3PLR – AGBI V. OGBEH (CA)

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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AGBI

V.

OGBEH

COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2003/17 (CA)

OTHER CITATIONS

15 NWLR (Pt 844) 493

 

BEFORE THEIR LORDSHIPS:

UMARU ABDULLAHI, JCA (Presided)

GEORGE ADESOLA OGUNTADE, JCA (Delivered the leading judgment)

IBRAHIM TANKO MUHAMMAD, JCA

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

 

BETWEEN

1. ENGR. GOODNEWS AGBI
2. BARR. ANTHONY ALABI

 

AND

1. CHIEF AUDU OGBEH
2. CHIEF VINCENT OGBULAFOR
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION
5. CHIEF JAMES ONANEFE IBORI

 

REPRESENTATION

Chief Robert Clarke With, Messrs Yinusa Pako, Moses Oddiri, I.C. Eke, James Okoli, R. E. Wanogho, E. Amayan       – For 1st appellant.

Chief Afe Babalola SAN With, Messrs J.K Gadzama SAN, Olaseni Okunloye, Demola Bakare, Olufemi Amao, A. Maikori, E.J. Asuquo, A.A. Ibrahim, Miss Remi Awe, Miss Bolanle Oyeneyin   – For 2nd appellant

Mr. Kabir Bala With, Miss B.I. Omoaghe   – For 4th respondent.

Alhaji Abdullahi Ibrahim SAN With, Chief M.P. Ohwovoriole SAN, Mr. Alex Izinyon SAN, Mr. Y. N. Adakpo, Mr. C. U. Ekomaru, Mr. O. Bello, Mr. J. Akanike, Mrs. Gambari-Mohammed, Mr. C.E. Ekeocha, Mr. M. Sirajo Ibrahim, Miss Anna Birjin,  Mr. O.A. Owodunni – For 5th respondent.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – ACTION – Originating summons – when filed without an affidavit – validity of.

PRACTICE AND PROCEDURE – APPEAL – Appeal court – leave to raise issue of jurisdiction – whether a formal application must be filed.

PRACTICE AND PROCEDURE – COURT – Appeal court – non-compliance with rules of procedure – when same can be overlooked.

PRACTICE AND PROCEDURE – COURT – High Court – whether can set aside judgment and proceedings of an inferior court tendered before it.

PRACTICE AND PROCEDURE – COURT – Judgment and proceedings of an inferior court – where it is defective and wrong – whether can be set aside without appeal.

PRACTICE AND PROCEDURE – EVIDENCE – Inadmissible evidence – whether can be admitted by discretion of court.

PRACTICE AND PROCEDURE – EVIDENCE – Certificate of conviction – when and how to tender same – section 225(2) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 considered thereunder.

INTERPRETATION OF STATUTE – Section 225(2) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 – provision of – whether same can be waived.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment and proceedings of an inferior court – where it is defective and wrong – whether can be set aside without appeal.

PRACTICE AND PROCEDURE – Conviction – denial by a person allegedly convicted – whether certificate of conviction can be tendered therein.

PRACTICE AND PROCEDURE – Rules of procedure – non compliance with – when it can be overlooked by an appellate court.

PRACTICE AND PROCEDURE – Conviction – when found to be defective or deficient – effect on the fact of conviction.

PRACTICE AND PROCEDURE – Evidence of conviction – whether can only be proved by certificate of conviction.

PRACTICE AND PROCEDURE – Originating summons – where filed without an affidavit – effect of.

PRACTICE AND PROCEDURE – Settlement of issues – procedure to adopt in the High Court of the Federal Capital Territory.

 

MAIN JUDGEMENT

GEORGE ADESOLA OGUNTADE, JCA (Delivering the leading judgment):

 

The appellants were the plaintiffs in suit No. CV/133/03 at the High Court of Abuja where they brought an originating summons against the 1st four respondents as the defendants seeking the determination of the following questions:

 

“1.     That the 1st, 2nd and 3rd respondents are in error in its apparent and express refusal in disqualifying and withdrawing its flag and certificate of affirmation given to Chief James Onanefe Ibori to contest the 2003 gubernatorial elections on the party’s platform in Delta

 

State despite legal proof of his being an ex-convict within the meaning of section 182, i.e. of the 1999 Constitution.

