DECIDED TODAY! Latest S.C. Judgments, Feb. 7th, 2014 ALL PROGRESSIVE GRAND ALLIANCE (APGA) VS SENATOR CHRISTIANA N.D. ANYANWU & 2 ORS LEGALPEDIA CITATION: LER[2014] SC. 20/2013 AREA OF LAW- ELECTORAL MATTER, JURISDICTION SUMMARY OF FACTS The 2nd Respondent instituted an action under originating summons contending that the 1st Respondent’s name ought not to have been submitted to the 3rd respondent as the appellant’s senatorial candidate for the Imo East Senatorial Zone Election in the 2011 general election because at the time of the primary election which took place on 14th January 2011, the 1st Respondent was not a member of the Appellant but an active member of another party, P.D.P. The trial Court struck out the Appellant’s originating summons on the grounds that it lacked jurisdiction to entertain same as the suit was contentious in nature and since nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days’ time. Aggrieved, the 1st Respondent appealed to Court of Appeal while the 2nd Respondent also cross-appealed. The Court of appeal upheld the cross-appeal and dismissed the appeal of the Appellant and remitted the case to the Trial Court for retrial. Dissatisfied, the Appellant further appealed to Supreme Court. HELD Appeal allowed. ISSUES FOR DETERMINATION Is it correct for the court below to determine this appeal on merit without settling the challenge of jurisdiction of the court below to hear and determine the suit itself? Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all? RATIOS: JURISDICTION-IMPORTANCE OF-EFFECT OF LACK OF JURISDICTION “The law is by now well settled that jurisdiction is the lifeblood of any adjudication and where it is lacking it would render any proceedings, no matter how well conducted, liable to be set aside for being a nullity.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC JURISDICTION-FUNDAMENTAL NATURE OF “Jurisdiction is so fundamental that once the court’s jurisdiction to hear a matter is challenged, it must be dealt with and resolved first before any other step in the proceedings. It is because it is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC LACK OF JURISDICTION- EFFECT OF “The law is that where the court lacks jurisdiction to entertain a cause or matter, the entire process, no matter how well conducted, is an exercise in futility, for the proceedings are a nullity ab initio.” PER MOTONMORI OLATOKUNBO KEKERE- EKUN, JSC JURISDICTION OF A COURT-DETERMINATION OF-PROCESSES THE COURT SHOULD CONSIDER “The law is settled that in determining the jurisdiction of a court to entertain a cause or matter, the processes to be considered by the court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or as in the present case the originating summons and its supporting affidavit.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC DECISION OF COURT-DECISION NOT APPEALED AGAINST-EFFECT OF “It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC POLITICAL PARTY-MEMBERSHIP OF-DOMESTIC AFFAIR OF THE PARTY-WHETHER THE COURTS WILL BE INVOLVED THEREWITH “There is a plethora of decisions of this court to the effect that membership of a political party is the domestic affair of the party concerned and the courts will not be involved in deciding who the members of a political party are.” PER MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC CASES MENTIONED: Adeyemi Vs Opeyori (1976) 9-10 SC 31: Anyaduba & Anor. Vs N.R.T.C. Ltd. (1992) 5 NWLR (Pt.243) 535 @ 553 G – F: Elabanjo Vs Dawodu (2006) 15 NWLR (Pt.1001) 76: Inakoju Vs Adeleke (2007) 4 NWLR (PT.1025) 427 at 588F Lado Vs C.P.C. (2012) ALL FWLR (Pt.607) 598 ® 622 – 623 C – D & F – H: (2011) 12 SC (Pt.III) 113 & 139 – 140 Ogunyade Vs Osunkeye (2007) All FWLR (Pt.389) 1175 @ 1206 – 1207 H – B: Onibodu & Ors. Vs Akibu & Ors. (1982) 13 NSCC 199: Onuoha Vs Okafor (1983) 2 SCNLR 244: (1983) NSCC 494: P.D.P. Vs Sylva (2012) 13 NWLR (Pt.1316) 85 Tukur Vs Governor Gongola State (1989) 4 NWLR (Pt.117) 517 Unity Bank Nig. Plc. Vs Bouari (2008) 7 NWLR (Pt.1086) 372 @ 400 B-C STATUTES REFERRED TO: The Electoral Act 2010 (as amended) The Court of Appeal Rules 2011 The 1999 Constitution of the Federal Republic of Nigeria HON. GOODLUCK NANA OPIA VS INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR LEGALPEDIA CITATION: LER[2014] SC. 16/2013 AREA OF LAW- ELECTORAL MATTER, JURISDICTION The Appellant filed an Originating Summons under