TERVER KAKIH VS. PEOPLES DEMOCRATIC PARTY (PDP)
LEGALPEDIA ELECTRONIC CITATION: LERSC. 236/2013
AREAS OF LAW:
EVIDENCE, APPEAL, FAIR HEARING, ELECTION PETITION
SUMMARY OF FACTS:
The Plaintiff/Appellant filed an action at the Federal High Court, Makurdi contending that the primaries were not conducted in accordance with the provisions of the Electoral Act, the Constitution of the 1st Respondent and its Electoral guideline, also that the 4th Defendant/Respondent was not qualified to contest the 1st Defendant/Respondent’s primary election and the gubernatorial election in Benue State on the ground that the 4th Defendant/Respondent had forged his secondary school examination certificate. At the conclusion of the trial, the 1st – 4th Respondents in their final address raised the issue of jurisdiction which was upheld by the trial court and the Appellant’s claims were dismissed. Aggrieved by the decision of the trial judge, the Appellant appealed to the lower court which affirmed the decision of the trial court and dismissed the appeal. Further dissatisfied with the lower court’s decision the Appellant have appealed to this court.
ISSUES FOR DETERMINATION:
Whether an error in mis-stating the date of the judgment being appealed against in the Notice of Appeal is fundamental or a mere irregularity.
Whether there was any denial of fair hearing of the Appellant at the trial that occasioned a miscarriage of Justice, and if yes, whether the Court of Appeal was right in holding that the Appellant required the leave of the Court to raise it on appeal.
Whether by the provisions of section 87(9) of the Electoral Act, 2010 (as amended) and the Supreme Court decision in P.D.P v. Sylva (2010) 13NWLR (pt l316)85 the Court of Appeal was right in holding that the trial Court had no jurisdiction to entertain the Appellant’s Suit.
Whether or not the Court of Appeal was right in holding that the trial court was right to have demanded from the appellant a higher burden of proof other than the balance of probabilities.”
Whether or not the entire evidence of the Appellant at the trial court concerning the failure of the 1st Respondent to conduct its Ward Congresses and Primaries in accordance with its Constitution/its Electoral Guidelines and Electoral Act, 2010(as amended) was hearsay evidence, and if not, whether or not it was necessary for the Appellant to call witnesses from all the 276 Wards of Benue State to prove his case.
Whether or not the Court of Appeal was right when in considering the issue of whether or not the 1st Respondent conducted Ward Congresses and its Primaries in accordance with its Constitution, Electoral Guidelines and Electoral Act 2010 (as amended( its failed to consider the evidence of the Appellant in its assessment radar(SIC).”
Whether or not the Court of Appeal was right in requiring the Appellant to prove that the political appointees of the 4th Respondent voted at the congress illegally and to further prove that the political appointees his witnesses saw voting during Gubernatorial Primary of 9th January, 2011 at the Aper Aku Stadium were not officers of the 1st Respondent when Exhibit A (the Constitution of the 1st Respondent prohibits political appointees from being delegates and party officials)
Whether or not the Court of appeal placed the right probative value on the evidence of DW1 and his Exhibit L.”
Whether or not the Court of Appeal was right in holding that the Appellant failed to prove that the Ward Congresses did not hold or that the congresses were manipulated and therefore the trial Court was right when it dismissed the Appellant’s complaint for being frivolous, brought malafide, vexatious and unmeritorious.
Whether on the state of the Pleadings and having regards to the totality of the materials before the lower Court, that court was right in not holding that the 4th Respondent failed to meet the Constitutional requirement to be elected into the office of Governor of Benue State.