 

2. That by virtue of sections 112, 115 and 124 of the Evidence Act, Cap. 112 Laws of the Federation, the duly certified true copy of the record of proceedings of the Bwari Upper Area Court in case No. CR-81-95 is presumed genuine and from proper custody.

 

3. That within the meaning of section 182(1)(e) of the 1999 Constitution, the 1st, 2nd and 3rd respondents candidate for the gubernatorial elections in Delta State Chief James Onanefe Ibori being an ex-convict stands disqualified to contest the 2003 elections.

 

4. That the 4th respondent is barred from recognizing and accepting the candidature of Chief James Onanefe Ibori being an ex-convict for the 2003 gubernatorial elections in Delta State within the meaning and provisions of sections 182(1)(e) of the 1999 Constitution and therefore seeks for the determination of the following questions:

 

(i)      Whether a person who pleaded guilty and was convicted on a two count charge of negligent conduct and criminal breach of trust contrary to sections 3/2 and 196 of the Penal Code leading to the disappearance of building materials valued at one hundred and ten million naira and sentenced to one year imprisonment or any term of imprisonment is quantified within the meaning of section 182(1)(e) of the 1999 Constitution to stand for the gubernatorial elections in Delta State or any state in Nigeria.

 

(ii)     Whether the said Chief James Onanefe Ibori being the 1st, 2nd and 3rd respondents gubernatorial candidate for Delta State and convict in charge No. CR-81-95 as shown in the Bwari Upper Area Court proceedings of 28/9/93 is a fit and proper person to contest the said elections within the meaning of section 182(1)(e) of the 1999 Constitution.

 

(iii)    Whether the unsubstantiated allegation of alteration of the records of proceedings of judicial officers without a judicial pronouncement to that effect can impeach the legal presumptions enshrined in sections 112, 114, 115 and 124 of the Evidence Act, Cap. 112 Laws of the Federation 1990 sufficient in law, to stay the hands of the 1st, 2nd and 3rd respondents from withdrawing its flag and certificate of affirmation of the candidature of the ex-convict within the meaning of section 182(1)(e) of the 1999 Constitution.

 

(iv)    Whether the 4th respondent can accept and recognize the candidate of the 1st, 2nd and 3rd respondents for the 2003 gubernatorial elections in Delta State being an affirmed ex-convict within the meaning of section 182(1)(e) of the 1999 Constitution.”

 

Depending on the answers given to the above questions, the reliefs, which the plaintiffs sought, are these:

 

“1.     A declaration that by virtue of the combined effects of sections 112, 114, 115 and 124 of the Evidence Act, Cap. 112 Laws of the Federation 1990, the records of proceedings of the Bwari Upper Area Court of 28th September 1993 in case No. Cr-81-95 is presumed genuine and sufficient in law for the 1st, 2nd and 3rd respondents to rely on same to act against the ex-convict.

 

2. A declaration that the ex-convict Chief James Onanefe Ibori by virtue of his conviction and sentence in case No. CR-81-95 is not qualified to carry the 1st, 2nd and 3rd respondents flag as its gubernatorial candidate in the 2003 elections within the meaning of section 182(1)(e) of the 1999 Constitution.
3. An order compelling the 1st, 2nd and 3rd respondents disqualify and withdraw its flag and certificate of affirmation given in this case, to the ex-convict Chief James Onanefe Ibori to contest the 2003 gubernatorial elections in Delta State on the platform of the Peoples Democratic Party.

 

4. An injunction restraining the 1st, 2nd and 3rd respondents, their agents, servants and privies from presenting the name of the ex-convict in this case Chief James Onanefe Ibori to the Independent National Electoral Commission as the candidate of the Peoples Democratic Party (P. D. P.) for the 2003 gubernatorial elections.

 

5. An injunction restraining the 4th respondent from recognizing and accepting the candidature of Chief James Ibori, the candidate of the 1st, 2nd and 3rd respondents for the 2003 gubernatorial elections in Delta State.”

 

Rather strangely, I must say, the plaintiffs did not file an affidavit deposing to the facts they intended to rely upon in support of their case. Instead, they filed a paper captioned “facts in support of the application.”