S.68 (1) (c) of the Electoral Act (2010) (as amended) at the Federal High Court challenging the conduct of the supplementary election as well as the return of the 2nd Respondent as the winner of the supplementary election for Ohaji/Egbema State House of Assembly Constituency held on the 6th May, 2011. The 2nd Respondent filed a notice of preliminary objection challenging the jurisdiction of the Trial Court to entertain the suit as the relief sought by the Appellant has the similitude of a post- election matter. The Trial Court dismissed the suit for want of jurisdiction. Aggrieved, the Appellant appealed to Court of Appeal where the decision of the Trial Court was affirmed. The Appellant further appealed to Supreme Court. HELD: Appeal dismissed ISSUES FOR DETERMINATION: “Whether the Court of Appeal was right when it affirmed the decision of the trial court, wherein the said court declined jurisdiction to hear and determine the Appellants’ Amended Originating Summons.” RATIOS: PRINCIPLE OF LAW-PURPORT OF UBI JUS UBI REMEDIUM “The basic, broad, and general principle of law is contained in the old latin maxim – UBI JUS UBI REMEDIUM.”JUS” here signifies the legal authority to do or demand something and REMEDIUM means the right of action, or the means given by law for the recovery or declaration. Simply put, wherever the law gives a right, it also gives a remedy conversely, wherever a plaintiff is claiming a remedy, that remedy must be joined on a legal right.” PER SULEIMAN GALADIMA, JSC CAUSE OF ACTION-HOW DETERMINED “A cause of action is determined by reference to the plaintiff’s statement of claim. The immediate materials a court should look at are the Writ of Summons and averments in the statement of claim.” PER SULEIMAN GALADIMA, JSC COMPETENCE OF A COURT- HOW DETERMINED “A court is competent when, inter alia, a case comes before it, initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. As well, the subject matter must be cognizable by the court or Tribunal”. PER JOHN AFOLABI FABIYI, JSC EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS RULE –MEANING OF “This means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been excluded by implication. PER JOHN AFOLABI FABIYI, JSC JURISDICTION-IMPORTANCE OF-WHEN SHOULD BE DETERMINED-EFFECT OF LACK OF JURISDICTION “Jurisdiction is very basic in adjudicatory process. It has to be determined at the earliest opportunity, as done by the trial Federal High Court in this matter. Any defect in competence is fatal as same is extrinsic to adjudication”. PER JOHN AFOLABI FABIYI, JSC GROUND OF APPEAL-NATURE OF “A ground of appeal should be concisely and elegantly drafted and straight to the point so that the error complained of, be it of fact or law, is apparent on its face.” PER NWALI SYLVESTER NGWUTA, JSC ELECTION DISPUTES-JURISDICTION OF COURT TO DETERMINE SAME “Section 285(1] (d) of the 1999 Constitution, having specifically conferred the power to decide disputes arising from the conduct of election on the Election Tribunal to the exclusion of the regular Courts, including the Federal High Court, the latter lacks the vires to decide election disputes”. PER SULEIMAN GALADIMA, JSC CASES MENTIONED: Ajayi v. Adebiyi (2012) ALL FWLR (pt. 634)1 at 30 ‘D Alhaji M. Abubakar V. Bebeji Oil & Allied Product Ltd & Ors (2007) 2 SCNJ. 170 Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291). Buhari v. Dikko Yusuf (2003) 1 NWLR (Pt. 841) 446 Gabiri Ogbimi v. Beauty Ololo & Ors (1993) SC.447 Madukolu v. Nkemdilim (1962) 2 SCNLR 341 Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 Oloruntoba-Ohu & ors v. Abdul-Raheem & ors (2009) 13 NWLR (Pt. 1157) 83. PDP v. INEC (1999) 11 NWLR (Pt. 628) 200; Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt 304) 139 STATUTES REFERRED TO Electoral Act 2010 (as amended) Supreme Court Act The 1999 Constitution of the Federal Republic of Nigeria (as amended) SENATOR CHRISTIANA N.D ANYANWU v HON. INDEPENDENCE CHIEDOZIEM OGUNEWE & 2 ORS LEGALPEDIA CITATION: LER[2014] SC. 21/2013 AREA OF LAW- ELECTORAL MATTER, JURISDICTION SUMMARY OF FACTS The 1st Respondent instituted an action under originating summons at the trial Court contending that the Appellant’s name ought not to have been submitted as the senatorial candidate for the Imo East Senatorial Zone Election in the 2011 general election because at the time of the primary election which took place