RIGHT OF APPEAL – INSTANCES WHERE AN APPEAL IS OF RIGHT AND WHEN LEAVE SHOULD BE SOUGHT
“Where a party to litigation is aggrieved with a decision given by that court, he has a right of appeal conferred on him by the Constitution. In other subject matter which is not covered by section 241(1) of the Constitution, the aggrieved party may have to seek for leave either from the Federal High Court or Court of Appeal’. PER GALADIMA JSC
RIGHT TO FAIR HEARING – RIGHT TO FAIR HEARING LIES IN PROCEDURE OF THE TRIAL AND NOT IN CORRECTNESS OF DECISION OF THE COURT
“The right to fair hearing is substantially a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in a case”. PER GALADIMA JSC
HEARSAY EVIDENCE – WHETHER THE COURT CAN ASCRIBE PROBATIVE VALUE TO HEARSAY EVIDENCE
“Once it is found that a deposition is laced with hearsay, the court cannot ascribe probative value to it. To do otherwise is like asking the court to sieve the oral evidence (in form of written statement on oath) of witnesses to determine which part of it is hearsay or not so as to give probative value to the aspect of evidence that is not hearsay. Hearsay evidence is not admissible for the purpose of establishing a criminal liability. If such evidence was admitted unwittingly, it should not be acted upon by the trial Court; but if it did, an appellate court can overturn the judgment based on the fact that the finding of the trial court was based upon inadequate evidence”. PER GALADIMA JSC
STANDARD OF PROOF – STANDARD OF PROOF REQUIRED IN CRIMINAL OFFENCES
“By the clear provision of section 135  of the Evidence Act if the commission of crime by a party to any proceeding is directly in issue of any proceeding in civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of the Evidence Act, on the person who asserts, whether the commission of such an act is or is not directly an issue in the action”. PER GALADIMA JSC
EVIDENCE – A PARTY IS REQUIRED TO PROVE HIS CASE ON THE EVIDENCE BEFORE THE COURT
“A litigant must be able to establish his case on the evidence he presented before the court or on known or settled principles of law”. PER GALADIMA JSC
STATUTES REFERRED TO:
Court of Appeal Act
HON. CHIGOZIE EZE & ORS VS. GOVERNOR OF ABIA STATE & ORS
LEGALPEIDA ELECTRONIC CITATION: LERSC.209/2010
AREAS OF LAW:
ADMINISTRATIVE LAW, JUDGMENT, COURT, WORDS AND PHRASES, APPEAL
SUMMARY OF FACTS:
The Plaintiffs/Appellants initiated an originating summons against the Defendants/Respondents seeking a declaration: (1) that the tenure of the elected members of the Local Government Councils of Abia State is regulated by the provisions of section 25 of the Abia State of Nigeria Local Government Law, No.5 of 1999 and not sections 4 and 5 of the retroactive Abia State Local Government (Third Amendment) Law, 2004; (2) that the dissolution of the elected Chairman, Vice Chairman and Councilors of the Local Government Councils of Abia State and the appointment of the 4 – 7 Defendants/Respondents Local Government Councils by the 1st Defendant/Respondent are illegal, ultra vires null and void and of no effect; amongst other reliefs. The trial court granted some reliefs sought by the Plaintiffs/Appellants. On appeal to the Court of Appeal, at the instance of the Plaintiffs/Appellants, the lower court granted more reliefs to the Plaintiffs/Appellants, but did not grant the order compelling the 1st Defendant/Respondent to reinstate the Plaintiffs/Appellants as their tenure had lapsed by effluxion of time. However, the Court of Appeal did not make a consequential order as to the paying of outstanding salaries and allowances of the Plaintiffs/Appellants. Further dissatisfied with the lower court’s decision, the Appellants have appealed to this court.
ISSUES FOR DETERMINATION:
Whether the lower court was not in error when it failed to make a consequential order, directing the payment of salaries and allowances to the appellants, after granting all the appellants’ reliefs except relief No. 8, which sought to reinstate them to their offices.
RECORD OF APPEAL – DUTY OF AN APPEAL COURT WITH REGARDS TO THE RECORDS OF APPEAL
“An Appeal Court is entitled to look at the Record of Appeal and take notice of its contents.”PER RHODES-VIVOUR, JSC
ELECTION – GROUNDS FOR REMOVAL FROM OFFICE OF PERSONS ELECTED FOR A FIXED TERM
“Elected persons for a fixed term of years can only be removed from office if found to be in breach of the rules governing the office or for infamous conduct. If such a person is removed from office in a manner the court finds to be wrong he shall be entitled to all his entitlements, to wit: salaries, allowances etc.” PER RHODES-VIVOUR, JSC
COURT – DUTY OF A COURT OF EQUITY
“A court of equity will not allow the executive to get away with wrongful acts rather it would call the executive to order and ensure that justice is not only done but seen to be done. Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict Law.” PER RHODES-VIVOUR, JSC
CONSEQUENTIAL ORDER – MEANING AND SCOPE OF CONSEQUENTIAL ORDER
“Consequential means following as a result of inference, following or resulting indirectly. A consequential order is an order that gives effect to a judgment. It gives meaning to the judgment. It is traceable or following from the judgment prayed for and made consequent upon the reliefs claimed by the plaintiff. A consequential order must be incidental and flow directly and naturally from reliefs claimed. It is an offshoot of the main claim and it owes its existence to the main claim. It gives effect to the judgment already given.” PER RHODES-VIVOUR, JSC