 

In the said paper they set out under 28 paragraphs some facts relied upon in support of their case. Again, although the plaintiff’s case centered around Chief James Onanefe Ibori who they wanted the court to restrain from running for the governorship of Delta State, they did not make him a party to the originating summons.

 

Later however the said Chief James Onanefe Ibori brought an application that he be joined to the suit. On 17/2/03, in a considered ruling the trial Judge Yusuf J. joined Chief James Ibori to the suit as the 5th defendant. He is now the 5th respondent in this appeal. After his joinder to the suit the 5th defendant on 11/3/03 filed a counter-claim against the plaintiffs. The reliefs sought on the counter-claim are these:

 

“1.     A declaration that the 5th defendant never appeared nor was he convicted for the offence of negligent conduct or criminal breach of trust contrary to the provisions of section 312 and section 196 of the Penal Code or any other offence at all by the Upper Area Court, Bwari-Abuja in case No. CR-81-95 on 28/9/95 or any other date whatsoever.

 

2. A declaration that even if the said No. CR 81-95 of 24/9/95 exists, the 5th defendant is not the person referred to in the said charge or case, as he has never appeared nor convicted by the Upper Area Court, Bwari, Abuja, in the said case, on the said date or any other date at all.

 

3. An order setting aside the said judgment as same is a product of fraud, illegality a nullity and therefore void abnitio.

 

4. An order of injunction restraining the plaintiffs, their agents, assigns and surrogates from linking the 5th defendant in any manner whatsoever in connection or pertaining to the case No. CR 81-95 by the Upper Area Court, Bwari of 28/9/95 if such a case does exist.”

 

The 5th defendant on 12/11/2003 also filed a counter-affidavit. I shall discuss later in this judgment the substance of the allegations made against the 5th defendant and his reaction thereto. On 19/3/03, the plaintiffs filed a process captioned “plaintiffs further statement of claim.” The lower court had on 18/3/03 expressed that because of the contentious issues of fact raised in the processes filed by parties, it was better to order that pleadings be filed. It ordered that the originating summon be converted to pleadings and gave parties 48 hours to file pleadings and additional documents.

 

The court notes for 20/3/03 would appear to convey that the parties were agreed that the important issue to be decided in the case was whether or not the proceedings of the Bwari Upper Area Court upon which the plaintiffs relied to show that the 5th respondent was convicted was in fact evidence that anybody was convicted. The trial Judge directed the counsel for parties to address him on the point. Counsel addressed the court on 20th and 21st March, 2003. The trial Judge on 24/3/03 delivered ruling. In the ruling the learned Judge concluded in these words:

 

“I agree with the learned counsel to the plaintiffs that the Area Courts are not bound by the CPC. They are however to be guided while trying cases. In the present case provision of section 386 CPC cannot operate to protect the document exhibit A as the question where there is a conviction or not is not of form but substance. The authorities cited by the learned counsel to the plaintiffs that decisions of native courts are to be given greater latitude also insist that the substance (of) the court order or decision should not be left for a hunch or conjecture. In the record before me the substance which involves the determination of guilt by the court was neglected and I am convinced that this court has power to say so. Now that there is no conviction in exhibit ‘A’ which is CR-81-95 what is the effect of it on the claims of the plaintiffs. The effect is to sweep the claims off the ground. All the claims which I referred to at the beginning of this ruling are to the effect that the 5th defendant is an ex-convict by virtue of CR-81-95 decided by Upper Area Court Bwari on 28/9/95 and that under section 182(1)(e) of the 1999 Constitution he is disqualified from contesting 2003 election to the office of a Governor. That section provides 180(1). No person shall be qualified to the office of Governor of a state if – (e) within a period of less than ten years before the date of election to the office of Governor of a state, he has been convicted and sentenced for an offence involving dishonesty or has been found guilty of the contravention of the code of conduct; non the argument of the learned SAN that section 225 of the Evidence Act was not complied with, I am of the view that that argument cannot be pursued seriously. The CTC of the record of proceeding exhibited in the case substantially complied with the provision. I also agree with plaintiff counsel that section 226 of the Evidence Act does not apply.

 

I am of the view that the issues decided renders the trial of the claims of the plaintiffs unnecessary. I accordingly dismiss them.”