on 14th January 2011, that the Appellant was not a member of the APGA but an active member of another party, P.D.P. The trial Court struck out the 1St Respondent’s originating summons on the grounds that the suit was contentious in nature and since nothing would be gained by ordering pleadings since the general elections were scheduled to take place in 7 days’ time. Aggrieved, the Appellant appealed to Court of Appeal while the 1st Respondent also cross-appealed. The Court of appeal upheld the cross-appeal and dismissed the appeal of the Appellant and remitted the case to the Trial Court for retrial. Dissatisfied, the Appellant further appealed to Supreme Court. HELD: Appeal allowed. ISSUES FOR DETERMINATION Whether the Appellant was given a fair hearing by the court below Whether the Court of Appeal was right in holding that the issue of jurisdiction by the Federal High Court to hear the case was not properly raised in the Court of Appeal Whether the Federal High Court has jurisdiction to hear the case as to justify the order of the Court of Appeal remitting the case to the Federal High Court for trial on the merit RATIOS: ISSUE OF JURISDICTION-FUNDAMENTAL NATURE OF “The issue of jurisdiction is so fundamental to adjudication that it can be raised at any time and in any manner even for the first time on appeal and even viva voce.” PER MOTONMORI KEKERE-EKUN, JSC JURISDICTION OF COURT-DETERMINATION OF –PROCESSES THE COURT SHOULD CONSIDER “The law is settled that in determining the jurisdiction of a court to entertain a cause or matter, the processes to be considered by the court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or as in the present case the originating summons and its supporting affidavit.” PER MOTONMORI KEKERE-EKUN, JSC DECISION OF COURT-DECISION NOT APPEALED AGAINST –EFFECT OF “It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties.” PER MOTONMORI KEKERE-EKUN, JSC POLITICAL PARTY-MEMBERSHIP OF-DOMESTIC AFFAIR OF THE PARTY-WHETHER THE COURTS WILL BE INVOLVED THEREWITH There is a plethora of decisions of this court to the effect that membership of a political party is the domestic affair of the party concerned and the courts will not be involved in deciding who the members of a political party are.” PER MOTONMORI KEKERE-EKUN, JSC JURISDICTION OF COURT -DUTY ON A COMPLAINANT “It has been held that the jurisdiction of the court to entertain a complaint under this section is very narrow in scope. A complainant must bring himself squarely within the confines of the provision. He must be an aspirant who participated in the primary and his complaint must relate to non-compliance with the provisions of the Electoral Act or the guidelines of the political party.” PER MOTONMORI KEKERE-EKUN, JSC POLITICAL PARTY-RESPONSIBILITY OF DETERMINING WHO ITS MEMBERS ARE-WHETHER THE COURTS HAVE BUSINESS IN DETERMINING SAME “It is the prerogative of every political party to determine who its members are. The courts have no business delving into the issue as dearly stated in the authorities of Onuoha Vs Okafor.” PER MOTONMORI KEKERE-EKUN, JSC ISSUE OF JURISDICTION-IMPORTANCE OF –WHEN CAN BE RAISED “As issue of jurisdiction is very vital in adjudicatory process, it can be raised at any time in any manner by the parties or even by the court suo motu, which must, however, give parties chance to address it on same.” PER JOHN AFOLABI FABIYI, JSC CASES MENTIONED: Adeyemi Vs Opeyori (1976) 9-10 SC 31: Elabanio Vs Dawodu (2006)15 NWLR (Pt.1001) 76: Inakoju Vs Adeleke (2007)4 NWLR (pt. 1025) 427 at 588F Isaac Obiuweubi Vs CBN (2011) K7 NWLR (Pt.1247) 465 ® 494 D – F Lado Vs C.P.C. (2012)1 ALL FWLR Pt.6071 598 (3) 622 – 623 C – D & F – H: (2011)12 SC (Pt.111) 113 @ 139 – 140 Onuoha Vs Okafor (19831 2 SCNLR 244: (19831 NSCC 494: P.D.P. Vs Svlya (20121 13 NWLR (Pt.13161 85 Petrojessica Enterprises Ltd. Vs Leventis Tech. Co. Ltd. (1992) 5 NWLR (Pt.244) 675: Tukur Vs Governor Gongola State (1989) 4 NWLR (Pt.117) 517 STATUTES REFERRED TO The Electoral Act 2010 (as amended) The Court of Appeal Rules 2011 The 1999 Constitution of the Federal Republic of Nigeria February 7, 2014Leave a reply NICHOLAS CHUKWUJEKWU UKACHUKWU V. PEOPLES DEMOCRATIC PARTY & 3 ORS LEGALPEDIA CITATION: LER[2014] SC 589/2013 AREAS OF LAW- ELECTORAL MATTERS, FAIR HEARING, COURT JURISDICTION, INTERPRETATION OF STATUTES SUMMARY OF FACTS: This is an appeal against the