Mr. Ibibiama F.G. Odom & 2 Ors Vs. The Peoples Democratic Party (PDP) & 2 Ors

(Supreme Court – February 20th, 2015)

Legalpedia Electronic Citation L:ER [2015]SC. 395/2013

Areas of Law:
ELECTION PETITION, CONSTITUTIONAL LAW, APPEAL, PRACTICE AND PROCEDURE, EVIDENCE

Summary of Facts:
The Appellants instituted an action severally and jointly against the Respondents at the Rivers State High Court praying the Court to invalidate the return of the 2nd Respondent as the winner of the 1st Respondent’s primary election for Bonny/Degema Federal Constituency of Rivers State (and for featuring the 2nd Respondent as the candidate of the 1st Respondent for the general elections which was scheduled for April, 2011) on the ground that the said primary election was inconclusive. The case of the Respondents on the other side of the rostrum was that the above primary election was conducted and the results of the said election were declared on the basis of which the 2nd Respondent was returned as the winner.The trial Court dismissed the Appellant’s case. Dissatisfied with the judgment of the trial Court, the Appellants appealed to the Court of Appeal where the lower Court set aside the decision of the trial Court but refused to grant the relief returning the 1st Appellant as the winner of the 1st Respondent’s primary election and candidate for the April 2011 general election on the ground that the said primary election was not conclusive. Still dissatisfied with the judgment of the lower Court, the Appellant appealed to the Supreme Court while the Respondents cross-appealed.

Held
Appeal and Cross-Appeal Dismissed

Issues for Determination:
CROSS-APPEAL
Whether the Court below was right in holding that the learned trial Judge misplaced the burden of proof on the pleadings by placing it on the Appellants/Cross-Respondents instead of the Respondents/Cross-Appellant/Cross-Respondent? This issue arises from grounds 1 and 2 of the grounds of appeal.
Whether the Court below rightly expunged the testimonies of DW 3, DW 5 and DW 6 on the grounds that they were either not pleaded or at variance with the pleadings of the Respondents. This issue arises from ground 4 of the ground of appeal.
Did the Court below in excluding the testimony of DW 3, DW 5 and DW 6 rightly evaluate (re-evaluate) the evidence on which the trial Court relied to dismiss the Appellants/Cross-Respondents’ claim and come to a just decision? This issue arises from grounds 3 and 5 of the grounds of appeal.
Whether the Court below ought to have declined jurisdiction to hear the appeal having come to the conclusion that the appeal is academic? This issue arises from ground 6 of the grounds of appeal.

Rationes:
EFFECT OF TRIAL WITHOUT JURISDICTION- A MATTER THAT IS CONDUCTED WITHOUT JURISDICTION IS A NULLITY NO MATTER HOW WELL IT IS CONDUCTED
“The fundamental nature of jurisdiction in the adjudication process can never be over-emphasized. A court that proceeds with a matter in respect of which it lacks jurisdiction wastes everybody’s time since the proceedings, no matter how well conducted, will come to naught. See Aladegbemi V. Fasanmade (1988) 3 NWLR (Pt 81) 129 and Alao V. Akano (1988) 1 NWLR (Pt 71) 431.”PER M.D. MUHAMMAD, J.S.C.

PURPOSE OF AN APPEAL – AN APPEAL IS A COMPLAINT AGAINST A DECISION ARISING FROM THE MATTER IN DISPUTE
“The purpose of an appeal…is to find out whether on the state of pleadings, evidence and applicable law the lower court had come to the right decision in relation to the reliefs canvassed in the matter the court’s intervention is sought. Indeed, it is not a new action but a continuation of the very dispute in the original action An appeal, therefore, remains a complaint against a decision arising from the matter in dispute. This explains why a party is not permitted on appeal to change the case he made right from the trial court otherwise the party would be allowed to appeal against what had not been decided against him. This Court is only empowered to deal with matters duly canvassed at and determined by the court from which the appeal arises. See Prince Oyesule Alabi Ogundare & anor V. Shittu Ladokun Ogunlawo & 3 ors (1997) 5 SCNJ 281, Edebiri V. Edebiri (1997) 4 NWLR (Pt 498) 165 at 174, International Messengers Nig V. Pegofor Industries (2005) 15 NWL (Pt 947) 1 at 19.”PER M.D. MUHAMMAD, J.S.C.

