Legalpedia Citation: (2023-07) Legalpedia 24474 (SC)

In the Supreme Court of Nigeria

Fri Feb 24, 2023

Suit Number: SC.CV/7/2023

CORAM

Helen Moronkeji Ogunwumiju JSC

Amina Adamu Augie JSC

PARTIES

HON. SOLOMON OLUWASEYI OSHO

APPELLANTS

1. ADEBIYIADELEYE & ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant and the 1st Respondents were aspirants who participated in the 2nd Respondent’s primary election conducted on the 26th May, 2022 and monitored by the 3rd Respondent at the Remo North Constituency for the selection of a candidate to contest election for the Ogun State House of Assembly. At the end of voting at the primary election, the 1st Respondent scored the highest votes and was declared the winner while the Appellant came second at the election. The 1st Respondent’s name was then nominated and forwarded to the 3rd Respondent as the 2nd Respondent’s candidate for the said election, which was also published by the 3Rd Respondent as prescribed by the Electoral Act, 2022.

The Appellant went to court claiming that the 1^st Respondent was handpicked because he neither paid for nor obtain the expression of interest and Nomination form in line with the 2nd defendant’s primary Guideline and constitution nor participate in screening exercise or Primary Election and also that the 1^st Respondent lacked the moral and academic qualifications to run for the office. The major claim against the 1^st Respondent however was that he violated statutory provisions by running for the office while holding a public office as a Special Adviser. The respondents raised a preliminary objection.

The trial Court in a ruling and judgment dismissed the objection and granted the reliefs sought by the Appellant in the summons. The 1st Respondent took his grievances to the Court of Appeal who set aside the judgment of the trial court hence the instant appeal by the Appellant.

HELD

 

Appeal dismissed

 

ISSUES

Ø Whether the Court of Appeal was not right in resolving issue 3 formulated before it in favour of the 1st Respondent (then Appellant) having regards to the fact that Appellant (then the Respondent) did not prove the provision of the constitution and guideline of the 2nd Respondent violated at the primary election that returned the 1st Respondent as the Candidate of the 2nd Respondent for the 2023 General Election.

RATIONES DECIDENDI

CROSS APPEAL – A RESPONDENT WHO DID NOT FILE A CROSS-APPEAL CANNOT FRAME ISSUES OUTSIDE THE GROUNDS CONTAINED IN THE APPELLANTS NOTICE

the law is now elementary that a Respondent who did not file a cross-appeal in an appeal cannot validly frame an issue for determination outside the grounds contained in the Appellant’s Notice of Appeal. See Nzekwu v. Nzekwu (1989) 2 NWLR (pt. 104) 373 (SC), Kuusu v. Udom (1990) 1 NWLR (pt. 127) 421 (SC), Ojegbe v. Omatsone (1999) 6 NWLR (pt. 608) 591 (SC), Eke v. Ogbonda (2006) 11 – 12 SC, 31, (2006) 8 NWLR (pt. 1012) 506, Ossai v. Wakwah(2006) 4 NWLR (pt. 696) 208 (SC),  Halilco Nig. Ltd. v. Equity Bank of Nigeria Ltd. (2013) LPELR – 20743 (SC). – Per M. L. Garba, JSC

JURISDICTION – WHEN THE REAL ISSUE OF JURISDICTION CAN BE RAISED

…the real issue of jurisdiction of a Court to adjudicate over a case, by the position of the law on principles of practice and procedure, can be raised even for the 1st time at any stage of judicial proceedings; see Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR, 296, (1983) 6 SC, 158, Oputa v. Onyema (1987) 3 NWLR (pt. 60) 259 (SC), Shitta-Bey v. A. G. Federation (1998) 7 SC (pt. II) 121, (1998) 10 NWLR (pt. 570) 392 (SC)