judgment of the Court of Appeal which set aside the judgment of the trial court (the Federal High Court, Port Harcourt) in which the 3rd Respondent was held as not qualified to participate in the August 24th primaries of the 1st Respondent (Peoples Democratic Party). The Appellant was originally disqualified for irregularity of his tax payments. He was eventually cleared to contest after a review by the screening appeals panel of the Ist Respondent (PDP in Anambra State). The primaries was won by the 3rd Respondent, whereupon the Appellant challenged the eligibility of the 3rd Respondent to contest the primaries. The trial Court held in favour of the Appellant leading to the appeal by the 3rd Respondent against the decision of the trial court. At the appeal, the Appellant’s counsel filed his brief of arguments out of time and refused to move his motion to regularise same, but rather sought an adjournment without adducing any cogent reason. The court considered the motion for extension of time abandoned and struck out the same. Refusing the Court’s invitation to adopt his brief of arguments, the Appellant’s counsel disserted the appeal court without leave. The Appeal Court notwithstanding this breach of decorum proceeded to consider the appeal on its merit by deeming the Appellant’s brief as adopted and argued by his counsel. The appeal turned against the Appellant, setting aside the judgment of the trial court, whereupon the 3rd Respondent was declared the candidate for the election. The Appellant appealed to the Supreme Court . HELD Appeal succeeds in part. ISSUES FOR DETERMINATION Issue 1: Whether the judgment of the Court of Appeal leading to this Appeal was hinged on a non-existent Appellant’s Brief of Arguments, which in the course of the proceedings was filed out of time, with the motion for extension of time abandoned by counsel and consequently struck out, is not a breach of the present Appellant’s (then 1st Respondent’s) right to fair hearing, thereby nullifying the judgment of the court below? Issue 2: Whether the Court of Appeal was right when it held that the trial Federal High Court lacked jurisdiction to adjudicate on the complaint of the Appellant on the basis that his complaint did not come within the ambit of Section 87 (9) of the Electoral Act, 2010, as in the court’s view the reliefs sought were predicated on matters that were solely internal party matters and therefore not justiciable? RATIOS FAIR HEARING- MEANING AND CONSTITUTIONALITY OF FAIR HEARING: “The constitutionality of the right to fair hearing is not in doubt. Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus: “36 (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.” EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity”. PER KEKERE-EKUN JSC BREACH OF FAIR HEARING-BURDEN OF PROOF-ON WHO LIES “The law is also trite that the burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts and circumstances leading to the alleged breach. This is because the facts of the case and the facts only, determine acts which constitute non-compliance with the principles of fair hearing”. PER MAHMUD MOHAMMED JSC INTERPRETATION OF STATUTES – GOLDEN RULE: “The golden rule of interpretation of statutes is that where the words used are clear and unambiguous they must, prima facie, be given their natural and grammatical meaning unless it would lead to absurdity”. PER KEKERE-EKUN JSC INTERNAL AFFAIRS OF A POLITICAL PARTY NON JUSTICIABLE- SECTION 34 OF THE ELECTORAL ACT 2006 “The membership of a political party or the sponsorship of a candidate at an election are internal affairs of the party and therefore not justiciable. See: Onuoha Vs Okafor (1983) 2 SCNLR 244: (1983) NSCC 494. PER KEKERE-EKUN JSC JUSTICIABLE RIGHTS OF AN ELECTORAL CANDIDATE – SECTION 87(9) OF THE ELECTORAL ACT: “The literal interpretation of Section 87 (9) of the Electoral Act is that an aspirant has a right to complain where the provisions of the Electoral Act and/or the guidelines of a political party have not been complied with in the selection or nomination of a candidate for election. He may exercise the right to seek redress notwithstanding the provisions of the said Act or rules of a political party. In other words no provision of the Electoral Act or any rule of a political party can take away this right. However, the provision is not at large. The complainant must be an aspirant who