RELIEF – ATTITUDE OF AN APPELLATE COURT TO RELIEF NOT SOUGHT
“It follows from the principle that an appellate court, not also being a charitable institution, should never award what is neither claimed or pleaded. See Ekpenyong V. Nyong (1975) 2 SC 71, Abang V. Effiom(1976) 1 SC Obioma V. Olomo (1978) 3 SC 1 and Union Beverages Ltd V. Owolabi (1988) 1 NWLR (Pt 68) 128.”PER M.D. MUHAMMAD, J.S.C.

GROUNDS OF APPEAL – GROUNDS OF APPEAL MUST RELATE TO THE JUDGMENT OF THE COURT APPEALED AGAINST
“It is well settled that grounds of appeal must arise, flow or relate to the judgment of the court appealed from. See Veepee Ind Ltd V. Coca Ind Ltd (2008) 4-5 SC (Pt 1) 116 and Lasisi Ogbe V. Sule Asade (2009) 12 SC (Pt 111) 37.”PER M. D. MUHAMMAD, J.S.C.

RIGHT OF APPEAL – A PARTY’S RIGHT OF APPEAL IS CONSTITUTIONALLY GUARANTEED
“It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed”. PER M. D. MUHAMMAD, J.S.C

RULES OF COURT – RULES OF COURT DO NOT CONFER JURISDICTION – WHERE IT IS NOT EXPRESSLY STATED THAT NON-COMPLIANCE WITH THE RULES OF COURT RENDERS A CAUSE INCOMPETENT, THE COURT WILL TREAT IT AS A MERE IRREGULARITY
“Though it is of utmost importance to comply with rules of court, the fact remains that being Rules of Procedure, they do not themselves and of themselves alone confer jurisdiction on a court. They merely regulate the exercise of the jurisdiction the constitution or the statute vests in the court. Unless it is expressly stated that non compliance with the rules particularly renders a cause incompetent, the court’s pre-occupation must be the doing of substantial justice between the parties in respect of the dispute the court is asked to resolve.”PER M. D. MUHAMMAD, J.S.C.

NOTICE OF APPEAL – AN APPELLATE COURT WILL NOT ABANDON ITS JURISDICTION AND DEPRIVE A PARTY THE RIGHT OF APPEAL BECAUSE HIS APPEAL WAS NOT FILED AT THE LOWER COURT IN COMPLIANCE WITH THE RULES OF THE COURT
“The filing of this appeal at this Court’s registry instead of the lower court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, Rules of court have never been the source of the court’s jurisdiction. This court will not abandon its jurisdiction because of the cross appellant’s non-compliance with the rules which require that appeals be filed at the lower court. The Rules are in place to regulate practice of the court in the exercise of the jurisdiction the constitution confers on it. These Rules should not provide the means of compromising the appellant’s right of appeal as conferred by the constitution. See Ogunremi V. Dada (1962) 1 ALL NLR 663 at 671.”PER M. D. MUHAMMAD, JSC

ATTITUDE OF COURT TO TECHNICALITIES- APPELLATE COURTS SHOULD DETERMINE A CASE ON THE MERIT AND NOT CLING TO TECHNICALITIES
“Drawing from the foregoing facility, the attitude of this Court has always been that whenever it is possible to determine a case on the merit, the court does so by refusing to cling to technicalities. The court would rather give the aggrieved party the opportunity of being heard. See Dr Okonjo V. Mudiaga Odje & ors (1985) 10 SC 267 and Joseph Afolabi & ors V. John Adekunle & ors (1983) 8 SC 98.” PER M.D. MUHAMMAD, JSC

POWER OF SUPREME COURT TO WAIVE THE REQUIREMENT OF FILING APPEAL AT THE LOWER COURT’S REGISTRY- THE SUPREME COURT HAS THE POWER TO WAIVE THE FILING OF APPEAL AT THE LOWER COURT’S REGISTRY AS REQUIRED BY ORDER 2 RULES 30 OF ITS RULES
“In waiving the requirement of order 2 rules 30 of the rules of this Court, the Court per Irikefe CJN in Obadiaru V. Grace Uyigule & anor (1986) 3 SC 39 at page 40 held thus:-
“However in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds, again out of time
and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.” PER M. D. MUHAMMAD, J.S.C.

