

COUNT TWO:

That you MOHAMMED IBRAHIM (M), YAKUBU UMAR (M), ZAKARIYA'U (M), HUSSAINI (M)

(at large) on or about the 22nd of March 2001 at Tafa village Kagarko Local Government Area of Kaduna State committed and illegal act to wit:

You robbed LIBABATU ABDULLAHI (F), HADIZA MUSA (F) and HADIZA AHMADU (F) white armed with sticks and 

other weapons and stole the sum of N54,600.00 and other valuables and in the process also beat one Nasiru Alfa who later died in the Hospital and by so doing committed the offence of ARMED ROBBERY punishable under section 

11 sub-section (2) (a) and (b) of the Robbery and Firearms, Act Cap 398, Laws of the Federation of Nigeria, 1990".

The 4th accused person Hussaini, who has been at large never appeared throughout the trial. At the close of the case for the prosecution, learned counsel to the accused persons made a no case submission which was upheld in respect of the 1st and 2nd accused persons only, and they were discharged while the appellant ZAKARI YA'U was called upon to enter his defence. The judgment now being appealed against therefore relates only to the 3rd accused person, Zakari Ya'u.

In convicting the appellant, the trial Court said inter-alia thus:

"The accused was however not charged for conspiracy to commit an offence under the penal code, but rather, 

for an offence of Armed Robbery. I think that this is improper, in my respectful view. The Robbery and firearms Act also makes provisions for offences of conspiracy, aiding and abetment, counseling or procuring person to commit offences under the Act. There is therefore no good legal bases for charging the accused under the penal code for conspiracy to commit Armed Robbery. I will therefore, and do hereby discharged and acquit the accused on Count one of the charge. I however, find the accused guilty as charged on count (2) of the charge and I hereby convict him accordingly on Count two. "

SENTENCE

I hereby sentence the convict, Zakari Ya'u, to death by suffering death by firing squad or by hanging by the neck 

till he be dead, as the Executive Governor of Kaduna State may direct in accordance with section 1(2)(a) of the Robbery and Firearms, Act, Cap 398 Laws of the Federation of Nigeria, 1990, and may the Good Lord have merry upon you."

Aggrieved by this decision of the Lower Court the Appellant who is now a prisoner on the death roll at Kaduna Prisons filed a notice of Appeal dated 27th April 2009 pursuant to the leave granted him by this Court on 20th day

  of April 2009. The said notice of Appeal contained three grounds of Appeal and they are hereby adumbrated as follows:

GROUND OF APPEAL

"1. The Judgment of the trial Court is unwarranted, unreasonable and cannot be supported having regard to the evidence".

PARTICULARS

"(a) Between 19/3/2003 and 28/10/2005 when the trial took place, at no point in time was the plea of the

  Appellant taken by the trial Court.

(b) The Appellant being an illiterate who does not understand English Language (being the official language of the Court) was not properly arraigned before the trial Court.

2. The learned trial Judge misdirected himself when he said in his Judgment that:

"...the two witnesses did not recover Exhibit b, which is the sum of N5,760.00. The Pw1 said the first 100

  recovered the money. He also said that it was recovered from the first accused (who has already being 

discharged) The Pw2 said, the money was transferred to their office along with the case file and accused

  persons..."

PARTICULARS

"(a) The evidential burden of proof beyond reasonable doubt was not discharged by the prosecution,

(b) There was nothing before the Court to support the veracity of the confessional statement of the accused (Appellant).

(c) The refusal of the prosecution to call the eye witnesses and victims of the alleged armed Robbery in support 

of its case ought to have made the trial Judge to treat Exhibit 3 AND 34 with grave caution.

(d) The claim of the learned trial Judge that he over heard the conversation between the accused and his counsel cannot form part of the evidence before the Court to convict the accused.

(e) The retracted confessional statement of the accused cannot replace the burden of proof in a serious case

that caries DEATH SENTENCE".

3. The learned trial Judge misdirected himself when he said in his Judgment that,

"...I have no doubt in my mind that the accused committed the offence charged. I hold that the prosecution has proved the two count charge beyond reasonable doubt as required by law...'

While in another breath, the learned trial Judge said "....I will therefore and do hereby discharge and acquit the accused on count one of the charge. I however find the accused guilty as charged on count two (2) of the charge and I hereby convict him accordingly on count two'.

PARTICULARS

"(a) The learned trial Judge made up his mind to convict the accused since 27/7/2004 even before the accused entered his defence."

"(b) Since the other accused persons alleged to have conspired with the Appellant were discharged for the offence of conspiracy, the Appellant ought to be discharged from the second count".

"(c) The learned trial Judge has doubt about guilt or otherwise of the Appellant and this is why there were 

conflicting pronouncement on him and this doubt ought to be resolved in favour of the Appellant".

Parties to this appeal exchanged their respective brief in accordance with the rules of the Court.

The Respondent's brief contains a notice of preliminary objection. There was no reply to the preliminary objection. Learned counsel for the Respondent urged the Court to uphold the preliminary objection.

It is trite that where a Respondent as in the present case raises a preliminary objection in his brief of argument the objection must be considered first before any further step is taken towards the determination of the Appeal. See Adetoro vs Ogo Oluwa Kitan Trading Co. Ltd (2000) 9 NWLR (Part 771) page 157.

Iwara vs Itam (2009) 17 NWLR (part 1170) page 337 at 372-378.

It will therefore be most prudent to consider the preliminary objection raised by the Respondent before taken a look at the issues raised by parties to this appeal for determination.Learned counsel for the Respondent contended

in the notice of preliminary objection, that issues 1 and 2 in the Appellant's brief of argument are incompetent and deserve to be struck out.

The grounds of the objection reads as follows:

1.'(i) Ground 1 of the Notice of Appeal is by no means related or connected howsoever with the particulars supporting it'.

'(ii) Ground I of the Notice of Appeal is christened in law as an omnibus ground of appeal and issue No. 1, being a substantive issue of law must derived from a substantive and valid ground of appeal'.

'(iii) The particulars supporting ground 1 must derive from the ground which is not the case herein'.

2.' (i) Ground 3 of the notice of appeal and the particulars supporting it are atomistic (sic) to the issue formulated 

as issue No.2 as there is no any correlation between the issue as formulated and the head (vis-a-vis the 

particulars) of ground 3 of the ground of appeal'.

On the first ground of the objection learned counsel for the Respondent contended that an issue formulated by a party must take its root from a valid ground of appeal just like particulars supporting a ground of appeal must of necessity, succinctly states or outline or elaborate the complaint of the Appellant on a particular ground. The

Court was referred to the cases of

Okpala v. Ibeme (1989) 2 NWLR (part 102) 208.

Adehi v. Atega (1995) 6 SCNJ 44 and

Obun vs Ebu (2006) All FWLR (part 327) 419

Learned Counsel submitted that ground 1 of the Appellants notice of appeal is in law referred to as an omnibus ground. He argued that an omnibus ground is directed or targeted as the evaluation or appraisal and the ascription

  of probative value to the evidence adduced before the trial Court.

Learned Counsel argued that particulars 1 and 2 furnished by the Appellant to support ground 1, have no nexus 

with what ground 1 portends.

He argued that the issue of the improper arraignment of the Appellant at the trial court cannot properly, in law, be said to have derived from a ground that is omnibus in nature and that it pertains to the evaluation and ascription of probative value to evidence adduced, learned counsel maintained that the issue of proper or improper arraignment 

of the Appellant was not an issued of evidence adduced before the trial Court.

He insisted that an omnibus ground (which ground 1 of the grounds of appeal is) cannot sustain or give rise is a specific point of law such as arrangement of the Appellant. The Court was referred to the case of Calabar East Corporative Vs Ikot (1999) 14 NWLR (Pt 638) 225.

Learned counsel argued that the particulars supporting ground 1 and the issues formulated from the purported ground 1 are not related. He contended that it is not from the particulars that issues are formulated but from valid grounds of appeal. He argued that since the ground of appeal is not at par with the particulars supporting it and 

the issues formulated from the said ground 1, the argument in support of the issue formulated remains incompetent. Learned Counsel submitted that the ground 1 is to be regarded and held to be abandoned and should be struck out.

The Appellant did not file a reply to the preliminary objections raised by the Respondent in the circumstances, the conclusion to be drawn is that the Appellant has no answers to the objections and is deemed to have accepted them as correct. The result in such a circumstances will be to dismiss the appeal straight away.

In the instant case in view of the death penalty imposed on the Appellant this Court has a duty to examine the objection which have not been responded to, probably due to negligence or inadvertence of counsel to the Appellant, to see if answers could have been provided but for the negligence or inadvertence of his counsel.

Learned counsel for the Respondent has raised the objection that the issue of the improper arraignment of the Appellant at the trial Court cannot properly, in law, be said to have derived from a ground of appeal that is omnibus in nature. The issue of the proper or improper arraignment of the Appellant was not an issue of evidence adduced before the trial Court. It is settled that omnibus ground 

cannot sustain or give rise to a specific point of law such as arraignment of the Appellant. See.

Bhojsma Plc vs Daruel-kaho (2006) 5 NWLR (Pt 973) page 330;

Calabar East Corporative v. Ikot (1999) 14 NWLR (Pt.638) page 225.

In the instant case although the issues postulated by the Appellant are inappropriate or inadequate having regard

to the grounds of appeal filed, but in view of the death sentenced imposed on the appellant the Court has a duty

to identify the appropriate issue in the circumstance of this case.

See: Ifabiyi vs. Adeniyi (2000) 5 sc 31 at 42.

U.P.S. Ltd. vs Ufot (2006) 2 NWLR (Pt 963) page 1.

The issue of non arraignment of the Appellant is an issue of jurisdiction which can be raised at any point in time and even at the hearing of an appeal.The second issue of the objection states that issue 2 does not derive from ground 3 of the notice of appeal. Learned counsel for the Respondent submitted that it is trite that issues formulated in brief must of necessity derived from a valid notice of appeal and that where the contrary is the case as in the instant case, the argument canvassed in support of that ground goes to no issue and liable to be struck out. The Court was referred to the case of Adehi vs Atega (supra),

Jatau vs Ahmed (2003) FWLR (Pt. 151) page 1887. It has been argued on behalf of the Respondent that the head 

of ground 3 of the notice of appeal from where the Appellant contended issue 2 was derived, is the conclusion of 

the trial Courts drawn from the evidence adduced at the trial and its assessment of the guilt or otherwise of the accused (now Appellant),

Learned counsel submitted that an issue not derived from a ground of appeal, deserves nothing but to be discountenanced and struck out. The Court was referred to the cases of Madumere vs Okafor (1996) 4 SCNJ 73 at 80. Union Bank of Nigeria Plc (2005) All FWLR (Pt 257) page 1435 at 1448.

Learned counsel for the Respondent urged the Court to struck out issues 1 and 2 in the Appellant brief of argument as the two issues are incompetent because issue 1 cannot be distilled from an omnibus ground of appeal and issue 

2 is potently not distilled from ground 3.

It is settled principle that arguments are to be canvassed on the basis of the issues formulated and not on the ground of appeal. See.

Aja vs Okoro (1991) 7 NWLR (Pt 203) page 260.

Adeyeri II vs Atanda (1995) 5 NWLR (Pt 397) page 512 at 518,

Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) page 126.

Koya vs UBA Ltd (1997) 1 NWLR (Pt 481) page 251at 253.

Amadi vs NNPC (2000) 6 SC (pt 1) page 66.

In an appeal, it is not every fact in dispute or every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue more often than not, it takes a combination of such facts or grounds to raise an issue. 

The test is whether the legal consequences of that ground or fact or a combination of those grounds or facts as framed by Appellant, if decided in his favour will result in a verdict in his favour. See. Ibori vs Agbi (2004) 6 NWLR

(Pt 868) page 78.

It is trite that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. It is only when issues are not related to any ground of appeal that they become irrelevant and go to no issue. I am of the opinion that where they are related to any ground of appeal which can be located from the grounds of appeal such issues are arguable and should not be 

struck out, particularly when such issues concern substantial issue of law such as jurisdiction.In the instant case issue 2 though improperly distilled from ground 3 can still be accommodated underground 1 while issue 1 improperly housed in ground 1 can be accommodated under ground 2.

An issue for determination is a combination of fact and circumcises. It includes the law on a particular point which when decided one way or the other affects the fate of an appeal. See. Onifade vs Olayiwola (1990) 7 NWLR (Pt 161) page 130.

In Admin. Gen, Delta State v. Ogogo (2006) 2 NWLR (Pt. 964) page 366 it has been held that an issue for determination in an appeal is a substantial question of law or fact or both arising from the ground of appeal filed in the appeal which, when resolved one way or the other, will affect the result of the appeal.In the instant case the Appellant must not be driven away from the judgment seat, moreso when his appeal involved substantial issue

of law. Technical issues such as those raised by the Respondent in his notice of preliminary objection should not

be allowed to defeat the determination of this Appeal on its merit.

The preliminary objection in the circumstance of this case is therefore overruled.

The preliminary objection having been determine, I will now focus attention on the consideration of the Appeal.

The appellant's brief of argument prepared by Akinlolu Kehinde Esq. was dated 25/2/2010 and filed 6/4/2010 but deemed filed on 14/4/2010. Learned counsel for the ppellant adopted the said brief as the appellant's argument in this appeal and urged the Court to allow the appeal,

The Respondent's brief of argument prepared by Ademola Adeniji Esq. was dated and filed 14/4/2011.

Learned counsel to the respondent adopted the said brief as the respondent's argument in this appeal and urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

The Appellant in his brief of argument raised three issues for determination from the three grounds of appeal contains in his notice of appeal and they are hereby adumbrated as follows:

(a) Whether the failure to arraign the Appellant in Court and his plea taken in the language he understands has not occasioned a miscarriage of Justice. Ground 1.

(b) Whether the attitude of the trial Judge in recording the alleged conversation between the accused and his counsel and relying on same to convict him is not in breach of the Appellants right to fair hearing and unbiased adjudication by the lower Court. Ground 3.

(c) Having regard to the totality of the evidence, was the guilt of the accused person (Appellant) established beyond reasonable doubt in respect of the offence of armed Robbery. Ground 2.

The Respondent on its part adapted the Appellant issue C as the only issue for determination in this appeal. The issue is reproduced as follows:

'Having regard to the totality of the evidence was the guilt of the accused person (Appellant) established beyond reasonable doubt in respect of the offence of armed robbery (Ground 3).'

The Appellant's issue (b) can conveniently be accommodated in his issue (c). I will for the purpose of determination of this Appeal adopt the Appellant's issue (a) and (c) and they are hereby renumbered as issues 1 and 2 respectively as follows: -

1. "Whether the failure to arraign the Appellant in Court and his plea taken in the language he understands has not occasioned a miscarriage of Justice."

2. "Having regard to the totality of the evidence, was the guilt of the accused person (Appellant) established beyond reasonable doubt in respect of the offence of armed robbery".

ISSUE ONE

'Whether the failure to arraign the Appellant in Court and his plea taken in the language he understands has not occasioned a miscarriage of Justice.'

Learned counsel for the Appellant submitted on this issue that a careful study of the records of the Lower Court clearly showed that the Appellant was not arraigned and his plea was never taken. He argued that this omission is very fatal to the prosecutions case.

The Court was referred to the provisions of sections 187(1) and (2) of the criminal procedure code and the case of Kalu vs State (2002) 3 LRC NCC at vol.3 page 39 where the conditions for a valid arrangement of an accused person were set out. The conditions are adumbrated as follows:

"(1). The accused must be place before the Court unfettered unless the Court shall see cause otherwise.

(2). The charge or information shall be read and explain to him to the satisfaction of the Court by the Registrar or other Officer by the Court.

(3). The accused person shall then be called upon to plead instantly thereto (unless of course there exist any valid reason to do otherwise such as objection to want of service where the accused person is entitled by law to service of a copy of a information and the Court is satisfied he has in fact not be duly served therewith"

Learned counsel for the appellant maintains that all these conditions were never satisfied in this case, no record that the accused person was presented unfettered, the charge read over and explained to him in Hausa language which was the language of his election and no plea was taken from the appellant.

It was submitted that in Durwodi v. The State (2000) 12 SC (Pt. 1) page 1 the Supreme Court stated that the most essential aspect of a criminal trial is the compliance with section 36(6) of the 1999 constitution of the Federal Republic of Nigeria. That the constitutional provision requires that every person charged with a criminal offence shall be informed promptly in the language he understands in details of the nature of the offence.

Learned counsel maintained that the trial Court must record the plea of the accused as rearly as possible in the words used by him and that in the instant case, there is nothing on the record that the plea was recorded at all.

Learned counsel argued that this omission is not mere irregularity but fundamental and that it strikes at the root of the entire proceedings before the lower Court and that the decision reached by the lower Court is without jurisdiction because of lack of taking the plea of the Appellant before the commencement of the trial.

He submitted that the issue of plea in a criminal trial is sine qua non to the case and goes to the deepest root of the proceedings itself, Learned counsel cited in support of his submission the case of F.B.N. Plc vs. Tsokwa (2004) 5 NWLR (Pt 866) page 271.at 302.

Learned counsel insisted that there is always the need for obedience to the rule of law and that the Courts are bound to follow due process of law. The Court was referred to the case of Equity Bank of Nig. Ltd vs. Halilco Nig. Ltd (2006) All FWLR (Pt 337) at page 438.

The Court was urged to resolve this issue in favour of the Appellant and to affirm that failure to arraign the Appellant in Court and his plea taken in the language he understands is very fatal to the trial and has consequently caused a miscarriage of Justice.

In response on behalf of the Respondent, learned counsel stated that the record of Appeal in this case was brought in pursuant to a motion, at the instant of the Respondent dated 8th day of June, 2010 and filed on the 11th day of June, 2010. The motion was argued and granted on 16th February, 2011 whereby the Court ordered the Registry of the Court below to produce the hand-written version of the record of proceedings of the Court below. Learned counsel informed the Court that the record has still not been provided as ordered.

Learned counsel for the Respondents conceded that an accused person must by section 187(1) of the Criminal Procedure Code be brought before the Court at the commencement of the trial and the charge read over and explained to him and his plea taken concerning the charge and that, that is what arraignment entails. The Court was referred to the cases of Oguneye v. The State (1999) 5 NWLR (Pt. 604) page 548 and

Solola v. The State (2005) 2 NWLR (Pt. 937) page 460.

Learned counsel maintained that from the record before the Court, the trial of the Appellant commenced on the 27th of July, 2004 and that from the proceedings of that day, nothing appeared to show that the charge was read to the accused and his plea taken, but it does not mean that the charge were not read to the appellant. He argued that the hand written record of the trial Court which was ordered to be produced but not produced would have revealed otherwise. Learned counsel invited the attention of the Court to the judgment at page 29 of the record where it was shown that the appellant was not only present in Court but also represented by counsel O.E. Ogunniran Esq. He argued that by virtue of the provisions of section 150(1) of the Evidence Act there is a rebuttable presumption of law that the arraignment of the appellant on the 27th July 2004, was substantially in accordance with the law. The Court was referred to the cases of

Agwarangbo v. Nakade (2000) 9 NWLR (Pt. 672) page 341

Abatan v. Awudu (2004) All FWLR (Pt. 236) page 215 and

Necha v' Independent National Electoral Commission (2000) FWLR (Pt. 12) page 2062 at 2071.

Learned counsel urged the Court to hold that contrary to appellants submission, that the lower Court had the jurisdiction to try the appellant and that the trial of the appellant before the trial Court did not contravene section 187 of the Criminal Procedure Code,

He further argued that the record of the trial Court is not supposed to be a carbon copy of all that happened in the cause of the proceedings. Cited in support of his submission are the cases of

Soluade v. Commissioner of Police (2007) 7 NWLR (Pt. 712) page 432;

Dibie v. The State (2007) 9 NWLR (Pt. 138).

Learned counsel submitted that the argument of the appellant regarding the trial Court lack of jurisdiction on the proceeding leading to the conviction and sentence of the appellant on the issue of appellant's arraignment 

constitute nothing but allusion to mere technicality.

He maintained that judicial attitude presently abhors technicality. The Court was referred to the case of Orok v. The State (1984) 9 SC page 7 at 8.

In practice, arraignment comprises reading over the charge or allegation over to the accused and his making a plea thereto. See Oyediran v. Republic (1967) NMLR 122.

Arraignment is the most crucial stage of any criminal proceedings because criminal trials commence at arraignment. See: Fawehinmi v. Inspector-General of Police (2000) FWLR (Pt. 12) 2015.

In Edibo v. State (2007) 13 NWLR (Pt. 1051) page 306 at 326. The Supreme Court, per Tabai JSC said:

"The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the read for the strict and mandatory compliance in matters relating thereto. Thus, any criminal trial no matter how well conducted without the plea of the accused person first and properly taken is a nullity".

See: Sanmabo v. The State (1967) NMLR 314;

Alake v. The State (1991) 7 NWLR (Pt. 205) page 567;

The State v. Madokola (1972) 2 ECSLR 426.

In Nwafor Okegbu v. State (1979) 11 SC 1 at 9 the Supreme Court held per Irekefe JSC:

"It is only when an accused pleads either guilty or not guilty as the case may be, that issues are joined in criminal trial, and until this happen, he is technically outside the pace of the Court's jurisdiction".

In criminal trials before the High Court, the criminal procedure code made specific provision as follows:

187"(1). When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in Court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged"

(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused".

The requirement for arraignment is not optional but mandatory. The failure by a Court to observe the procedure would render the entire proceedings a nullity ab initio. See Sanmabo v. The State (supra).

In Udo v. State (2006) 15 NWLR (Pt. 1001) 179 at 189-190 the Supreme Court reiterated the requirements of a valid arraignment as follows:

"(a). That the accused must be placed before the Court unfettered:

(b). The charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the Court.

(c). The accused shall then be called upon to plead instantly to the charge, unless there is a valid reason not to do so".

These three requirements above must co-exist and failure to comply with any one of them will render the trial a nullity.

See: Amanchukwu v. Federal Republic of Nigeria (2007) 6 NWLR (Pt. 1029) page 1 at 16 - 17;

Kalu v. State (2002) 3 LRC NCC vol. 3 page 39;

Idemudia v. State (1999) 7 NWLR (Pt. 610) page 202;

Kajubo v. State (1988) 1 NWLR (Pt. 73) page 721

These requirements are mandatory provisions must be strictly complied with in all criminal trials.

See: Solola v. State (2005) 2 NWLR (Pt. 937) page 460;

Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385.

In Olabode v. State (2009) 11 NWLR (Pt. 1152)

Page 254 it has been held that the requirement that the charge shall be read and explained to the accused person to the satisfaction of the Court is not violated by reason only that the record of proceedings failed to indicate that the judge was so satisfied.

