ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS

CORAM

JAMES OGENYI OGEBE, JUSTICE, SUPREME COURT

PARTIES

ALIYU IBRAHIM GEBI

1. ALHAJI GARBA DAHIRU2. PEOPLES DEMOCRATIC PARTY (PDP)3. CONGRESS FOR PROGRESSIVE CHANGE (CPC)4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

AREA(S) OF LAW

SUMMARY OF FACTS

The 1st Respondent and the Appellant contested the election for the Federal House of Representatives, Bauchi Federal Constituency, which was held on April 9, 2011 on the platforms of the People’s Democratic Party (PDP) and the Congress for Progressive Change (CPC), respectively, alongside other contestants. On April 10, 2011, the results of the election were declared, with the Appellant scoring 93,540, while the 1st Respondent scored 45,877 votes. The 4th Respondent declared the Appellant as the winner of that election. Both the 1st and 2nd Respondents were dissatisfied, thus filed the said petition at the National and State Assembly Election Petition Tribunal Bauchi State. The Appellant filed a motion on notice seeking for a dismissal of the petition and payment of the sum of N5, 000,000.00 (Five Million Naira) as expenses incurred by the Appellant in the course of defending the Petition, which application the lower Tribunal dismissed. Aggrieved by the dismissal of his application, the Appellant filed the instant appeal via a Notice of Appeal containing seven Grounds of Appeal. Only the Appellant and the 4th Respondent file their respective briefs of argument.

HELD

Appeal Dismissed

ISSUES

Whether the failure of the First and Second Respondents to file an application for the issuance of the pre hearing notice as mandatorily required by paragraph 18(1) of the First Schedule to the Electoral Act 210 as amended has not rendered the said Respondents’ petition incompetent thereby depriving the Tribunal of the Jurisdiction to hear the petition? Whether the National and State Houses of Assembly Election Petition Tribunal, Bauchi State was right in ignoring the issues of back dating of the Letter allegedly filed on the 1st day of June 2011 as an application for the issuance of pre hearing notice as well as the non payment of filing fees for the said letter by the First and Second Respondents? Whether the Tribunal was right in refusing to follow in Riruwai V. Sheharau (2008) 12 NWLR (Part 1100) 142 and Badamasi Ayuba & 1 Or V. INEC & 3 Ors (Unreported) APPEAL NO. CA/EP/K/15/2007 DELIVERED ON THURSDAY, THE 14TH DAY OF MAY 2009 as well as the decision of the Supreme Court in the case Okereke V. Yar’adua (2008) 12 NWLR (Part 1100) 95 contrary to the well-established principle of stare decisis?

RATIONES DECIDENDI

BRIEF OF ARGUMENT – CONSEQUENCES OF A RESPONDENT’S FAILURE TO FILE HIS BRIEF OF ARGUMENT

“It is a well settled principle, that under the Election Tribunal and Court Practice Directions, 2011, the Respondents were indeed required to file in the court their brief of argument within 5 day of service of the Appellant’s brief. See paragraph 12 of the Practice Directions, 2011 thus:
“12. The Respondent shall file in the court his own Brief of Argument within 5 days of service of the Appellant’s brief. Paragraphs 11 (a) to (b) above shall apply mutandis to the Respondent’s Brief of Argument.”
Most regrettably, the Practice Directions 2011 (supra) is silent regarding the likely consequence of a respondent’s failure to file a brief. Thus, the provisions of the Court of Appeal Rules, 2011 have to be resorted to. It is instructive, that by virtue of the provision of order 18 Rule 10 of the Court of Appeal Rules, 2011, where, as in the instant case, a respondent fails to file the brief thereof, he will not be of allowed to canvass an oral argument of the hearing of the Appeal. For the avoidance of doubt, it must be reiterated that the fact that the 1st – 3rd Respondents have not filed the brief thereof, notwithstanding. –

STANDARD OF PROOF – WHETHER AN APPELLANT CAN SUCCEED ON THE WEAKNESS OF THE DEFENCE

“As it is a trite and well established cardinal principle, that the Appellant has a duty to establish his case on the balance of probability, and not on the weakness of the defence. That is the reality of the position under the Nigerian adversarial judicial system. –