participated in the primary that produced the sponsored candidate”. PER KEKERE-EKUN JSC APPEALS: WHERE FINDINGS OF THE COURT OF APPEAL OR TRIAL COURT ARE NOT APPEALED AGAINST “The law is trite that the findings of the Court of Appeal or trial Court in respect of which there is no appeal, the findings remain valid and in full force”. PER MAHMUD MOHAMMED JSC ISSUES-WHERE NOT RAISED BY A PARTY-ATTITUDE OF THE SUPREME COURT THERETO “Where an issue has not been raised by the Appellant, it is not the business of this Court to concern itself with the issue…” PER MAHMUD MOHAMMED JSC CASES MENTIONED: Tsokwa Motors (Nig.) Ltd. Vs U.B.A. Plc. (2008) All FWLR (Pt.403)1240 @ 1255 A – B: Adiaun Vs A.G. Oyo State ((1987) 1 NWLR (Pt.53) 674: Okafor Vs A.G. Anambra State (1991) 3 NWLR (Pt.200) 59: Leaders & Co. Ltd. Vs Bamaiyi (2010) 18 NWLR (Pt.1225) 329 Nwokoro Vs Onuma (1990) 3 NWLR (Pt.136) 22 (5) 32 A – B Ugwu Vs Ararume f2007) ALL FWLR (Pt.377) 807 (9) 884 A — P: MarwaVs Nyako (2012) 1 SC (Pt.III) 44: Nafiu Rabiu Vs The State (1980) 8 -11 SC 130 @ 149. Onuoha Vs Okafor (1983) 2 SCNLR 244: (1983) NSCC 494 Lado Vs C.P.C. (2012) ALL FWLR (Pt.607) 598 @ 622 – 623 F – H (2011) 12 SC (Pt.III) 113 @ 139 – 140 Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt.1342) 503 @ 526 E – G Buhari vs. Obasanjo (2005) 13 N.W.L.R. (Pt. 941) 1 at 138 Oyibo Iriri & Others v. Eseroraye Emrhodare & Anor (1991) 3 S.C.N.J 1 Maikyo v. Itodo (2007) 7 N.W.LR. (Pt. 1034) 443 STATUTES REFERRED TO: The Electoral Act 2010 (as amended) The Court of Appeal Rules 2011 For enquiries: Email: ipadteam@honeyfountain Phone no: 08023390982, 07061989769. January 31, 2014Leave a reply Just Decided – Latest Supreme Court Cases – Jan 31st, 2014. ORHENA ADUGU GBILEVE & ANOR VS MRS. NGUNAN ADDINGI & ANOR LEGALPEDIA CITATION: LER[2014] SC 193/2012 AREAS OF LAW: PRE-ELECTION MATTER, JURISDICTION, DOCUMENTARY EVIDENCE SUMMARY OF FACT The Plaintiff/1st Respondent won the primaries as the candidate to represent Buruku Constituency of Benue State House of Assembly in the general election. Irrespective of the press release confirming the Plaintiff/1st Respondent’s emergence as the winner, the State Secretariat of the party replaced her name with the 1st Respondent/Appellant’s name as having won the election and a certificate of return was issued to him. Dissatisfied, Plaintiff/1st Respondent filed an originating summons at the Federal High Court, for the determination of five questions and the grant of seven reliefs. The suit was resolved on the basis of the affidavit evidence before the Court and judgment was entered in favour of the Plaintiff/1st Respondent. The Court ordered that the Plaintiff/1st Respondent’s name be returned as the lawful aspirant and that she should be issued with a certificate of return. The Respondents/Appellants’ appeal to the Court of Appeal was dismissed and the judgment of the trial court affirmed, hence they further appealed to the Supreme Court. HELD Appeal dismissed ISSUES FOR DETERMINATION Whether the lower court was correct to have affirmed the jurisdiction of the trial court to entertain 1st Respondent’s suit (Grounds 6 & 7) Having regards to the facts and evidence adduced in this case coupled with the applicable law, did the 1st Respondent prove her case to be entitled to judgment as decided by the trial court and affirmed by the lower court? (Grounds 1, 5 & 8) Whether the lower court acted correctly in agreeing with the trial court when it failed or refused to order pleadings and / or take oral evidence to resolve the obvious material conflicts in the competing affidavits and counter affidavit of the parties before proceeding to judgment against the appellants. (Grounds 2) RATIOS DOCUMENTARY EVIDENCE –WHEN ORAL EVIDENCE CAN BE DISPENSED WITH IN RESOLVING CONFLICTS IN EVIDENCE “Where the conflicting evidence can be resolved from the documentary evidence the need to call oral evidence becomes unnecessary”. PER UMAI BAYANG AKAAHS DOCUMENTARY EVIDENCE-PURPOSE OF “Documentary evidence is used as a hanger from which to test the veracity of the evidence whether given orally or by deposition”. PER UMAI BAYANG AKAAHS EVALUATION OF EVIDENCE – WHEN AN APPELLATE COURT CANNOT INTEREFERE “Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record on which the trial Court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the appellate court cannot interfere”. PER