Legalpedia Citation: (2011) Legalpedia (CA) 66117
In the Court of Appeal
HOLDEN AT KADUNA
Wed Dec 7, 2011
Suit Number: CA/K/EPT/SHA/44/11
CORAM
OMO U. – JUSTICE, SUPREME COURT
PARTIES
1. LAWAL AHMED KARMAME2. ALL NIGERIA PEOPLES? PARTY (ANPP) APPELLANTS
1. MAHMUD DAN’AZUMI2. PEOPLES DEMOCRATIC, PARTY [PDP]3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Appellant and 1st Respondent vied for the same seat in the Kano State House of Assembly. Aggrieved by the declaration and return of the 1st Respondent as the duly elected member representing Gabasawa Constituency, the Appellants filed a Petition at the Kano State National and State House of Assembly Election Tribunal wherein they sought declaratory reliefs that the 1st Respondent is not qualified at the time to contest election, that the 1st Respondent has lied on oath in respect of his personal particulars submitted to the Independent National Electoral Commission (INEC). They sought an order nullifying the election and directing INEC to conduct a fresh election in respect of Gabasawa Constituency. Each of the 3 Respondents denied the allegations in their respective Replies to the petition. The 1st Respondent averred in paragraph 2 of his Reply that INEC “mistakenly stated his name as MAHMUD DAN’AZUMI instead of his correct names of Muhammad Dan’Azumi which name appeared severally on all the documents” he submitted to his party and to INEC. At the Trial itself, four witnesses testified for the Appellants including the 1st Appellant. The Appellants closed their case, and the defence opened theirs. Whilst the 1st Respondent filed an application to receive in evidence the Certificate of Return pleaded, the Appellants also filed an application for leave to amend an error in the spelling of the 1st Respondent first name in the petition to read Mohammed Dan’azumi instead of Mahmud Dan’Azumi”. The Court granted the 1st Respondent’s application but dismissed the application for amendment on grounds that if same is granted it will have the effect of changing the substratum of the Petitioner’s case and upon which issues of fact have been joined. The Tribunal, in its judgment held that the presentation of forged certificate is “not a ground for the presentation of an election petition under S. 138 of the Electoral Act and consequently dismissed the Petition. Dissatisfied with the decision, the Appellants filed a Notice of Appeal.
HELD
Appeal Upheld.
ISSUES
Whether the lower Tribunal was not wrong when it held that presentation of a forged certificate by a candidate to INEC is a ground in respect of which the election Tribunal has no Jurisdiction? Whether the Tribunal was not wrong when it held that there is no sufficient evidence that the 1st Respondent presented a forged certificate to INEC, a conclusion it reached without proper evaluation of the evidence before it? Whether the Tribunal in the light of the evidence before it is not wrong when it held that any Order/Judgment in respect of the qualification of Mahmud Dan’azumi may be difficult or impossible to be enforced on Mohammed Dan’azumi?
RATIONES DECIDENDI
ACTION, WORDS AND PHRASE, PRACTICE AND PROCEDURE
MISNOMER – MEANING OF ‘MISNOMER’ – WHETHER A MISNOMER CAN VITIATE PROCEEDING PROPERLY FILED
“The issue turns on misnomer, which means “a mistake in naming a person, place or thing, esp. in a legal instrument” – see Black’s law Dictionary, 8th Ed., and where the correct person is taken to Court under a wrong name or an incorrect name is given to a party, an amendment may be sought to correct the mistake, and the Court is obliged to allow the amendment – see Njoku V. UAC Foods (1999) 12 NWLR (PT. 632) 557, Nkwocha V. V. Federal University Of Technology (1996) 1 NWLR (PT. 422) 112, Ajadi V. Ajibola (2004) 16 NWLR (PT 898) 91 & Commerce Ass. Ltd. V. Alli (1992) 4 SCNJ 145, wherein it was held –
‘…It is settled that where an amendment sought relates to a mere misnomer, it will be granted almost as a matter of course’. Per Nnaemeka-Agu, JSC-
But the party must show that there were reasonable grounds of excuse in his use of the wrong name or in naming the other party wrongly, and that the misnomer could not have given rise to any reasonable doubt as to who the real party was – see Maersk Line V. Addide Investment Ltd. (2002) 11 NWLR (PT. 775) 317, ACB Plc. & Anor V. Emostrade Ltd. (1998) 1 NWLR (PT.536) 19 and A.B. Manu & Co. V. Costain (W.A) Ltd. (1994) 8 NWLR (PT. 360) 112, wherein Akpabio, JCA, stated as follows –
‘When both parties are quite familiar with the entity envisaged in a writ of Summons, and could not have been misled or have any real doubt and misgiving as to the identity of the person suing, then there can be no problem of mistaken identity to justify the striking out of the action. Misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued’.
See also Bello & Ori V. Mohammed and Ors (2005) LPELR/EP CA/A/EP/313/2007, where Adekeye, JCA (as he then was) observed –
‘A mistake or misnomer in the name of a party – – will not vitiate proceedings duly initiated or properly filed. It will also be unjust to penalize a Petitioner for any default or mistake emanating from the Chambers of the learned counsel to the Petitioner, or Registry of the Tribunal or for a matter beyond its control’.”