The law is firmly settled that in the absence of any evidence to the contrary, when a charge is read to the accused person and he makes his plea which is recorded by the Court before proceeding to trial, the presumption is that the Court is satisfied that the charge was explained to the accused to its satisfaction. Thus it is only desirable and not mandatory to have the satisfaction of the Court on record. In Solola v. State (2005) 2 NWLR (Pt, 937) page 460 at 493 - 494, the Supreme Court held per Edozie JSC:

"In the absence of any evidence to the contrary, when a charge is read to the accused and he makes his plea and the Court records his plea and thereafter proceeds to trial, the presumption is that the Court is satisfied that the charge was explained to the accused to its satisfaction"

In the instant case it is the contention of the appellant that he was not arraigned by the Court and that his plea was never taken.The appellant and other co-accused persons first appeared before the High Court of Justice, Kaduna State,

Kaduna on 19th March 2003, The Court proceedings of that day and of subsequent days the case came up for hearing are reproduced as follows:

"IN THE HIGH COURT OF JUSTICE KADUNA STATE

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA.

SUIT NO. KDH/9XC/2002

BETWEEN:

THE STATE

AND 

1. MOHAMMED IBRAHIM

2. YAKUBU UMAR 

3. ZAKARI YA'U 

4. HUSSAINI (AT LARGE)

19-3-2003

1st, 2nd and 3rd Accused present, speak Hausa 

M. D. Joseph Esq:     (State Counsel) for the State.

Dabo Pate Lere affirmed to interpret from English to Hausa and vice versa.

Joseph:     The case is for motion and by the nature of the offence, which is a capital offence, the accused must

  be represented by counsel

Accused:     We cannot get a lawyer on our own

We pray the Court to get one for us. 

Court:     Case adjourned to 16/4/03 for further mention. The Registrar shall write to the legal Aid council for legal representation of the accused.

Signed 

19/3/03

16-4-2004

1st, 2nd and 3rd Accused present, speaks Hausa. 

4th Accused at large.

M. D. Joseph:     State counsel, for the prosecution

O.E. Ogunniran:     for the 1st accused (holding A. A Ashit's brief) and appearing for the 2nd and 3rd accused.

Joseph:        The case is for motion. It appears only the 1st accused is now represented by counsel.

Ogunniran:     I appear for 2nd and 3rd accused.

Ogunniran:     We have an application brought pursuant to section 341(2) C.P.C praying for an order admitting the 1st applicant to bail pending the determination of the case. Application is supported by a 6 paragraph affidavit and we rely on all of them.

There is no counter affidavit which has not controverted our averments. For application to succeed, we must show there is no basis for holding applicant pending trial.

It is not the charge that matters. See Boniface v. C.O.P (2001) FWLR (Pt. 66) 755 at 763 - 764. We submit that what is put before the Court is not an offence. We have attached the F.I.R as Exhibit "A".

At this stage I apply to withdraw the motion. 

Joseph:     No objection,

Court:     Application is granted. Motion is accordingly struck out. Case adjourned to 26/6/03 for hearing

21-4-04

1st, 2nd and 3rd accused present, speak Hausa.

4th accused at large,

M.D. Joseph Esq: (State Counsel) for the State

Joseph: The accused have a counsel already. We ask for a date for hearing.

Accused: No objection

Court: case adjourned to 18/5/04 for hearing. 

Defence counsel shall be served.

Signed

21/4/04

18-5-04

1st, 2nd and 3rd accused in Court, speak Hausa.

4th Accused at large.

Dalhatu Zailani:     affirmed to interpret from English to Hausa and vis-a-vis s. 242 CPC.

M.D. Joseph Esq:     (State Counsel) for the prosecution

O. E. Ogunniran Esq with Suleiman Ohizoge Esq for the accused persons.

Joseph:        The case was adjourned to today for hearing. However, we have a slight problem in assembling our witnesses, I have intimated my learned friend and we have agreed to take short adjournment to enable us assemble our witnesses.

Ogunniran:     That is true and we have agreed on 17/6/04 and he will bring his witnesses. 

Court:     Case adjourned to 17/6/04 for positive hearing. The prosecution shall bring all their witnesses on that date.

Signed

18/5/04

17-6-04

Accused: absent

M.D. Joseph Esq: state counsel for the State

O.A. Ogunniran Esq: for the Accused.

Joseph: The case is for hearing. However we are yet to summon our witnesses. We are asking for the last adjournment at new instance to call our witnesses.

Ogunniran: We have no objection.

Court: Case adjourned for the last time at the instance of the prosecution to 27/7/04 for hearing.

Signed 

17/6/04.

27-7-04

1st, 2nd and 3rd Accused present, speak Hansa.

4h Accused at large.

M. D. Joseph Esq:     State counsel for the State

O. F. Ogunniran Esq with Mr, Osinaye for the accused.

Mr. Zailani:     affirmed to interpret from English to Hausa and vice versa. S.242 CPC

Joseph:        The case is for hearing and we are ready to go on

Ogunniran:    We are also ready.

Pw1:        Moslem, affirm, speak English, I am Sgt. Aminu Hamza, attach to State CID, Ant. Robbery section, Kaduna. I am No. 127615. As at March 2001 I was a Corporal, I know the three accused on 28/2/2001 at about 12.30. I was on duty at the Ant. Robbery section State CID Kaduna when a case of armed robbery was transferred"..

Joseph:        We seek to tender the two statement dated 28/3/2001 and 28/5/2001 in evidence.

Ogunniran:     We are not opposed to the admissibility of the two documents,

Court:        Very well, statement and additional statement of 2nd accused dated 28/3/2001 and 28/5/2001 are admitted in evidence as Exhibits 1 and 2 respectively.

Signed

27/7/09

(Pw1 reads Exhibits 1 and 2).

PW1:----

NOTE:        3rd accused tells his counsel that he made the statement.

Joseph:        We seek to tender them in evidence.

Ogunniran:     I do not oppose their admissibility into evidence,

Court:        Statement of Id accused in Hausa language dated 28/5/2001 and its English translation are admitted in evidence as Exhibit 3 and 3A respectively. 

Signed

27/7/04

(Pw1 reads Exhibits 3 and 3A). 

Pw1: On 28/5/2001, our team went to Tafa and visited the scene of crime. One comprehensive medical centre was also visited where one of the victims was admitted-

---

Cross Examination by Ogunniran Esq: 

-------

Re-Examination:     None

Joseph:        We apply for another date to call new other witnesses.

Ogunniran:     We have no objection.

Court:        Case adjourned to 23/9/04 for continuation of Hearing

Signed

27/7/04.

The trial Court sat on the following subsequent dates. 

1.    1-11-04

Pw2 testified and tendered Exhibit 4.    

2.    22-11-04

Pw2 contained with his testimony

3.    21-3-05

Continuation of hearing request as date for no case submission

4.     3-5-05

No case submission made on behalf of accused.

5.     15-7-05

Ruling on no case submission delivered.

6.    27-9-05

3rd accused/appellant seek adjournment for a date to enter his defence

7.     10-9-05

Dw1/appellant testified and was cross-examined

8.     28 10-05

Judgment delivered in the case against the 3rd accused/appellant".

I have carefully scrutinized the record of appeal which consists of 31 pages. Page 1 is the proceedings of the first day the accused person appeared for the first time in Court on 19/7/03.

Pages 4 - 7 contains the proceedings of 27/7/04 when the prosecution opened its case and the Evidence of Pw1 Sgt. Aminu Hamza of the State CID, Anti Robbery section was taken.

The proceedings of 27/7/04 did not disclosed that the appellant was properly arraigned as required by the mandatory provisions of section 187(1) & (2) of the criminal procedure code. Though the appellant and other accused persons were in Court there is nothing on the face of the record of appeal which indicate that the charge against the appellant was read out and explained to him in Court,

The proceedings of 27-7-04 on pages 4-7 did not disclose that the appellant was asked whether he was guilty or not guilty to any offence he was charged with.

In effect no plea to any offence was recorded against the appellant as 3rd accused who appeared before the Court on 27-7-04 and subsequent days until judgment was delivered against him on 28-10-05 sentencing him to death. 

The conditions for a valid arraignment which I have adumbrated earlier in this judgment which the Supreme Court said in a plethora of judicial decisions to be mandatory were not complied with by the trial Court.

It has been held by the Supreme Court in Edibo v. State (supra) that any criminal trial no matter how well conducted without the plea of the accused person first and properly taken is a nullity.

The absence of a valid arraignment and plea of the appellant taken against the offence he was charged upon which he was convicted and sentenced to death, makes decision of the trial Court a nullity.

The respondent by its application to this Court dated 8/6/2010 and filed 11/6/2010 granted on 16/2/2011 in which the Registrar of the Court below was ordered to produce the hand written version of the record of proceedings of the Court below, which is yet to be produce did not indicate the purpose for which the hand written version of the record of proceeding was required and same had not been produced as at the time the parties concluded arguments in this appeal.

The position of the law is that where all diligent efforts, to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial. See:

Haastrop (W.A) Ltd v. Welding Engineering Co. (Nig.) Ltd (1996) 9 NWLR (Pt. 470) page 92.

First Bank of Nigeria Plc v. May Medical and Diagnostic (2001) 27 WRN 162.

Uwecha v, Obi (1973) 2 SC 1 at 6In the instant case there is no application by any of the parties to this appeal challenging the accuracy of the record. The presumption is that the record of appeal received by this Court on 3/2/2010 is the correct record of what transpired at the trial of the appellant before the lower Court.

The fact that the appellant was in Court together with his counsel and an interpreter provided does not prove that the appellant was properly arraigned and his plea to the charge against him taken and properly recorded.

The submission of counsel cannot be substitute for evidence. It is now trite law that no matter how brilliant and persuasive counsel's submission may be, it can never metamorphose into evidence.

See: Nig. Arab Bank Ltd. v. Femi Kane Ltd. (1995) 4 NWLR (Pt. 387) page 100 at 106

Chukwujekwu v, Olalere (1992) 2 NWLR (Pt. 221) page 86 at 93,Learned counsel to the respondent cannot vary the content of the record of proceedings of the lower Court by his submission. See section 132(1) of the Evidence Act.

The failure to comply with the provisions of section 187(1) & (2) of the criminal procedure code is an issue of jurisdiction which is a thrash hold issue which can be raised at any time even at the Supreme Court for the first time.

Since the trial Court lacks jurisdiction to adjudicate over the matter, its decision delivered on 28/10/2005 is a nullity and it is hereby set aside.This first issue is hereby resolved in favour of the appellant.

Having declared the whole proceeding leading to the conviction and sentence of the appellant a nullity, it will amount to an academic exercise entertaining the second issue for determination.

Since the whole proceeding is a nullity, I will now consider whether from the circumstances of this case it is proper to order for a fresh trial.

It is trite that where an error of a lower Court cannot be corrected by an appellate Court based on the evidence on the record without injustice to either of the parties, an order of the retrial is most appropriate. See:

Fatoyinbo v. Williams (1956) SCNLR 274

Igwe v. Kalu (2002) 4 NWLR (Pt.761) page 678

Sanusi v. Ameyogilu (1992) 4 NWLR (Pt. 237) page 527;

Okoye v. Kpajie (1973) 6 SC 176

The conditions under which a Court can order for a fresh trial in a criminal matter has been enunciated in the case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 as follows:

"(a). that there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice,

(b). that, leaving aside the error or irregularity, the evidence taken as a whole discloses as substantial case against the appellant;

(c). that there are no such special circumstances as would rendered it oppressive to put the appellant on trial a second time;

(d), that the offence or offences of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and

(e). that to refuse an order for a retrial would occasioned a greater miscarriage of justice than to grant it":

In Moshood v. State (2004) 14 NWLR (Pt. 893) page 422 at 428, the Court held that:

"A retrial order is made when there had been an error in law of an irregularity in the procedure that does not make the trial a nullity nor create a miscarriage of justice. The Court must be satisfied that:

(a) The evidence taken may otherwise disclose the commission of the offence substantially,

(b). there is no special circumstance that wilt render it oppressive to put the accused back on trial and that to refuse a retrial would result in a greater injustice".The appellant has been in detention since 2001. Other co-accused with whom he was standing trial were discharged after a no case submission. The appellant was convicted and sentenced upon his retracted confessional statement for the same offence the other co-accused person were discharged. The said retracted confessional statement upon which the trial Court found the appellant guilty and convicted him was never tested for its authenticity.

See: Ogudo v. State (2011) 8 NWLR (Pt. 1278) page 1 at 26:

Kanu & anor v. King (1952) 14 WACA 30

Mbenu v. State (1988) 3 NWLR (Pt. 84) page 615

Stephen v. State (1986) 5 NWLR (Pt. 46) page 978".

It is trite that where persons who are charged together for committing a crime have a common base for their defence, the acceptance of the Defence to the benefit of one of them should also result in its acceptance for the benefit of the others.

See: Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) page 367;

Okobi v. State (1989) 7 SC page 47;

Ulwimmemuo v. State (1989) 4 NWLR (Pt. 114) page 131;

Kalu v. State (1988) 4 NWLR (Pt. 90) page 503 and

Akpan v. State (2002) 12 NWLR (Pt. 780) page 189.

It has been further held in the case of Ebri v. State (2004) 11 NWLR (Pt. 885) 589 at 384 that a Court of law cannot convict a co-accused and discharge another co-accused on same or similar evidence,

There is also the fact of the trial judge stepped into the arena of dispute when he flapped his ears into a privilege conversation between the appellant and his counsel, He recorded in his record book, that he heard the appellant admitting the confessional statement to his counsel. The learned trial judge on his own without an invitation from any counsel, made used of the information in admitting the retracted statement of the appellant, upon which he convicted and sentenced the appellant to death for the offence of armed robbery. The manner the learned trial judge conducted the proceedings in the case is most improper. The question now is whether this is a proper case where a retrial should be ordered in view of the fact that the whole trial is a nullity as a result of there being no indication from the face of the record of the lower Court that either the charge upon which the appellant was convicted was read out and explained to him in Court as required by section 187(1) & (2) of the Criminal Procedure Code or was his plea to any charge at all recorded by the trial Court.

There is also the fact that counsel to the respondent alluded to the fact that the record of the lower Court as compiled and transmitted to this Court is incomplete and diligent efforts to procure the handwritten version of the record has failed.

There is merit in this appeal and it is hereby allowed.

I have carefully examined the circumstances of this case in light of the principle set out in the cases of Abodundu v. The Queen (supra); 

Umaru v. The State (2009) 8 NWLR (Pt. 1142) page 134 at 143 -149;

Okeke v. State (200t) 2 NWLR (Pt. 697) page 397;

Barmo v. State (2000) 1 NWLR (Pt. 641) page 424;

Adeoye v. State (1999) 6 NWLR (Pt. 605) page 74;

Erekanure v. State (1993) 5 NWLR (Pt. 294) page 385;

Okoduwa v. State (1988) 2 NWLR (Pt. 76) page 333;

Okegbu v. State (1979) 11 SC 1;

Okosun v. State (1979) 3 SC 36;

Owoh v. Queen (1962) 2 SCNLR 409;

Ogunremi v. Queen (1961) 2 SCNLR 198.

I have come to the conclusion that the special circumstance of this case will render it oppressive to put the appellant on trial a second time, The appellant in the circumstances ought to be discharged and he is accordingly discharged and acquitted.

It is hereby ordered that he should be release from the detention forthwith,

AMIRU SANUSI, (OFR) J.C.A.: I had a preview of the judgment just tendered by my learned brother Abdu Aboki, JCA. My noble lord has adequately treated the salient points raised and canvassed by the learned counsel to the parties. I therefore have nothing more to add. I agree with the reasoning and the conclusion he arrived at, that the appeal is meritorious and it succeeds. I accordingly allow the appeal. I hereby discharge and acquit the appellant. I endorse the consequential order made in the lead judgment.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: The Appellant, Zakari Ya'u was charged before the Kaduna State High Court as the 3rd accused person together with Messrs Mohammed Ibrahim as the 1st accused, Yakubu Umar as the 2nd accused person and one Husseini who was said to be at large. They were arraigned on two count charge for the offences of conspiracy punishable under section 97 of the Penal Code and robbery while armed with sticks and other weapons and stolen the sum of N54,600.00 and other valuables and in the process, also beat one Nasim Alfa who later died in the hospital, punishable under section 1 sub-section (2)(a) and (b) of the Robbery and Firearms Act, Cap, 398, Laws of the Federation of Nigeria, 1990. I entirely agree with the decision of my learned brother Aboki, J.C.A, regarding the preliminary objection raised by the Respondent, and, his reasoning and conclusion in respect of issue No. 1 postulated by the Appellant. It ought to be recognized that the Appellant was charged with or stood trial for an offence that was not only heinous, but, carries on its own, death sentence. Therefore, the issue is not whether the punishment for the offence carries a term of imprisonment or years, or that the Appellant had served several years out of the maximum term or the years imposed on him, had section 187(1) of the Criminal Procedure Code been complied with.

Saying that a procedure is null means that it had never existed before. However, there seem to be divergent views on the proper order to make when a criminal trial is held to be a nullity. In Tobby vs. State (2000) 10 NWLR 720 page 23, the Supreme Court, per Ogwuegbu, J.S.C, after holding that there was non-compliance with the provisions of Section 215 of the Criminal Procedure Law of 33(6)(a) of the 1979 Constitution which vitiated the trial of the Appellant and rendered the whole trial null and void and also the proceedings in the Court below then, stated that having regard to the evidence of the sole witness, order of retrial will be an exercise in futility. The Appellant was acquitted and discharged.

Then, in Rufai vs. State (2001) 13 NWLR Part 731 page 718, per Wali, JSC, the Supreme Court recognized that the plea of the Appellant purportedly taken was in contravention of Section 215 of the Criminal Proceeding Law, Oyo State and Section 33(6) (a) of the 1979 Constitution and the trial was null and void. His Lordship further expressed:

"Since the purported trial of the Appellant has been declared a nullity, then what is the proper order to make in the circumstance, taking into consideration the nature of the evidence involved, the gravity of the offence committed and the need to do justice to both sides. Guided by the above facts and the principle laid down by this Court in Abodundu & 4 Ors vs. Queen (1959) 4 FSC 70; (1959) SCNLR 162 and elaborated upon in Kajubo vs. The State (supra) I am inclined to make an order for a fresh trial of the appellant, by another judge of the High Court as the present trial was voided due to non-compliance with the mandatory provisions of section 215 of Criminal Procedure Law Oyo State and section 33(6) (a) of the 1979 Constitution, which is a pure mistake of law. I hereby make that order."

The trend now seems to support the situation in Tobby vs. The State (supra) as is shown in Umaru vs. The State (2009) 8 NWLR Part 1142 P.134, per Musdapher, JSC (as he then was). It was held that the right of Appellant has to be protected from prejudice, in other words, an order for retrial cannot be made in a situation where the Appellant is exposed to prejudice. It was further stated that the retrial ordered will not only spell more hardship on the appellant, but will present difficulties for the prosecution. Both ways, it will be unjust.

I think greater caution has to be applied so as to avoid situations of letting off serial killers, psychopaths, and unrepentant and dangerous offenders who had, not only inflicted deep pains on their victims and members of their respective families, but may turn round to endanger humanity. In any case, if a person sets out with the intention to murder his fellow being or rob him of his property with violence, he should, equally, be prepared to face the wrath of the law no matter how long it takes. Nevertheless, since there are no hard and fast rules now on the proper order to make after holding a criminal trial null and void, I agree that the Appellant be discharged.

     Appearances       

Ibrahim Idris

For the Appelants

       

Ademola Adeniji

For the Respondents

 

 

 

 

 

In The Court of Appeal

(Calabar Judicial Division)

On Tuesday, the 6th day of November, 2012

Suit No: CA/C/179/2010

 

Before Their Lordships

 

  

MOHAMMED LAWAL GARBA

....... Justice, Court of Appeal

UZO I. NDUKWE-ANYANWU

....... Justice, Court of Appeal

JOSEPH TINE TUR

....... Justice, Court of Appeal

 

 

 

 Between

1. IBUM OLUMBA 
2. ALL STATE REAL ESTATE LTD. 
3. ENO ETUK ESQ.

Appellants

 

 

 

 And

    

THE REGISTERED TRUSTEE OF THE BROTHERHOOD OF THE CROSS & STAR

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

WORDS AND PHRASES - "DEFENCE": Meaning of the word "DEFENCE"

 

 

"The word "defence" is to be construed in determining this application under Order 24 rule 1(1) and (3) supra. A defendant's stated reason(s) why a claimant has no valid case, his answer, denial or plea constitutes his "defence" to the action. In the Law of pleading under the Codes of Civil Procedure, 1899, 2nd edition, page 240, Edwin E. Byrant defines the word "defence" as "...that which is alleged by a party proceeded against in an action or suit, as a reason why the plaintiff should not recover or establish that which he seeks by his complaint or petition."Order 7 rule 8(2) & (3) of the High Court of cross River State (Civil Procedure) Rules, 2008 reads as follows: "(2) An originating summons shall be accompanied by: (a) an affidavit setting out the facts relied upon; (b) all the exhibits to be relied upon; (c) a written address in support of the summons. (g) The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the Respondent or respondents." Per TUR, J.C.A. (Pp. 21-22, paras. F-D) - read in context

 

 

 

 

2

WORDS AND PHRASES - "DISCONTINUANCE": Meaning of the word "Discontinuance"

 

 

The word "discontinuance" means the termination of a law suit by the plaintiff; a voluntary dismissal or non-suit. The notice of discontinuance has the effect of the plaintiff voluntarily removing the suit or questions in the originating summons from determination from the Court of trial or refraining from prosecuting or proceeding with the action. The order to be made by the learned trial Judge will depend on the stage of the proceedings when the notice of discontinuance or withdrawal was filed. Per TUR, J.C.A. (P. 17, paras. D-F) - read in context

 

 

 

 

3

JUDGMENT AND ORDER - AWARD OF COST: General rule on award of cost

 

 

"Justice demands that upon withdrawal or discontinuance of an originating summons or processes the defendant should be recouped. Generally the award of cost is at the discretion of the learned trial Judge. See Obaya-gbona vs. Obazee (1972) 5 SC 247 at 253; Nurno vs. UAC Ltd. (1956) 1 FSC 33. But under order 24 rule 1(3) of the Rules supra it seems that upon withdrawal or discontinuance where a defence had been filed the respondent/defendant is automatically entitled to the cost proved up to the stage of the stage of the withdrawal or discontinuance." Per TUR, J.C.A. (P. 23, paras. D-G) - read in context

 

 

 

 

4

EVIDENCE - BURDEN OF PROOF: Whether Judgments and Orders of Courts are proved by oral deposition in affidavits

 

 

"Judgments and orders of Courts are not proved by oral deposition in affidavits. Section 83(1) of the Act, 2011 provides that "in any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on the production of the original document, be admissible as evidence of that fact..." Section 132 of the Evidence Act supra further provides that 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. Orders of Courts of law are usually proved by certified true copies of the Court's judgments or enrolled orders duly certified by the Registrar of that Court. See Nzekwe vs. Nzekwe (1989) 5 SCNJ 167; Fawehinmi vs. IGP (2000) FWLR (Pt.12) 2015 at 2044; Section 106(h)(i)(j) and 128(1) of the Evidence Act, 2011." Per TUR, J.C.A. (Pp. 20-21, paras. E-A) - read in context