ISSUES FOR DETERMINATION – STATUS OF AN ISSUE FOR DETERMINATION, WHICH DOES NOT ARISE FROM THE GROUND OF APPEAL

“And it’s indeed a trite and well settled principle, that issues raised or formulated in a brief of argument must be determined upon the basis of competent grounds of appeal challenging the decision appealed against. Thus, neither a party to the appeal, nor the court itself is allowed to raise any issue which is not related to, or arises from a ground of appeal. See CSS Bookshop Ltd. V. RTM CRS (2006) 11 NWLR (pt. 991) 530; Oniah V. Onyia (1989) 1 NWLR (pt. 99) 514: Nwosu V. Udeaja (1990) 1 NWLR (pt 125) 188; Mark V. Eke (2004) 5 NWLR (pt 865) 54: Okoreaffia V. Agwu (2008) 12 NWLR (pt 1100) 165 at 191 paragraphs C – D.
Most particularly in the case of Okoroaffia V. Agwu (supra), this court was recorded to have apply held, inter alia, that –
Arguments canvassed in brief of argument must be predicted on, or traceable to the issue for determination in the appeal, as the grounds of appeal from which such issues for determination were formulated. Consequently, any issue which does not arise from the ground of appeal is irrelevant to the appeal, incompetent, and therefore liable to be struck out by the court. Per Saulawa, JCA at 191, paragraphs E-F. See also Idika V. Erisi (1988) 2 NWLR (pt. 78) 563; Nkado V. Obiano (1997) 5 NWLR (pt 503) 31; Anima Shaun V. Uch (1996) 10 NWLR (Pt 476) 65: Kari V. Ganaram (1997) 2 NWLR (pt 488) 380; Dada V. Dosunmu (2006) 18 NWLR (pt 1010) 134: FRN V. Obegolu (2006) 18 (pt 1010) 188”. –

“APPLY” AND “MOTION” – MEANING OF THE TERMS “APPLY” AND “MOTION”

“Instructively, the term application as a noun simply denotes a request or petition. It may also mean a motion. Thus, the term ‘apply’ as a verb denotes to make a formal request or motion: as for instance, to apply for a loan or an injunctive relief. Contrastively, the term motion denotes a written (or oral) application requesting a court to make a specified ruling or order as in motion for leave to appeal; motion for summary judgment, et al. See BLACK’S LAW DICTIONARY, 8th edition of pages 108, 109, 1036, and 1038, respectively. –

APPLICATION FOR ISSUANCE OF PRE-HEARING SESSION NOTICE – REQUIREMENT FOR AN APPLICATION FOR ISSUANCE OF PRE-HEARING SESSION NOTICE

“Analogically, the requirement for an application under paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (Supra), could be likened to that under the provisions of order 23 of the High Court (Civil Procedure) Rules, 1988 regarding the undefended list procedure which provides, inter alia, thus:
1. Whenever application is made to a court for the issue of a writ of Summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and is stating that, in the deponent’s belief, there is no defence there to, the court shall, if satisfied that there are good grounds for believing that there is no defence there to, enter the suit for hearing in what be called the undefended list, and mark the writ of summons accordingly, and enter there on a date for hearing suitable to the circumstances of the particular case.
It is trite that, the above provision has been a subject of various interpretations by both the Court of Appeal and Supreme Court alike. In one of such decisions, it was held by this Court that –
By the meaning of application (Supra) it appears the intendment of the provisions of order 23 and particularly the use of the word application is that a special request must be made first before a writ of Summons is placed on the undefended list. The substratum of the provision is the application. Once there is all application, however made either by a motion exparte under order 8 or by the filling of form one under order 5, the legal requirement is fulfilled once an application is made. In the case of Oknofua Vincent Omojahe V. Uwesu Umoru 42 ors (1999) 5 SCNJ P. 280 at 287, the Supreme Court held that Statutes are construed to promote the general Purpose of the legislature. Judges ought not to go by the letter of the Statute but also by the spirit of the enactment. See F. O. Ogbaegbe V. First Bank Of Nigeria Plc APPEAL NO CA/PH/230/2001, date at 26/05/2005, per DONGBAN – MENSEM, JCA. See also Olubusola Stores V. Standard Bank (1974) 4SC 51 at 54: Ahmeg V. Trade Bank Ltd. (1998) 10 NWCR (P. 524) 290 at 297: First Bank Plc V. Khaladu (1993) 9 NWLR (Pt 315) 44 at 57, Nwakama V. Iko Local Govt (1996) 3 NWLR (Pt 553) 298 at 308, respectively. In the case of Badamasi Ayuba V. INEC (Supra) cited and relied upon by the Appellant’s learned counsel, it’s obvious that the motion filed by the petitioner for the issuance of the pre-hearing notice (form TF 007) was following the directive of the Tribunal’s chairman that all such applications should be by way of motion”. –