 

The plaintiffs before the lower court were dissatisfied with the above judgment. They have brought this appeal against it. The 5th defendant was also dissatisfied with the aspects of the judgment and has brought a cross- appeal against it. The two plaintiffs jointly filed an appeal. Later however, the 2nd plaintiff brought a separate notice of appeal. Just before we commenced the hearing of the appeal on 11/4/03, the learned counsel who appeared for 1st appellant Chief Robert Clarke argued an application that the name of the 2nd plaintiff be struck out from the notice of appeal jointly filed by the plaintiff on 24/3/03.

 

I shall react later to that request in this judgment. It suffices for now to say that Chief Robert Clarke for 1st appellant formulated the following issues for determination from the grounds of appeal in the notice of appeal filed on 24/3/03.

 

“(i)     Whether it was competent for the learned trial Judge to have pronounced on the propriety, regularity, validity or merits of the proceedings of the Upper Area Court, Bwari of 28th September 1995 in case No. CR/81/95 when he was not sitting on appeal over the decision of the Upper Area Court in the said proceedings.

 

(ii)     Whether on the face and substance of exhibit ‘A’ there was a conviction of James Onanefe Ibori of Delta State for the offences of negligent conduct and criminal breach of trust by the Bwari Upper Area Court on 28th September, 1995.

 

(iii)    Whether the Upper Area Court is bound or bound to be guided by the provisions of the Criminal Procedure Code.”

 

The 2nd appellant, represented by Chief Afe Babalola SAN in his brief formulated the issues for determination as follows: –

 

“1.     Whether on the fact of the records of the proceedings of Bwari Upper Area Court of 28th September 1995 no conviction of James Onanefe Ibori of Delta State took place (Grounds 1 and 2).

 

2. Whether or not an Area Court is bound to completely comply with the mandatory provisions of section 1570 of the Criminal Procedure Code” (Ground 3).

 

3. Whether the learned trial Judge is competent to interfere with the findings and conclusion of Upper Area Court having regard to the fact that he was not sitting on appeal on the said judgment.” (Ground 4).

 

In the brief filed by the 5th respondent, the issue of the jurisdiction of the Upper Area Court Bwari was discussed and it was argued that the lower court has jurisdiction to determine whether or not the Upper Area Court had acted within its jurisdiction in giving the judgment contained in exhibit ‘A’.

 

The 5th respondent’s counsel sought leave in the said brief to discuss the issue of jurisdiction. In the 5th respondent’s brief the issues for determination were identified as the followings:

 

“Issue No. 1:

 

“Whether on the face of the record of proceeding of the Bwari Upper Area Court of 28th September 1995 there was a conviction of the accused person.

 

Issue No. 2:

 

Whether the Upper Area Court is bound or bound to be guided by the provisions of the Criminal Procedure Code.

 

Issue No. 3:

 

Whether or not, in arriving at its decision under appeal the court below exercised jurisdiction and powers or made pronouncements outside or beyond those which are appropriate in a court sitting at first instance.”

 

Before I enter upon a discussion of the issues raised for determination, I should dispose of a new procedural matters which were raised just before we commenced the hearing of the appeal. As I observed earlier Chief Robert Clarke who announced himself as appearing for the 1st appellant argued an application, which he filed, on 9/4/03. It was for an order that the name of the 2nd appellant be deleted from the notice of appeal filed on 24/03/03. Chief Afe Babalola SAN for the 2nd appellant did not oppose the application. Mr. Kabir Bala for the 4th respondent did not oppose. However Alhaji Abdullahi Ibrahim SAN for the 5th respondent opposed the application. He referred us to the 5th respondent’s brief where the grounds of his opposition to the situation had been more clearly articulated. It was contended in the brief that it was improper and impracticable for different counsel to represent separate plaintiffs in an action: Fadayomi v. Sadipe (1986) 2 NWLR (Pt. 25) 736 at 742 and Williams v. Nwosu (2001) 3 NWLR (Pt. 700) 376 at 386. Counsel submitted that the proper approach was for the said notice of appeal jointly filed by the two appellants to be withdrawn and for 1st appellant to file a separate notice of appeal as has been done by the 2nd appellant.