 

 

 

 

5

ACTION - DISCONTINUANCE OF AN ACTION: When and how can a claimant discontinue his action

 

 

"In Osborn's Concise Law Dictionary, 9th edition, edited by Sheila Bone, p.137 the learned author states what "discontinuance" means: It is, "Where a claimant voluntarily puts an end to his claim wholly or in part. A claimant may at any time discontinue his action by filing a notice of discontinuance and serving copies of it on the other parties to the proceedings. In certain instances the permission of the Court is required to discontinue. The effect of discontinuance is that a claimant has to pay a defendant's costs unless the Court orders otherwise." Similar provision exists in the High Court of Cross River State (Civil Procedure) Rules 2008. Order 24 rule 1(1)-(5) and 2 which reads as follows: 1(1)The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly Filed and served, wholly discontinue his claim against all or any of the defendants, or withdraw any part or parts of his claim. He shall thereupon pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. (2) A discontinuance or withdrawal as the Case may be, shall not be a defence to any subsequent claim. (3) Where a defence has been filed, the claimant may, with the leave of a Judge, discontinue the proceeding or any part thereof on such terms and conditions as the judge may order. (4) Where proceedings have been stayed or struck oat upon a claimant's withdrawal or discontinuance under this Order, no subsequent claim shall be filed by him on same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with- (5) The Judge may in like manner and like discretion as to terms, upon the application of a defendant order the whole or any part of his alleged grounds of defence or counter claim to be withdrawn or struck out. 2. When a cause is ready for trial, it may be withdrawn by either claimant or defendant upon producing to the Registrar a consent in writing signed by the parties and thereupon a Judge shall strike out the matter without the necessity of attendance of the parties or their Legal Practitioner." Per TUR, J.C.A. (Pp. 17-19, paras. G-C) - read in context

 

 

 

 

6

JUDGMENT AND ORDER - INTERLOCUTORY RULING: Nature of an Interlocutory Ruling

 

 

"An interlocutory ruling, order, judgment, appeal, etc is one that is interim or temporary, not constituting a final resolution of the whole dispute or issues in controversy. Upon a hearing, the court of Appeal may dismiss the appeal and make an order for hearing to proceed or order a transfer of the substantive suit to another judge for hearing and determination. If the appeal however succeeds the court of Appeal will, depending on the grounds and circumstances, example where the lower Court lacked the necessary jurisdiction to adjudicate, strike out the suit or, as the case may be, dismiss same thereby terminating the proceedings at the lower Court. Other orders the Court of Appeal may make upon hearing an appeal are set out in Section 15 and 16 of the Court of Appeal Act, Cap C36 Laws of the Federation of Nigeria, 2004." Per TUR, J.C.A. (Pp. 16-17, paras. F-B) - read in context

 

 

 

 

 

 

 

 

JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): The Registered Trustees of the Brotherhood of the cross and star (Respondent/Plaintiff) claim they are the only legal body authorized to administer, manage, dispose off or deal with all property of the Brotherhood of the Cross and Star every where in the world but that (1) Mr. Ibum Olumba Obu (2) All states Estates Limited and (3) Eno Etuk Esq. (Defendants/appellants) claim otherwise. That the defendants/appellants have continually and continuously entered into and taken possession of the property belonging to the brotherhood through thuggery and illegal use of police, sheer stealing and falsification of documents whereupon, the Registered Trustees took out an originating summons supported by affidavit and documentary exhibits before the High Court of Justice, Calabar, Cross River State on 2nd April, 2009 in suit No. HC/111/2009 seeking that the following questions be determined, namely:

"1. Whether the Trustees of the plaintiff are not the ones solely entitled to manage and run the affairs of the plaintiff in anything relating to administration, to the property and otherwise of the plaintiff by virtue of the trustees' law.

2. Whether the defendants have a right to meddle/obstruct continuously the administration of the landed property of the plaintiff and continuously and continually receive rents on same and take out actions that are vexatious and hamper the smooth running of the property of Brotherhood of the Cross and Star. 

3. Whether the defendants having continued in their illegal activity cannot be ordered to render accounts on all the property which they are illegally using the 2nd defendant to manage pretending to be owners of the property of the Brotherhood of the cross and Star." 

They sought the following reliefs against the three defendants/Appellants: 

"1. A DECLARATION that the plaintiff is the sole body imbued with the power to deal with, administer and or deal otherwise with the property of the brotherhood of the cross and star in accordance with the memorandum setting it up.

2. A DECLARATION that the continued holding over and the interference of the defendants in the process of the management and care of the properties of the plaintiff is illegal a breach of the law.

3. An order that the defendants render accounts of their illegal collections on the property since 14th December, 2001.

4. An order restraining the Defendants from any further acts of trespass either by themselves, their agents assigns and cohorts or by anyone whatsoever acting or purporting to act on their behalf." 

Upon service a conditional memo of appearance was entered on behalf of the three defendants by Itim Effiom Esq. of counsel on 6th April, 2009 followed by a Notice of preliminary objection filed on 29th April, 2009 that the summons be struck out on the following grounds:

"1. Misrepresentation and illegal use of the claimant's name.

2. Lack of cause of action

3. Abuse of Court process

4. Lack of jurisdiction."

Affidavits and counter affidavits trailed the preliminary objection. Some were allowed but others struck out for one reason or the other. Counsel adopted their written addresses on 13th July, 2009. The learned trial Judge delivered ruling holding that not only could the Claimants institute the originating summons but the Court had the jurisdiction to entertain and determine the questions in controversy. Being aggrieved the defendants/appellants filed a joint Notice of Appeal containing five grounds on 27th July, 2009 seeking the following reliefs from the Court of Appeal:

"(a) Setting aside the decision of the tower Court.

(b) Upholding the preliminary objection of the defendants/appellants that the inchoate originating summons of the claimant/Respondent full of misrepresentation, is also lacking in merit; an unclad duplicity of suit and a gross abuse of the Court process.

(c) Cost in the circumstances."

The appellants/defendants' brief of argument was filed on 16th April, 2010 and served on the Respondent/plaintiff who is yet to file a brief. However, on 15th July, 2011 the respondent/plaintiff filed a motion on Notice supported by affidavit and, documentary exhibits "A"-"E" praying for the following reliefs:

"1. An order striking out this appeal. 

2. Such further or other order(s) as this Honourable Court may deem fit to make in the circumstances." 

The grounds for seeking relief are:

"1. The relief sought by Respondent in their preliminary objection in the Court below the Ruling thereon whereof is the subject of this appeal was an order striking out the suit in that Court. The suit in that Court has been withdrawn and/or discontinued.  

2. The issue of substantial number thereof agitated in this appeal have been dealt with and resolved in Appeal No.CA/C/124/2010:

Helen Johnson Udoh (a.k.a Queen Ibum Olumba Obu vs. The Registered Trustees of the Brotherhood of the cross and Star." 

The application is supported by an affidavit deposed to by His Holiness, Olumba Olumba Obu, are of the trustees of the Respondent/plaintiff. The facts are challenged in a counter affidavit filed on 17th May, 2012 by Apostle Ekanem B. Ekanem the Administrative Assistant to Queen Mother Ibum Olumba and Head of Administration of the Brotherhood of the Cross and Star worldwide. Another Further and Better Affidavit was filed by volunteer Itam Esq. of Domicile Associates exhibiting the judgment of the court of Appeal (Exhibit "F) dated 13th May, 2010. This necessitated a " Further and Better Counter Affidavit to the Respondents' Further and Better Affidavit filed on 18th May, 2012" deposed to by Apostle Ekanem Bassey Ekanem on 28th May, 2012 denying that Exhibit "F" had any connection with this appeal.

In view of the affidavits, Counter-affidavits and further and better affidavits, etc, this Court ordered that Counsel shall file and exchange written addresses. The respondent/plaintiff filed the written address on 25th May, 2012. The appellants/defendants did likewise on 22nd June, 2012. Counsel adopted their written addresses on 18th October, 2012.

Mr. Dafe Diegbe Esq. of Counsel to the Registered Trustees of the Brotherhood of the Cross and Star referred to the motion filed on 15th July, 2011 seeking to strike out the appeal and the affidavit and documentary exhibits which consisted principally of previous judgments and the ruling of the learned trial Judge of 13th July, 2009 now subject of this appeal. Learned Counsel argued that while this appeal is pending the Federal High court, Calabar, Cross River state in suit No.FHC/CA/CS/69/2008 viz The Registered Trustees of the Brotherhood of the Cross and Star vs. Helen Johnson Udoh (a.k.a Queen Ibum Olumba Obu) delivered judgment on 24th March, 2010 granting all the reliefs claimed by the Brotherhood against the 1st Respondent in that suit which was annexed in the motion as Exhibit "D". The Appeal Court, Calabar Division, dismissed an appeal lodged by the 1st Respondent on 6th June, 2011 as evidenced in Exhibit "C". Counsel contended that a substantial number of the issues canvassed in appellants' brief (Exhibit "B") in this appeal had been dealt with and resolved in the judgment of the Court of Appeal (Exhibit "C"). It was having regard to this state of affairs that the Brotherhood filed a notice of withdrawal/discontinuance (Exhibit "E") of the originating summons under Order 24 rule 1(1)  of the High Court (Civil Procedure) Rules on 14th July, 2011 and had same served on the appellants. The argument by learned Counsel is that Exhibit "E" once filed and served is conclusive evidence that the originating summons in the lower Court had been withdrawn and has ceased to exist in that Court. That without denial the appellants before this Court are taken to have admitted the fact of withdrawal of the originating summons. In that case there remains nothing to be heard even if the main appeal is resolved either for or against the brotherhood by the Court of Appeal. Counsel relied on Anaekwe & Ors. vs. Mashashe & Ors. (2002) FWLR (Pt.93) 1941 at 1955; Badejo vs. Federal Ministry of Education (1996) 8 NWLR (Pt .464) 15  and paragraph 21/2-5/14 of the Supreme Court practice, 1997 edition, page 583 as to the legal effect of withdrawal or discontinuance of a pending suit or an appeal. Counsel further cited Conybeare vs. Lewis (1880) 13 Ch.D. 469; Obinu & Ors, vs. Orizu & Ors. (1972) 2 ECSLR 606 at 608; Babatunde vs. Pan Atlantic Shipping and Transport Agencies Ltd. & Ors. (2007) All FWLR (Pt.372) 1721 at 1743 paragraphs "F-H" and 1744   paragraphs "A"-"F" and Ekudano & Anor. vs. Keregbe & Ors. (2008) All FWLR (Pt.405) 1641 at 1646 paragraphs "G"-"H"; Emegbara vs. Health Management Board (Imo State) & Ors. (1987) 2 NWLR (Pt.56) 330 at 339 paragraph "D"-"H" to support his argument. It was further contended that the learned trial Judge had dismissed the preliminary objection now subject of this appeal. Once the originating summons in the Court below is withdrawn that ends the matter in controversy hence there are no live issues to be dealt with or resolved in this interlocutory appeal. Same has become spent, redundant, otiose, academic, moot and at best hypothetical. Learned Counsel urged that this appeal be struck out. 

ISSUE TWO:

Learned Counsel referred to paragraphs 6 and 7 of the affidavit in support of the motion which were disputed in paragraphs 12 and 13 of the Counter-affidavit of the appellants and the issues in the proceedings in Exhibit "B" which had been dealt with in Exhibit "C" as binding until set aside by a Court superior to the Court of Appeal. That there is no live issue to be canvassed on appeal since they have been determined by the Court of Appeal in Exhibit "C". Learned Counsel urged that this appeal be struck out. 

Chris A.C. Ogbogu, Esq. of Counsel to the appellants/defendants relied on the written address filed on 22nd June, 2012 drawing attention to the fact that the Respondent's learned Counsel did not set down the issues for determination in the written address. But Counsel did not deny the fact that the Registered Trustees of the brotherhood of the Cross and Star World Wide filed a Notice of withdrawal of the suit in the lower court (Exhibit "E") on 14th July, 2011. That this was two years after the appellants had applied for stay of proceedings and more than one year after filing and serving Appellants' Brief of Argument on the Respondent on 16th April, 2010. Exhibit "E" should have been served on the appellants within 5 days of filing but was not. The appellants were only seeing it on appeal. Counsel contended that rules of Court must be obeyed. The said Exhibit "E" is still in the court below as the trial Judge is yet to resume hearing the substantive matter and the interlocutory appeal is still pending in this Court. Counsel contended that Exhibit "E" is inoperative; it could not be said to have discharged the suit at the lower court as the stay of proceeding obtained by the appellants was still operational.

Counsel contended that once the Respondent/Plaintiff had not strictly complied with the provisions of order 24 rule 1(1) of the High court (civil Procedure) Rules, 2009 the withdrawal and discontinuance of the suit is ineffective, for example, without payment of costs occasioned by the matter so withdrawn. That filing Exhibit "E" offended the provisions of Order 24 rule 1(5) of the Rules supra.

Counsel urged this Court to hold that the originating summons has not been withdrawn, refuse this application but hear the appeal on the merit.

ISSUE TWO:  

Counsel urged this Court to avoid entertaining the substantive appeal in this interlocutory application, citing Adetono vs. Zenith Int'l Plc (2011) 12 MJSC (Pt.111) 75 at 84 and Madubuike vs. Madubuike (2001) 9 NWLR (pt.719) 698. That if some of the issues raised in the appellants' brief had been argued and answered in Appeal No.CA/C/124/2010 as Contended by learned counsel to the Respondent/plaintiff, that presupposes that not all issues raised by the appellants in the brief of argument had been dealt with, argued Counsel. In that wise this Court had the inherent jurisdiction to entertain the appeal. Besides, Exhibit "C" was still pending on appeal in the Supreme Court as deposed in counter affidavit. Learned Counsel cited the case of Okonkwo vs. Uba (2011) MJSC 1 at 6 where the Supreme Court explained the purpose of an appeal. Counsel urged that this application be struck out and the pending appeal heard on the merit. 

I shall preface this ruling not forgetting that the learned trial Judge merely dismissed the preliminary objection brought by the appellants/defendants on 13th  July, 2009 against the hearing and determination of the originating summons of the Registered Trustees of the brotherhood of the Cross and Star world Wide. The originating summons is still pending before that Court. The appeal filed by the appellants is against that interlocutory ruling.

An interlocutory ruling, order, judgment, appeal, etc is one that is interim or temporary, not constituting a final resolution of the whole dispute or issues in controversy. Upon a hearing, the court of Appeal may dismiss the appeal and make an order for hearing to proceed or order a transfer of the substantive suit to another judge for hearing and determination. If the appeal however succeeds the court of Appeal will, depending on the grounds and circumstances, example where the lower Court lacked the necessary jurisdiction to adjudicate, strike out the suit or, as the case may be, dismiss same thereby terminating the proceedings at the lower Court. Other orders the Court of Appeal may make upon hearing an appeal are set out in Section 15 and 16 of the Court of Appeal Act, Cap C36 Laws of the Federation of Nigeria, 2004.

The question is: lf before the determination of an interlocutory appeal the party that instituted the substantive suit in the lower Court is no longer interested in proceeding to a hearing notwithstanding the out come of the appeal by the appellant/defendant, what is the option? In my humble view the option is to file a notice of withdrawal or discontinuance of the substantive suit or originating summons at the Court of trial. The word "discontinuance" means the termination of a law suit by the plaintiff; a voluntary dismissal or non-suit. The notice of discontinuance has the effect of the plaintiff voluntarily removing the suit or questions in the originating summons from determination from the Court of trial or refraining from prosecuting or proceeding with the action. The order to be made by the learned trial Judge will depend on the stage of the proceedings when the notice of discontinuance or withdrawal was filed.

In Osborn's Concise Law Dictionary, 9th edition, edited by Sheila Bone, p.137 the learned author states what "discontinuance" means: It is, "Where a claimant voluntarily puts an end to his claim wholly or in part.  

A claimant may at any time discontinue his action by filing a notice of discontinuance and serving copies of it on the other parties to the proceedings. In certain instances the permission of the Court is required to discontinue. The effect of discontinuance is that a claimant has to pay a defendant's costs unless the Court orders otherwise." Similar provision exists in the High Court of Cross River State (Civil Procedure) Rules 2008. Order 24 rule 1(1)-(5) and 2 which reads as follows:

1(1)The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly Filed and served, wholly discontinue his claim against all or any of the defendants, or withdraw any part or parts of his claim. He shall thereupon pay such defendant's costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2) A discontinuance or withdrawal as the Case may be, shall not be a defence to any subsequent claim.

(3) Where a defence has been filed, the claimant may, with the leave of a Judge, discontinue the proceeding or any part thereof on such terms and conditions as the judge may order.

(4) Where proceedings have been stayed or struck oat upon a claimant's withdrawal or discontinuance under this Order, no subsequent claim shall be filed by him on same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with- 

(5) The Judge may in like manner and like discretion as to terms, upon the application of a defendant order the whole or any part of his alleged grounds of defence or counter claim to be withdrawn or struck out.

2. When a cause is ready for trial, it may be withdrawn by either claimant or defendant upon producing to the Registrar a consent in writing signed by the parties and thereupon a Judge shall strike out the matter without the necessity of attendance of the parties or their Legal Practitioner."

The "Claimant" before the lower Court was the Registered Trustees of the Brotherhood of the Cross and Star World Wide. The "defendant" were the present appellants in this appeal. The brotherhood had the liberty before or after receipt of the defence, before taking any other proceedings in the originating summons, by notice in writing duly filed and served, to wholly discontinue their claims or summons against all or any of the defendants, or withdraw any part or parts of the claim. 

But the Brotherhood had to pay to the defendants/appellants costs of the summons, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

The originating summons was filed on 2nd April, 2009 and served on the defendants/appellants who entered a conditional appearance on 6th April, 2009 followed by a defence in the form of a preliminary objection to the hearing of the summons on 29th April, 2009. In that case, the Registered Trustees of the brotherhood of the Cross and Star world wide may only discontinue the summons, with leave of a Judge on such terms and conditions as the Judge may order under Order 24 rule 1(1) and (3) of the Rules supra by payment of the cost so far incurred by the defendants/appellants in entering a defence. 

To satisfy the court of Appeal that the originating Summons had been voluntarily discontinued the Registered Trustees of the Brotherhood of the Cross and Star should have exhibited the enrolled order of the learned trial Judge granting leave to the Brotherhood to discontinue or withdraw the originating summons and the evidence of the terms and conditions upon which leave was granted by the learned Judge for the discontinuance to be effectual. Evidence of payment of costs of the defence must be proved. Judgments and orders of Courts are not proved by oral deposition in affidavits. Section 83(1) of the Act, 2011 provides that "in any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on the production of the original document, be admissible as evidence of that fact..." Section 132 of the Evidence Act supra further provides that 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. Orders of Courts of law are usually proved by certified true copies of the Court's judgments or enrolled orders duly certified by the Registrar of that Court. See Nzekwe vs. Nzekwe (1989) 5 SCNJ 167; Fawehinmi vs. IGP (2000) FWLR (Pt.12) 2015 at 2044; Section 106(h)(i)(j) and 128(1) of the Evidence Act, 2011.

Exhibit "E" is the purported notice of withdrawal/discontinuance of suit No.HC/111/2009) filed in the lower court on 14th July, 2011.

There is nothing accompanying the exhibit to show that The Registered Trustees of the Brotherhood obtained leave of the learned trial Judge to withdraw or discontinue the originating summons upon the payment of the cost so far incurred by the appellants/defendant in presenting their defence before the lower Court.

Learned Counsel to the applicants/plaintiffs has cited a plethora of authorities in support of his argument without alluding to the fact that Order 24 rule 1(1) of the Rules supra under construction or interpretation lays emphasis on the phrase "... any time before receipt of the defence or after the receipt thereof..."as determining when the application for withdrawal or discontinuance of an action or originating summons may be duly filed and served. The important thing is to determine when the defence to the originating summons was filed by the defendant. The word "defence" is to be construed in determining this application under Order 24 rule 1(1) and (3) supra. A defendant's stated reason(s) why a claimant has no valid case, his answer, denial or plea constitutes his "defence" to the action. In the Law of pleading under the Codes of Civil Procedure, 1899, 2nd edition, page 240, Edwin E. Byrant defines the word "defence" as "...that which is alleged by a party proceeded against in an action or suit, as a reason why the plaintiff should not recover or establish that which he seeks by his complaint or petition."Order 7 rule 8(2) & (3) of the High Court of cross River State (Civil Procedure) Rules, 2008 reads as follows:

"(2) An originating summons shall be accompanied by:

(a) an affidavit setting out the facts relied upon;

(b) all the exhibits to be relied upon;

(c) a written address in support of the  summons.

(g) The person filing the originating summons shall leave at the Registry sufficient number of copies thereof together with the documents in sub-rule 2 above for service on the Respondent or respondents."

The Registrar has the duty to arrange that each respondent be served the originating summons and the accompanying documents duly certified. See Order 8 rule 2(3) and 4 of the Rules supra. upon service the respondents enters a memorandum of appearance in the Registry of the court {or.13 r.1(1)-(3), 2(1)}. It is not just enough to appear upon being served an originating summons or process. Where it is intended to dispute the claims in the summons, a defence or a counter-claim have to be filed. This is provided under Order 17 rule 36 and 38 of the Rules supra which reads thus:

"36. A defendant to an originating summons shall file a counter affidavit together with all the exhibits he intends to rely upon and a written address within 14 days after service of the originating summons.

37. XXXXXXXXXXXXXXXX

38. Where a Counter-claim is pleaded, a reply thereto is called a defence to counter-claim and shall be subject to the Rules applicable to defences-"

Where there is a defence a counter-affidavit is filed upon service of an originating summons. This may be supported by documentary exhibits if any. But if there is no defence, none needs to be filed. The respondent could also file a counter-claim to an originating summons. Costs are incurred in filing defences to originating summons, affidavits, written addresses, documents, counter-claims, etc, in the lower Court. Justice demands that upon withdrawal or discontinuance of an originating summons or processes the defendant should be recouped. Generally the award of cost is at the discretion of the learned trial Judge. See Obaya-gbona vs. Obazee (1972) 5 SC 247 at 253; Nurno vs. UAC Ltd. (1956) 1 FSC 33. But under order 24 rule 1(3) of the Rules supra it seems that upon withdrawal or discontinuance where a defence had been filed the respondent/defendant is automatically entitled to the cost proved up to the stage of the stage of the withdrawal or discontinuance.

My humble view is that the filing of the motion on notice to strike out the originating summons set out the defendants/appellants' defences. The appellants were entitled to all the costs incurred at the lower court even if the learned trial Judge was to grant leave for the originating summons to be withdrawn or discontinued. It is within the province of the trial Judge to determine the costs to be awarded as provided under order 36(1)-(3) of the High court of cross River state (Civil procedure) Rules, 2008. 