ACTION, COURT, PRACTICE AND PROCEDURE
MISNOMER – CONSIDERATIONS IN THE GRANT OF AN APPLICATION TO AMEND MISTAKE IN THE NAME OF A PARTY
The position of the law is clear – an Application to amend a mistake in the name of a party should be granted “almost as a matter of course” – see Commerce Ass. Ltd. V. Alli (supra). But the Applicant must provide the Court with “reasonable grounds of excuse” for making the said mistake, and there must be no doubt as to the identity of the party in question – see Njemanze V. Shell Bp Port-Harcourt (1966) NSCC (VOL. 4) 6.”
COURT, PRACTICE AND PROCEDURE
COURT – DUTY ON COURT TO ENSURE AN APPLICANT IS NOT PENALIZED FOR MISTAKES MADE BY ANY OTHER PERSON OR FOR A MATTER BEYOND HIS CONTROL
“Finally, the Court must ensure that the Applicant is not penalized for a mistake made by any other person or for a matter beyond his control See Bello & Ors V. Mohammed and Ors (supra).”
COURT, APPEAL, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE
JUDGMENT OF COURT – DUTY OF COURT TO CONSIDER ALL ISSUES RAISED BEFORE IT IN ITS JUDGMENT
“It is well settled that a Court must demonstrate in full a dispassionate consideration of all the issues raised before it in its Judgment – see Ogunyade V. Oshunkeye (2007) 15 NWLR (PT. 1057) 218 SC, Chukwu V. NITEL (1996) 2 NWLR (PT.430) 290, Okonji V. Njokanma (1991) (PT.202) 131, Ojogbue V. Nnubia (1972) 1 ALL NLR (PT. 2) 226, Isyaku V. Master (2003) 5 NWLR (Pt. 814) 443, and Harrison Welli & Anor V. Charles Okechukwu & Ors. (1955) 6 SC 223, wherein it was held –
‘It is an elementary and a fundamental principle of the administration of justice in our Courts that the Judgment of the Court – – must be confined and limited to the issues litigated by the parties to the suit. Where – – any of the material issues, whole determination is likely to affect the result of the litigation between the parties, is not resolved, the issue between the parties would appear not to have been determined. It is for this reason that where several issues affecting the determination of a matter before the Court are specified, it is essential for the Court determining the case to decide such issues. Where, however, an issue is not relevant to the determination of the case and was disregarded, it is the duty of the Court to state why such issues are considered not relevant. In all cases where issue is joined, there is a duty on the Court to state how such issue has been disposed of’. Per Karibi-Whyte, JSC.
In effect, a Court must deal with all the issues canvassed before it, and make pronouncements thereon “for the purposes of exercising the right of appeal by any of the parties that is not satisfied with the decision or finding by the trial Court on such issues” – see Alhassan Duzu & Anor V. Jibril Yunusa (2010) LPELR – CA/K/397/07.”
COURT, APPEAL, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE
JUDGMENT OF COURT – EXCEPTION TO THE RULE ON WHEN A COURT IS NOT BOUND TO CONSIDER ALL ISSUES RAISED BEFORE IT IN ITS JUDGMENT
“One of the exceptions to this principle is where a Court makes a finding that it lacks judicial power by the application of any statute to entertain a case or dispute brought before it – see Alhassan Duzu & Anor V. Jibril Yunusa (supra), wherein it was explained that –
“… Where the Court after a consideration of an issue questioning or challenging its jurisdiction – – held that by the provisions of any relevant statutes, it lacks the necessary jurisdiction to entertain and determine the dispute between the parties, would be one of the clearest of cases when the duty to consider other issues in the case abates. Specific example of such clearest cases is, as in the present appeal, where the trial High Court held that the action of the Appellants is statute barred. At that stage, the only further step that could be taken by that Court was to make the consequential order striking out the cause or action and it would have been a wasteful and futile exercise for it to have proceeded to have considered other issues in the absence of jurisdiction’.”
ACTION
UBI JUS IBI REMEDIUM – GUIDING PRINCIPLE OF UBI JUS IBI REMEDIUM
“The motto of this Court is Ubi jus, ibi remedium (Where there is a right, there is a remedy), which Oputa, JSC eloquently expatiated on in Bello V. A-G Oyo State (1986) 5 NWLR (PT.45) 828 SC, as follows:
‘Holt, CJ in the now famous case of Ashby V. White (1703) postulated the principle that “if a Plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal”. The maxim “Ubi jus ibi remedium is simply the Latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action. They usually look at the facts’.
As Oputa, JSC said in that case –
‘the law is an equal dispenser of justice, and leaves none without a remedy for his right, and wherever there is a wrong, there ought to be a remedy to redress that wrong.’”
COURT, APPEAL, PRACTICE AND PROCEDURE
COURT OF APPEAL – POWER OF THE COURT OF APPEAL UNDER SECTION 15 OF THE COURT OF APPEAL ACT
“Justice, they say, must not only be done but it must also be seen to be done, and Section 15 of the Court of Appeal Act 2004, grants this Court the power to do exactly that. The said Section reads as follows –
“The Court of Appeal 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 – shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes 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 powers of that Court.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Act 2004|