UMAI BAYANG AKAAHS CONCURRENT FINDINGS OF LOWER COURT – ATTITUDE OF THE SUPREME COURT- WHEN TO DISTURB “The law is now fully established that the Supreme Court will not normally disturb the concurrent findings of two lower courts except it is shown that it has occasioned a miscarriage of justice or it is perversely arrived at”. PER CLARA BATA OGUNBIYI ISSUE OF JURISDICTION-WHERE AN ORIGINATING PROCESS DOES NOT CONFER JURISDICTION ON A TRIAL COURT – EFFECT ON PROCEEDINGS “The issue of the jurisdiction of the trial court to entertain the originating summons ab initio is fundamental to the competence of the appeal before this court. Where the originating process at the trial court is found not to confer jurisdiction on the court, the proceedings are a nullity. The absence of jurisdiction has a ripple effect and taints the appellate courts, which would equally lack jurisdiction to entertain appeals arising from the null proceedings. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE -EKUN JURISDICTION OF COURT – LACK OF – WHETHER PARTIES CAN CONFER JURISDICTION BY CONSENT OR ACQUIESCENCE “It is also trite that where the court lacks jurisdiction, parties cannot confer jurisdiction by consent or acquiescence”. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE -EKUN CASE MENTIONED Adesola Vs Abidoye (1999) 14 NWLR (Pt.637) 28: Akpagbue VS Ogu (1976) 6 SC. 63 Amadi VS Nwosu (1992) 5 NWLR (Pt.241) 273; Bunge VS Gov. River State (2006) 12 NWLR (Pt. 995) 573″ Enang VS Adu (1981) 11 – 12 SC 25; Ezekwesili VS Agbapuonwu (2003) 9 NWLR (PT. 825)337; Fashanu VS Adekoya (1974) 6 SC. 84;(1974) 1 ALL NLR (Pt.l) 35; Jadesimi Vs Okotie-Eboh (1986) 1 NWLR (Pt.16) 264; Obiuweubi Vs CBN (2011) 7 NWLR (Pt.1247) 465 Onyejekwe V. The State (1992) 3 NWLR (Pt. 230) 444 Posu V. State (2011) All FWLR (Pt. 565) 234 SLB Consortium Ltd. Vs NNPC (2011) 9 NWLR (Pt.1252) 317 Woluchem VS Gudi (1981) 5 SC. 291; STATUTES REFERRED TO Electoral Act 2010 (as amended) The Constitution of the Federal Republic of Nigeria 1999 (as amended) AKUNNE BOSA MBANEFO VS. MOFUNANYA ACBU & ANOR LEGALPEDIA CITATION: LER[2014] SC 179/2007 AREAS OF LAW- LAND LAW-CERTIFICATE OF OCCUPANCY, TRESPASS, APPEAL, LAW OF EVIDENCE-BURDEN OF PROOF SUMMARY OF FACT: The Plaintiff/Appellant instituted a claim against the 1st and 2nd Defendants/Respondents that after selling the land in dispute to him, the Defendants/Respondents failed to obtain Governor’s consent under Section 22 of the Land use Act but have resold the land to another person. The trial Court struck out the name of the 2nd Defendant/Respondent from the suit and entered judgment for the Plaintiff/Appellant. Dissatisfied, the 2nd Defendant/Respondent appealed to Court of Appeal whiles the Plaintiff/Appellant also cross-appealed. The lower Court dismissed the Plaintiff/Appellant’s cross-appeal and dismissed the case of the trial court. Dissatisfied, the Plaintiff/Appellant has appealed to Supreme Court. HELD: Appeal dismissed. ISSUES FOR DETERMINATION: Were the learned Justices of the Court of Appeal not grossly in error when they held that in the circumstances of this case it was the duty of the purchaser of land to obtain the consent of the Governor Were the learned Justices of the Court of Appeal not grossly in error when they held that the appellant was put in possession of the land and therefore had taken title to the land Were the learned Justices of the Court of Appeal not grossly in error when they held that the 1st respondent only acted as a legal practitioner in the sale of land transaction in this case RATIOS: CERTIFICATE OF OCCUPANCY-WHEN GOVERNOR’S CONSENT IS REQUIRED “It is clear that it is only whenever certificate of Occupancy has been granted or is deemed granted and a holder of such certificate is desirous to transfer, assign, mortgage, lease and sublease of the land that is subject of such certificate that the Governor’s consent is required under the said section”. PER CHUKWUMA- ENE J.S.C. TRESPASS -MEANING OF- WHEN AN ACTION IN TRESPASS WILL LIE “It is settled law that trespass is an infraction of the right of exclusive possession to land and as the appellant there has been put in exclusive possession of the aforesaid land, an action in trespass is certainly maintainable by him by virtue of his rights against any trespass who in law cannot claim to be in possession by mere entry which is complained