– Per M. L. Garba, JSC

CONVERSION OF A PROCESSES/AMENDMENT – CONVERSION OF A PROCESS/AMENDMENT DOES NOT AFFECT THE DATE OF COMMENCEMENT

The conversion of the writ of summons to originating summons, suo motu, by the trial Court did not affect the date of the commencement of the suit, but only the mode by which the suit was commenced to bring it within the provisions of the Practice Directions of the trial Court on the commencement of such actions. Since the conversion was at the instance of the trial Court as a mere procedural, step to comply with the requirements of the Practice Directions, it was an amendment ordered by that Court which dated back to the date the suit was commenced by the Appellant. This Court in A. G., Ekiti State v. Adewumi (2002) 1 SC, 47, (2002) LPELR – 3160 (SC), stated the law that:-

“The principle is that an amendment duly made takes effect from the date of the original document sought to be amended; and this applies to every successive further amendment of which, ever nature and at whatever stage, it is made. Therefore when a writ of summons is amended, it dates back to the original issue of such writ and consequently the action will continue as if the amendment has been inserted from the beginning.”

See also APC v. Elebeke (supra) Salami v. Oke (1987) 4 NWLR (pt. 63) 1, Afolabi v. Adekunle (1983) 25 SCNLR, 141. – Per M. L. Garba, JSC

DECLARATORY RELIEFS – BURDEN OF PROOF WHEN DECLARATORY RELIEFS ARE SOUGHT

Since the reliefs sought by the Appellant in the suit before the trial Court were entirely declaratory, he bore the initial burden of proof and he was to succeed on the strength of the evidence he adduced in the discharge of the burden. The prescription of the law is that the Appellant cannot rely on the weakness or even complete absence of a defence by the Respondents in the discharge of the burden, if he was to succeed in the case and have judgment entered in his favour. In fact, even admission by the Respondents, would not mitigate the duty on the Appellant in the discharge of the burden as the established principles of law require that the Appellant must adduce credible evidence to satisfy the Court as to his entitlement to the declarations sought. The law was restated by this Court in the case of Akinbade v. Babatunde (2017) LPELR – 43463 (SC) (cited in 2nd Respondent’s Brief).

“It is also settled law that a claim for declaratory relief is a discretionary remedy which is never granted as a matter of course, on admission of the adverse party or in default of pleadings by the defendant. The claimant must lead evidence to establish his entitlement to the declaration he seeks and may not rely on the localness of the defence, if any. See Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (pt. 1119) 361; Bello v. Iweka (1981) 1 SC, 101; Emenike v. P.D.P. (2012) LPELR – 7802 (SC) at 27 D-G.”

​See also Onu v. Agu (1996) 5 SCNJ, 74 at 87, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 314 at 354 (SC),  Abdullahi v. Mil Adm., Kaduna State (2004) 5 NWLR (pt. 866) 232 at 246 (SC), Ejiogu v. Irona (2008) LPELR-4083. – Per M. L. Garba, JSC

UNSIGNED DOCUMENT – CONDUCT OF COURTS REGARDING UNSIGNED DOCUMENTS

The law is settled that a Court should not attach any probative value to an unsigned document. It carries no weight. See Maku vs. AL-MAKURA (2016) 5 NWLR (PT. 1505) 201; ALL PROGRESSIVE GRAND ALLIANCE VS. AL-MAKURA (2016) 5 NWLR (PT. 1505) 316; BUHARI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2008) 18 NWLR (PT. 1120) 246; OMEGA BANK (NIGERIA) LIMITED VS. O. B. C. LIMITED (2005) 8 NWLR (PT. 928) 547. – Per M. L. Garba, JSC

UNSIGNED DOCUMENT – AN UNSIGNED DOCUMENT IS A WORTHLESS PIECE OF PAPER

As rightly stated and found by the Court below, the unsigned Exhibit ‘D’ which is not shown to have been authored by any person at all, is a worthless piece of paper that does not attract any probative value and credibility for the purpose of evidential proof required by the law. The source and origin of Exhibit ‘D’ cannot be authenticated for it be worthy of acceptance, belief and credibility essential for proof of the allegation made by the Appellant.

