Legalpedia Citation: (2023-03) Legalpedia 18831 (SC)

In the Supreme Court of Nigeria

Fri Mar 31, 2023

Suit Number: SC.CV/248/2023

CORAM

John Inyang Okoro JSC

Amina Adamu Augie JSC

Uwani Musa Abba Aji JSC

Ibrahim Mohammed Musa Saulawa JSC

Emmanuel Akomaye Agim JSC

PARTIES

MUSA MUHAMMAD USMAN OBE

APPELLANTS

MURTALA ABDULLAHI ABUBAKAR AND 5 ORS

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The genesis of the instant case is traceable to June 9, 2022 when the 1st Respondent filed and instituted the suit at the Federal High Court vide a writ of summons against the Appellant and the 2^nd – 6th Respondents, jointly and severally. The 1^st Respondent is an aspirant and his contention is the indirect Primary Election conducted by the 2^nd defendant in the Fagge Constituency of Kano State House of Assembly. The 1^st Respondent claimed that the said primary election was illegal, undemocratic, void and in gross violation of the extant electoral laws and 2nd Defendant’s guidelines and the nomination of its candidate arbitrary. He was also praying the court to order ta he be reimbursed the sum for the purchase of nominations and expression of interest forms.

The trial court nullified the nomination of the 1st Defendant and ordered that fresh primary be conducted within 14 days of passing judgment. Not unnaturally, the Appellant was utterly dissatisfied with the judgment of the trial Court, thus appealed to the Court of Appeal. The Court of Appeal resolved issues against the Appellant and dismissed the Appeal but not before dismissing the lower courts order for the conduct of fresh Primaries by the 2nd Respondent. The Appellant was also ordered to pay the cost of Two Hundred Thousand Naira (N200,000.00) to the 3rd Respondent.

Further aggrieved, the Appellant approached the Supreme Court as a final resort.

 

HELD

Appeal allowed

ISSUES

Ø Whether the lower Court was right when their Lordships held that the burden of proof rightly shifted to the Appellant after having earlier found that; “… the burden of proof of the allegations by the plaintiff of the various manipulations of the processes to come up with the Appellant as the candidate of the 2nd Respondent, was on the plaintiff to prove on the balance of probabilitie”?

Ø Whether the lower Court was right when their Lordships held that the Appellant did not challenge the findings of the lower trial Court that INEC did not attest to the conduct of Primary Election and did not give report to corroborate it?

Ø Whether the lower Court was right when their Lordships held that the absence of INEC (3rd Respondent’s) Report is conclusive inference that the 2nd Respondent did not conduct a valid primary election to produce the Appellant?

Ø Whether the lower Court was right when it raised and resolved the issue of the forfeiture of the right of the 2nd Respondent to file a candidate against the Appellant without affording him the opportunity of being heard on the issue?

 

RATIONES DECIDENDI

GROUNDS OF APPEAL – AN APPEAL SHOULD BE ENTERTAINED ONLY ON COMPETENT GROUNDS OF APPEAL

The law is settled in a plethora of formidable authorities of this Court, that an appeal should be entertained and determined only on the basis of competent grounds of appeal before the Court. Thus, any point or issue argued an appeal which is extraneous to the grounds of appeal before the Court ought to be discountenanced and struck out for being incompetent. See OLAYEMI VS. FHA (2022) LPELR-57579 (SC) @ 44-45 paragraphs E-F, HARUNA VS. ABUJA INVESTMENT & PROPERTY DEVT. CO. LTD (2021) LPELR-58383 (SC).

As alluded to above, the judgment of the trial Court in question was delivered on 26/09/2022. By virtue of the unequivocal provisions of Section 285 (11) of the Constitution of the Federal Republic of Nigeria, 1999 as amended by the 4th Alteration Act, 2018, an appeal from a decision of the Court in a pre-election matter shall be filed within 14 days from the date of the delivery of the said decision. See APC VS. ENWEREM (2022) LPELR-57816 (SC).

Thus, in the instant case, the Appellant having failed to appeal against the ruling of the trial Court in question (delivered on 26/09/2022), he is deemed to have accepted same as correct and valid. See PILLARS (NIG) VS. DESBORDES (2021) LPELR-55200(SC). – Per I. M. M. Saulawa, JSC

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL MATTERS

In civil cases, the onus of proving the existence or otherwise of a fact lies squarely upon the party against whom the decision of the Court would be given if no evidence were adduced on the other side, regard being accorded to any presumption that may arise on the pleadings. Invariably, the onus of proof shall be discharged by the party on the balance of probabilities in all civil proceedings. See Sections 133(1) and 134 of the Evidence Act. This explains the trite fundamental doctrine, that he who asserts must prove the assertion thereof by some credible and cogent evidence. See KWARA INVESTMENT COMPANY LTD VS. GARUBA (2000) 14 NWLR (pt. 674) 25, CCB NIG. LTD VS. ONWUCHEKWA (2000) 3 NWLR (pt. 647) 65, EBOHON VS. AG EDO STATE (1994) 5 NWLR (pt. 349) 190, CBN VS. AUTO IMPORT EXPORT (2012) LPELR-7858 (CA) per Saulawa, JCA (as then was) @ 47-48 paragraphs G-A.