of by the appellant”. PER CHUKWUMA-ENE J.S.C. BURDEN OF PROOF –ON WHO LIES “It is trite that he who asserts must prove”. PER AKAAHS, JSC ISSUES-IMPROPRIETY OF PARTIES RAISING NEW ISSUES ON APPEAL “The law is trite that a party will not be allowed to introduce an issue in this Court which was not raised and pursued in the Courts below thereby setting up an entirely new case in his appeal before his Court”. PER MOHAMMED, JSC CASES MENTIONED: Adegoke Motors Ltd. V. Adesanya (1989) 3 N.W.L.R. (Pt. 109) 250 at 266 Owoniboys Technical Services V. Union Bank of Nigeria (2003) 15 NWLR (Pt. 844)545 at 583 Philips v. Ogundipe (1967) 1 ANLR 258 STATUTES REFERRED TO: The Land Use Act, 1979 To Read Full Judgement: iPad Customers: Go to your Legalpedia App Click on Subscribers Update at the bottom of the screen Put in your username and password Click on the book “Latest Supreme Court Cases” Click on the link “December 2013″ It will download the Latest Cases into your ipad. Laptop Customers: Click on the Legalpedia updater icon on your desktop Click on update now It will download the Latest Cases into your software. Thank you. For enquiries:Email: ipadteam@honeyfountain Phone no: 08023390982, 07061989769. January 31, 2014Leave a reply INOGHA MFA & ANOR V. MFA INONGHA AREA OF LAW-CONSTITUTIONAL LAW-FAIR HEARING, PROLIFERATION OF ISSUES SUMMARY OF FACTS: The Plaintiff/Respondent, who was the father of the Defendants/Appellants, instituted an action against the Defendants/Appellants claiming title to the land in dispute. The case was adjourned severally at the instance of the Defendants/Appellants to enable them open their case. The Defendants/Appellants failed to do so and the trial Court closed the defense of the Defendants/Appellants on the application of the Plaintiff/Respondent and adjourned the matter for judgment. The Defendants/Appellants filed an application to call further evidence and stay delivery of the judgment. The application was granted and the trial Judge adjourned the matter for ruling and continuation. But on the said adjourned date, the Defendants/Appellants applied that the case should be referred to the Chief Judge for re-assignment to another Judge on the ground of bias. The trial Court dismissed the application and asked the Defendants/Appellants to proceed with defense but the their counsel sought for an adjournment on the ground that he only came to court for ruling and would like to take the result of the ruling to his master. The trial Judge refused the application for adjournment and went ahead to deliver its suspended judgment. Piqued by the trial Court’s judgment, the Defendants/Appellants appealed to Court of Appeal and subsequently to Supreme Court on the ground of fair hearing. HELD Appeal dismissed ISSUES Whether the justices of the Court of Appeal were right in holding that the trial Judge closed the case of the defendants before proceeding to judgment (Ground 3) Whether the learned Justices of the Court of Appeal were right in holding that the constitutional rights of the appellants were not breached even when the trial Judge did not formally close the defendants’ case and afford them the opportunity of presenting a final address? (Grounds 4 & 5) Whether the learned Justices of the Court of Appeal were right in striking out five of the six grounds of appeal for alleged failure to formulate issues from the said grounds?” RATIOS: APPLICATION FOR ADJOURNMENT-WHETHER AN APPLICATION FOR ADJOURNMENT CAN BE DENIED BY THE COURT “…the need for Counsel to take the message, whatever the message is, does not constitute application, based on valid grounds, for adjournment. Also continuous absence of Counsel in a case he is handling as shown in the record of the trial Court amounts to obstruction of the cause of justice and therefore contempt of Court. See McKown v. R (1971) 16 DLR 390; Izuora v. R (1953) 13 A WACA 313. When an application for adjournment is unnecessary or not reasonable, the Court may deny same and proceed with the case.” PER NGWUTA, J.S.C. BREACH OF FAIR HEARING- EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING “It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig.) Ltd. V. U.B.A. Plc. (2008) All FWLR (pt. 403) 1240 @ 1255 A-B; Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 674; Okafor v. A.G. Anambra State (1991) 3 NWLR (pt.200) 59; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in