This court has no jurisdiction to assess the cost that should be payable to the appellant if the Respondents withdraw or discontinue the originating summons at the lower court. Furthermore, this court will not delve into considering the matters raised in issue two as to whether they have been previously determined in Exhibit "B' or "C" for the fact that that exercise will entail an incursion into the pending appeal. That will be contrary to the authorities cited by learned Counsel to the Respondent/appellant. See also Iweka vs. SCOA (2000) 5 SC 21 at 24-25; Motune vs. Gambo (1983) NCLR 237 at 242. 

On the whole, I refuse to strike out this appeal. This application fails and is dismissed with N50,000.00 costs to the Respondents.

MOHAMMED LAWAL GARBA, J.C.A.: I have read the affidavit evidence and the written addresses filed by the parties in support of their respective positions in this application. The lead ruling delivered by my learned brother, Joseph Tine Tur, JCA, a draft of which I had read before now, had very comprehensively considered the issues raised therein on the basis of the extant principles of law and peculiar facts and circumstances of the appeal. I agree with the views and conclusions on the issues to the effect that the application is lacking in merit and should fail. It does and I join in dismissing it. I adopt the order on costs, made in the lead ruling.

  

UZO I. NDUKWE-ANYANWU, J.C.A.: I had read in draft the ruling just delivered by my learned brother Joseph Tine Tur, JCA. I agree with him in refusing to grant the prayers of the applicant to strike out this appeal.

I also abide by the consequential orders contained in this ruling including that as to costs.

     Appearances       

Chris A.C. Ogbogu & Charles Ekpo

For the Appelants

       

U. Essien

For the Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In The Court of Appeal

(Abuja Judicial Division)

On Thursday, the 14th day of July, 2011

Suit No: CA/A/EPT/PRES/1/2011 (R)

 

Before Their Lordships

 

  

ISA AYO SALAMI

....... Justice, Court of Appeal

MOHAMMED L. GARBA

....... Justice, Court of Appeal

M.A. OWOADE

....... Justice, Court of Appeal

IGNATIUS IGWE AGUBE

....... Justice, Court of Appeal

OBENDE OGBUINYA

....... Justice, Court of Appeal

 

 

 

 Between

CONGRESS FOR PROGRESSIVE CHANGE

Appellants

 

 

 

 And

    

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 42 ORS

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

WORDS AND PHRASES - "SHALL": Meaning of the word "Shall"

 

 

"There is no doubt that Sankey, J.C.A, had defined the word "Shall" to mean a word of command which must be given an obligatory meaning as denoting compulsion and has the invaluable consequence of excluding the thought of discretion to impose a duty which must be enforced. In other words, where a statute as Section 137(3) provides that a thing "shall" be done, the expected and proper meaning is that a peremptory and absolute mandate is enjoined. We agree with the position taken by Mr. Sofunde, SAN, that the operative word in the statute which is "shall" governs "not be necessary", and not "shall not join"." Per. SALAMI, J.C.A (Pp. 77-78, Paras. G-B) - read in context

 

 

 

 

2

PRACTICE AND PROCEDURE - ABUSE OF COURT PROCESS: Whether a suit can be struck out for being intiated solely on bias and malicious intent

 

 

"It is also the law that where a suit is initiated solely with bias and malicious intent for the purpose of deliberately misusing or perverting the court system for an otherwise unattainable result, then such a suit should be struck down for abuse of court process". Per. SALAMI, J.C.A (P. 63-64, Paras. G-A) - read in context

 

 

 

 

3

COURT - COMPETENCE OF COURT: Criteria for determining competence of a court

 

 

"After all, the court pronounced with force in Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt 4) 557 that is court is only competent when:- (a) it is properly constituted with respect to the number and qualification of its members; (b) the subject matter of the action is within its jurisdiction; (c) the action is initiated by due process of law; and (d) any condition precedent to the exercise of a jurisdiction has been fulfilled." The above criteria for determining competence of a court have been restated by this Court several times; Skenconsult (Nig.) Ltd. & Anof v. Godwin Ukey (1951) LS.C. 6; Leedo Presidential Motel v. BON Ltd. (1995) 10 NWLR (Pt 570) 353 and also Timitimi v. Amabebe (1953) 14 WACA 374".Per.SALAMI, J.C.A (P. 45, Paras. C-G) - read in context

 

 

 

 

4

INTERPRETATION OF STATUTE - EFFECT OF SEC. 137 OF THE ELECTORAL ACT, 2010 AND O. 9 R. 1 OF THE FHC (CIVIL PROCEDURE) RULES, 2009: Combined effect of section 137(1)(b) and (3) of the Electoral Act, 2010 (As Amended), order 9 Rule 1 (1) (2) and (3) of the Federal High court (civil Procedure) Rules, 2009 and Paragraph 53 (1) and (4) of the 1st Schedule to the Electoral Act

 

 

"In any event, by the combined effect of section 137 (1)(b) and (3) of the Electoral Act, 2010 (As Amended), order 9 Rule 1 (1) (2) and (3) of the Federal High court (civil Procedure)Rules, 2009 and Paragraph 53 (1) and (4) of the 1st Schedule to the Electoral Act and the cases of Bello v. INEC (2010) 8 NWLR (pt. 1196) 342; Sapo v. Sunmonu (2010) 11 NWLR (pt. 1205) 374; no proceedings shall be defeated by reason of misjoinder or non joinder of parties and a Judge may deal with the matter in controversy, so far as regards the right of the parties. Where as in this case, the Electoral Act recognizes the inalienable rights of either the party, or candidate or both to bring a petition in this Court, the petition cannot be struck out for non- joinder of Muhammadu Buhari and Pastor Tunde Bakare. See per Kalgo J.S.C. in Obasanio v. Buhari (2003) 17 NWLR (pt. 850) 510 at 563. On the whole, this Court has the jurisdiction to entertain this Petition which is properly constituted even without the joinder of the Presidential and Vice Presidential candidates of the Petitioner. Issue Number 2 is resolved in favour of the Petitioner." Per. SALAMI, J.C.A (Pp. 61-62, Paras. E-C) - read in context

 

 

 

 

5

COURT - JURISDICTION: Whether jurisdiction is the life wire of any adjudication

 

 

"As was ably held per Fabiyi, J.S.C., in the recent case of Shelim & Anor. v. Gobang (2009) All FWLR (Pt. 1866) at 1877 paras. A-G:- "It is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire of any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity." Mustapha v. Governor of Lagos State (1937) 2 NWLR (Pt. 53) 539; Utih v. Onoyivwe (1991) I NWLR (Pt. 166) 166. Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of proceedings and even on appeal before this Court State v. Onagoruwa (1992) 2 NWLR (Pt 221) 33 at 54; National Bank v. Shoyoye (1997) 5 S.C. 181". Per SALAMI, J.C.A. (Pp. 44-45, Paras. F-C) - read in context

 

 

 

 

6

ELECTORAL MATTERS - JURISDICTION: Whether this Honourable Court as constituted has jurisdiction to entertain pre-election matters

 

 

"It is trite and we agree with the Respondents contentions that this Honourable Court as constituted has no jurisdiction to entertain pre-election matters. See Odedo v. INEC (supra), Orji v. Ugochukwu (supra); Oio v. INEC, etc.; Olofu v. Itodo (2010) 18 NWLR (pt. 1225) 545; and Ucha v. Onwe (2011) 4 NWLR (Pt. 1237) 386." Per SALAMI, J.C.A (P. 66, Paras. C-E) - read in context

 

 

 

 

7

INTERPRETATION OF STATUTE - ORDER 46 RULE 4 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2009: Statutory provision of Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 with respect to days in hearing of election petitions

 

 

"Against this background we shall now consider the various Acts and Rules relied upon to buttress each other's disparate positions on this issue. Beginning with Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 which is the fulcrum of the Respondents' case, it provides thus:- "Subject to the directions of the Chief Judge, sittings of the court for the dispatch of civil matters will be held on every week days except: (a) on a public holiday; (b) during the week beginning with Easter Monday; (c) during the period beginning on 23rd December and ending on the 5th January next following; (d) during the long vacation, i.e. the period beginning in any day in August and ending on a date not less than six weeks later ending on a Friday as the Chief Judge may by notification in the Gazette appoint" Per. SALAMI, J.C.A (P. 47, Paras. B-F) - read in context

 

 

 

 

8

EVIDENCE - PRESUMPTION OF REGULARITY: Presumption of regularity as enshrined in Section 150 of the Evidence Act

 

 

"Indeed, contrary to the submissions of the learned Senior Counsel on behalf of the Respondents, Section 150 of the Evidence Act provides for the presumption of regularity in the following terms:- "150(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied. (2) When it is shown that any person acted in a public capacity it is presumed that he had been duly appointed and was entitled so to act" In the instant case the Petitioner's Petition as has been said earlier bears the stamp and imprimatur of the Registrar and Registry of the court of Appeal as having been filed on the 8th day of May, 2011 and therefore provides prima facie evidence of the regularity or otherwise for this Court to invoke the presumption under Section 150 of the Evidence Act in favour of the Petitioner. The position of the law is as expressed in the Latin maxim "Omnia praesumuntur rise esse acta" that is the presumption that what is done is presumed to brightly or regularly done. See the cases of Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 and Okeke v. The state (2003) 15 NWLR (Pt. 842) 25." Per SALAMI, J.C.A (P. 51, Paras. B-G) - read in context

 

 

 

 

9

LEGISLATION - PUBLIC HOLIDAYS ACT: Which days are deemed as public holidays under the act

 

 

"Commenting on the provisions of the above sections of the public Holidays Act, this Court, Per Nweze, JCA, in Daramola v. Aribisala & Anor. (2009) All FWLR (Pt. 496) 1964 at 2015 - 2017, Paras E-D; succinctly intoned:- "In the Latin days of the Law, days exempt from court proceedings were referred to as dies non juridicus, for convenience often abbreviated to dies none. Such days were almost always public holidays. In Nigeria, there is an enactment that specifies days to be observed as public holidays. It is known as the Public Holidays Act. It is in Chapter P 40, Laws of the Federation of Nigeria, 2004. It is a short enactment of only seven sections and a schedule. In all, the Act specifically itemizes ten such days to be so observed as public holidays. They are: New year's Day, Good Friday, Easter Monday; Workers' Day (1st May), Democracy Day (39th May); National Day (1st October), Christmas Day; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of ld-el-Fitr; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of ld-el-Kabir and such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Muhammed (Id-el-Maulud), section I and the Schedule. (Under the Act, those days are work-free days, section 2(3)". Per. SALAMI, J.C.A. (Pp. 53-54, Paras. B-A) - read in context

 

 

 

 

10

INTERPRETATION OF STATUTE - SECTION 137(1) OF THE ELECTORAL ACT 2010:Persons entitled to present election petitions

 

 

"We have deliberately underlined some portions of the above paragraph of the petition in view of the contentions of the parties on this issue which in the main is whether the non-joinder of Muhammadu Buhari and Pastor Tunde Bakare as Petitioners is fatal to this petition, thereby warranting its being struck out. We shall call on the Electoral Act and judicial authorities decided in that respect to give us a clue. Section 137(1) of the Electoral Act 2010 (As Amended) which by its marginal note deals with "Persons Entitled to Present Election Petitions", provides thus:- "137.-(1) An election petition may be presented by one or more of the following Persons - (a) a candidate in an election; (b) a political party which participated in the election." Per. SALAMI, J.C.A (P. 58, Para. G) - read in context

 

 

 

 

 

 

 

 

ISA AYO SALAMI, P.C.A, OFR (Delivering the Lead Ruling): Following the conduct of the Election into the office of the President of the Federal Republic of Nigeria by the 1st and 2nd Respondents on the 16th day of April, 2011, and the subsequent return and declaration of the 3rd and 4th Respondents (candidates of the 5th Respondent), as winners of that Election on the 18th April, 2011, the Petitioner (one of the political parties that participated in the election and sponsored candidates at that election); was aggrieved by the outcome of the exercise, and accordingly filed a petition in this Honourable court on the 8th day of May, 2011.

Sequel to the service of copies of the Petition on the Respondents, the 3rd and 4th and 5th sets of Respondents in their respective Replies gave Notices of Preliminary Objections to the Petition on Grounds of incompetence which Notices and Grounds of Objections are as contained in pages 2 - 3 of the 3rd and 4th Respondents' and pages 3 - 5 of the 5th Respondent's Replies, respectively.

Pursuant to Section 136 (1) of the Electoral Act, 2010 (As Amended), Paragraphs 4(3) (B) and 47 of the 1st Schedule to the Electoral Act, 2010 (As Amended), and the inherent jurisdiction of this Honourable Court; the 3rd and 4th Respondents through their team of lawyers led by Chief Wole Olanipekun, SAN, by a Motion on Notice, dated and filed on the 23rd day of June, 2011, sought for the following Orders:-

"1. An Order striking out dismissing this Petition for being incompetent, incurably defective and vesting no jurisdiction on the Honourable Court to adjudicate on it. 

2. And for such further or other orders as the court may deem fit to make in the circumstances." 

The Grounds upon which the application is predicated are hereunder reproduced thus:-

"A (i). The Petition is founded on a nullity having been filed on Sunday the 8th day of May, 2011.

(ii). Sunday is a non-working day, otherwise described dies non juridicus and also a public holiday.

(iii). The Registry of the court, under the applicable Rules, does not open on a Sunday for the transaction of any business.

B (i). The petition is not properly constituted.

(ii). General Muhammadu Buhari and Pastor Tunde Bakare for whose benefit the Petition has been presented are not made parties to the petition.

(iii). The prayers and/or reliefs of the Petitioner cannot be countenanced and/or granted in the absence of the said General Muhammadu Buhari and Pastor Tunde Bakare.

(iv). The court cannot make any order against the Respondents who were the Presidential and vice Presidential candidates of the 5th Respondent (PDP) in favour of the Petitioner in the absence of the Petitioner's own Presidential and Vice Presidential candidates as parties to the Petition.

C. The Petition constitutes a gross abuse of the processes of this Honourable Court.

D. The Petition deals with hypothetical, academic, and moot issues.

E. The Court is without the vires to adjudicate on and grant the reliefs/prayers sought for in the petition.

F. The entire paragraph 14 of the Petition is incompetent and/or argumentative, particularly paragraph 14(a), (c), (d),(d)(i), (d)(ii), (d)(iv), (d)(vi), (d)(ix), (d)(xii), (h), (i), (j), (k),(m), (n), (o), and (p). Respondents will urge the court to strike same out; a fortiori, to strike out the entire petition, particularly Ground 1, thereof. 

G. Ebun O, Sofunde, SAN, Awa Kalu, SAN, James Ocholi, SAN, Abubakar Malami, Sladipo Olapeseyi, SAN, Ahmed B. Mahmud, Esq., Ismaila Alasa, Esq., Aliyu Musa, Esq., Ugbede Idachabo Esq., Chief Okoi Ofem Obono-Obla Esq., Mary Ekpere, Esq., and Daisy Anagende who presented the Petition are not within those specifically mentioned as entitled to present on Election Petition under the provisions of the Electoral Act, 2010 (As Amended), and the court cannot take cognizance of and/or adjudicate on the said Election petition so presented by them" 

H. When considered together with the facts supporting it, the 1st Ground under which the petition is based is a pre-election matter over which this Honourable Court does not have jurisdiction".

In support of the Application, the Applicant/objector through Gbenga Adeyemi, Esq., a Legal practitioner of No. 94, Norman Williams Steet, South West Ikoyi, Lagos, deposed to an eleven paragraph affidavit to which is annexed a Written Address.

By a Notice of Preliminary objection brought pursuant to paragraphs 4(D) and 47(1) of the 1st Schedule to the Electoral Act, 2010 (As Amended), Order 3 Rule 9 of the court of Appeal Rules, 2011, section 137 (3) of the Electoral Act , 2010 (As Amended) order 46 Rule 4 of the Federal High court (civil procedure) Rules, 2009 and under the inherent powers of this Honourable court dated and filed on the 15th day of June,2011, the 5th Respondent through chief J.K Gadzama, SAN, and his team of learned senior Advocates and other counsel notified the Petitioner that the 5th Respondent shall before or during the trial of this Petition raise and rely on the Preliminary Objection and urge this Honourable Court to:

"1. Dismiss and/or strike out the entire petition in limine."

GROUNDS OF OBJECTION 

a. The petition was filed on Sunday, May 08, 2011 which is a public holiday and therefore a dies non juridicus.

b. The Registry of the Tribunal ought not to have accepted the Petition (originating Process) for filing on a Sunday.

OR IN THE ALTERNATIVE:

c. Strike out paragraphs 14(d) (iv) and 38 of the Petition which contain complaints against the Nigerian police Force, Civil Security, and the Nigerian Army who are not parties to the Petition."

GROUND OF OBJECTION

The 2nd, 6th - 42nd Respondents are not necessary parties to the Petition in view of Section 137 (3) of the Electoral Act, 2010 (As Amended), which provides as follows- 

"(3) If the Petitioner complains of the conduct of an Electoral officer, a Presiding officer, or Returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall, in this instance be:

a. made a Respondent; and

b. deemed to be defending the petition for itself and on behalf of its officers or such other persons.

2. such Further order(s) as this Honourable court may deem fit to make in the circumstance".

The 5th respondent has also filed a Written Address in support of the Notice of Preliminary Objection.

In reaction to the Notices and Written Addresses of the 3rd and 4th and 5th Respondents and upon being served with same by the respective Respondents/Objectors, the Petitioner filed her Response to the 5th Respondent on the 21st day of June, 2011 while that to the 3rd and 4th Respondents was filed on the 29th day of June, 2011 respectively.

Upon receipt of the Responses by the 3rd and 4th and 5th Respondents, their respective learned senior counsel further filed Replies on points on law of the 2nd and 6th days of July, 2011 respectively. In respect of the Written Address of the 3rd and 4th Respondents/Objectors, the six issues distilled for determination are as reproduced hereunder as follows:-

"i. Whether or not the Petition is not founded on & nullity.

ii. Is the petition not improperly constituted?

iii. Whether or not the petition is not abusive of Court process and/or moot issue? 

iv. Does the Court possess the necessary vires or jurisdiction to grant the reliefs sought?

v. whether or not Ground 1 of the Petition is not founded on pre-election matters, over which the Honourable Court cannot adjudicate?

vi. Whether the averments in paragraph 14(a) are not liable to be struck out in limine?,,

The Petitioner on the other hand it would appear has adopted the six issues formulated by the 3rd and 4th Respondents except that they are slightly differently worded.

As for 5th Respondent, the three issues formulated are couched in the following terms:-

"1. Can a petition be filed on a Sunday being a public Holiday/dies non juridicus?

2. Is the non- joinder of the police, the Army and the civil security proper in law, given the spurious allegations leveled against them?

3. Is the joinder of the 2nd, 6th -42nd Respondents proper and sustainable in law, having regard to the provisions of Section 137 (3) of the Electoral Act 2010 (As Amended)?"

The Petitioner on its part formulated the following issues in respect of the 5th Respondent's Objection:-

"7. Whether the circumstances of the filing of the Petition on a Sunday render it liable to the struck out for being a nullity?

2. Whether the Petitioner was obliged to have joined the Nigeria Police Force, Civil Security and the Nigerian Army as parties and its failure to do so renders paragraphs of the petition where allegations were made against them liable to be struck out? And

3. Whether the 2nd and 6th to 42nd Respondents were wrongly joined as parties as a result of which they ought to be struck out?"

In the resolution of the issues formulated by the learned Senior Advocates on behalf of the parties, we have taken the considered view that it would serve the interest of justice and considerable convenience if Issues (1) of the 3rd and 4th and 5th Respondents and that of the Petitioner are considered together because of their similarities and the threshold question of jurisdiction they have thrown up.

ISSUE NUMBER 1

In both the Written Address and oral submissions proffered in adumbration thereof, Chief Olanipekun, SAN, for the 3rd and 4th Respondents/Objectors noted that the Petition on the face of it was filed on Sunday the 8th day of May, 2011 and that by paragraph 54 of the First Schedule to the Electoral Act, 2010 (As Amended) this Honourable Court is enjoined to apply the Federal High Court (Civil Procedure) Rules with such modifications as may be necessary to render them applicable having regard to the provisions of the Act.

References were therefore made to Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009, Order 56 Rule 7 thereof, Section 15 (4) and (5) of the Interpretation Act and Section 4 of the Public Holidays Act which provisions totally exempt Sunday from all days that official transactions, particularly in this case the filing of a petition, could take place or be done. According to the learned Senior Advocate, the Rules say that the Registry shall not open while the Statutes command that no transaction shall take place on those days.

For this submission he cited the case of Anie v. Uzorka (1993) 3 NWLR (pt. 309) S.C. where the Supreme Court drew a distinction between a Public Holiday and work free day when the issue of whether a Judge could without the leave of the Chief Judge, sit on Saturday, cropped up for determination. Kaguwa v. INEC (1993) 3 NWLR (pt. 284) 681 C.A per Achike, J.C.A (as he then was), Ikpala Estate Hotels Ltd. v. NEPA (2004) 11 NWLR (pt. 554) 249 at 262 per Rowland, J.C.A; Military Administrator, Delta State v. Olu of Warri (1997) 7 NWLR (pt. 513) 430 at 449 per Akintan, J.C.A (as he then was) and Ikhariahle v. Okoh (2009) 12 NWLR (pt. 1154) 1 at 45 per Ogunwumiju, J.C.A; were all cited to draw our attention to the fact that the results of the election was declared on 18th day of April, 2011 and Sunday 8th day of May, 2011 was not the last day opened to the Petitioner to file her petition in which case the filing of the petition on Sunday was not out of compelling exigency but was merely done with impunity to test the waters or legal consequence. 

The learned senior Counsel pointed to the provisions of paragraphs 25 (1) and 26 (1) and (2) of the First Schedule to the Electoral Act, 2010, which specifically exclude Sunday from the days a petition can be heard, arguing that those provisions of the Schedule are general provisions of the Rules of Court which cannot overrule the specific provisions of the Interpretation Act and the Public Holidays Act.

He drew our attention to the maxim "generelia specialibus non derogant" and the cases of Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 NWLR (pt. 901) 44 at 64 and 65, Inakoju v. Adeleke (2004) 4 NWLR (pt.1025) 123 at 629 and Schroader & Co. v. Major & Co. Ltd. (1939) 2 NWLR (pt. 101) 1 at 6.

Premised on the foregoing submissions, he contended that the Petition was not initiated according to law and accordingly this Honourable Court on the authority of Madukolu v. Nkemdilim (1962) 2 SCNJ 341; is incompetent to countenance it. Stretching the submission further, the learned Senior Advocate took umbrage in the case of Skenconsult (Nig.) Ltd. v. Ukey (1931) 1 S.C. to contend that the petition was/is founded on a nullity and nothing credible and accordingly this Honourable Court has no discretion on it and should resolve the issue in favour of the 3rd and 4th Respondents/Objectors and strike out the petition.

