CORAM

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Muhammed Lawal Shuaibu JCA

Habeeb Adewale Olumuyiwa Abiru JCA

Abdul-Azeez Waziri JCA

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PARTIES

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1. GBAGI KENETH OMEMAVWA

2. SOCIAL DEMOCRATIC PARTY (SDP)

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. SHERIFF FRANCIS OROHWEDOR OBOREVWORI

4. MONDAY ONYEME

5. ALL PROGRESSIVES CONGRESS (APC)

6. OMO-AGEGE OVIE AUGUSTINE

7. FRIDAY OSANEBI

8. LABOUR PARTY (LP)

9. KENNEDY K. PELA

10. JULIE NWAGOGO MUKORO

11. ALL PROGRESSIVE GRANT ALLIANCE (APGA)

12. GREAT OVEDJEOGBORU

13. CHINEDU SYDNEY ALLANAH

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

This appeal is against the ruling of the Delta State Governorship Election Petition Tribunal refusing the Appellants’ application to

The 1st Appellant was the candidate of the 2nd Appellant in the Gubernatorial Election in Delta State held on the 18th March, 2023. Appellants aggrieved with the outcome of the election and filed a petition at the lower tribunal. At the end of the hearing, after parties had exchanged their final written addresses and the petition was adjourned for final addresses, the Appellants brought an application to reopen their case and tender a certified true copy of a gazette from the bar.

The Tribunal found the application to be unmeritorious and dismissed same. Miffed by the decision, the Appellants approached this Court vide a notice of appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the lower Tribunal had exercised its discretion judicially and judiciously in refusing to reopen the case for the Appellants?

 

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RATIONES DECIDENDI

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RESPONDENT – WHEN A RESPONDENT WANTS TO DEPART FROM HIS TRADITIONAL ROLE AND ATTACK THE JUDGMENT

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It is pertinent to state that counsel for the 5th, 6th and 7th Respondents filed their respective briefs on 1/9/2023, wherein they both conceded to the appeal by aligning with the Appellants. The law is, however, settled that the traditional role of a Respondent in an appeal is to support the judgment appealed against. If he wants to depart from this traditional role by attacking the judgment he must file a cross appeal. See: OBASANJO V. BUHARI (2003) 12 NWLR (PRT 850) 510 at 55 – 555, IMONIYAME HOLDINGS LTD & ANOR V. SONEB ENT. LTD (2013) 16 NWLR (PRT 1381) 506 at 530 and OBI V. INEC (2007) ALL FWLR (PRT 378) 1116 at 1198 – 1199. Now having not done the needful, their respective briefs are hereby discountenanced. – Per M. L. Shuaibu, JCA

 

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APPLICANTS – DUTY OF APPLICANTS TO FURNISH MATERIALS FOR DISCRETION TO BE EXERCISED IN THEIR FAVOUR

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As stated right from the onset that this appeal is against the exercise of discretion by the trial Tribunal. The Appellants/Applicants who seek discretionary reliefs from the Tribunal had the obligation to furnish sufficient materials for the discretion to be exercised in their favor by a grant of the application.  – Per M. L. Shuaibu, JCA

 

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COURTS – THE GUIDING PRINCIPLE IN THE EXERCISE OF DISCRETION BY COURTS – CONDUCT OF APPELLATE COURTS TO THE EXERCISE OF DISCRETION BY LOWER COURTS

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It is also to be borne in mind that there are no hard and fast rules when it comes to the manner of exercise of discretion, the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds and based on the critical facts of the case. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 SC 265 at 271 NNEJI V. CHUKWU (1988) 3 NWLR (PRT 87) 184 at 199 and MINISTER OF the F. C. T & ORS V. KOHATH PRPTY DEV. LTD & ORS (2023) LPELR 59916 (CA).

In a situation such as the instant appeal on the exercise of the discretion of the lower Tribunal, the duty of the appellate Court is merely to look at the record, review same to determine whether the lower Court/Tribunal exercised its discretion judicially and judiciously having regards to the facts and circumstances.

It was held in plethora of judicial decisions that a discretionary power could only be said to have been judiciously and judicially exercised if it is done solely on credible materials presented by the parties before it. – Per M. L. Shuaibu, JCA

 

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COURTS – CONDUCT OF COURTS TO THE EXERCISE OF DISCRETION BY COURTS

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It is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no Court is entitled to interfere even if the Court, had the discretion been theirs, might have exercised it otherwise. See: UNILAG & ANOR V. AIGORO (Supra). Similarly, Court has no business interfering with the proper exercise of judicial discretion. – Per M. L. Shuaibu, JCA

 

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COURTS – DUTY OF COURTS TO JUDICIOUSLY AND JUDICIALLY EXERCISE DISCRETION – DUTY OF THE APPLICANT TO FURNISH THE COURT WITH MATERIALS FOR A FAVOURABLE EXERCISE OF DISCRETION

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It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations — First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it — Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations — CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1.

Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regard. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor — Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429. – Per H. A. O. Abiru, JCA

 

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EVIDENCE – THE GENERAL PRINCIPLE REGARDING ACCEPTING EVIDENCE AFTER THE CLOSE OF CASE

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Now, the law, as a general principle and practice in our adversarial system is that after the close of a case, no further evidence ought to ordinarily be given by any of the parties — Chukwuma Vs Federal Republic of Nigeria (2011) LPELR-863(SC). The Supreme Court in the case of Denloye Vs Medical and Dental Practice Disciplinary Committee (1968) NSCC 260, held thus:

“There can be no doubt about the general rule that in a case in which the guilt of a man is an issue judgment is being considered it is too late to allow further evidence to be given. If this were allowed it is difficult to see what limitation could be put on it.” – Per H. A. O. Abiru, JCA

 

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ADDITIONAL EVIDENCE – GUIDELINES FOR ACCEPTING ADDITIONAL EVIDENCE AFTER CLOSE OF CASE

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The exercise of the discretion to grant an application to lead additional evidence after the close of the case of the parties is not governed by any statutory provision and it is largely a matter of practice and it is predicated on the peculiar facts and given circumstances of the particular case and coupled with its attendant exigencies. It is an application granted only on special grounds and over the years, the Courts have developed guidelines to be applied by trial Courts in the exercise of such discretion and these are:

i. the additional evidence must be fresh evidence, i.e. this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, on points material to the determination of the issue or any of them and it cannot be evidence which ought to have been led to establish the facts pleaded and meet the issues raised on the pleadings, otherwise, the purpose of pleadings would be defeated;

ii. the issue in respect of which such additional evidence is being tendered must have been pleaded;

iii. the applicant must state the relevance of the additional evidence why it is essential and the use to which he wants to put it; and

iv. it must be fair and just, in the circumstances of the case, to allow the additional evidence taking into consideration the right of the other parties to respond to the new evidence.

See the cases Attorney General Vs Alkali (1972) 12 SC 29, Onibudo Vs Akibu (1982) 7 SC 60, Willoughby Vs IMB Ltd (1987) 1 NWLR (Pt 48) 105, Akanbi Vs Alao (1989) 3 NWLR (Pt 108) 118 at 139, Aroh Vs Peoples Democratic Party & Ors (2013) LPELR-20750(SC), lyawe Vs Mene (2014) LPELR 22611(CA), Ashaka Cement Plc Vs Asharatul Mubashshurun Investment Ltd (2016) LPELR- 40196(CA). – Per H. A. O. Abiru, JCA

 

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COURTS – CONDUCT OF APPELLATE COURTS TO THE EXERCISE OF DISCRETION BY LOWER COURTS

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It is trite law that an appellate Court will only interfere with the exercise of judicial discretion by a lower Court if it is shown that there has been a wrongful exercise of discretion such as where the lower Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere – Ntukidem Vs Oko (1986) 5 NWLR (Pt 45) 909, National Bank of Nigeria Ltd Vs Guthrie (Nig) Ltd (1993) 3 NWLR (Pt 284) 643, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Statoil (Nig) Ltd Vs Star Deep Water Petroleum Ltd (2015) 16 NWLR (Pt 1485) 361, Eye Vs Federal Republic of Nigeria (2018) LPELR 43599(SC), Elf Petroleum Plc Vs Umah (2018) LPELR 43560(SC), Alioke Vs Oye (2018) LPELR 45153(SC) Attorney General, Federation Vs Kashamu (No 2) (2020) 3 NWLR (Pt 1711) 281. In Alsthom S. A. Vs Saraki (2000) 14 NWLR (Pt 687) 415, Akintan, JSC, stated that:

“It is settled law that adjournments of cases fixed for hearing are not obtained as a matter of course. They may be granted or refused at the discretion of the Court. The exercise of such discretion, however, is a judicial act which must be premised on well-established legal principles. It is therefore an act against which an aggrieved party may lodge an appeal. To succeed in such an appeal, the appellant must satisfy the appellate Court that the trial Court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration and that it is manifest that the order would work injustice to the appellant.” – Per H. A. O. Abiru, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Electoral Act, 2022

2. Evidence Act, 2011

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