TERVER KAKIH V PDP & ORS

CORAM

OBASKEI, JUSTICE, SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN     JUSTICE SUPREME COURT

OBASKEI, JUSTICE, SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN     JUSTICE SUPREME COURT

PARTIES

TERVER KAKIH  APPELLANTS

PDP & ORS

RESPONDENTS 

AREA(S) OF LAW

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. ?

HELD

Appeal Allowed

ISSUES

1. 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?

2. 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?

3. 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?

4. 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?

5. 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?

6. 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)?

7. 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?

8. 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?

9. 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.?

RATIONES DECIDENDI

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

STANDARD OF PROOF – STANDARD OF PROOF REQUIRED IN CRIMINAL OFFENCES

“By the clear provision of section 135 [1] 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

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

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

CASES CITED

None

STATUTES REFERRED TO

Court of Appeal Act

Evidence Act 

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