 

My reaction is that this appeal and the pre-hearing proceedings were conducted under urgency such that it was not possible to observe some of the ordinary rules of procedure. It seems to me that I ought to overlook the failure to comply with some of the rules of procedure, which have not occasioned a miscarriage of justice. With respect to the application by Chief Robert Clarke, it is common knowledge that the 2nd appellant now has before us his separate appeal. I do not therefore see how deleting his name from the notice of appeal filed on 24/3/03 can occasion any miscarriage of justice either to the 2nd appellant (who has not opposed) or to the 5th respondent. I am therefore inclined to grant the prayer. Accordingly, it is ordered that the name of the 2nd appellant be deleted from the notice of appeal filed on 24/3/03.

 

The 5th respondent in his brief also prayed that he be granted leave to raise for the first time on appeal the issue of law bordering on jurisdiction. Counsel for the 1st appellant did not oppose. However, Chief Afe Babalola SAN for the 2nd appellant opposed mainly on the ground that the 5th appellant ought to have brought a formal application for the purpose. In reacting to the application, I bear in mind that all the parties have had the advantage of responding to the arguments on the fresh point of law bordering on jurisdiction in their brief. The matter does not therefore constitute an attempt to surprise the other parties. Here again I must say that the general atmosphere prevailing on the need to proceed urgently constitutes sufficient reason why the 5th respondent has not brought a formal application. Accordingly, I would grant the leave as sought.

 

It is also to be said that the 5th respondent on 25-3-03, 20-3-03 and 31-3-03 filed separate notices of appeal. As the notices were not pursued, they must be deemed as abandoned. They are accordingly struck out. On 28-3-03, the 5th respondent filed a cross-appeal without their particulars read:

 

“1.     The learned trial Judge erred in law when he held that the certified true copy of the record of proceeding exhibited in the case substantially complied with the provision and therefore the provisions of section 225 and section 226 of the Evidence Act do not apply.

 

2. The trial court lacks the jurisdiction to entertain the originating summons in the first place as same was defective and incompetent and therefore void abinitio.”

 

In the 5th respondent’s brief, only the 1st ground of appeal above was pursued. The 2nd ground of appeal must therefore be deemed as abandoned. I now consider the issues for determination. Because the said issues dovetailed into each other, they can be conveniently considered together.

 

Now in paragraphs 7 to 19 of the ‘facts in support of the application’, the 1st plaintiff stated:

 

“7.     On or about the 10th of December 2003, the first applicant received information that the gubernatorial candidate of the respondents for the 2003 elections in Delta State is indeed an ex-convict.

 

8. Pursuant thereof the 1st applicant conducted his own investigation to assert the truth or otherwise of the said allegations.

 

9. These investigations led him to the Bwari Upper Area Court on the 23rd of December 2002 upon which on confirmation he applied for the certified true copy of the proceedings of 28th September 1995.

 

10. As an indigene of Delta State and a loyal member of the P. D. P he found as a fact that an ex-convict has been ruling the state since May 29th 1999. He also found out that his candidature offends the express provision of section 182(1)(e) of the 1999 Constitution.

 

11. The applicants know that unless Chief James Ibori is disqualified by the party and its certificate of affirmation and flag of the party withdrawn his unlikely victory in the 2003 elections will offend the Electoral Act 2002 as amended.

 

12. The party’s victory in the gubernatorial elections could be easily squashed by a law court or tribunal and victory awarded to the opposition party with the second highest number of votes.

 

13. The party will also be made to pay a fine of N500,000 and barred from presenting a candidate for the said elections for another four years.

 

14. That the P. D. P cannot afford this kind of gamble and as an indigene of Delta State I also owe it a duty to myself and the state to see that somebody who has been convicted over acts of dishonesty do not rule the state.

 

15. If as in this case the convict cannot be entrusted with goods worth N110,000,000, there is no guarantee that he can be entrusted with billions of naira monthly statutory allocation as in this case.

 

16. Over 240 billion statutory appropriation since May 1999 when the candidate of the respondents took over government in Delta State has been squandered with nothing on ground to show for it.

 

17. This is the consequence of allowing an ex-convict to preside over the affairs of the state. It is this kind of scenario that the 1999 Constitution seeks to avoid.

 

18. The respondents candidate have also alleged that the records of proceedings were falsified in collaboration with Judges and Registrars to implicate him.

 

19. That the respondents are set to reply on this unsubstantiated argument of their candidate to submit his name to INEC as the gubernatorial candidate of the party in the 2003 elections.”