EXERCISE OF JUDICIAL DISCRETION – JUDICIAL DISCRETION MUST BE EXERCISED JUDICIALLY AND JUDICIOUSLY

“It should be borne in mind, that the lower Tribunals in both AYUBA’s case (supra) and the instant case were imbued with a far-reaching discretionary power to entertain the application for issuance of pre-hearing session notice either by way of motion or letter. It is so obvious that in AYUBA’s case (supra) the lower Tribunal insisted on filing a motion, in the instant case, the lower Tribunal deemed it expedient to satisfy itself to the effect that –
In the end result we are of the view that the letter written to the tribunal as in this case complies and carries out the intention and requirement of 18 (1) of the First Schedule to the Electoral Act 2010, (as amended). See page 369 of the Record. It ought to be reiterated for the avoidance of doubt, that the very fundamental essence of the proper exercise of judicial discretion is rooted in the belief that it be exercised in accordance with well-established rules of law practice, fairness and justice and not in accordance with whimsical opinion, humour parochial, or sentimental disposition. Thus, strict compliance with well-established rules of law, reason and forensic logic are undoubtedly veritable handmaids for proper exercise of a judicial discretion for the unique purpose of attainment of justice to the parties before the court. See Oyeyemi V. Irewole Local Government (1993) 7 NWLR (pt. 270) 462; ANPP V. REC, Akwa Ibom State at 512 – 513 paragraph G-C per Saulawa, JCA. Indeed, it is a well settled principle of law that the exercise of a discretionary power is within the exclusive jurisdictional preserve of a trial court or Tribunal. Such a discretionary power must of course be seen to have been exercised not only judicially, but also judiciously. An Appellate court must exercise on extra caution to avoid any temptation to interfere with the exercise of the discretionary power duly vested in a lower court or Tribunal, unless it is absolutely shown that there is a justification for it to do so. See Alsthom S. A. V. Sarki (2005) 3 NWLR (pt 911) 208 at 224 – 225: Ceekay Traders Ltd V. Gen. Motors Co. Ltd (1992) 2 NWLR (pt 222) 132; Rasaki A. Salu V. Madam Towuro Egeibon (1994) 6 NWLR (pt 348) 23. –

ALLEGATION OF FALSIFICATION – STANDARD OF PROOF REQUIRED FOR PROVING AN ALLEGATION OF FALSIFICATION

“Regarding the issue of the application for the issuance of the prehearing notice, there is every cogent reason to make me hold that the allegation is not only baseless, but also highly mischievous, if not predatory, to say the least. Indeed, the allegation of backdating a (judicial) process is a very serious criminal accusation. The standard of proof of which is that of proof beyond any reasonable doubt. See section 138 (1) of the Evidence Act, CAP E114, Laws of the Federation of Nigeria, 2004. –