​See in addition to the cases cited above, by the Court below; A. G. Abia State v. Agbaraya (1999) 6 NWLR (pt. 670) 362 at 377, Omosanya v. Anifowose (1959) 4 FSC, 94,

Okupe v. Ifemembi (1974) 3 SC, 97, P.M.B. Ltd. v. NDIC (2011) 12 NWLR (pt. 1261) 253 at 262, Ojo v. ABT Associates Incorp. (2017) 9 NWLR (pt. 1570) 167 at 193, Omega Bank Plc v. O.B.C. Ltd. (2005) 1 SCNJ, 150, (2005) All FWLR (pt. 249) 1964. The Court below is right that the Appellant failed to satisfactorily prove the allegation that the 1st Respondent did not pay for the expression of interest fees before contesting in the primary election.

RESIGNATION – EFFECTIVE FROM THE DAY THE LETTER OF RESIGNATION WAS RECEIVED BY THE EMPLOYER OR HIS AGENT

The law is trite that resignation need not be formally accepted before it takes effect. A notice of resignation becomes effective from the date the letter of resignation was received by the employer or his agent. See WEST AFRICAN EXAMINATION COUNCIL VS. OSHIONEBO (2006) 12 NWLR (PT. 994) 258; YESUFU VS. GOVERNOR OF EDO STATE (2001) 13 NWLR (PT. 731) 517; IBRAHIM VS. ABDULLAH (2019) 17 NWLR (PT. 1701) 293.

In YESUFU VS GOVERNOR OF EDO STATE (2001) 13 NWLR (PT. 731) 517 AT 532 – 533, PARAGRAPHS H – E, the Supreme Court held, per Ogundare, JSC as follows:-

“Having regard to the contents of appellant’s letter of 2nd July, 1992, particularly the portion of it italicized by me in this judgment, the appellant, by that letter, effectively resigned his appointment as Pro-Chancellor and Chairman of Council of Edo State University. He also by that letter requested for a waiver of the notice he should have given. It does not lie in his mouth to say that he had no reply from the 1st respondent on his request for waiver of notice. The requirement of notice was not for his benefit but that of the respondents. I think the two Courts below were right in finding that appellant resigned his appointment. The resignation need not to have been formally accepted by the respondents before taking effect – T.O.S. Benson v. A. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177, where the facts are not too dissimilar with the facts of the present case as regards the issue of resignation from an appointment. In Benson v. Onitiri, Ademola, CJF (as he then was) said at page 82 of the report. “There is absolute power to resign and no discretion to refuse to accept notice. In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the board, on which Benson was serving.”

Later, in his judgment, to which Abbot, FJ and Brett, FJ concurrent, the learned Chief Justice of the Federation added

“I am of the view that a notice of resignation to either is good, nor do I think it necessary for the board or anybody else to reply that the resignation is accepted.” – Per M. L. Garba, JSC

RESIGNATION – RESIGNATION DATES BACK TO THE DATE THE NOTICE IS RECEIVED

In line with the settled position of the law, Appellant’s resignation of his political appointment took effect from 20th of April, 2022 when Exhibit 4 was received by the Ogun State government. I therefore hold a considered view that the appellant duly resigned his appointment prior to the conduct of the primary election. He is not responsible for payment of salaries and emoluments and cannot be held responsible if his name continues to reflect on the payroll of Ogun State. He cannot be punished for this. See ZUBAIRU VS. MOHAMMED (2009) LPELR – 5124 (CA); IBRAHM VS. ABDULLAHI & ORS (SUPRA).”

Once again, the position of the Court, as can easily be seen, is rooted in the firm terrain of the law as stated in the cases, relied on. The law on the issue was correctly and succinctly put in the case of Zubairu v. Mohammed (2009) LPELR – 5124 (CA), A. A. Augie, JCA, (now JSC), set out by the Court below in its judgment, that:-