 

The 5th respondent not only filed a counter-claim, which was in essence the corollary of the plaintiff’s claim, he filed a counter-affidavit. Paragraph 5(a) to (h) of the counter-affidavit read:

 

“(a)    That he has read the counter affidavit by one Engr. Goodnews Agbi in support of the originating summon and that paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27 and 28 of the said affidavit are not true but pathological falsehood.

 

(b)     That at no time, has he ever appeared or convicted before the Upper Area Court, Bwari on 28th September 1955 or any other date at all in case No. CR 81-95, or any other case at all.

 

(c)     That whatever the so called investigation carried out by Engr. Goodnews Agbi, that he is not the person associated or involved or charged in the said case as he knows nothing of it at all.

 

(d)     That he is not an ex-convict as he has never been convicted by any court for any criminal or civil matter whatsoever on any date at all.

 

(e)     That he was never entrusted with goods worth N110,000,000 as alleged or for any sum at all.

 

(f)      That nothing incriminating has been found against him whatsoever.

 

(g)     That the suit at the Upper Area Court he instituted against the Commissioner of Police against the said criminal case No. CR 81-95 was discontinued on envisaging, canvassing the same before superior court of record.

 

(h)     That he has been cleared and submitted to the 4th defendant as a fit and proper candidate to contest the Governorship seat for Delta State in 2003 election.”

 

The record of the Upper Area Court Bwari which the plaintiffs relied upon as constituting the evidence that the 5th respondent was tried and convicted of a criminal offence involving dishonesty and annexed to the originating summons as exhibit A reads:

 

“In the Upper Area Court Bwari

Holden at Bwari on 28-9-1995

Before Hon. Alh. Mohammed Awwal Yusuf – Judge

Before Hon. Mr. Kuku Fajemi – Court Member.

Complaint No. CR-81-‘95

Case No. CR-81-95

 

Parties: Commissioner of Police

v.

James Onanefe Ibori

 

Cause of Action: Negligent Conduct and Criminal Breach of Trust contrary to section 312 and 196 of the Penal Code.

 

Remark: On the 21-9-95 at about 12.50hrs one Mallam Mohammed a Security Supervisor attached to Usman Dam reported at the police station that Mr. James Onanefe Ibori at Delta State was entrusted with building material – zink absestors but he negligently allowed the materials to be removed by his workers whom he could not identify and thereby committed the above offence, the material valued at N110,000,000:00.

Prosecutor CP. Sunday Musa attached to Bwari Police Station appear for prosecution.

 

The accused person in court and speaks English language it is a case of negligent conduct and criminal breach of trust. The F.I.R read and explained to the accused person.

 

Court: Do you hear and understand the charge?

 

Accused: Yes I understand the charge.

 

Court: Are you guilty?

 

Accused: Yes I am guilty.

 

Counsel: (N. Ndukwe) we are sorry sir, we now understand our mistake hence we now intend to change our plea to guilty.

 

Prosecution: Since the accused person has carefully understood the charge and pleaded guilty, I beg the court to proceed under section 157 (1) CPC for a summary trial.

 

Court: Is the accused person a first offender?

Prosecution: Yes he is.

Court: what have you to say to the court?

Counsel: I am begging for leniency.

Ruling

The case was received under section 312 and 196 of the Penal Code. The F.I.R was read and explained to the accused person and he understood and pleaded guilty. The prosecution has made appeal for summary trial under section 157 (1) of the CPC and the counsel to the accused person has applied for leniency for the accused person.

 

In view of the fact that the accused is a young man and in consideration of the application made by the prosecution. I hereby sentence him as follows:

 

Sentence

 

I, M. A. Yusuf, UACJ II sitting with Mr. Kuku Fajemi court member hereby sentence you the accused person to a fine of N500:00 or to six months imprisonment as per section 312 of the Penal Code and another fine of N500:00 or to six months imprisonment as per section 196 of the Penal Code. The two count charge shall run parri passu one after the other.

 

Appeal

 

Appeal allowed to the aggrieved party to High Court of Justice Abuja within 30 days today 28/9/95.

 

Court Ordered

 

The complainant to the police may sue the convict to claim back the zinc valued N110,000,000:00 as per section 78 of the Penal Code Law.