BIAS – MEANING OF BIAS

“I would want to believe that it’s rather unethically predatory for the learned counsel to have questioned the ‘integrity’ and ‘impartiality’ of the lower Tribunal in the court of discharging the judicial functions thereof. As extensively alluded to above, there is no basis at all for such uncharitable allegation by the learned counsel against the lower Tribunal. To question the integrity and impartiality of a court or tribunal, as was done by counsel in the instant case, tantamount to an accusation of bias against such a court or tribunal. And it’s a well settled principle, that, bias, with particular regard to court or Tribunal, is an inclination, predisposition or preparation, to determine a matter or cause in a certain preconceived way, without any regard to laid down principles or law. See ANPP V. Rec Akwa Ibom State (2008) 8 NWLR (pt 1090) 453 at 526-527 paragraphs G – D; 528 C – E, where in it was held by this court, inter alia, thus:
“Bias may be attributable to a number of factors including corruption, vengeance, partnership, friendship, group membership or association” Per Saulawa, JCA. See also Azoukwu V. Nwokanma (2005) 11 NWLR (pt 937) 537”.
–

DOCTRINE OF STARE DECISIS – PRINCIPLE AND OBJECTIVES OF THE DOCTRINE OF STARE DECISIS

“Undoubtedly, one of the fundamental objectives of stare decisis in the administration of justice system is to guarantee that the wheels of justice are not clogged and the streams of justice are kept crystal clear and pure. I think, it was Lord Hardwick who once remarked in as far back as 1742 that:
There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that in parties may proceed with safety both to themselves and their characters, see the St. James Evening Post case (1742) 2 Atkins 469 at 472. It is indeed a trite fundamental principle, that the well cherished time tested doctrine of judicial precedent, otherwise popularly known in Latin as STARE DECISIS, requires all Courts of law of Subordinate hierarchical jurisdiction to follow and apply the decisions of Superior Courts of records, even where these decisions are obviously wrong; having been predicated upon a false premise. This time tested doctrine is the bedrock upon which the consistency of common law is based. See Ngwo V. Monye (1970) 1 ALL NWLR all at 100; NAB Ltd V. Barri Eng. (Nig) Ltd (1995) 8 NWLR (pt. 843) 310 at 350 Paragraphs E-F. The term STARE DECISIS is a Latin derivative, denoting relenting to stand by things decided. The doctrine of precedent (Stare Decisis) makes it imperative, as alluded to above, for an inferior Court to follow earlier judicial Pronouncements (decisions) of superior Courts of records, when the same points arise again in litigation. According to Rupert Cross & J.W. Harris in Precedent in English Law, 4th Edition 1991 at 100 –
The general or orthodox interpretation of stare decisis… is Stare ration ibus decidendis (keep to the rationes decided of past cases), but a narrower and more literal interpretation is sometimes employed… According to Lord Reid, such a Situation arises when the ration decendedi of a previous case is obscure, out of accord with authority or established principle, or too broadly.
–

PROFESSIONAL CONDUCT OF A LEGAL PRACTITIONER – STANDARD OF PROFESSIONAL CONDUCT AND ETIQUETTE REQUIRED OF A LEGAL PRACTITIONER TO THE COURT IN THE DISCHARGE OF ITS DUTY

“Before placing the last dot to this Judgment, I have deemed it imperative to at this point in time to reiterate the time tested cardinal principle, that a lawyer, as an officer in the hallowed temple of justice, owes a duty to uphold and observe the rule of law, promote and foster the cause of justice maintain a high standard of professional conduct and etiquette, thus he shall not by no means engage, in conduct which demeaning of a legal practitioner. As once authoritatively observed by this court –
“it is trite, that the learned counsel as officers in the temple of justice have a duty to accord the tribunal’s chairman and members due respect, courtesy, and dignity. See Rule 35 of the Rules of Professional conduct for legal practitioners (supra)… the counsels to treat the tribunal with respect, courtesy, and dignity does not begin and end in the precinct of the four walls of the Tribunal’s building only. The counsel has an obligation to imbibe those sterling qualities even in his written submissions and other processes including notice and grounds of appeal and brief of argument. Thus, in my view, it would amount to an infraction of Rule 35 (supra) whereby a counsel, as in the instant case, falsely and rather mischievously, if not predatorily, accused a Judge of bias.”
See ANPP V. Rec Akwa Ibom State (supra) at 528 paragraph E-H, per Saulawa, JCA; Usani V. Duke (2006) 17 NWLR (pt. 1009) 610 at 647 per Aderemi, JCA (as he then was). –