“The legal position is that resignation from employment is by giving the required length of notice or payment in lieu of notice. Resignation dates back from the date the notice is received. There is absolute power to resign and no discretion to refuse to accept the notice of resignation. It must be emphasized that where a person has taken steps he is required by law to take, in this case, submit his letter of resignation, the refusal, failure, neglect of the relevant officials to do their part, in this case, stop the payment of his salary cannot be visited on the person. This principle of law has been applied in the commencement of the action or initiation of a process. See ALAWODE V. SEMOH (1959) SCNLR 91 AND SAUDE V. ABDULLAHI (1989) 4 NWLR (PT. 116) 387 AT 436 AND 437. It is the view of this Tribunal that this principle of law applied with equal force here. – Per M. L. Garba, JSC

CRIMINAL ALLEGATIONS – CRIMINAL ALLEGATIONS CANNOT BE PROVED BY AFFIDAVIT EVIDENCE VIA ORIGINATING SUMMONS PROCEDURE

The question now is whether the Originating Summons is appropriate for the commencement of their action at the lower Court, I do not think so. The law is settled that allegations which are criminal in nature cannot be proved by affidavit evidence. See the case of ALL PROGRESSIVE CONGRESS VS. ELEBEKE ​(2022) 10 NWLR (Pt 1837) 1 AT 33-34, PARAGRAPHS B-A, where Agim, JSC held follow:-

“it was obvious that the allegations of falsification and forgery of documents could not be proved on the bare assertions in the affidavit relating to the documents attached to them. It was also obvious that it would be disputes on the relevant facts on the state of the affidavits as they stood…. The trial Court erred in law to have tried and decided the matter in that manner. This state of affairs appear to have caused it to resort to speculations and assumptions to fill in the yawning evidential gaps in the 1st respondent’s case. The error occasioned a serious miscarriage of justice as it violated the 2nd respondent’s right to a fair hearing. The error rendered the whole proceedings a mistrial.

It is plain that originating summons is not the appropriate means of commencing this kind of action. The law is settled by a long line of decisions of this Court that it is not appropriate or suitable to use originating summons to commence an action where the relevant facts are likely to be irreconcilably in dispute. See for example Pam v. Mohammed and Anor (2008) 5 – 6 SC (Pt. 1) 83, (2008) 16 NWLR (Pt. 112) 1 and Dapianlong v. Dariye (No. 2) (2007) (Pt. iii) 118, (2007) 8 NWLR (Pt. 1036) 332. It is worthy of note that Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules ​provide that “ … a writ of summons shall be the form of commencing any proceedings where — b) the claim is based on or includes an allegation of fraud. ” The trial Court refused to enforce its own Rules when it tried allegations of forgery in a matter commenced by originating summons”

The 1st Respondent who alleged the Appellant did not possess the requisite qualifications to contest the election’ on the ground that he presented fake/forged certificates had a duty to prove same. It is a criminal allegation which the law requires must be proved beyond reasonable doubt. It is not one that can be proved by affidavit evidence via the Originating Summons procedure as done by the Court. A Writ of Summons is the proper mode of commencement of such action. The 1st Respondent did not prove the allegation of forgery of certificate against the Appellant and I so hold.” – Per M. L. Garba, JSC

CRIMINAL ALLEGATIONS – CRIMINAL ALLEGATIONS MUST BE PROVED BEYOND REASONABLE DOUBT

Paragraphs 16, 17 and 18 of the Appellant’s Affidavit in support of the Originating Summons are allegations of the crimes of parading fake/or forged certificates; lying on oath; giving false information and falsification of certificates against the first Respondent. Such allegations are criminal in nature and central to the claims of the Appellant. They must be proved beyond reasonable doubt even in civil proceedings and thus unsuitable for proceedings commenced by way of Originating Summons, Section 135 (1) of the Evidence Act 2011; UAC Ltd. v. Taylor (1936) 2 WACA 70; Usenfowokan v. Idowu (1969) NMLR 77; Nwobodo v. Onoh and Ors. (1984) NSCC 1. – Per C. C. Nweze, JSC

CASES CITED

STATUTES REFERRED TO

1. Electoral Act 2022
2. APC Constitution
3. APC Guideline
4. Federal High Court (Pre-Election) Practice Directions, 2022
5. Constitution of the Federal Republic of Nigeria 1999 (as amended)

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