It would be recalled that in his oral submission in court on the 6th day of July, 2011, the learned Senior Counsel insisted that the only defence open to the Petitioner in so filing the petition on a Sunday is Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules, which empowers the court to direct the Registry to open on Sunday but that there is no affidavit from the Petitioner that the President of this Honourable Court so directed.

Arguing ISSUE NUMBER 1 (ONE) of the 5th Respondent, Chief J.K. Gadzama SAN, noted that it is not in dispute that the Petitioners filed their petition on May 8, 2011 a Sunday and that the position of the law on public holidays cannot be overemphasized. He, like the learned senior counsel for the 3rd and 4th Respondents relied on Section 15 (5) of the Interpretation Act, CAP. L23, LFN on the definition of Public Holiday; Section 4 of the Public Holidays Act; CAP. P40 LFN, 2A04; Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009; Patrick Ikhariahle v. Okoh (2003) 2 LRECN 47 at 55 - 56 Rationes 9 & 10; and Order 3 Rule 9 of the Court of Appeal Rules, 2011; to contend that Saturdays and Sundays and Public Holidays are not within the contemplation of the provisions of the Rules as the days the Court of Appeal shall be open to the public.

As an alternative submission and without conceding that a directive could be given, enabling the Registries to open on a prohibited date, namely Sunday, May 08, 2011, there is no evidence of such and the Respondent takes it that the directive was not sought and obtained by the Registry before the said Petition was filed on Sunday, since according to learned Counsel to the Respondent, the approval was not in writing.

Turning to the holding of this Court in Olaiya Kupolati & Anor. v. Olusola Oke & Ors Appeal No. CA/IL/EP/HA/12/2008 a decision of the Ilorin Division delivered on the 8th day of April, 2009 now reported in (2009) ALL FWLR (pt. 436) 1858 at pages 1916 paras. E -H and 1917 paras. A-F; per Agube J.C.A, whom he quoted in extenso, it was submitted that although that decision held that proceedings could still take place on public holidays on exceptional circumstances, the decision never pointedly held that an originating process could be filed on a Public Holiday. 

On the admonition by the decision on Counsel to file Election Petitions timeously, he asserted that learned Counsel to the Petitioner would have been diligent enough to have filed the case latest Friday the 6th of May, 2011 as equity aids the vigilant and not the indolent since delay defeats equity. He then urged us to strike out the entire Petition as same was filed on a Public Holiday contrary to the Statutes and Rules of Court earlier cited and on a plethora of decided cases. 

The learned SAN it would be recalled, at the hearing of the Preliminary Objection in Court on the 6th of July, 2011, by his oral submissions supported the views expressed by Chief Olanipekun, SAN, that there was no compelling exigency to warrant the filing of the petition on a Sunday and that there was no affidavit in support of the directive given to the petitioner to permit the filing of the petition on Sunday. He went a step further while relying on English cases like Baker v. Hambleton DC (2011) WL 2582620 at page 6; Mucceli v. Government of Albania (2009) I WLR 276; St. Helens Metropolitan Borough Council v. Barnes (20060 CIV 1372 and Van Aken v. Camden London (2003) 1 WLR p. 684; to contend that the law does not permit the President to allow the Petitioner to file a petition on Sunday and that they have been able to dichotomize sitting and filing.

The learned Senior Counsel further argued that notwithstanding the provision of Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules, 2009, there is no where within Nigeria or outside where processes have been filed on Sunday and this Court being a Court of law and procedure, the issue of substantial justice does not apply to Statutory non-compliance. Accordingly, he maintained that the Petition is void and a nullity for non-compliance with the provisions of the law and same ought to be dismissed in limine.

DR. Onyechi Ikpeazu, SAN, the learned Counsel for the 1st, 2nd and 6th-42nd Respondents in his brief contribution intimated the Court that they did not file any process in respect of the Preliminary Objections. He however sought leave to comment on the provisions of Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules and supported the views expressed by the learned Chief J.K. Gadzama, SAN, when he argued that a contrary interpretation of the position taken by the learned Chief would create a most awkward situation whereby a declaration of Holiday by the President of the Federal Republic of Nigeria, shall be countered by an Order of a Chief Judge or the President of the Court of Appeal.

In both the Written Address and oral submissions of Mr. Ebun Sofunde, SAN and his team of learned Counsel for the Petitioner, in respect of Issue Number 1 (One), the learned Senior Counsel disagreed with the contention of the Respondents that the filing of the petition on a Sunday robs the petition of validity on the grounds that:-

1. Order 46 rules 4 which the Respondents relied on to contend that the Registry cannot open on Sunday, is subject to the Electoral Act, 2010 (As Amended).

2. Paragraph 54 of the 1st Schedule to the Electoral Act by which the Rules of the Federal High Court derive their applicability opens with the expression "subject to the express provisions of this Act. ..."

3. Paragraph 26(2) of the 1st Schedule to the Electoral Act which provision was reproduced envisages the opening of the Registry to do business on Saturdays and Public Holidays if circumstances dictate as the Tribunal is not expected to sit on Saturday or Public Holiday if the Registry is not open.

Placing reliance on Section 10(2) of the Interpretation Act, Cap. 123 Laws of the Federation of Nigeria, 2004, it was submitted that the opening of the Registry is incidental to the Court sitting and therefore even the Electoral Act permits the opening of the Registry on Saturday or Public Holiday and as such Order 46 Rule 4 of the Federal High Court Rules, does not apply. The foregoing apart, the learned Senior Advocate alluded to Order 56 Rule 7 of the High Court (Civil Procedure) Rules, which by the phrase "subject to the directives of the Chief Judge" in this case the President of the Court of Appeal, the provision in the Rule is subject to the directives of the President and so far as the Registry opened on a Sunday it must be presumed under Section 150 of the Evidence Act, that the President directed or gave the necessary directives.

Given the above submissions, the learned Senior Counsel for the Petitioner therefore submitted that the submissions of the learned Senior Counsel on behalf of the Respondents and the authorities cited by them are inapplicable as to whether the Registry of the Court may open on Sundays which is a Public Holiday.

Concluding his response on this arm of the Objections of the Respondents, the learned SAN referred us to the provisions of Section 6(1) of the Public Holidays Act, Cap 40, Laws of the Federation of Nigeria 2004, Section 6(3) thereof and the case of Anie v. Uzarka & Ors. (1993) 8 NWLR (Pt. 309) 1, per Onu, JSC at pages 19 to 20, in submitting that given the decision in the above case, it was permissible for the Registry to open and receive the processes on Sunday and it must be presumed that the Honourable, the President of the Court of Appeal had given the directive under Section 6(1) of the Public Holiday Act.

Replying on points of Law, Chief Olanipekun, SAN on the reaction of the learned Senior Counsel for the Petitioner to 3rd and 4th Respondents' reliance on Order 46 Rule 4 of the Federal High Court Rules, 2009, noted that paragraph 26(2) of the 1st Schedule to the Electoral Act, 2010 (As Amended) envisages 'hearing' which is a function of the Court and therefore relates to sitting rather than filing of process which is expressly excluded by the maxim "expression unius est exclusio alterius " and according to him, the only enactment that deals with the business of the Registry is the Federal High Court (Civil Procedure) Rules, 2009.

On the interpretation given by Mr. Sofunde, SAN, to Order 56 Rule 7 of the Rules it was submitted that Section 150 of the Evidence Act does not apply as such directive, according to learned Senior Counsel for the 3rd and 4th Respondents, must be published in the Registry for litigants or Counsel to see and as such it cannot be presumed as in this case where none has been produced by the Petitioners and Petitioners did not file a Counter-affidavit to the effect that the President gave them permission to file on Sunday. To that extent, he reiterated, Section 6(1) of the Public Holidays Act and Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules, 2009; paragraphs 26(2) of the 1st Schedule to the Electoral Act, 2010 and Section 10(2) of the Interpretation Act are not apt. The presumption, he further maintained is based on the assumption of Counsel in his address and not on fact or evidential substratum and is therefore rebuttable since opinion of Counsel cannot replace the cold facts. NIDB v. Fembo (1997) 2 NWLR (Pt. 489) 543 and Nkeiruka v. Joseph (2008) 3 LRECN 317 at 334 paras. A-D; and the definition of the word 'directive' by the New International Webster's Comprehensive Dictionary of English Language (2010 Edition) at page 362, were all cited to insist that the President of the Court of Appeal did not give any order or instruction for the petition to be filed on Sunday.

On the Petitioner's further reliance on Section 6(1) and (3) of the Public Holidays Act, and the case of Anie & Ors. v. Uzorka & Ors (1993) 8 NWLR (Pt. 309) 1; it was contended and reiterated by the learned SAN, that they are inapplicable and further that it is unlawful for the President to give such directive which cannot even if given, be presumed but must be requested, approved and communicated to members of the public. From the foregoing, the learned Senior Counsel for the 3rd and 4th Respondents concluded that the filing of the Petition on Sunday was a classical nullity as the directive has not been produced and none exists.

The learned Chief Gadzama, SAN, as had been noted earlier was in full support of the position taken by Chief Olanipekun on the Response by the Petitioner and we had also reflected on the English cases he cited to buttress his position in the course of oral adumbration. Suffice it to say that what is left to be added was the view that paragraphs 26(2) and 54 of the 1st Schedule to the Electoral Act, 2010 (As Amended) do not apply but that a careful perusal of the provisions of the Schedule and Order 46 Rule 4 of the Federal High Court Rules, 2009, show that they have no negative effect on the objection as they relate to 'hearing' or 'sitting' as no provision anywhere in our laws allows the filing of processes on Sundays or a Public Holiday.

According to him, the filing of the Petition on a Sunday robs the Court of jurisdiction. For this submission, he cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341-355 at 34; per Bairamian, F.J. to contend once more that the Petition falls short of the 3rd requirement which is fundamental of the cumulative criteria for the vesting of jurisdiction. On the dichotomy between sitting as well as hearing which are what the provisions of paragraphs 26(2) and 54 of the 1st Schedule talk about as against 'Filing' he referred us to Black's Law Dictionary (6th Edition) at pages 628,721 and 1387; to submit that the concept of filing is not the same as sitting and/or hearing. 

On the reliance placed by the Petitioner on the case of Anie & Ors. v. Uzorka & Ors (1993) I NWLR (Pt. 309) 1; to support the filing of the Petition on Sunday, it was the contention of the learned Senior Counsel to the 5th Respondent that the Petitioner only cited the portion of the judgment that tended to favour him. He proceeded to quote the relevant portions of the judgment and submitted that the case relates to the Court's power to sit or conduct hearing even on a Public Holiday if, circumstances demand but has nothing to do with filing of petition. According to him, it is only after the initiating Processes have been filed that the issue of "Special circumstances" permitting the Court to sit on Public Holiday may arise. He finally submitted that the Petitioner's Response in this context is grossly misplaced in law and urged us to resolve the issue in favour of the Respondent.

ISSUE NO.2 OF THE 3RD & 4TH RESPONDENTS

On this is issue which is whether the Petition is well constituted, Chief Olanipekun SAN referred us to paragraphs 1 and 2 of the Petition where the Petitioner claims to have sponsored General Mohammadu Buhari and Pastor Tunde Bakare as Presidential and Vice Presidential candidates at the Presidential Election. Paragraphs 8, 10, prayers 1, 3, 4 which show that the Petitioner appreciates the relevance and importance of contesting as candidates, more so when the Petitioner is praying under relief 6, for fresh election between her and the 3rd Respondent were also highlighted. 

Relying on Edokpolor & Co. Ltd. v. Sem Edo Wires Industries Ltd. (201) FWLR (Pt. 74) 399 at 424 paragraph A, (S.C.); Registered Trustees of M.W.H.U.N. v. Registered Trustees of Community Health Practitioners of Nigeria & Ors. (2008) All FWLR (Pt. 412) 1013 at 1074 paragraphs. A-B and Green v. Green (1987) 2 N.S.C.C. 1115 at 1125; he submitted that a court cannot make an order in vain and the necessary parties to a proceeding are the ones to be affected one way or the other by the order or decision of the court.

He also argued that in election petitions/matters necessary parties have to be joined and parties have been defined in Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at pages 313-314 and Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 423 and Section 137(1)(a)-(b) -(2) and non-joinder of petitioner's candidate Major General Muhammadu Buhari is fatal to its entire case. Tafida v. Bafarawa (1993) 3 NWLR (pt. 596) 70 at 83 paragraphs. E-H and C-E; Ubom v. Araka (1999) 6 NWLR (pt. 605) 99 at 112 paragraphs G-H were all cited to submit that the petition is incompetent as it is not properly constituted for non-joinder of the Presidential candidates. Accordingly, on the authorities of Bambe v. Adetunji (1997) 1 S.C. 1 at 8; Otawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) 746 at 785; it was submitted that the court is divested of the jurisdiction to look into the petition. He urged us to resolve the issue in favour of the 3rd and 4th Respondents.

ISSUE NUMBER 3 OF THE 3RD AND 4TH RESPONDENTS: questions whether the petition is not abusive of court process and/or raised hypothetical, academic and moot issue, and in this respect, the learned Senior Counsel referred us to Section 137(1) which gives more prominence to the candidate in an election for the presentation of a petition rather than a political party as in this case to single handedly and solely file a petition and ask for a major relief in the nature of a re-run between it and the candidate of another political party.

Accordingly, it was asserted that from the foregoing, the petition is not brought bonafides and on the authorities of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142 and Owonikoko v. Arowosaye (1997) 10 NWLR (Pt. 523) 6l at 76, the petition raised hypothetical, academic and moot question.

On what constitutes an academic issue he referred us to the cases of Plateau State v. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346 at 419 and also Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) at 180 paragraphs A-B.

It was submitted finally on this issue placing reliance on Adewumi & Anor. v. Attorney General Ekiti State (2002) 2 NWLR (Pt. 751) 454 at 525; Olale v. Ekwelendu (1989) 4 NWLR (Pt. 115) at 344; Kosile v. Folarin (1989) 3 NWLR (Pat. 107) 8; that in a plethora of cases it has been variously held that courts do not deal with hypothetical, academic and moot issues and that because the petition is bereft of live issues and all principles of election petition, it ought to be dismissed. We were again urged to dismiss the petition and resolve the issue in favour of the 3rd and 4th Respondents.

ISSUE NO.4 OF THE 3RD & 4TH RESPONDENTS; questions whether the Honourable Court possesses the necessary vires or jurisdiction to grant the reliefs sought? Here the learned Senior Counsel referred to the reliefs sought (particularly reliefs 1, 2, 4, 5, and 6), submitting that the petitioner is not claiming that he ought to have been declared winner but is contending that the election did not produce a winner in which case he admits that he was a failure and therefore lacked the locus standi to contest the results.

In particular he highlighted relief number 6 wherein the Petitioner claims that the 1st and 2nd Respondents should arrange for another election between the Petitioner and 3rd Respondent in conformity with Section 132 of the Electoral Act or other relevant provisions of the Constitution.

Reflecting on the sui generis nature of election petitions and the fact that paragraph 4(1),(3)(a) specifies the reliefs which a petitioner can seek, it was submitted that Section 133(1) of the Electoral Act, only vests a petitioner with a right to challenge an election or return since the jurisdiction of an Election Court is special. Orubu v. INEC (1988) 5 NWLR (Pt. 94) 323 at 347 and Kalmu v. Gumi (2003) 16 NWLR (Pt. 847) 493 at 519; Ajadi y. Ajibota (supra) at 174; Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 at 498-499 on the consequences of defect in complying with procedural step in an election were all referred to.

It was argued further that since the validation of the results of the units mentioned under prayer 5 is the basis of prayers 4, 5 and 6, the said prayers are without proper foundation and cannot be countenanced.

As regards relief 6, our attention was drawn to Section 221 of the 1999 Constitution and Amaechi v. INEC (2003) 1 SC (Pt. 1) 36 at 110, to contend that paragraphs 4 and 5 of petition admit that the 3rd Respondent contested election under the PDP (the 5th Respondent) but that the Petitioner in prayer 6 prays for a relief which is unconstitutional to make. Adeogun v. Fashogbon (2005) 17 NWLR (pt.1115) 149 at 193; P.R.P. v. INEC (2004) 9 NWLR (pt. 977) 24 and Paragraph 4(3)(a) of the First Schedule on the nature of reliefs to be claimed in an election petition which are suis generis and should be within the Constitution or Act and a host of other cases on jurisdiction were relied upon to contend that the Court lacks jurisdiction to entertain the reliefs. The issue he further urged should be resolved in favour of the Respondents.

ISSUES NUMBERS 5 AND 6 OF THE 3RD & 4TH RESPONDENTS which were argued together question whether Ground 1 of the Petition is not founded on pre-election matters, over which this court has no jurisdiction and whether the averments in paragraph 14(a) are not liable to be struck out in limine?

The learned Senior Counsel on these issues argued and answered the question posed in the affirmative that paragraphs 14A,B,C,D etc. of the petition all deal with pre-election matters which this Court has no jurisdiction to hear because they complain of wrongful and unlawful postponement of an election. He referred to Section 138(1)(a)-(d) of the Electoral Act which encapsulates the grounds upon which an election can be challenged submitting that it would be overstretching the frontiers of subsection (b) of Section 138 if unlawful postponement of election is subsumed within that subsection.

Furthermore the learned Senior Counsel alluded to Section 26(5) of the Electoral Act as to which Court is vested with the jurisdiction to hear matters pertaining to postponement of election or where the 1st and 2nd Respondent have acted within their powers in Section 28(4) of the Electoral Act to make a return in spite of the non-commencement of voting on the substituted postponed dates in the polling units. In his view the power to challenge a postponement of election in some polling units is limited to Sections 26(3) and 26(4) of the Electoral Act.

To illustrate the submission above he relied on Odedo v. INEC (2003) 17 NWLR (Pt. 117) 199; Zaranda v. Tilde (2003) 10 NWLR (Pt. 1094) 184 at 212.

For other issues constituting pre-election matters, the learned Senior Counsel referred to the issue of double registration and the affirmation or swearing to an oath by the electoral officers under Section 28 of the Electoral Act, as pleaded in the petition (paragraph 14(a) thereof) in support of the submission that the paragraph contains pre-election matters which the court does not have the jurisdiction to entertain. He placed reliance on Odedo v. INEC & 2 Ors. (supra) at 59-60 lines 35-10; Orji v. Ugochukwu (2009) 12 KLR (Pt. 273) 2493 at 2559; Ojo v. INEC (2003) 13 NWLR (pt.1105) CA 577 at 628; Amaechi v. INEC (2008) 1, MJSC 1 at 63;Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436 at 460 and Doukpolagha v. George (1992) 4 NWLR (Pt. zs6) 444 at 456.

On the submission that the entire paragraph 14 of the Petition particularly 14(a),(c),(d), (d)(i), (d)(ii), (d)(iv), (d)(ix), (d)(xii), (h), (i), (i), (k), (l), (m), (n), (o) and (p) are all argumentative and incompetent he urged us to strike same off or in the alternative strike out the entire petition on the authorities of Okudo v. Inspector General of Police (1968) 1 NWLR (Pt. 533) 3550 and Andomy v. Ayi (2004) All FWLR (Pt. 227) 464 at 471-472 per Thomas J.C.A. and finally Ojukwu v. Yar'Adua (2008) 4 NWLR (Pt. 1078) 435 at 462 which ratio was quoted in extenso as well as Uzodinma v. udenwa (2004) 1 NWLR (Pt. 854) at 303 and W.A.P.C. v. Adeyemi (2003) 12 NWLR (Pt. 835) 517.

It was contended that paragraph 14(b) is equally vague in that it is not supported by material facts in the petition, the petitioner having failed to specify the particular States in the South-South or South-East where the failure to collate and paste results of the collation centres were replete and that the depositions of the witnesses are mere hearsay more so, where the polling Agents who testified on pages 159-183 of the petition are limited to only Imo State and some units in Anambra State.

Accordingly and relying on the cases of INEC v. Anthony (2011)  7 NWLR (Pt. 1245) 1 and Buhari v. INEC (2008) 4 NWLR (Pt. 1078) 547 at 629; Ibrahim v. INEC (1999) 8 NWLR (Pt. 614) 334 at 351 and ANPP v. Usman (2008) 12 NWLR (Pt. 1100) 1 at 55, learned Senior Counsel reiterated that there are no material facts to support the allegation in the paragraphs and subparagraphs enumerated above apart from the allegations being vague, pre-election related and accordingly this Honourable Court has no business countenancing them. We were then urged to resolve the issue in favour of the Respondents/Objectors and strike out the petition for lacking in merit.

PETITIONER'S RESPONSE

In Response to the 2nd issue which complains of non-joinder of General Muhammadu Buhari and Pastor Tunde Bakare, thus rendering the petition incompetent, the learned Senior Counsel for the Petitioner argued that of all the cases cited by the 3rd and 4th Respondents, only Green v. Green (1987) 3 NWLR (Pt. 61) 480 is relevant to the determination of the issue. In this wise, he then referred us to Section 137(1) of the Electoral Act which specifically creates Statutory Petitioners to the extent that any one, not necessarily everyone of that class may sue. Egolum v. Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 397 which though dealt with who were proper Respondents, as stipulated in Section 50(2) of Decree No. 6 of 1999 on who were statutory defendants; Buhari & Anor v. Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446 at 493 as to who were necessary parties in election petition, per Uwaifo, J.S.C. at 497 to 498 and 536; on the interpretation of Section 133(2) of the Electoral Act, 2002; and finally Balonwu & Ors. v. Ikpeilzu (2005) 13 NWLR (Pt.942) 479 at 516 to 517; were all cited to submit that from the theme running through all the cases, it has been laid down that in the determination of election petitions, the court bases same on statutory provisions and not common law provisions as to who necessary parties are.

On the cases of Buhari & Anor. v. Obasanjo & Ors. (supra) and Egolum v. Obasanjo (supra) cited in paragraph 5.3 of page 21 of, the 3rd and 4th Respondents Address, Mr. Sofunde SAN, pointed out that they rather support the case of the petitioners.

Turning to the principle enunciated in Green v. Green (supra) which was decided on common law principles at page 499 of the Report, the learned Senior Counsel submitted that it is almost on all fours with the petition herein as both General Muhammadu Buhari and Pastor Bakare can be equated with Solomon Green who had interest in Jeky House Chieftaincy but was not joined and in spite of the non-joinder the action was not defeated, the court having pronounced that he was a desirable party.

He concluded therefore, that based on the provision of Section 137(1) of the Electoral Act as well as the cases relied upon, the petition cannot be defeated for non-joinder of General Muhammadu Buhari and Pastor Tunde Bakare.

On ISSUE NUMBER 3, whether the Petition constitutes abuse of court process by raising hypothetical, academic or moot questions, the learned Senior Counsel to the petitioner drew our attention to a passage in Saraki & Anor v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 189 paragraphs B-F; and the recent case of Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt. 724) 369 SC, and relying on the pronouncements in the above cases he asserted that once it is shown that the petitioner was exercising her legitimate right to petition, the question of the petition being an abuse of process, academic, hypothetical or moot questions should not arise from the issues raised.