DECISION OF COURT – DETERMINATION OF THE BINDING NATURE OF THE DECISION OF A SUPERIOR COURT

“To determine the binding nature of those decisions of this court, it must be shown that the facts were either similar or same, the provisions of the applicable law are also same or similar and above all, that the issues distilled for hearing were same or similar with those for consideration (Refer: per Oputa in Adegoke Motors Ltd V. Adesanya). –

EXERCISE OF DISCRETION – FEATURES THAT MUST EXIST BEFORE AN APPELLATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION BY THE LOWER COURT

“We are in this appeal, invited to interfere with the exercise of discretion by the learned members of the Tribunal. There are features which must exist before this Court may interfere with the exercise of discretion by the lower court, so that it does not appear like we are substituting our discretion for that of the Tribunal. For a court to interfere with the exercise of the discretionary power vested in the trial court it must be shown how the power was wrongly exercised to justify the intervention of the appellate court. (Refer Alsthon S.A. V. Sarki (2005) 3 NWLR (PT. 911) 208 at 224-225, Ceekay Traders Ltd. V. Gen. Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 and Rasaki A. Salu V. Madam Towuro Egeibon (1994) 6 NWLR (Pt. 348) 23)”. –

ISSUANCE OF PRE-HEARING NOTICE – EFFECT OF A FAILURE TO APPLY FOR THE ISSUANCE OF PRE-HEARING NOTICE WITHIN THE STATUTORY PERIOD

“My understanding is that where there is a failure to put the application simplicity in the ordinary course of things and within time after pleadings, the application on motion comes in for the kill. In other words, if the Petitioner fails to put in on application within 7 days of the completion of exchange of pleadings, the Respondent may come by way of motion to have the petition dismissed for non-compliance. We must make a distinction as to the form of the application and the fact of the application under paragraph 18(i). Form of application refers to the manner of making the request for the issuance of the Prehearing Notice – should it be by motion exparte, motion on notice or a simple letter application? I am unable to comprehend the argument that this vital request should be by motion on notice: apart from the secretary, who has the duty to issue the pre-hearing Notice in consultation with the Chairman of the Tribunal, who else is supposed to be put on notice and for what purpose? At the close of pleadings, the Petitioner has seven days within which to apply/request for the issuance if the Pre-hearing Notice. At the expiration of the seven days if he does not apply, the Respondent can apply, failing which the Tribunal must dismiss the petition suo motu. A petition dismissed under this paragraph is irredeemable: it is dead and cannot be revived; cannot be resuscitated. From this point forward, the learned members lack jurisdiction to do any other thing for they become functus officio in the said petition. This is very much unlike the ordinary civil procedure in which the court cannot suo motu enter judgment without an application from a party. Further, if Judgment is so entered, it is referred to as a default Judgment and can be set aside upon an application made within seven days. Not so with the election proceedings. The learned members of the Tribunal have no such discretion to revive a dead petition.
The special electoral adjudicatory procedure is different, unique; sui generis. My learned brother, Ba’aba JCA puts it admirably in these terms:
“An election petition is heard and determined by an appropriate election Tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under Section 285 and the 6th Schedule to the Constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an election Tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case: see Onitiri V. Benson (1960) SCNLR 314 at 317.
It is plain that the proceedings are special for which special proceedings is mode under the Constitution. See Oyekan V. Akinjide (1965) NMLR 381 at 383. Election petitions are distinct from the ordinary civil proceedings. See Obih V. Mbakwe (1984) 1 SCNLR 192. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise either could be cured or waived in an ordinary case could result in fatal consequences to the petition”. –

PLEADINGS -WHEN ARE PLEADINGS DEEMED TO HAVE CLOSED?