INTERFERENCE WITH THE DECISION OF A LOWER COURT – DECISIONS OF A LOWER COURT CAN BE INTERFERED WITH BY THE APPELLATE COURT ONLY WHEN THEY ARE PERVERSE
“Now, in a seemingly endless chain of its decisions, this Court has held that decisions of a lower court being reviewed on appeal are interfered with only where the appellate court finds they are perverse”. PER M. D. MUHAMMAD, J.S.C.

PERVERSE FINDING OF FACT OR DECISION – WHEN IS A FINDING OF FACT OR DECISION SAID TO BE PERVERSE
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of Justice. A decision being reviewed may as well be found to be perverse on account of the trial court’s wrongful application of the law to correctly ascertained facts. See Yaro V. Arewa Construction Ltd &ors (2007) 16 NWLR (Pt 1063) 333 at 374 and Olaniyan & ors V. Fatoki (2013) LPELR – 20936 (SC).” PER M.D. MUHAMMAD, J.S.C.

LEGAL AND EVIDENTIAL BURDEN OF PROOF – THE LEGAL BURDEN OF PROVING THE CLAIM LIES AND REMAINS FIXED ON THE PLAINTIFF WHILE EVIDENTIAL BURDEN OF PROOF LIES ON THE PARTY WHO ASSERTS
“Whereas the legal burden of proving the claim lies and remains fixed on the plaintiffs, for our purposes the appellants/cross respondents, evidential burden of proving a fact asserted in the affirmative in his pleadings would lie on the party who so asserts. See Agbakoba V. INEC (2009) ALL FWLR (Pt 462) 1037; Nwuye V. Okoye (2009) ALL FWLR (Pt 451) 815.”PER M. D. MUHAMMAD, J.S.C.

PLEADINGS – MEANING AND PURPOSE OF PLEADINGS
“The need for facts in pleadings to be concise and unambiguous cannot be over-emphasized. Pleadings are averred facts numbered in paragraphs which parties rely on to present their case. Their essence is to forestall surprise thrust on the adverse party. The facts in the pleadings, if this element of surprise in litigation is to be avoided, therefore, must be unequivocal. The cross appellants foregoing pleadings being ambivalent cannot be said to have passed that test. See Salami V. Oke (1987) 9 -11 – SC, Sodipo V. Lemminkainen OY (1985) 7 SC PDP V. INEC & 3 ors (2012) 2 SC (Pt 111) 1 and Okolo V. Union Bank (2004) 1 SC (Pt 1) 1.” PER M.D. MUHAMMAD, J.S.C.

EFFECT OF EVIDENCE OF A PARTY THAT IS AT VARIANCE WITH HIS PLEADINGS- EVIDENCE OF A PARTY THAT IS AT VARIANCE WITH HIS PLEADINGS GOES TO NO ISSUE AND SHOULD EITHER BE DISCOUNTENANCED OR EXPUNGED BY THE TRIAL COURT
“Any evidence led by a party which is in conflict with the party’s pleadings…goes to no issue and should either be discountenanced or expunged by the trial court”. PER M.D. MUHAMMAD, J.S.C.