SUPREME COURT – POWER OF THE SUPREME COURT – SECTION 22 OF THE SUPREME COURT ACT
” The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the power of that court”. PER RHODES-VIVOUR, JSC
UBI JUS IBI REMEDIUM – MEANING OF UBI JUS IBI REMEDIUM
“It is a general principle of law of great antiquity to the effect that where there is a violation of right there must be a remedy. Put in another way, ubi jus ibi remedium – meaning where there is a right there is a remedy.” PER ONNOGHEN JSC
CONSEQUENTIAL ORDERS – POWER OF COURTS TO MAKE CONSEQUENTIAL ORDERS
“Courts of law have the jurisdiction to make consequential orders where necessary.” PER SULEIMAN GALADIMA, JSC
STATUTES REFERRED TO:
Abia State Local Government (Third Amendment) Law, 2004
Abia State of Nigeria Local Government Law, No.5 of 1999
Supreme Court Act
UNIVERSITY OF ILORIN VS. STEPHEN OLANREWAJU AKINOLA
LEGALPEDIA ELECTRONIC CITATION: LERSC.126/2008
AREAS OF LAW:
ADMINISTRATIVE LAW, APPEAL, ACTION, PLEADINGS, JUDGMENT,
SUMMARY OF FACTS:
The Plaintiff/Respondent, in the course of his studentship with the Defendant/Appellant, partook in student unionism as a result of which he had a problem with the Defendant/Appellant. The Plaintiff/Respondent obtained judgment against the Defendant/Appellant at the Federal high Court and initiated contempt proceedings against the Defendant/Appellant while the Defendant/Appellant also appealed against the said judgment. The Defendant/Appellant’s visitor, the President Commander in chief of the Armed Forces of the Federal Republic of Nigeria, mediated between the Plaintiff/Respondent and the Defendant/Appellant who dropped their legal actions. Although the terms of agreement were drawn to the effect that the Plaintiff/Respondent was pardoned by the Defendant/Appellant but that notwithstanding, the Defendant/Appellant continued to withhold the Plaintiff/Respondent’s result for administrative reasons. Aggrieved by the Defendant/Appellant, the Plaintiff/Respondent instituted an action against the Defendant/Appellant at the Federal High Court, llorin seeking inter alia an order of specific performance compelling the Defendant/Appellant to honour the terms of agreement signed between the Defendant/Appellant and Plaintiff/Respondent and release the Plaintiff/Respondent’s result to him. The trial Court entered judgment in favour of the Plaintiff/Respondent. The Defendant/Appellant appealed to the Court of Appeal where the appeal was dismissed. Still dissatisfied with the decision of the lower Court, the Defendant/Appellant appealed to the Supreme Court.
ISSUES FOR DETERMINATION:
Whether the Lower court did not wrongly evaluate the evidence of facts and the exhibits against the Appellant which thereby occasioned a miscarriage of justice
“Whether the Lower Court was not wrong in holding that the judgment of the trial Court did not infer from the letter of pardon that the Respondent need not satisfy other requirements.”
PLEADINGS – BINDINGNESS OF PARTIES BY PLEADINGS
“Parties are bound by their pleadings and the case they present in those pleadings in the case to be considered by the Courts. Also in so far as pleadings do not contain admissions then the matters alleged must be proved in evidence.” PER PETER-ODILI, JSC
AWARD OF DEGREES AND CERTIFICATES – INSTANCES WHERE THE COURT CAN ENTERTAIN MATTERS PERTAINING TO THE AWARD OF DEGREES AND CERTIFICATES BY A UNIVERSITY
“However, although the general rule is that consideration for an award of degrees and certificates are in the domestic domain or jurisdiction of the universities, there are however, exceptions. Such exception is as happened in this case. That is to say, where the student has exhausted all avenues and entreaties, and the university is adamant, intransigent, as in neither releasing the result of the student nor giving good, substantial and verifiable reasons for withholding the result, even after the intervention by the visitor of the university, the student is entitled to approach the court for redress. In such circumstance, the court should not shy away from ensuring that the university authority abides by the Law setting up the Institution. Award of degrees and certificates should be done in accordance with the Instrument setting up the university and they should abide by international best practices on the issue. Certainly, it ought not to be on the whims and caprices of the personnel saddled with the responsibility.” PER OKORO, JSC
MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES MISCARRIAGE OF JUSTICE
“The Law is well settled that what constitutes miscarriage of justice varies from case to case depending on the facts and circumstances. To reach the conclusion that a miscarriage of justice occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings. It is enough if what happened is not justice according to law.” PER MUHAMMED, JSC
STATUTES REFERRED TO:
University of Ilorin Act. LFN Vol. 15, 2004
If a matter is already in court and another suit is instituted on the same cause of action, if judgment is given in the latter case can it be enforced against the parties in the first suit?
legalpedia has done a lot of help. How do i get updates?
I remain eternally grateful to legal pedia
Nice answer back in return of this matter with real
arguments and explaining all regarding that.