However, by way of an exception to Section 133(1) of the Evidence Act (supra), it is provided under Subsection (2) thereof:

“133(2) if the party referred to in Subsection (1) of the Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively until the issues in the pleadings have dealt with.”

Thus, the essence of the unequivocal provision of Section 133(2) of the Evidence Act (supra), is that a defendant is not obligated to proffer evidence in defence thereof where the plaintiff fails to establish his claim by some creditable and cogent evidence. That’s to say, it’s only after the plaintiff has discharged the burden of proof under Section 133 (1) of the Evidence Act that the burden of proof envisaged under Section 133 (2) (supra) would be shifted thereto. See IBEZIM VS. ELEBEKE (2022) 4 NWLR (pt. 1819, UMERA VS. INEC (2022) 10 NWLR (pt. 1838) 349. – Per I. M. M. Saulawa, JSC

BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL MATTERS

“As alluded to above, the law is trite, that the onus of proving allegations (claim) in a suit is squarely predicated upon the plaintiff by means of credible and cogent evidence. See Section 133(1) of the Evidence Act (supra).

Secondly, the apt finding of the trial Court regarding the plaintiff’s failure to discharge the mandatory burden of proof was not appealed to the Court below, thereby binding upon the Court and the respective parties.

Thirdly, by the very nature thereof, the reliefs sought by the plaintiff at the trial Court were declaratory, thereby requiring the plaintiff to succeed on the basis of the strength of his case, and not necessarily on the weakness of the defence. See KODILINYE VS. MBANEFO ODU 2 WACA 338, MARTIN VS. STRACHAN (1744) 5 TERM REPORT 107n @ 110n, FABUNMI VS. AGBE (1985) NWLR (pt. 2), per Obaseki, JSC @ 38 paragraphs A-B, DUMEZ (NIG.) LTD VS. NWAKHOBA (2008) 18 NWLR (Pt. 1119) 361 (SC).

Indeed, the onerous burden placed upon the plaintiff to plead and prove his declaratory reliefs on the basis of the strength of his case and not on the supposed weakness of the defence, is well settled beyond peradventure. As aptly once reiterated by this Court in AG. RIVERS STATE VS. AG. BAYELSA STATE (2012) LPELR – 9336- (SC):

“The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence.”

Per Mohammed, JSC (as he then was). – Per I. M. M. Saulawa, JSC”

RECORD OF APPEAL – CONDUCT OF PARTIES AND THE COURT TO THE RECORD OF APPEAL

“The law is settled, that the parties to an appeal as well as the Court are duly bound by the record of appeal. Thus, neither the Court nor the parties can ascribe to or exclude from the record, anything that is extraneous to or within it. See ANYAKORAH VS. PDP (2022) 12 NWLR (Pt. 1843) 1, LEADERS CO. LTD VS. BAMAIYI (2010) 18 NWLR (Pt. 1225) 329.

To borrow the immutable words of Lord Goddard, C. J. in BRACEGIRDLE VS. OXLEY (1947), ALL ER 126:

“In this country, we only the Justices decisions on points of law, being bound by the facts which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.”

See SONAFIURA BIU VS. KANO STATE (1980) SCNJ 130 per Idigbe, JSC @ 223. – Per I. M. M. Saulawa, JSC”

INEC – DUTY OF INEC TO MONITOR PRIMARY ELECTIONS

In my considered view, the word "shall" as couched in Section 84 (1) of the Electoral Act (supra), denotes a command. Thus, that being the case, INEC is cloaked with a duty to monitor any primary election sought to be conducted by a political party at a particular designated venue within the appropriate Federal or State Constituency. – Per I. M. M. Saulawa, JSC

INEC – POWER OF INEC TO MONITOR PRIMARY ELECTIONS – CONDCT OF COURTS WHEN INEC REPORTS ARE ABSENT

“The settled position of the law is that INEC is statutorily empowered under Section 84(1) of the Electoral Act, 2022 to monitor primary elections, and it is not in doubt that in the event of dispute on facts regarding the conduct or outcome of the primary election, as in this case, INEC stands on a vantage position to assist the Court with its report which would settle the dispute based on evidence. The report of INEC on its monitoring duty undoubtedly carries weight in the determination of primary election disputes. See PDP v Uche & Ors (2023) LPELR – 59604 (SC).

Howbeit, it is not the place of the Court to conclude that the absence of INEC’s report in a pre-election dispute presupposes the 2nd Respondent’s non-compliance with the provision of Section 82(1) of the Electoral Act. – Per J. I. Okoro, JSC”

SUO MOTU – CONDUCT OF COURTS WHEN AN ISSUE IS RAISED SUO MOTU

The well-settled position of the law is that when an issue is raised suo motu, the parties should be heard before a decision is reached on the issue, otherwise it may be held that the party denied the opportunity to address the Court was denied fair hearing. See Mabamije v Otto (2016) LPELR-26058 (SC), Stirling Civil Engineering (Nig) Ltd v Yahaya (2005) LPELR – 3118 (SC). – Per J. I. Okoro, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. All Progressives Congress Guidelines
3. All Progressives Congress Constitution
4. Electoral Act, 2022
5. Evidence Act, 2011

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