MR. IBIBIAMA F. G. ODOM & ORS V. THE PEOPLES DEMOCRATIC PARTY & 2 ORS

CORAM

PARTIES

1.MR. IBIBIAMA F. G. ODOM

2.MR. INNOCENT IBOROMA3.HON. EMILY SOLOMON(Suing for themselves individually And jointly as aspirants to the Bonny Federal Constituency Election of the Peoples Democratic Party)

APPELLANTS 

THE PEOPLES DEMOCRATIC PARTY & 2 ORS

RESPONDENTS 

AREA(S) OF LAW

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 theRespondents cross-appealed.

HELD

{C}{C}Appeal and Cross-Appeal Dismissed

ISSUES

1. 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?

2. 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?

3. 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?

4. This issue arises from grounds 3 and 5 of the grounds of appeal?

5. Whether the Court below ought to have declined jurisdiction to hear the appeal having come to the conclusion that the appeal is academic?

6. This issue arises from ground 6 of the grounds of appeal ?

RATIONES DECIDENDI

INTERFERENCE WITH THE DECISION OF A LOWER COURT – DECISIONS OF A LOWER COURT CAN BE INTERFERED WITH BY THE APPELLATE COOURT 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.

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.

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.

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.

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.

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.

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

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.

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.

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

CASES CITED

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria,1999 as (amended)

Rivers State High Court (CivilProcedure) Rules 2011

Electoral No 6 of Act2010 as (amended)

Evidence Act 2011

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