“At what stage do pleadings close? Paragraph 18(1) gives two stages at which pleadings may close. Ordinarily, pleadings close after the filing and service of the Petitioner’s reply. The request for the issuance of a Pre-hearing notice formally signals the close of pleadings. Therefore, once a request is made for the issuance of a Pre-hearing notice, pleadings are deemed closed even if no Petitioner’s reply is filed. If the Petitioner is still within time and elects to file a Petitioner’s Reply, the 1st request for the issuance of a Prehearing Notice must be withdrawn and a new request mode after the filing of the Petitioner’s Reply when time now starts to run up to seven days. Failure to withdraw the 1st Application and file a new one could be fatal to the petition due to exfluxion of time which the Tribunal cannot enlarge. There is a two way sharp sword built in here: if the Pre-hearing notice is filed pre-maturely, it is incompetent (Refer: Azudibia V INEC (2008) 4 LRECN p105). If the Petitioner is within time i.e. within the seven days period of the filing of a reply, the procedural defect could be rectified as Stated above. However, if the time has lapsed, then the petition must be deemed abandoned and dismissed because the Tribunal lacks the power to extend the time within which to apply for the issuance of Pre-Hearing Notice. It sounds harsh, but that is the law. Under paragraph 16(1) the petitioner has five days to file a petitioner’s reply. There is no discretion reposed in the Tribunal to extend his time”. –

ELECTION PROCEEDINGS – EFFECT OF A DEFAULT IN COMPLYING WITH A MANDATORY PROCEDURAL STEP IN AN ELECTION PROCEEDINGS

“The 2010 Electoral Act as amended puts some necessary time constraints on Litigants. While the time prescribed must not be compromised, the learned members of the Tribunal must be liberal in the exercise of discretion provided to ameliorate the time constraints. All provisions which have the effect of shutting out a party must be applied strictly within the constitutionally guaranteed right to fair hearing. Thus, where a provision requires that an application should be made and such is made, the defects in the making of such an application should be discountenanced in favour of the principles of fair hearing, similarly, where a provision is made for the setting aside of a decision, the Party must be given the privilege of such a provision. Ordinarily, provisions made to terminate proceedings in limine are meant to put reluctant Litigants on red alert, and such should be used sparingly. The only exception is the mandatory provision as to the time line of the different stages of the prosecution of a petition.
However, the blanket view of the learned members of the Tribunal that the provision of a rule of practice like paragraph 18(1) of the First Schedule cannot operate to curtail the power of the Tribunal to do substantial Justice rather than technical justice is misconceived. There is no general rule for the Tribunal to intervene in favour of substantial justice where the procedural rule is mandatory. Every provision of subparagraphs 18 are unique, sui generis and same are mandatory. In the case of Onitiri V. Benson (1960) SCNLR 314 at 317, it was held that the jurisdiction of an Election Tribunal is different from that of on ordinary civil case. Thus, for instance, unlike with the giving of eight days for the entry of appearance to a writ of summons, which is not mandatory, the requirement to apply for a pre-trial notice within 7 days of the close of pleadings is a mandatory provision of the 1st schedule to the Electoral Act (see Mr. G.O. Duke V Akpabuyo Local Government (2005) 19 NWLR Pt 959 P130 (a) 151).
None compliance is fatal and the tribunal/court is circumscribed to do anything other than what paragraph 18(3) and (4) of the 1st schedule says. Due to the special nature of Election proceedings, any default in complying with a mandatory procedural step which otherwise could either be cured or waived in an ordinary civil procedure would have fatal consequences in Electoral proceedings (Refer:
1. Oyekan N. Akinjide (1965) NWLR p381 (a) 383
2. Obih V. Mbakwe (1984) 1 SC NLR 192 and
3. Okereke V. Yar’adua (2008 FWLR Pt 430 p 626 at 646
–

EXERCISE OF DISCRETION – WHETHER THE EXERCISE OF WIDE DISCRETIONARY POWER BY THE COURT IS ALLOWED UNDER THE ELECTORAL ACT