Signed: M. A. Yusuf

Hon. Judge

23/12/02    Mr. Kuku Fajemi

Court Member

23/12/2002.”

 

It is apparent from the totality of the facts placed before the lower court that whilst it was the case of the plaintiff that the 5th respondent was the person tried and convicted vide exhibit ‘A’ by the Bwari Upper Area Court, the case of the 5th respondent on the other hand was that he never appeared before the said Bwari Upper Court and was never tried or convicted of any offence by the said court. The tendering of exhibit ‘A’ was therefore an attempt by the plaintiffs to prove that the 5th respondent was indeed the person tried and convicted by the Bwari Upper Area Court.

 

The counsel for the 5th respondent, before the lower court Chief Alex Ezinyon SAN would appear to have been looking for a quick way to the resolution of the matter. I say this because the court notes for 18/03/03 credited to the learned SAN the following statement.

 

“The issue in controversy is that the 5th defendant is an ex-convict. The law is that no oral evidence can be given of a judgment or proceeding of court if reduced to writing except if found intimidating neglect? Or want of due execution are alleged”

 

In reaction Mr. Odiri, of counsel for the plaintiffs was recorded as saying:

 

“I refer to counter-affidavit filed which we just received this morning. We intend to go through the averments before

 

we respond. As a legal practitioner of several years standing I cannot be a party to impersonation by anybody. However I suggest that oral evidence be had to show if the governor was convicted.”

 

Again on 20/3/03, Chief Izinyon, SAN was recorded as saying –

 

“There is a very narrow issue of law for determination of court. It is whether anybody has been convicted based on the exhibt , ‘A’ which is the case in Upper Area Court in CR/81/95. This is the foundation of the plaintiffs case wherein it is said that by virtue of that record the 5th defendant is an ex-convict at all.

…………………………………………………………………………..

 

I am restraining myself to the issue I have formulated. It is after that that we could take oral evidence.

 

……………………….. (at page 119). The sole issue is whether based on the document annexed to the summons and marked as exhibit ‘A’ which is the certified true copy of Bwari Upper Area Court in CR/81/95 there is a conviction of anybody at all. That is a public document and it is a certified true copy the court can look at. Our submission is that nobody was convicted at all. If the court looks at the document what it contains is that somebody pleaded guilty to an offence and he was sentenced.”

 

The argument of Chief Izinyon SAN in the substance is that the procedure shown to have been followed in exhibit ‘A’ was a departure from section 157 of the Criminal Procedure Code and that therefore nobody could be said to have been convicted under exhibit A. The learned counsel for the plaintiffs Mr. Odiri on the other hand argued that since the person brought before the Upper Area Court pleaded guilty and was subsequently sentenced, there was indeed a conviction.

 

The observation made by the court on 21/03/03 is poignant to the purpose why parties addressed the court on the issue they did. The court said at page 124:

 

“The issue is for me to address on whether there is any conviction based on the originating summons. We must limit ourselves to that. Whether the 5th defendant is the one convicted or not is a question of fact to be proved.”

 

Clearly therefore the approach of parties to this case before the lower court was to determine first whether or not exhibit ‘A’ could be evidence of conviction. It was not directed at showing in the first instance that the 5th defendant was the person convicted. Parties would appear to have reserved that for sometime later in the proceedings if the lower court decided that exhibit ‘A’ was good enough to be relied upon as evidence of conviction. If for instance the lower court had been able to decide that exhibit ‘A’ was valid as evidence of conviction, the lower court would on its own showing have called for oral evidence to show that the 5th respondent was the person convicted.

 

It has been necessary to make the above point because the appellants from the tenor of their argument before this court would appear to have assumed that if they succeed on this appeal, that would lead inevitably to the conclusion that it was the 5th respondent that was convicted vide exhibit ‘A’ by the Upper Area Court, Bwari on 28/9/95.

 

In his cross-appeal, the 5th respondent has contended that what ought to have been tendered was the certificate of judgment and not the proceedings of the Upper Area Court exhibit ‘A’. The 5th respondent relies for this contention on sections 225 and 226 of the Evidence Act. Section 225(1) and (2) is particularly relevant. It provides –

 

“225(1) Where it is necessary to prove a conviction of a criminal offence the same may be proved –

 

(a)     by the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the Registrar or other officer of the court in whose custody is the record of the said conviction.