ON ISSUE NUMBER 4, which is whether the Court possesses the necessary vires or jurisdiction to grant the reliefs sought, Mr. Sofunde, SAN, contended per contra that throughout the arguments of the learned Senior Counsel for the 3rd and 4th Respondents/Objectors, nothing was said about the incompetence of relief Number 1 (One) of the petition which relief is in terms of Section 140(1) of the Electoral Act.

Given this position, he maintained, it cannot be correct, even if other Reliefs are incompetent, for the Court to be divested of jurisdiction.

As regards relief Number 4, which was criticized, it was conceded that it does not come within the ambit of the Electoral Act, same being superfluous. On the contention by the Respondents that the Petitioner is without locus standi to seek for Relief Number 5, the learned Senior Advocate dismissed same as without foundation. With regard to relief 6, it was posited that it is in conformity with Section 140(2) of the Electoral Act which provides for the ordering of fresh election by the Court or Tribunal where the election was marred by substantial irregularities or non-compliance which is exactly the ground contemplated by relief 1. He maintained that relief 6 ought not to be sought if relief 1 is granted as the Court is mandated under Section 140(2) of the Electoral Act to order fresh Election. 

On the submission by the 3rd and 4th Respondents/Objectors that paragraph 4(1)(3)(a) of the 1st Schedule to the Electoral Act specifies the reliefs to be sought for by the Petitioner, it was argued that the examples of reliefs as stated are not exhaustive and that it is a canon of interpretation of Statute that the Statute must be read as a whole and in the case of paragraph 4(1)(3)(a); it must be read together with Section 140 of the Electoral Act in order to know the extent and the context to which the words "as for instance" can be restricted. 

Paragraph 4(1)(3)(a) of the 1st Schedule he concluded on this arm of his response, is not intended to reduce to silence the relief of conducting fresh election as permitted by Section 140(2) of the Electoral Act.

Finally, in respect of relief 5 which necessitated the argument of the objectors that Section 221 of the 1999 Constitution forbids any association other than a political party from canvassing for votes, it was submitted that such submission is totally irrelevant to the question as to whether relief 6 is to be granted. Also, it was contended that the question of unenforceability of an act is only relevant where it is not granted by Statute but where it has been provided by Statute it is not open to the court to consider its unenforceability or otherwise before granting same.

Section 140(2) of the Electoral Act he insisted, mandates the court to grant relief 6 irrespective of its enforceability. In respect of relief 2, the learned Senior Counsel for the Petitioner reiterated that even if the Respondents are right, their contention earlier is that one relief is enough to sustain the petition.

ISSUE NUMBER 5, whether Ground 1 (ONE) of the Petition is not founded on pre-election matters, over which this Honourable Court has no jurisdiction? In response to the arguments of the 3rd and 4th Respondents/Objectors on this issue, the Petitioner referred us to page 9 of the petition, paragraph 13(a) thereof, the averment therein which comes within Section 138(b) of the Electoral Act; and the whole of paragraph 14(a) pages 9- 18 setting out the facts upon which the petition is predicated.

On the submission by the Objectors that Section 26(5) of the Electoral Act vests the jurisdiction to challenge the postponement and rescheduling of election on the Federal High Court, the petitioner argued that this does not rob the Court of the jurisdiction to enquire under Section 138(b) whether the act amounted to non-compliance or corrupt practices, irregularities, and so on; as there are no restrictions as to what constitute non-compliance. Quoting from the decision of Ubaezonu, J.C.A. in Peters v. David & ors. (1995) 5 NWLR (pt. 603) 486; which was commended to us, the learned Senior Counsel, submitted on the authority of Ojo v. INEC & Anor. (2008) 13 NWLR (Pt. 1105) 577 at 628 paragraphs B-F; that if the issue had been determined by a High Court, it would ground estoppel per rem judicata but that the decision does not mean that a petitioner cannot prove pre-election matter if it would substantiate a ground under Section 138(b).

On the reliance placed by the Objectors on Odedo v. INEC (supra), it was submitted that the decision of the Court was predicated on the reliefs sought which were all pre-election matters (pages 602 paragraphs B-C and G thereof refer) and should not apply to the petition at hand because there is no ground or relief in the nature of pre-election matters, herein. He further picked on the cases of Zaranda v. Tilde & Ors. (supra); Amaechi v. INEC (supra); Jang & Ors. v. Dariye & ors (supra); Duokpolagha v. George & Ors; all which he submitted either the claims or reliefs sought in them were pre-election matters and are inapplicable to this petition. 

As regards the case of Ibrahim v. INEC & Ors. (supra), he contended that, that case was decided with regard to the particular provisions of paragraphs 6(3) and 7(2) of Schedule 4 of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No. 5 of 1999, which paragraphs were set ont at page 18 of the petitioner's Address.

On the reliance placed on the case of ANPP & Anor v. Usman (supra) in the articulation of the Objectors point still on the pre-election nature of Ground 1 of the petition, the learned Senior Counsel urged us to adopt Peters v. David & Ors. (supra), if there is any conflict between the decisions of the two cases so far as it preserves the jurisdiction of the court to look into the question of noncompliance by way of corrupt practices even when committed before the election in so far as they may have affected the outcome of the election. Learned Senior Counsel then went into reproducing the provisions of Section 21 of the Electoral Act No. 4, 2002, submitting that in spite of the fact that subsections 4, 5, 8, and 9 set out by the learned Counsel for the 3rd and 4ft Respondents pertain to pre-election matters, this court still entertained the case of Ojukwu v. Obasanjo & Ors.; wherein the only ground for challenging the election was that the 1st Respondent was not qualified to contest the election. The case, he maintained, went to the Supreme Court in (2004) 12 NWLR (Pt. 886) and at pages 198 paragraphs C-E; 202 paragraphs G-H, 221 paragraphs B-C and 225 paragraphs H to 226 paragraphs C, contain some passages which show that the complaint of the petitioner was heard on the merits, ditto INEC & Ors. v. Anthony & Anor. (2011) 7 NWLR (Pt. 1245) 1 of which they decided, looked at the issue of the competence of the 1st Respondent therein to contest the election having regard to the ground of non-qualification raised (pages 609 to 615 referred).

In conclusion, it was submitted from the foregoing that this Honourable Court has the jurisdiction to entertain the ground complaining of corrupt practices, non-compliance and irregularities. 

ISSUE NUMBER 6: Whether the averments in Paragraph 14(a) of the Petitioner's Petition are not liable to be struck out in limine? In response to the arguments of the 3rd and 4th Respondents/ Objectors on this issue, the learned Senior Counsel to the Petitioner as a prelude, observed that although the Respondents set out the various subparagraphs of paragraph 14 from (a) to (p) that ought to be struck out, the learned Senior Counsel for the Respondents limited their issue for determination Number 6 at page 13, to paragraph 4(a). It was therefore submitted that having limited themselves in issue 6 to paragraph 14(a) alone, the Respondents cannot argue beyond paragraph 14(a) for it has been held in Dilibe & Ors. v. Nwakozor (1986) 5 NWLR (Pt. 41) 315 at 333 paragraphs B-C; Nimateks Associates Ltd. & Anor" V. Marco Construction Co. Ltd. &Ors, (1991) 2 NWLR (Pt. L74) 411 at 431 paragraph D and Ogundiyan v. The State (1991) 3 NWLR (Pt. 18t) 519 at 533 paragraph B; that parties are bound by issues raised in their briefs of argument and they cannot go outside them.

In the alternative the Petitioner refuted the contention of the Respondents at pages 32 to 33 of their Address, that paragraphs 14(a) to (p) are incompetent for being argumentative. On the cases of Okudo v. Inspector-General of Police (1999) 8 NWLR (Pt. 533) at 335; and Andomy v. Ayi (2004) All FWLR (Pt. 227) at 464; Odumegwu Ojukrvu v. Yar'Adua (supra); Uzodinma v. Udenwa & Ors. (supra) and West African Portland Cement v. Adeyori (2003) 12 NWLR (Pt. 835) 517; all cited by the learned Senior Counsel for the Respondents/Objectors to buttress their contention on the argumentative nature of the paragraphs in question, the learned Senior Counsel for the Petitioner argued on the contrary that those cases were all irrelevant to the issue at stake as they either dealt with insufficiency of pleadings, but not on the inelegance of pleadings as to whether the paragraph is argumentative.

On the arguments of the Respondents at pages 34 to 35 of their Address on the vagueness, non-supportability of material facts and specification of the States in South-South and South-East of the country where there were failures to collate and paste results etc., etc., the learned Senior counsel repeated his submission on the limitation of the Respondents to paragraph 14(a) of the petition and submitted further by reproducing Ground F of the preliminary objection that none of the arguments in the Respondents' Address comes within the ambit of that ground of their objection or any other ground which omission is fatal to the Respondents' case. Okoya & Ors. v. Santili & ors (1990) 2 NWLR (Pt. 131) 172 at 205 paragraphs F-G per Agbaje, and Karibi-whyte J.J.S.S.; and Ibrahim v. INEC & ors. (supra) at 348 paragraphs B-G which ratio was quoted in extenso, were cited to buttress the above submission.

Without prejudice to the above submission, the learned Senior Counsel for the Petitioner canvassed the point that the issue of quality of evidence adduced by the witnesses as contended in the Respondents' Address on this arm of their submission is not a matter for preliminary objection but for trial. He added that if INEC & Ors. v. Anthony & Anor. (supra) and Buhari v. INEC & ors. (2008) 4 NWLR (Pt. 1075) 547 cited at page 34 of the Respondents' Address were in support of their contention of the poor quality of evidence adduced, then they are not appropriate at this stage. Moreover, he maintained it was not suggested in those cases that the petitions should be terminated in limine.

Finally, the learned Senior Counsel for the Petitioner anchored his response with a quotation from the decision in Obasanya v. Onolaja & Ors. (2001) 2 NWLR (Pt. 697) 266 at 276 paragraphs B-F on the nature of preliminary objection which should be whether the processes are regular and not about sufficiency of evidence which is more or less like a demurrer as facts to be determined at the trial should not be determined at the interlocutory stage. Accordingly, it was submitted that the 3rd and 4th Respondents' preliminary objection lacks merit and should be dismissed with substantial costs. It is worthy to note that the 3rd and 4th Respondents through their team of learned Counsel led by Chief Olanipekun, SAN, filed a Reply on points of Law on the 2nd of July , 2011 and in the course of the resolution of the issues we shall attempt to reflect on some of the salient issues raised therein, if necessary.

RESOLUTION OF ISSUES :

ISSUE NUMBER 1 OF ALL THE PARTIES.

We have gone the whole hog to reproduce almost verbatim the copious submissions of learned Senior Counsel on this vexed issue of filing the Petitioner's Petition on a Sunday, the 8th of May, 2011. Our approach is predicated on the time honoured legal principle that the issue of jurisdiction as raised by the learned Senior Counsel for the respective Respondents is the font et origo, the life blood and threshold of our adjudicatory system. As was ably held per Fabiyi, J.S.C., in the recent case of Shelim & Anor. v. Gobang (2009) All FWLR (Pt.1866) at 1877 paras. A-G:- "It is no longer a moot point that the question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire of any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity." Mustapha v. Governor of Lagos State (1937) 2 NWLR (Pt. 53) 539; Utih v. Onoyivwe (1991) I NWLR (Pt. 166) 166. Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of proceedings and even on appeal before this Court. State v. Onagoruwa (1992) 2 NWLR (PL 221) 33 at 54; National Bank v. Shoyoye (1997) 5 S.C. 181.

After all, the court pronounced with force in Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR (Pt 4) 557 that is court is only competent when:- 

(a) it is properly constituted with respect to the number and qualification of its members;

(b) the subject matter of the action is within its jurisdiction;

(c) the action is initiated by due process of law; and

(d) any condition precedent to the exercise of a jurisdiction has been fulfilled."

The above criteria for determining competence of a court have been restated by this Court several times; Skenconsult (Nig.) Ltd. & Anof v. Godwin Ukey (1951) LS.C. 6; Leedo Presidential Motel v. BON Ltd. (1995) 10 NWLR (Pt 570) 353 and also Timitimi v. Amabebe (1953) 14 WACA 374." Incidentally the locus classicus of Madukolu v. Nkemdilim (supra) and Skenconsult v. Ukey (supra) have been cited by each of the learned Senior Counsel for the Respondents (Objectors) in their respective call on this Court to strike out the Petitioner's Petition for non-compliance with the Rules, Statutes and criteria for the vesting of this Court with the jurisdiction to entertain this Petition. The dictum of Fabiyi, J.S.C. above reproduced and indeed the cases cited in support of the position he had taken shall set the tone for our resolution of this first issue.

Now, the learned Chiefs Olanipekun, SAN and Gadzama, SAN have argued that there is no dispute that prima facie, by the endorsement on the first page of the Petitioner's Petition, it was filed on the 8th day of May 2011 which was a Sunday. Chief Olanipekun, SAN has also rightly submitted that Paragraph 54 of the 1st Schedule to the Electoral Act, 2010 (As Amended) enjoins us to apply the Federal High Court (Civil Procedure) Rules with such modifications as may be necessary to render them applicable having regard to the provisions of the Act, in Election matters.

The learned Mr. Ebun Sofunde (SAN) has also rightly argued that the Federal High Court (Civil Procedure) Rules are only applicable "subject to the express provisions of this Act" (i.e. the Electoral Act, 2010 (As Amended)" In other words, the Rules are subordinated to the Electoral Act, 2010 (As Amended) and the Rules made there under which are provided for under the 1st Schedule thereto. See Din v. Attorney-General of the Federation (1988) 4 NWLR 147; Kaycee (Nig.) ltd. v. Prompt Shipping Corp. & Anor. (1986) 1 NWLR 180; and Chief Denis C. Osadebay v. The Attorney-General of Bendel State (1991) 1 SCNJ 162 at 211 and 213; Per Nnaemeka-Agu, J.S.C. who held that "For it is the law that where a legislation derives its force of authority from & paramount enactment, the subordinate legislation, in appropriate metaphor, draws its life-blood from the paramount enactment and cannot have a wider binding force than the latter."

Against this background we shall now consider the various Acts and Rules relied upon to buttress each other's disparate positions on this issue. Beginning with Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 which is the fulcrum of the Respondents' case, it provides thus:-

"Subject to the directions of the Chief Judge, sittings of the court for the dispatch of civil matters will be held on every week days except:

(a) on a public holiday;

(b) during the week beginning with Easter Monday;

(c) during the period beginning on 23rd December and ending on the 5th January next following;

(d) during the long vacation, i.e. the period beginning in any day in August and ending on a date not less than six weeks later ending on a Friday as the Chief Judge may by notification in the Gazette appoint"

The learned Senior Counsel for the Respondents and Petitioner have respectively anchored their submissions on Paragraphs 25(1) & (2) and 26(1) & (2) of the 1st Schedule to the Electoral Act, 2010, which provide that hearing of election petitions shall be from day to day until conclusion unless the Tribunal or Court so directs that there should be formal adjournment for that purpose and where the Tribunal Chairman or the Presiding Justice of the Court is disabled by illness or otherwise, the hearing may be recommended (sic) and concluded by another Chairman or Presiding Justice to be appointed by the appropriate authority. (Paragraph 25(1) and (2)).

Again, after the hearing of an election has begun, if the continuation of hearing cannot take place because the ensuing date is a Sunday or Public Holiday, the hearing shall not be adjourned sine die but to a definite day to be announced before the rising of the tribunal or the court and notice of the day to which the hearing is adjourned shall be posted by the Secretary on the Notice Board. 

The hearing may be continued on a Saturday or on a Public Holiday. (See paragraph 26(1) & (2)).

Although by the legal maxims "expressio unius est exclusion alterius, "Generalia specialibus non derogant" and the cases of Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44 at 64 and 65; Inakoju v. Adeleke (2007) 4 FWLR (Pt. 1025) 123 at 629; Schroder & Co. v. Major & Co. Ltd. (1989) 2 NWLR (Pt. 101) 1 at 6; are on the point in that Rule 4 of Order 46 and paragraphs 25 (1) &, (2) of the 1st Schedule to the Electoral Act, 2010 (As Amended) are not related to filing and opening of the Registry, and by virtue of Section 15(4) & (5) of the Interpretation Act and Section 4 of the Public Holidays Act, Sundays and Public Holidays are discounted in the computation of time where the doing of a thing is within a period which does not exceed six days; the learned Senior Counsel for the Petitioner has made a very salient point which cannot be ignored.

Apart from the fact that the provisions of Order 46 Rule 4 are subject to the discretion of the President, the submission of the learned Senior Counsel Sofunde, SAN, that implicit in the provision of paragraph 26(2) of the 1st Schedule to the Electoral Act, is that the Electoral Act envisages the opening of the Registry to do business on Saturdays and public holidays, is unassailable. This is because without the opening of the Registry, the Court ordinarily cannot sit.

Indeed whereas, the Registry may open without the Court sitting, the Court cannot sit without the opening of the Registry. 

Mr. Sofunde, SAN; indeed hit the nail on the head and concretized his submission with the provision of the Interpretation Act (Section 10(2) thereof) which states that:- 

"An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it."

Where, as in this case, the Rules and Schedule subject the sitting of the Court on non dies or public holidays to the discretion of the President, it logically follows from the provision of Section 10(2) of the Interpretation Act, that he has powers incidental to the opening of the Registry on those days.

This brings us to the Provision of Order 56 Rule 7 of the Federal High Court (Civil Procedure) Rules which stipulates thus;-

"7. The Registries of the Court shall, subject to the directives of the Chief Judge be opened to the public on every day in the year from 8 0'clock in the forenoon to 2 o'clock in the afternoon, except on Saturdays and Sundays or on any day declared as public holiday by the Federal Government"

The learned Senior Counsel for both the 3rd and 4th Respondents and 5th Respondent have argued with all force and vigour that this Rule indeed does not empower the Honourable, the President, to permit the Petitioner to file her Petition on a Sunday and cited particularly Ikhariale v. Okoh (supra) per Ogunwumiju, J.C.A. which the learned Senior Counsel for the 3rd and 4th Respondents posits, is the only authority on whether the Registry of a Tribunal or Court can open on a Saturday, Sunday or public holiday. In that case my Lord Ogunwumiju, J.C.A.; cited Iloka v. Itomi (1999) 2 NWLR (Pt. 592) 583, Section 15(5) of the Interpretation Act, Order 23 Rule 1(d) of the Federal High Court (Civil Procedure) Rules; Paragraph 25 of the 1st Schedule to the Electoral Act; and indeed Military Administrator of Delta State v. Olu of Warri (1997) 7 NWLR (Pt. 513 430; to hold that paragraph 25 of the 1st Schedule to the Electoral Act; does not state that the Registry of the Tribunal could open on a dies non juridicus as no legal business can be conducted on such days.

With due reverence, the attention of His Lordship may not have been drawn to the provisions of Section 10(2) of the Interpretation Act, which gives the Chairman incidental powers by paragraph 26 of the 1st Schedule to give directives for the Registry to open. 

Indeed, contrary to the submissions of the learned Senior Counsel on behalf of the Respondents, Section 150 of the Evidence Act provides for the presumption of regularity in the following terms:-

"150(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied.

(2) When it is shown that any person acted in a public capacity it is presumed that he had been duly appointed and was entitled so to act"

In the instant case the Petitioner's Petition as has been said earlier bears the stamp and imprimatur of the Registrar and Registry of the court of Appeal as having been filed on the 8th day of May, 2011 and therefore provides prima facie evidence of the regularity or otherwise for this Court to invoke the presumption under Section 150 of the Evidence Act in favour of the Petitioner. The position of the law is as expressed in the Latin maxim "Omnia praesumuntur rise esse acta" that is the presumption that what is done is presumed to brightly or regularly done. See the cases of Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 and Okeke v. The state (2003) 15 NWLR (Pt. 842) 25.

Again, contrary to the submissions of the learned senior counsel to the Respondents, the burden of establishing that there was no directive from the president to the Registrar to open the Registry on Sunday the 8th of May, 2011 for purposes of filing the Petitioner's petition was/is on the Respondents which has not been discharged.

Although Ikhariale v. Okoh had been cited, we have demonstrated as we shall demonstrate anon that, that authority did not take into consideration the entire provisions of the Interpretation Act and indeed the Public Holidays Act, Cap. P40, Laws of the Federation of Nigeria, 2004. Suffice it to say that the English Authorities cited by Chief Gadzama are not applicable to the facts and circumstances of this case.

The learned Senior Counsel for the Petitioner in the course of his argument has referred us to Section 6(1) of the Public Holidays Act which states inter alia:-

"Notwithstanding any of the foregoing provisions of this Act, the Permanent Secretary of a Ministry or the Head of any Government Department may, unless otherwise ordered by the appropriate authority, if in the interest of the public service or the convenience of the public demand it, require all or any of the persons serving in his Ministry or Department, as the case may be, to perform on a Saturday, Sunday, or Public holiday such of their duties as he may deem necessary."

The Act caps it up with the clincher in Section 6(3) thereof which reads:-

"(3) In this Section, references to Department include references to any court or tribunal set up pursuant to any enactment or any other institution the emoluments of whose employees are paid out of the consolidated Revenue Fund of the Federation or of a State or any other public fund of the Federation ......"

Commenting on the provisions of the above sections of the public Holidays Act, this Court, Per Nweze, JCA, in Daramola v. Aribisala & Anor. (2009) All FWLR (Pt. 496) 1964 at 2015 - 2017, Paras E-D; succinctly intoned:-"In the Latin days of the Law, days exempt from court proceedings were referred to as dies non juridicus, for convenience often abbreviated to dies none. Such days were almost always public holidays.

In Nigeria, there is an enactment that specifies days to be observed as public holidays. It is known as the Public Holidays Act. It is in Chapter P40, Laws of the Federation of Nigeria, 2004. It is a short enactment of only seven sections and a schedule. In all, the Act specifically itemizes ten such days to be so observed as public holidays. They are: New year's Day, Good Friday, Easter Monday; Workers' Day (1st May), Democracy Day (39th May); National Day (1st October), Christmas Day; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of ld-el-Fitr; such day as the Minister may declare to be a public holiday in celebration of the Muslim festival of ld-el-Kabir and such day as the Minister may declare to be a public holiday in celebration of the birthday of the Prophet Muhammed (Id-el-Maulud), section 1 and the Schedule. (Under the Act, those days are work-free days, section 2(3).

Now, counsel for the appellant had contended in paragraph 2.02 of his address dated 26 February 2009, that "Saturday, Sunday or public holiday are non dies, they are not working days in Nigeria within the realm of the Public Service."

With due respect, not only is this contention unsupportable having regard to the above provision, pursuant to section 6 of the Act, If it is in the interest of the public service or if the convenience of the public demands it, public servants and public officers can even work on Saturdays, Sundays and Public Holidays Section 6 provides thus: - ..........