“Paragraph 18 and all its sub paragraphs are a class of special provisions which are complete in form. There is no room for the importation of any general rule. Where the tribunal/court has powers of indulging the parties, it is so stated. Where such discretion does not exist it is so stated.
In the case of Kraus Thompson Organization V. National Institute For Policy And Strategic Studies (NIPSS) (2004) 17 NWLR pt 901 p44 (a) 59 and 65, the Supreme Court held that where an issue in a statute is governed by general provision and a specific provision, the later will be invoked in the interpretation of the issue before the court. Thus, while the learned Judges are enjoined to be liberal in the exercise of their discretion to ensure that the principles of fair hearing are upheld in all procedural matters, they must give effect to all mandatory provisions of the Electoral Act and procedural laws and rules of practice. The learned Judges must bear in mind that the special provisions of the Electoral Act do not admit of the exercise of wide discretionary powers as in ordinary civil proceedings. Thus, the case of FGN & Ors. V. Zegbra, which is on a contractual matter, is not applicable in election matters. –

RECORD OF COURT – THE COURT AND PARTIES ARE BOUND BY THE RECORDS OF COURT

“By law, both the parties, inclusive of the appellant, herein and this court are willy-nilly bound by the record regarding the document as contained on page 310 therein. Neither the appellant nor this court has the mandate of the law to go outside the records and nose around for a document signifying that the letter was backdated. This time-honoured principle of law has been sanctified in flood of cases, see Ogidi v. State (2005) 5 NWLR (pt.918) 286; O.O. M.F. Ltd. v. N.A.C.B. Ltd. (2003) 12 NWLR (pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374. It is in recognition of that hallowed rule of law that Tobi, JSC, in the case of Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207, lucidly stated:-
“… An appellate court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the record in its exact content and interpret it. Of course it has the jurisdiction to decide whether on the face of the record and on the cold facts the decision was proper or not.”
In due obeisance to this sacrosanct principle of law, I decline the tempting invitation of the appellant on this critical point.-

DOCTRINE OF STARE DECISIS – CONDITIONS FOR THE APPLICATION OF THE DOCTRINE OF STARE DECISIS

“Incontestably, the lower tribunal was bound to follow the decisions in the trio cases supra, being decisions of the Court of Appeal and Supreme Court, on the footing of stare decisis, see Ogunsola v. Nicon (2010) 13 NWLR (Pt. 1211) 225. Be that as it may, there is an accepted rider to the application of stare decisis. It is only applicable where the facts and circumstances of a case under consideration are on all fours with those of an already decided case by a superior court. –

FACTS – THE PLACE OF FACTS IN JUDICIAL PROCEEDINGS

“It must be placed on record that facts are the forerunners and bedrock of the law. They determine the fortune of any case. In the case of A.G., Anambra v. A.G., Federation (2005) 131 LRCN 2357 at 2426, Pats-Acholonu, JSC, said:-
“Facts act like magnets and have the potential to completely turn a seemingly ugly or bad case to a good case. We must not neglect the Roman aphorism “Ex facto oritur jus’ that law has its offspring on the fact’.”
See also Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 363.
At any rate, the lower tribunal’s failure to apply those dissimilar authorities does not constitute an affront to the law. In the eyes of the law, such a failure or neglect occasions no miscarriage of justice to the appellant. To bear me out, I drum up support from the case of Ebhodaghe V. Okoye (2004) 18 NWLR (Pt. 905) 412 at 491 wherein Kalgo, JSC, stated:-
“Having resolved issue 1 in favour of the appellant, I do not find it necessary to consider issue 2 which deals with failure of the Court of Appeal to act on the legal authority cited to it and relied upon by the appellant in his submissions to it before judgment. It appears to me to be an academic exercise, since in any case; it would not affect the decision in this case on a way or the order. Suffice it however to say, that failure to consider any relevant authority by a court would not ipso facto, constitute any miscarriage of justice, in my view, since the situation may be corrected if necessary, on appeal.”
See, also, Okochi V. Animkwoi (2003) 18 NWLR (Pt. 851) 1 at 26.-

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2011|Election Tribunal and Court Practice Directions, 2011|Electoral Act 2011|High Court (Civil Procedure) Rules, 1988|

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