PLEADINGS – THE COURTS AND PARTIES ARE BOUND BY THE PLEADINGS FILED IN THE SUIT
“It is elementary yet a fundamental principle of pleading that both the court and parties to a case are tied and bound by the pleadings filed in the suit. They cannot go outside the pleadings either to introduce evidence or decide the issues in controversy. The lower court’s finding that cross appellant’s pleading does not contain facts on the presence of INEC, Police and SSS officials at the venue of the election to justify the reception of the testimonies of DW3, DW5 and DW6, is therefore impeccable. See Congress for Progressive Change &anor V. INEC & 4 others (2012) 2 – 3 SC 1, Mrs Vidah C.Ohochukwu V. Attorney General Rivers State & 2 ors (2012) 2 SC (Pt 11) 103 and Mr David I. Karinga Stowe and anor V. Godswill T. Benstone &anor (2012) 1 SC (Pt 11) 86.” PER M, D. MUHAMMAD, J.S.C.

JURISDICTION OF COURT – JURISDICTION IS STATUTORILY CONFERRED
“Finally it must be said that neither the court nor the parties before it confer the court the jurisdiction to entertain and determine a cause. Jurisdiction is statutorily conferred. In relation to courts, the issue of jurisdiction is constitutional and so a matter of law. See Tukur V. Govt of Gongola State (1989) 9 SC 1 and Agbule V. Warri Refinery and Petro Chemical Co Ltd (2012) 12 SC 1. Once it is constitutionally conferred and thereby assumed, the power of the court is not vitiated merely because of the litigant’s inability to draw any benefit from the resolution of the dispute in respect of which the jurisdiction of the court had been invoked. See Abdulsalam V. Salawu (2002) 6 SC (Pt 11) 196. It is up to the plaintiffs to ask from the court such reliefs that are beneficial to him and lawful to extract from the court.” PER M. D. MUHAMMAD, J.S.C.

INJUNCTION – PURPOSE OF AN INJUNCTION
“The law is that an injunction is only issued to restrain a threatened wrong to a right and not to restrain the lawful enjoyment of a legal right. See Alhaji A. W. Akibu& 4 ors V. Alhaja Munirat Oduntan.” PER M.D.MUHAMMAD, J.S.C

RAISING FRESH ISSUE ON APPEAL – THE APPELLATE COURT DOES NOT ALLOW A PARTY TO RAISE A FRESH ISSUE ON APPEAL WITHOUT FIRST OBTAINING THE LEAVE OF COURT
“The law is well settled that no party can raise a fresh issue on appeal without first obtaining the leave of court. To do so will amount to surcharging or over reaching the opponent. A party on appeal is expected to be consistent in pursing the same case presented at the trial court which should in no way be different from the original and initial suit as instituted. In otherwords, no party is allowed to change the course of his case on appeal. The purpose of this is to ensure that justice is applied even handedly to all parties before the court. Therefore, any ground of appeal predicated on issues not canvassed at the trial court would be rendered as incompetent and robs the court of jurisdiction to entertain same. The unlimited jurisdiction of this court does not extend to accommodating incompetent process which has no root or foundation under our legal system as it does not exist.” PER C.A. OGUNBIYI, J.S.C.

RAISING A NEW ISSUE ON THE CONDUCT OF A FRESH GENERAL ELECTION – A NEW ISSUE ON THE CONDUCT OF A FRESH GENERAL ELECTION CAN ONLY BE RAISED WITH THE LEAVE OF THE APPELLATE COURT
“It is not extant in the record that the trial court dealt with the issue of the conduct of fresh general election for the Degema/Bonny Federal Constituency by the Independent National Electoral Commission (INEC) that is not even a party to the suit. The new issue of the conduct of a fresh general election can only be properly raised with the leave of this court first sought and obtained. No such leave of this is court was sought and obtained. The new issue hangs in the air; as it were. See Oriorov. Osain (2012) All FWLR (Pt. 636) 437; Adeogunv. Fasogbon (2011) 8 NWLR (Pt 1250) 427 at 454.” PER J. A. FABIYI J.S.C.

Statutes referred to:
Constitution of the Federal Republic of Nigeria,1999 as (amended)
Electoral No 6 of Act2010 as (amended)
Evidence Act 2011
Rivers State High Court (CivilProcedure) Rules 2011

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