Under section 6(3), references to department include references to any court or tribunal set up pursuant to any enactment Appellant's counsel in reaction to this provision took the view that this section cannot be invoked in the determination of this issue. According to him, the tribunal or its registry can only perform their duties on a Saturday, Sunday or public holiday when the President of the Court of appeal issues a directive to that effect. From all indications, this submission even overlooks one major fact. Since electoral justice may be compared to the vein which conveys the life-blood that sustains the heartbeat of our democratic experiment, Orubu v. I.N.E.C. (1988) 5 NWLR (Pt 94) 323 at 347, public interest demands that election petitions should be dealt with expeditiously. In his anxiety to satiate the public interest, the law maker, in paragraph 25(2) of the first schedule to the Electoral Act, even provides that hearing of petitions may be "continued on a Sunday or on a public Holiday if circumstances dictate". Thus, the lower Tribunal did not require any further administrative directives from the President of this court to continue with the business of the tribunal, if the circumstances dictated that it should do so."

The parties have each cited the Supreme Court case of Anie v. Uzorka (supra) to buttress their respective stance on why the petition should be struck out or sustained, In that case, Onu, J.S.C. gave judicial assent to Sections 6(3) and 6(1) that the Chief Judge and (herein the Honourable President) in their roles as judicial administrators, are empowered to request work to be done on a dies non juridicus. As for sitting or filing of processes like the Petition which is now the bone of contention in this case, this Court, per Agube J.C.A.; had in Kupolati v. Oke (2009) All FWLR (Pt. 486) 1853 at 1916 to 1917 cited the portion of Anie v. Uzorka (supra) where the apex Court held that any Judge has the jurisdiction to sit on a Sunday which is a dies non juridicus provided it does not compel the litigants who are members of the public or their Counsel to appear in Court.

By parity of reasoning; it has not been shown in this case that the Petitioner or Counsel on her behalf was compelled to file her petition on a Sunday so as to warrant the invalidation of the said petition. Indeed, the zeal to file his petition before the expiration of the time stipulated by the Electoral Act and the sacrifice by the staff of the Registry to work on a Sunday owing to the Sui generis nature of election petitions(which ought even to be commended), cannot attract the ire of the court. The Respondents have not complained that they have suffered any injustice nor can they be heard to so complain of any injustice occasioned them by the filing of the Petitioner's processes on a Sunday.

"The hey days of technicalities are now over because the weight of judicial authorities has shifted from undue reliance on technicalities to doing substantial justice even-handedly to the parties." per Achike, J.S.C. (of blessed memory). See Egolum v. Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 413; General Muhammadu Buhari & Anor v. Alhaji Mohammed Dikko Yusuf & Anor (2003) 14 NWLR (pt. 841), 466 pages 498-499; per Uwaifo J.S.C. It is on these grounds that we hold that the petition is not a nullity for being filed on Sunday. This Court is therefore seised of the jurisdiction to entertain the Petitioner's Petition. Issue Number 1 of all the parties is resolved in favour of the Petitioner.

RESOLUTION OF ISSUE 2 OF THE 3RD AND 4TH RESPONDENTS. 

In the resolution of this issue it is necessary to have recourse to paragraphs 1 and 2 of the Petition to which the learned SAN, Chief Olanipekun drew our attention. As he aptly stated, those paragraphs aver that the Petitioner (Congress for Progressive Change a.k.a. CPC), was the sponsor of General Muhammadu Buhari and Pastor Tunde Bakare as its Presidential and Vice Presidential candidates - the duo who were sponsored to contest and indeed contested the Presidential Election of 16th April, 2011 "and the Petitioner as such has the right to bring this Petition." 

In particular Paragraph 2 avers:

"2. Your Petitioner is a registered political party in Nigeria that participated in the Presidential election held on Saturday the 16th day of April, 2011 in Nigeria, in which it sponsored General Muhammadu Buhari and Pastor Tunde Bakare as its Presidential and Vice Presidential candidates, And your Petitioner claims that it has a right to present this election Petition."

We have deliberately underlined some portions of the above paragraph of the petition in view of the contentions of the parties on this issue which in the main is whether the non-joinder of Muhammadu Buhari and Pastor Tunde Bakare as Petitioners is fatal to this petition, thereby warranting its being struck out. We shall call on the Electoral Act and judicial authorities decided in that respect to give us a clue.

Section 137(1) of the Electoral Act 2010 (As Amended) which by its marginal note deals with "Persons Entitled to Present Election Petitions", provides thus:-

"737.-(1) An election petition may be presented by one or more of the following Persons -

(a) a candidate in an election;

(b) a political party which participated in the election."

From the underlined portions of paragraph 2 of the Petition, the petitioner has pleaded that it is a registered politic al patty in Nigeria that participated in the Presidential election held on Saturday the 16th day of April, 2011 in Nigeria and having sponsored Muhammadu Buhari and Tunde Bakare as it's Presidential and Vice Presidential candidates at the said election, it therefore has a right by virtue of Section 137(1)(b) of the Electoral Act, 2010, to present this petition.

The 3rd and 4th Respondents have in their ingeneous arguments insisted that since the Presidential and Vice Presidential Candidates were sponsored by the Petitioner, they ought to be joined more particularly because in prayers 1, 3 and 4, the Petitioner seeks the nullification of the election of the 3rd and 4th Respondents and not that of the PDP; and also for fresh election to be arranged between it and 3rd Respondent and not with the 5th Respondent. 

We have also been inundated with avalanche of decided cases on joinder of parties, one of which is Edokpolor & Co. Ltd. v. Sem EdoWires Ind. Ltd. (2001) FWLR (Pt. 74) 399 at 429 paragraphs A; where the Supreme Court restated the need to join all necessary parties to a Suit in the following terms:-

"It is essential to join all necessary parties in a suit so as to enable the Court effectively and completely adjudicate upon and settle all questions in controversy." 

The cases of Registered Trustees of M.W.H.U. v. Registered Trustees of Community Health Practitioners of Nigeria & Ors (2008) Alt FWLR (Pt. 412) 1013 at 1074, paragraphs A-B and Green v, Green (1937) 2 N.S.C.C. 1115 at 1125; on the general and common law principles of joinder and non-joinder of parties cited by the Respondents, are no doubt, apposite. 

However, it would appear that all the cases cited in respect of election matters particularly Buhari v. Obasanjo (supra); Egolum v. Obasanjo (supra); Tafida v. Bafarawa (supra); and Ubom v. Araka (supra); even though decided on sound legal principles and on their peculiar facts and circumstances; have been cited out of context in the petition herein. Although Buhari v. Obasanio (2005) 13 NWLR (Pt. 941) 1 at 313-314 enumerated necessary parties who ought to be joined at an election petition, the case, as was rightly argued by the learned Senior Counsel for the petitioner, related to non-joinder of Statutory Respondents, ditto Egolum v. Obasanio; Buhari v. yusuf & Ors. (supra) which were all decided on the basis of either Statutory Respondents or principles of audi alteram partem or fair hearing. See the various dicta of Uwaifo, J.S.C., in Buhari v. Yusuf (supra); Obaseki J.S.C. in obih v, Mbakwe (1984) 1 SCNLR 192 at 204 and Belgore, J.S.S. (as he then was) in Egolum v. Obasanjo (1999) 7 NWLR (pt. 611) 355 at 397; which for lack of space cannot be reproduced here as done in the Petitioner's Written Address at pages 9 and 10 respectively.

In fact Egolum v. Obasanjo (supra) and Buhari v. Obasanjo (supra) rather support the case of the Petitioner and the learned Senior Counsel for the Petitioner had sealed the doom of the Respondents' objection on this ground of non-joinder when he drew the analogy between Solomon Green who had interest in the Jeky House Chieftaincy but was not joined as a plaintiff in Green v. Green (supra) and General Muhammadu Buhari and Pastor Tunde Bakare who as candidates sponsored by the Petitioner were also not joined in this petition. For, although they are desirable parties who may benefit from the outcome of the petition, the Electoral Act gives the Political party (C.P.C.) under whose umbrage they contested the election, the right to challenge the election and neither the Respondents nor even this Court can compel the Petitioners to join the said candidates in this petition.

The argument that the Court does not make an order in vain and that a necessary party is that party that would be affected by the order or decision of the Court as advanced by the Respondents is non sequitur in view of the Statutory provision in Section 137(1)(b) that recognizes the fact that a political party is a juristic person with the right to sue and be sued. In this context, it would appear that the Electoral Act by that Section recognizes the commonality of interest between a political party and its sponsored candidates and that any or both of them can bring a petition to challenge an election of which they were Participants. 

Also, by parity of reasoning and extrapolation, by a community reading of Section 137(1)(a) and (b) and subsection (3) of that Section which stipulates unequivocally as follows:- 

"(3) If the Petitioner complains of the conduct of an Electoral Offices, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be: 

(a) made a respondent; and

(b) deemed to be defending the petition for itself and on behalf of its officers or such person"

Even though Muhammadu Buhari and pastor Tunde Bakare have been joined in this petition, the petitioner shall be deemed by provisions of section 137(1)(b) to be prosecuting the petition behalf of the candidates as a corollary to Section 137(3) of Electoral Act, 2010 (As Amended).

In any event, by the combined effect of section 137(1)(b) and (3) of the Electoral Act, 2010 (As Amended), order 9 Rule 1 (1) (2) and (3) of the Federal High court (civil Procedure)Rules, 2009 and Paragraph 53 (1) and (4) of the 1st Schedule to the Electoral Act and the cases of Bello v. INEC (2010) 8 NWLR (pt. 1196) 342; Sapo v. Sunmonu (2010) 11 NWLR (pt. 1205) 374; no proceedings shall be defeated by reason of misjoinder or non joinder of parties and a Judge may deal with the matter in controversy, so far as regards the right of the parties. Where as in this case, the Electoral Act recognizes the inalienable rights of either the party, or candidate or both to bring a petition in this Court, the petition cannot be struck out for non- joinder of Muhammadu Buhari and Pastor Tunde Bakare. See per Kalgo J.S.C. in Obasanio v. Buhari (2003) 17 NWLR (pt. 850) 510 at 563. 

On the whole, this Court has the jurisdiction to entertain this Petition which is properly constituted even without the joinder of the Presidential and Vice Presidential candidates of the Petitioner.

Issue Number 2 is resolved in favour of the Petitioner.

RESOLUTION OF ISSUE NUMBER 3: The basis of the Objectors' contention is that there is no precedent for a political party to singly or solely file an election petition and asking for a major relief that a re-run election be ordered between it and the candidate of a political party. The learned Senior Counsel for the Respondents had cited Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188; Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142 and Owonikoko v. Arowosaye (1997) 10 NWLR (pt. 523) 61 at 76 on the connotation of abuse of Court process as "where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness." This may well be the position of the law.

Oputa, J.S.C, in the locus classicus of Amaefule & Anor. v. The State (1988) 2 NWLR 156 at 117; laid bare the essential elements of abuse of Court process when he posited thus:- 

"Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper Use of legal process........On very careful consideration, I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fide; it has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain result not lawfully warranted or properly attainable thereby- "

Also, there is no doubt that in Plateau State v. AG Federation (2006) 3 NWLR (pt. 967) 346 at 416, the court had held that a suit is academic, if it is merely theoretical, full of sound and fury but of no utilitarian value to the Plaintiff even if judgment is given in his favour. Ajadi v. Ajibola (supra); Adewumi & Anor v. AG Ekiti State (2002) 2 NWLR (pt. 751) 454 at 525; Olale v. Ekwelendu (1989) 4 NWLR (pt. 115) 344 and Kosile v. Folarin (1989) 3 NWLR (pt. 107) 8; all cited by the Respondents/Objectors may have decided, and rightly too, that the Courts are not concerned with hypothetical, academic and moot questions.

It is also the law that where a suit is initiated solely with bias and malicious intent for the purpose of deliberately misusing or perverting the court system for an otherwise unattainable result, then such a suit should be struck down for abuse of court process. 

Going by the definitions of the term "abuse of court process" as enunciated by the above cited authorities, can one with all honesty and reasonability categorize this petition as falling within the parameters or ambit of an abuse process? Section 137 (1) (b) of the Electoral Act as we had earlier held gives the Petitioner as a political party that sponsored candidates at the Presidential Election, the right to initiate proceedings challenging an election of which they participated.

By Paragraphs 1 and 2 of the Petition, the Petitioner is statutorily imbued with the right to bring this petition before this Court and no ill motive, hypothetical, academic, or moot questions can be inferred from the Petitioner's right to question the election more particularly as the grounds upon which the petition is predicated are as cognizable by Section 138 (1)(b) and (c) of the Electoral Act, 2010 (As Amended) i.e. that "the 3rd and 4th Respondents were not duly elected by majority of lawful votes cast at the election" and "that the election was invalid by reason of corrupt practices and substantial non compliance with the provisions of the Electoral Act, 2010, which substantially affected the result of the election."

We therefore totally agree with the submissions of Mr. Ebun Sofunde, SAN, and on the authorities of Saraki & Anor v. Kotoye (1992) 9 NWLR (pt 264) 156 at 189; paras. B - C and Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (pt. 724) 369, S.C per Karibi Whyte, J.S.C, that:-

"it cannot be abuse of process of court to exercise bona fides one's undoubted right to appeal (here to petition) conferred on him by the Constitution (herein the Electoral Act, 2010 (As Amended)."

Having shown that a right is conferred on it by the Electoral Act, malice or motives (which do not even exist in this case) are immaterial to the presentation of the petition. 

Accordingly, this issue is again resolved in favour of the Petitioner as we hold that the petition is not abusive of court process nor does it raise hypothetical, academic, or moot questions or issues. The issues raised in the petition are live and donated by the Electoral Act to the Petitioner as of right.

RESOLUTION OF ISSUE NUMBER 4:- In the Resolution of this issue, our starting point is to strike out relief 4 of the Petition since the Petitioner has conceded in paragraph 6.3 of the Petitioner's Written Address at page 13 that "it does not come within the ambit of the Electoral Act." That relief is therefore struck out accordingly.

As regards relief Number 6, we agree with the submission of Chief Olanipekun, SAN, that it is constitutionally un-grantable. This is because the invocation of the provisions of Section 134 (4) of the Constitution, under which the relief is predicated, has not arisen or did not arise during the election. No situation of a tie as contemplated by the provision of the Constitution aforesaid has also arisen so as to call for the invocation of Section 140 (2) of the Electoral Act, 2010 as submitted by the Petitioner. Relief Number 6 is also struck out. 

We have considered the arguments for and against the remaining reliefs namely: - 1, 2, 3, and 5 and are of the considered view that they are sustainable under the Electoral Law. Accordingly, they are not liable to be struck out but renumbered as reliefs 1, 2, 3 and 4. This issue succeeds in part.

RBSOLUTION OF ISSUE NUMBER 5:- It is trite and we agree with the Respondents contentions that this Honourable Court as constituted has no jurisdiction to entertain pre-election matters. See Odedo v. INEC (supra), Orji v. Ugochukwu (supra); Oio v. INEC, etc.; Olofu v. Itodo (2010) 18 NWLR (pt. 1225) 545; and Ucha v. Onwe (2011) 4 NWLR (Pt. 1237) 386.

As regards the submissions of the learned Senior Counsel for the 3rd and 4th Respondents on the issue raised above, it is clear and a careful perusal of the petition would reveal that there is no Ground 1 as stated in the Respondents' Written Address. However, Paragraph 13 (a) of the Petition contains the ground that is consistent with Section 138 (1) (b) of the Electoral Act. It therefore follows that the Ground is cognizable under the law and is sustainable.

Accordingly, Issue 5 is resolved in favour of the Petitioner.

RESOLUTION OF ISSUE NUMBER 6:- We have taken a cursory look at paragraph 14 of the Petition and its sub-paragraphs that the 3rd and 4th Respondents pilloried as being incompetent on the ground that they are argumentative particularly paragraphs (a), (c), (d), (d)(i), (d)(ii), (d)(xiv), (d)(vi), (d)(ix), (h), (i), (i), (k), (l), (m), (n), (o), and (p) which the learned Senior Counsel on behalf of the Respondents urged us to strike out on the authorities of Okudo v. IGP (1988) I NWLR (pt. 533) and Andony v. Ayi (2004) ALL FWLR (pt. 227) 464 at 471-472 per Thomas, J.C.A, where particulars of Grounds of Appeal were struck out for being argumentative, repetitive and narrative. Also we are not unaware of the decision in Ojukwu v. Yar'Adua (2003) 4 NWLR (pt. 1073) 435 at 462; which decision was copiously quoted at page 33 of the 3rd and 4th Respondents/Objectors Written Address on the need for facts pleaded in support of a petition to be precise and clear.

However, the learned Senior Counsel for the Petitioner has rightly observed (and we are in total agreement with his submission) on the authorities of Dilibe & Ors. v. Nwakozor (1936) 5 NWLR (pt. 41) 315 at 333 paragraphs B - C; Nimateks Associates Ltd. & Anor. v. Marco Construction Co. Ltd. & Ors. (1991) 2 NWLR (pt. 174) 411 at 431 paragraph D and Ogundiyan v. The State (1991) 3 NWLR (pt. 181) 519 at 533 para. B; that just like parties are bound by their pleadings and should not set up a case different from what they have pleaded during the hearing of the case, so shall learned Counsel be bound by the issues raised in their Briefs of Argument or their Written Addresses.

Thus, having by Issue 6 limited themselves to paragraph 14 (a) in spite of the fact that by Ground F of the grounds upon which the objection was predicated, their complaint was that "the entire paragraph 14 of the Petition is incompetent and/or argumentative particularly paragraphs 14 (a)............... ", they are deemed to have abandoned their complaint on the rest of the paragraphs except paragraph 14 (a).

Again, since none of the arguments canvassed in paragraph 8.7 of the 3rd and 4th Respondents' Written Address is covered by Issue Number 6, all those arguments go to no issue and accordingly have been discountenanced.

Finally, notwithstanding that the facts pleaded in the opening sentence of paragraph 14(a) complain of multiple registration of voters which facts relate to pre-election matters, this Court is seised of the vires or jurisdiction to entertain such a complaint since at the tail end of the paragraph, the sentence ends with the complaint that the multiple registration of voters at the polling units led to multiple voting by members of the 5th Respondent at the units. The dictum of Salami, J.C.A (now P.C.A) in Ibrahim v. INEC (1999) 1 NWLR (pt. 614) 334 at 351 and the decision in A.N.P.P v. Usman (2008) 12 NWLR (pt. 1100) 1 at 55; cited by the Respondents although, decided on their peculiar facts and circumstances, with the greatest respect, are not applicable to this case.

This issue is resolved against the Respondents and on the whole the Preliminary Objection of the 3rd and 4th Respondents partly succeeds.

5TH RESPONDENT'S ISSUES.

ISSUE NUMBER 2.-On this issue which is whether the non-joinder of the Police, the Army, and Civil Security Agents is proper and sustainable in law, given the spurious allegations levelled against them, Chief J.K. Gadzama, SAN, drew our attention to the position of the law (the Electoral Act, 2010 (As Amended)) and paragraphs 14(d)(iv) and 38 of the Petition, submitting that where specific allegations have been made against persons or group of persons in an election petition, the proper procedure in law is to join them. In the instant case, he continued, since the petition has severally mentioned in the above mentioned paragraphs, members of the Police Force, the Army and Civil Security in general, they should have been joined because without them the issue raised cannot be effectively resolved.

To buttress his submission, the learned Senior Counsel sought solace in Egolum v. Obasanjo (1999) 7 NWLR (pt. 609) per Belgore, J.S.C (as he then was) who pronounced on the various paragraphs in which allegations were made against Electoral Officers who were not joined, as incompetent for non - joinder. The learned Senior Advocate further referred us to Section 137 (3) of the Electoral Act, 2010 (As Amended), which dispenses with the joinder of Electoral Officers as parties once the Electoral Commission has been sued. He however, insisted that the Police, the Army, and Civil Security are definitely not staff of the Commission and must be afforded the chance to defend themselves against the allegations of criminal nature levelled against them.

Furthermore, it was contended that the serious criminal allegations against the Police, Army, and Security Agencies would affect the petition either negatively or positively and the affected Agencies should not be condemned unheard. In the light of the above submissions, he urged us to strike out paragraphs 14 (d) (iv) and 38 of the Petition as well as the various Witnesses statements in which the Police, the Army, and Civil Security Agencies were mentioned as having committed electoral offences, as they go to no issue the parties having not been joined.

In response to the above submissions, the Petitioner through Chief Sofunde, SAN, quoted a passage of Egolum v. Obasanjo (supra) at page 397 B-C for the proper import of that decision submitting that the statement that every one against whom allegation is made in an election petition must be given the opportunity to be heard was made in the context of Section 50 (2) of Decree No. 6 of 1999 which created statutory defendants who must be joined in a petition where their conduct was subject to complaint.

The learned SAN then referred us to the dictum of Uwaifo, J.S.C in Buhari & Ors. v. Yusuf & Anor. (2003) 14 NWLR (pt. 841) 446 at 493 paras. D - H which according to the underlined portions of the reproduced ratio, explains the purport of Egolum v. Obasanio & Ors. (supra) and that by that passage, a necessary party is only one because the provisions of a statute have made him thus. Furthermore, he noted, the passage demonstrates that a person who has not been made a necessary party by statute cannot be made a party in order to make allegations against him; as such a person can only be "someone who will need to be called as a witness". In this context therefore, he maintained that the Nigeria Police Force, the Army and Civil Security are not necessary parties by virtue of Section 137(3) of the Electoral Act as they qualify as persons who need to be called as witnesses but need not be joined.

References were made again to pages 497 to 499 paragraphs H-A of Buhari & Anor. V. Yusuf & Anor (supra), per Uwaifo, J.S.C. and distinguished between the provisions of Section 133(2) of the Electoral Act, 2002, which fell for interpretation and contained "any other person who took part in the conduct of an election" as against the current provision of Section 137(3) that has no such identical provision. Accordingly, it was submitted that the category of persons not joined in this case does not qualify to be joined by virtue of the statement in the above passage and a fortiori, the Police, Army and Civil Security Agencies are not necessary parties but are parties who should be called as witnesses. Ige v. Farinde (1994) 7 NWLR (Pt.584) 42 on the key test for joinder of parties in an action which is that the case cannot be effectually and completely settled unless the parties are joined, was again cited, to submit finally on this arm of the issue that the Police, Army and Civil Security have no interest and will not be affected by the result of the petition. He therefore called on us not to strike out any particular paragraph of the petition. 

In respect of paragraph 38 which was reproduced at page 9 paragraph 4.12 of the Written Address, the learned Senior Counsel submitted that in so far as the Petitioners elected to treat the Security Agencies as agents of INEC, it is open to them (Petitioners) to sue the principals alone in so far as there is no provision making them Statutory defendants.

ISSUE NO. 3 OF THE 5TH RESPONDENT:- Questions whether the joinder of the 2nd, 6th-42nd Respondent is proper and sustainable in law, having regard to the provisions of Section 137(3) of the Electoral Act, 2010 (As Amended). Arguing this issue, the learned Senior Counsel for the 5th Respondents cited Section 137(3) of the Electoral Act, 2010 (As Amended) to submit that the 2nd, 6th-42nd Respondents are not necessary parties.