the recent decision of this court in: Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 469: “The law is indeed well settled that fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro V. Oruma (1990) 3 NWLR (Pt.136) 22. The effect of a denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the court, become a nullity.” PER KEKERE-EKUN, J.S.C. DISCRETION OF THE COURT-WHETHER THE COURT HAS THE DISCRETION TO GRANT OR DENY AN ADJOURNMENT “The Court has a duty to guard against an attempt by any of the parties to make an ass of the law and its rules of procedure. If Counsel’s desire to take a message to his principal is an application for adjournment then the trial Court rightly rejected same and read its judgment, as no cogent reason was advanced. Adjournment is a matter within the discretion of the Court and in this case the discretion was exercised in the overall interest of justice, See Shonekan v. P. G. Smith (1967) 1 All NLR 329 at 333. The exercise of judicial discretion on the facts of the case was in accord with commonsense.” PER NGWUTA, J.S.C. FAIR HEARING-PRINCIPLE OF FAIR HEARING “The process of fair hearing is a two-edged sword and it cuts both ways – appellants have a right to a fair hearing and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice. On the facts of this case, I hold that the appellants could not substantiate their allegation of denial of fair hearing.” PER NGWUTA, J.S.C. FAIR HEARING-CONCEPT OF FAIR HEARING “…it is equally trite that once a party has been afforded the opportunity to present his case and he fails to take advantage of it, he cannot be heard to complain that his right to fair hearing has been breached. This was made very clear in the case of: Pam & Anor. V. Nasiru Mohammed & Anor. (2008) 16 NWLR (Pt.1112) 1 @ 48 E – G where the concept of fair hearing was explained by Oguntade, JSC as follows: “The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties every opportunity to put their case to the court before the court gives its judgment. … A complaint founded on denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all parties before it.” PER KEKERE-EKUN, J.S.C. FAIR HEARING-WHAT DETERMINES IF A HEARING HAS BEEN FAIR “In order to determine whether the hearing has been fair, the test to be applied is the impression of a reasonable man present at the trial and whether from his observation justice was done in the case” PER KEKERE-EKUN, J.S.C. PROLIFERATION OF ISSUES-WHETHER MORE THAN ONE ISSUE CAN BE RAISED FROM A GROUND OF APPEAL “The Court frowns at proliferation of issues for determination distilled from grounds of appeal. An issue arises from one or more grounds of appeal. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566. It is proliferation of issues to raise more then one issue from a ground of appeal.” PER NGWUTA, J.S.C RELIANCE ON TECHNICALITIES- ATTITUDE OF COURT TO TECHNICALITY AND COMPLIANCE WITH RULES OF COURT “In the immortal words of my noble Lord, the philosopher Jurist, Oputa, JSC: “The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid of justice… “PER NGWUTA, J.S.C. RIGHT TO FAIR HEARING-WHETHER A PARTY WHO REFUSES OR FAILS TO TAKE ADVANTAGE OF THE FAIR HEARING ENVIRONMENT CREATED BY THE COURT CAN ACCUSE THE COURT OF DENYING HIM FAIR TRIAL “The right to fair hearing entrenched in S.36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, in its first pillar of justice is the Audi alterem partem which means “hear the other party”. The Court has no business pursuing a recalcitrant party in order to hear him. All the Court is required to do is to create an enabling environment for the party to present his case and be heard. A party who refuses or fails to take advantage of the fair hearing environment created by the Court cannot accuse the Court of denying him fair trial.” PER NGWUTA, J.S.C FAIR HEARING-WHERE A PARTY FAILS TO DEFEND HIS CASE-EFFECT OF “A party cannot be compelled by the court to present or defend his case when he has no such desire. In the circumstances where a party refuses or neglects or fails to take advantage of the fair hearing environment so created by the court, he (the party in default) cannot be heard to accuse the court of a denial of his right to fair hearing. He has himself to blame”. PER ONNOGHEN, J.S.C CLICK HERE TO VIEW CASE
Posted on: Sat, 15 Nov 2014 22:40:10 +0000
Trending Topics
Recently Viewed Topics
© 2015