He pointed out that one cannot claim ignorance of Section 144(2) of the Electoral Act, 2006 which he reproduced at page 11 paragraph 26 of the 5th Respondent's Written Address. The learned Senior Counsel asserted that in the past, it was desirable for petitioners to join the Electoral Officer against whom allegations were leveled in his name or join his office. He referred to Egolum v. Obasanjo (supra) where Electoral Officers whom allegations were made were not joined nor were their offices let they featured prominently in the petition and Belgore, J.S.C. (as he then was) declared the paragraphs in which they featured incompetent. He added that the law as it stood gave the Electoral Officers the opportunity to defend themselves against the allegations made against them but the provision made Election Petitions cumbersome as all the officers had to be joined if their conduct was complained of. Today, the learned Senior Counsel added, the issue has been resolved by prohibiting the joinder of Electoral Officers since the Independent National Electoral Commission would suffice as Respondent. According to him, the wordings of the Statute is "shall' and therefore mandatory. For the above submission he relied on the dictum of Sankey J.C.A. in Adams v. Umar (2009) 5 NWLR (Pt. 1133) 109; on the meaning of "shall" to contend that the petitioner misdirected itself in joining the 2nd, 6th-42nd Respondents as parties in the petition as the Electoral Act expressly mandates the suing of the Commission alone as sufficient. Reacting to the submissions of the 5th Respondent's Senior Counsel, Mr. Sofunde, SAN for the Petitioner countered that the definition of the word "shall" in the context in which it is used in Section 137 (3) of the Electoral Act, 2010 (As Amended) is misplaced by the 5th respondent's Senior Counsel. According to the learned Senior Counsel for the Petitioner, the relevant words are "shall not be necessary", in other words, he continued; a Petitioner shall not be compelled to join those persons or he does not have to join them which does not mean that "they shall not be joined"'.

The learned senior Counsel finally reiterated that Section 137 (3) of the Electoral Act means that the Petitioner is not compelled to join Electoral Officers, but has the option to join them.

RESOLUTION OF ISSUE NO. 2

We have carefully considered the submissions of the learned Senior Counsel on both sides on this issue and have noted that they each rely on Egolum v. Obasanjo (supra) where the Supreme Court interpreted Decree No. 6 of 1999 which then mandated by Section 50(2) thereof, that where a complaint was made against Electoral, Presiding or Returning Officers or any other persons involved in the conduct of an election he must be joined as a necessary party. The Section in question was replicated in Section 133(2) of the Electoral Act of 2002 and fell for interpretation per Uwaifo J.S.C. in Buhari & Ors. v. Yusuf & Ors. (supra).

In that case the erudite Justice of the apex Court made a pronouncement which to our mind is anchored on sound principle that the phrase "Any other person who took part in the conduct of an election" should not be restricted to INEC. Just like in this case where Police officers, the Army and Civil Defence or Security Corps members assigned the duty to ensure the peaceful and orderly conduct of the election in the various Constituencies to which they were posted, were alleged to have forcefully snatched ballot papers, ballot boxes and electoral materials from polling stations which they used to secure unlawful votes for the 5th Respondent, it accords with the tenets of natural justice or fair hearing to join them so as to defend themselves against such criminal allegations.

It cannot be seriously contended as the learned Senior Counsel for the Petitioner has done on behalf of the Petitioner that, because Section 137(3) of the current Electoral Act, 2010 (As Amended) does not include the phrase "any other person who took part in the election" (which is not the case), the Security Agencies against whom allegations were made are not necessary parties but necessary witnesses. Such proposition of the law is unfounded in view of the provisions of Section 137(3) of the Electoral Act 2010; which is to the effect that;-

"(3) If the petitioner complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance be:

(a) made respondent; and

(b) deemed to be defending the petition and such other persons."'

Upon a careful analysis of the above provisions, we are of the considered view that based on the ejusdem generis rule as expounded in the case of Buhari & Anor. v. Obasanjo (supra); per Uwaifo, J.S.C. ; "such other persons" in the context of Section 137(3) of the 2010 Electoral Act, can only mean agents of the Electoral Commission and nothing more. In this case, the Army, Policemen and Security Agents are alleged agents of the 5th Respondents the Peoples Democratic Party.

It is common knowledge that the Nigeria Police, Army and Civil Defence Security Corps are statutory bodies charged with the maintenance of peace, order and defence of our territorial integrity. They can therefore not be categorized as agents of the 5th Respondent for purposes of Election. These bodies are normally deployed by INEC and if they went out of their constitutional duties to engage in nefarious activities as claimed by the petitioner, then the rule of fair hearing demands that they be joined so as to defend themselves because their alleged conduct if proved shall affect the petition positively. Even if so, by the decision in Ige v. Farinde (supra); there is no how this petition can be effectually and completely settled without joining these organs against whom serious allegations have been made in view of the effect the allegation would have on their integrity as security outfits. Therefore Obih v. Mbakwe (1984) 1 SCNLR 192 at 204 per Obaseki, J.S.C. and Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 355 at 397 per Belgore J.S.C. (as he then was) and Buhari & Anor v. Yusuf & Anor (2003) 14 NWLR (Pt. 841) 446 at 493; apply mutatis mutandis to this petition, more so, as none of the Police, Army and Civil Security Officers have been mentioned by their names, even when the Respondents sought for further particulars in this respect, which in any case have not been furnished. In the light of the foregoing paragraph 14(d)(iv) of the Petition is struck out.

As far as paragraph 38 of the petition is concerned, we are of the candid view and in agreement with the petitioner that where the petition pleads that the result recorded in favour of the 3rd, 4th and 5th Respondents were only a product of corrupt practice brought about by the imposition of unlawful restrictions of movement and deployment of armed and civilian security outfits and soldiers on the instructions of the 3rd Respondent, who equally ordered the use of Police and Army transport equipments for deployment of sensitive electoral materials without the participation of the petitioner or his representatives, the allegations were clearly against the 3rd Respondent and not the security officers. 

Paragraph 38 of the petition is therefore sustainable. This issue is again partly resolved in favour of the Respondent.

RESOLUTION OF THE 5TH RESPONDENT'S ISSUE 3 

We have looked at the provision of Section 137 (3) of the Electoral Act, 2010 and we are of the candid view that the wordings are simple and straight forward and without straining any nerves or resorting to any techniques of interpretation, ought to be given its simple grammatical interpretation.There is no doubt that Sankey, J.C.A, had defined the word "Shall" to mean a word of command which must be given an obligatory meaning as denoting compulsion and has the invaluable consequence of excluding the thought of discretion to impose a duty which must be enforced. In other words, where a statute as Section 137(3) provides that a thing "shall" be done, the expected and proper meaning is that a peremptory and absolute mandate is enjoined. We agree with the position taken by Mr. Sofunde, SAN, that the operative word in the statute which is "shall" governs "not be necessary", and not "shall not join".

As highlighted earlier, the purport of that subsection is to render unnecessary the joinder of the 2nd, 6th, 42nd Respondents in the Petition if there are allegations against them by the Petitioner. In other words, where the Electoral Commission as in the instant case, is proceeded against in an Election Petition, it shall not be necessary to join Electoral Officers, Returning Officers or Presiding Officers who partook in the conduct of an election; if allegations are made against them.

The learned Senior Counsel for the Petitioner aptly captured the real essence of this Section in his argument of Issue Number 2, when he submitted that the purport of Sections 144(2) of the Electoral Act, 2006; 50(2) of Decree Number 6 of 1999 and the Electoral Act, 2002 (Section 133(2)) thereof; were interpreted in Egolum v. Obasanjo (supra) and Buhari v. Yusuf (supra) where the concept of statutory Respondents was entrenched. Consequently, it was hitherto of necessity that if complaints were made against Electoral Officers, Presiding Officers, or Returning officers or any persons who took part in the conduct of an Election, they became necessary parties who ought to be joined willy-nilly.

The current provisions of Section 137 (3) of the 2010 Electoral Act (As Amended) is to obviate a situation where whole hordes of Electoral Officers, Presiding Officers, Returning Officers, and all sorts of parties are included as Respondents thereby making the Petition unnecessarily unwieldy with several witnesses coming to state the same facts. 

From the foregoing, we are of the considered view that the joinder of the 2nd, 6th 42nd Respondents is a mere surplusage which is not absolutely prohibited as erroneously posited by J.K. Gadzama, SAN, in the 5th Respondent's Written Address. The joinder is not fatal to the merits of the petition so as to warrant our striking out the names of the 2nd, 6th 42nd Respondents. The learned Senior Counsel representing the 2nd, 6th - 42nd Respondents.

Dr. Onyechi Ikpeazu, SAN, who was in court, informed us that they did not file any objection even though he made a terse contribution on the first Issue of filling the petition on Sunday.

On the whole, the Preliminary Objections of the 3rd, 4th and 5th Respondents have only succeeded in part and we so hold.

To recapitulate on the entire objections, we hereby resolve as follows:-

i. That the petition is competent even though filed on a Sunday. 

ii. That reliefs 4 and 6 of the petition are incompetent and are struck out.

iii. That paragraph 14(d)(iv) of the Petition is incompetent and is hereby struck out for non-joinder of the Nigerian Police, the Army, and Civil Security officers who purportedly aided the 5th Respondent to snatch ballot papers, ballot boxes, and sensitive election materials at the election in question.

There shall be no order as to costs.

MOHAMMED L. GARBA: I agree.

M.A. OWOADE: I agree.

IGNATIUS IGWE AGUBE: I agree

OBANDE OGBUINYA: I agree.

     Appearances       

1. Ebun O. Sofunde, SAN 
2. Abubakar Malami SAN 
3. A.B. Mahmud Esq. 
4. Ismaila Alasa Esq. 
5. B.A. Babalola Esq. 
6. Imhanobe Sylvester Esq. 
8. Chief O.O. Obono-Obla Esq. 
9. Joshua Akor Esq. 
10. Mary Ekpere Esq. 
11. Daisy Anagende Esq.

For the Appelants

       

Chief Wole Olanipekun, SAN 
Dr. Alex A. Izinyon, SAN 
D.D. Dodo, SAN 
Mr. J.T.U. Nnodum, SAN 
M. Paul Erokoro, SAN 
F.F. Egele, Esq. 
Mr. O.A. Omonuwa, SAN 
Bola Aidi 
Ehi Uwaifoh, Esq.; 
U. Egbon, Esq. 
Abimbola Kayode, 
Gbenga Adeyemi, Esq. 
John Okonkwo, Esq. 
Okwy Anozie, Esq; 
A.L. Yabidu (Miss) 
A.L.Yabidu (Miss) 
Dapo Olanipekun, Esq.; 
Kenneth Omoruan, Esq. 
Hannatu Abdurrahman (Mrs.) 
F.O. Iziyon, Esq.; 
Chinenye Onyemaizu, Esq.; 
Ukonwa Ikedife; 
Kauna Penzi, (Miss) 
Rachael Osibu 
Babara Omosun (Miss) 
Patrick Abang, Esq. 
Kingley Odey, Esq; 
Chidinma Uwa, Esq.; 
Okonache Ogor, Esq. 
Patrick Umoh, Esq. 
Alex A. Izinyon (II) Esq. 
Gbemisola Orimoloye; 
Olamide Ehinson (Miss) 
Dr. Onyechi Ikpeazu, OON, SAN 
Ahmed Raji 
Victoria Awomolo (Mrs.) 
Eyitayo Fatogun 
Patience Osagiede-Ofeyi (Mrs.) 
Kehinde Ogunwumiju 
Seun Alabi 
Hassan M. Liman 
Bello Abdullahi 
Wale Balogun 
Hajara Baba-Ajanah (Mrs.) 
Onyinyechi Ezindu (Miss) 
Aminu Sadauki 
Prisca Ozoilesike (Miss) 
Marcus Abu Chinedu 
Y.D. Hadi Jazuli 
Ebuka Nwaeze 
Baraka Ali (Miss) 
Fatima Bukar (Miss) 
Anulika Osuigwe (Miss) 
D.E. Daniel 
Ephraim Ajijola 
I.M. Dikko 
Adeola Adedipe 
Chinedu Onyechi-Ikpeazu (Miss) 
Oluwasanmi Aiyemowa 
I. Shuaibu 
I. Uwa 
Feyisayo Folorunso (Mrs.) 
Linda Otuoniyo (Miss) 
Seyi Sowemimo, SAN 
K.T. Turaki, SAN 
Tayo Oyetibo, SAN 
Chief Duro Adeyele, SAN 
C.U. Ekomaru, SAN 
J.N. Egwuonwu, Esq. 
Chief Olusola Oke 
Chief A.O. Ajana 
Rotimi Ojo Esq. 
Abdul lbrahim 
M.M. Bakari 
Ayodeji Olakunle Babaderino Esq. 
Oladele Gbadeyan, Esq. 
Abimbola Arowosebe (Mrs.) 
U.M. Jawur, Esq. 
Dayo Famakin-Johnson Esq. 
N.N. Shaltha (Miss) 
A.S. Akingbade, Esq. 
Ngozi Udokwu (Miss) 
Funmitayo Oshunwusi (Miss) 
Chijioke Uwandu, Esq. 
Ayo Babalola, Esq. 
P.C. Igwenazor, Esq. 
Chief Joe-Kyari Gadzama, SAN 
Chief Amaechi Nwaiwu, SAN 
Adebayo Adenipekun, SAN 
Chief Bolaji Ayorinde, SAN 
Abdul Ibrahim, Esq. 
Arthur Obi Okafo, SAN 
Garba Paul, Esq. 
Yinka Orokoto, Esq. 
Alhaji R.O. Yusuf 
Ayodeji Olakunle Bobaderin Esq. 
Mrs. J.O. Adesina 
Magai Vimtim Magai, Esq. 
E.S. Oluwabiyi, Esq. 
A.C. Ozioko Esq. 
Nneka Bon-Nwakanma (Mrs.) 
Afam Asigwe. Esq. 
C.P. Oli, Esq. 
Chinyere Onyedim (Mrs.) 
D.H. Bwala, Esq. 
Ifeanyi Okechukwu Esq. 
Ola Mafo, Esq. 
J.M. Ugbeji (Miss) 
I.H. Ngada, Esq. 
Chuks Maduka, Esq.

For the Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In The Supreme Court of Nigeria

On Friday, the 10th day of December, 1976

Suit No: SC.144/75

 

Before Their Lordships

 

  

GEORGE S. SOWEMIMO

....... Justice of the Supreme Court

CHUKWUNWEIKE IDIGBE

....... Justice of the Supreme Court

ANDREWS O. OBASEKI

....... Justice of the Supreme Court

 

 

 

 Between

JAMES OBI ACHABUA

Appellants

 

 

 

 And

    

THE STATE

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

CRIMINAL LAW AND PROCEDURE - CONFESSION WITHOUT CORROBORATION:whether confession without corroboration is sufficient to support a conviction

 

 

"It is settled law that confession alone is sufficient to support conviction without corroboration so long as the court is satisfied of the truth of the confession. (R. v. Sykes 8 Cr App R 223, R v. Kanu 14 WACA 30, Edet Obosi v. The State (1965) N.N.L.R. 119, Paul Onochie & 7 Ors. v. The Republic 1966 NNLR 307 and Jimoh Yesufu v. The State (1975) 6 SC.167).' Per Obaseki, AG J.S.C.(P.8, Paras. A-B) -read in context

 

 

 

 

 

 

 

 

OBASEKI, AG. J.S.C. (Delivering the Leading Judgment).: We dismissed this appeal on the 9th day of December, 1976 and now, as notified by us, give our reasons.

The appellant was in Charge No. HJ/13C/74 tried for the offence of murder contrary to section 319 of the Criminal Code by the High Court of South Eastern State (now Cross River State) presided over by Ntia, J. found guilty and convicted on the 5th day of May, 1975.

The particulars of the offence given in the charge reads:

  "James Obi Achabua and Peter Nkpe between the 3rd day of April, 1973 and 21st day of April, 1973 at Bajanfue Beebo Ikom in Ogoja Judicial Division did murder Christopher Egada".

Five witnesses were called by the prosecution while two testified for the defence and briefly the facts established by evidence before the learned trial judge are as follows:

Christopher Egada was a house servant to the appellant at Bajanfue village and had lived with him for about 2 years prior to his death.  On or about 1st day of April, 1973, the Bajanfue village community including the appellant went fishing in the fishing pond when at about 7 p.m. information was brought to the appellant by his wife that the deceased had disappeared from the house with the appellant's money, N99.00. The appellant then abandoned the fishing and traced the deceased to Obudu where he succeeded in recovering N90.00 out of the said amount from him and persuaded him to return.  According to Exhibit 1, the 1st statement of the accused (in which he denied any knowledge of the whereabout of the deceased and disclaimed any knowledge of the death of the deceased) as they were returning the deceased pleaded for forgiveness.  He offered to transfer his father's land to the appellant to cover up the balance.  In the alternative, he also offered to work for appellant to cover up the N9.00 balance.  The appellant's reply is better reproduced from his statement Exhibit 1 on 14th  April, 1973 which reads:

  "The boy himself na him tell me say make me I no take am for police if land him go go show me him papa land for the remaining N9.00 or make me I go give am some work where him go do for me to cover the N9.00 that very day where I catch am for Obudu.

I bring am for my house.  As we been dey come from Obudu, me and him Christopher night meet us for road and I tell am say o.k. as you say if na land I want you go give me, or if na work you go work for the balance N9.00, me and you go go see councilor if day break.  So for night now him go sleep for the room wey I give am and when day break I no see am again.  As I no see am when day break I go for councillor go tell am for the matter".

Following a report to the police about the sudden disappearance of the deceased, the police organised a search into the village bush area.  Accompanied by the appellant, Patrick Unya (PW1), James Mbuta (PW2), Jack Onya (PW3) who was Councillor in the village, and Gabriel Kekwa (PW6), two police officers namely, Cyprian Ajime P.C. No. 25751 (PW4) and Corporal No. 2015 Omini Ebri (PW5) conducted a search of the bush area and discovered a newly dug grave (referred to as a fresh grave) concealed by leaves. On the instructions of the policemen, PW4 and PW5, the appellant started to remove the leaves but frightened suddenly he took to his heels exclaiming "I don die" as he ran.  He was chased and brought back by PW4 and others and restrained to prevent his escape.  When he was asked why he ran he explained to the hearing of all in the search party that that was where he killed and buried the deceased.

On this point of explanation, the evidence of PW3 reads:

  "He answered that because of this boy who stole my money na him make I kill am" 

and the evidence of PW4 reads that:

  "He said because we had seen where he killed and buried the deceased Christopher Egada".

When the party reopened the grave, they discovered that it contained the headless body of Christopher Egada, and being puzzled they decided to search for the head.  The appellant was then asked to help and when asked where the head of the deceased was, the appellant pointed to another spot in the bush as the place where it was buried which on being dug out was found to contain the head of Christopher Egada.  The head was recovered from inside it.  In addition to the oral confession made, statements Exhibits 4 and 5 admitting the killing and cutting off of the head of Christopher Egada were made to the police by the appellant.  But in his evidence before the court, the appellant retracted both his confessional statements and denied making any statements to the police.  He denied that he ran away on seeing the grave.  He denied ever seeing the corpse till it was removed from the grave. He denied that the deceased was ever his houseboy.  He denied that he at any time lost N99.00 in his house.  He denied ever travelling to Obudu or catching the deceased.  He admitted however knowing PW1, PW2 and PW3.  He denied showing the spot where the head of the deceased was buried.  He said it was the beating that the police gave him that made him sign the statements.

After hearing evidence, the learned trial judge gave a considered judgment where he reviewed meticulously the evidence adduced by each witness who testified in the case and made the following findings and conclusions justifiably in our view:

  "There is evidence that the 1st accused succeeded in getting the deceased but recovered only N90.00 from him, the deceased promised to serve him for the balance of N9.00 or give 1st accused land for value, Exhibit 1 refers, and the evidence from prosecution witnesses.  I accept and believe this evidence.  There is evidence that 1st accused brought back the deceased to his house and first accused said he would see the councillor with the deceased the following day and he gave the deceased a room to sleep that night but the following morning he never saw the deceased again and reported to their councillor.  Exhibit 1 refers.  But the councillor, PW3 says he never heard of the incident till the police arrives .....

I find as a fact that the first accused did take home the deceased from Obudu where he caught him around 3rd April, 1973.  I conclude that the first accused clearly knew what happened to the deceased that very night after he had brought the deceased to his house...............

I believe the prosecution witnesses that on 21/4/73 during the search party and exhumation of the corpse in the bush the first accused was frightened and did escape and was caught and tied up to prevent his escape.  There is sufficient and reliable circumstantial evidence even after excluding Exhibits 4, 5, 7 and 8 to come to the above findings of fact .........

First accused's allegation of general hatred is unfounded.  Even though I have discarded the statements of first accused recorded by PW5 because of the clumsiness with which they were recorded, I believe P.W.s, 4 and 5 and believe that accused was taken before DPO Ikom who duly interviewed him and filed Exhibit 10.  I believe the other PW.s 1-3 along with PW.s 4 and 5 whatever little variation there exist in their stories do not amount to material contradictions in their evidence. ............

I believe first accused did exclaim "I don die" when the grave was discovered by PW4 and that first accused told PW.s 4 and 5 at the bush that he killed his servant because the servant stole his money and ran away to Obudu from where he fetched him back ...............

I therefore find him guilty of murder and convict him".  (Underlining is ours).

It was against this decision that this appeal was lodged on five grounds.

The only point in the five grounds filed worthy of mention is the fact that there was no eye witness to the murder.

Only in few cases do criminals perpetrate their crimes in the open and the secrecy with which they execute their plans has tended to deprive the prosecution in some cases of eye witnesses.  Happily, in this instant case, we have the extra judicial confessional statements in evidence and the recovery of the severed head of the deceased from the grave identified by the appellant as the place he buried it established the truth of the confession.  It is settled law that confession alone is sufficient to support conviction without corroboration so long as the court is satisfied of the truth of the confession.  (R. v. Sykes 8 Cr App R 223, R v. Kanu 14 WACA 30, Edet Obosi v. The State (1965) N.N.L.R. 119, Paul Onochie & 7 Ors. v. The Republic 1966 NNLR 307 and Jimoh Yesufu v. The State (1975) 6 SC.167).

The learned trial judge gave full consideration to the evidence before him and we are satisfied that on the evidence he could not have come to any other conclusion than that the appellant killed the deceased in cold blood.  There is no merit in the appeal and for the above reasons we dismissed the appeal when learned counsel for the appellant informed the court that he had nothing useful to urge in favour of the appellant.

Sgd. G.. S. Sowemimo,

JUSTICE, SUPREME COURT.

Sgd. C. Idigbe,

JUSTICE, SUPREME COURT.

Sgd. A.O. Obaseki,

AG. JUSTICE, SUPREME COURT.

  

  

  

 

     Appearances       

O. Jibowu, Esq.

For the Appelants

       

E.D. James, Esq. (Principal State Counsel, Cross River State)

For the Respondents