 

(b)     if the conviction was before a customary court by a similar certificate signed by the clerk of court or scribe of the court in whose custody is the record of the said conviction; or

 

(c)     by a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confirmed giving the offence for which the prisoner was convicted, the date and the sentence.

 

(2)     if the person alleged to be person referred to in the certificate denies that he is such person the certificate shall not be put in evidence unless the court is satisfied by the evidence that the individual in question and the person named in the certificate are the same.”

 

Before the lower court the 5th respondent’s counsel contended that exhibit ‘A’ tendered was not the equivalent of a certificate as prescribed under section 225(1) above and that it could not for that reason be used to prove conviction. The lower court in reaction in its ruling said –

 

“On the argument of the learned SAN that section 225 of the Evidence Act was not complied with I am of the view that that argument cannot be pursued seriously. The certified true copy of the record of proceeding exhibit in this case substantially complied with the provision. I also agree with plaintiff’s counsel that section 226 of the Evidence Act does not apply.”

 

I am satisfied that the lower court correctly decided the point. Although it is the requirement of section 225(1) that a certificate should be produced to prove a conviction; there is nothing magical about the requirement as the section itself sets out what the certificate to be produced must contain. It was undisputed that exhibit ‘A’ was the certified true copy of the proceedings of the Upper Area Court for 28/9/95. The said exhibit ‘A’ was signed by the Judge and the court member who sat with him. Exhibit ‘A’ also shows the requirements laid down in section 225(1). It is my views that exhibit ‘A’ in the circumstances was as good as a certificate which section 225(1) of the Evidence Act prescribes.

Now section 225(2) of the Evidence Act raises an important procedural matter. The sub-section prescribes that where a person alleged to have been convicted denies being such person, the certificate shall not be put in evidence unless the court is satisfied by the evidence that the individual in question and the person named in the certificate are the same. I observed earlier in this case that the lower court on 18/3/2003 decided that the suit was to be heard on pleadings and that the originating summons and counter-affidavit of parties be taken as the pleadings. Notwithstanding this decision parties with the approval of the court agreed that the question whether or not exhibit ‘A’ could be relied upon as a conviction of anybody be taken first as a preliminary point. By the procedure adopted, exhibit ‘A’ was treated by the court and the parties as evidence in the proceedings. Parties and the court, it would seem did not bear in mind the provisions of section 225(2). If they did, they would have known that since the 5th respondent had by his counter-claim and counter-affidavit denied that he was the person convicted vide exhibit ‘A’, the said exhibit ‘A’ ought not to have been treated as evidence at that stage.

 

What the lower court should have done was to have allowed trial to commence in the ordinary way by parties leading evidence first as to whether or not the 5th respondent was the person convicted vide exhibit ‘A’. Exhibit ‘A’ in the manner it was pleaded by the plaintiffs was only the evidence of conviction. If the 5th respondent was able to satisfy the lower court that he was not at any time charged before the Upper Area Court, Bwari as contained in exhibit A, the result would be that exhibit ‘A’ was irrelevant. It might even be seen as a dubious document.

 

Clearly therefore the lower court was mislead by counsel into adopting a course which is contrary to section 225(2) of the Evidence Act. In the process the cart was put before the horse. Instead of first calling evidence of the arraignment and trial of the 5th respondent, the lower court went into an examination of whether a document exhibit ‘A’ could have been a valid evidence of conviction. It may be said here that section 225(2) of the Evidence Act is in mandatory terms. In Kale v. Coker (1982) 12 S.C 252 at 257-258, the Supreme Court per Obaseki, JSC said –

 

“Courts of law determine issues before them on legally admissible evidence. They have no discretion to act on evidence made inadmissible by the express provision of a statute. A court of law cannot admit such piece of evidence by consent. Where the lower court has erroneously admitted such inadmissible evidence and the attention of an appeal court is drawn to the error at any stage of the proceedings, it will consider the issue and ensure that the court acts only on the legally admissible evidence available.”

 

Section 225(2) lays down the conditions, which must be satisfied before a certificate of conviction can be put in evidence where the conviction is denied by the person alleged to have been convicted. Neither counsel for parties nor the court has authority to waive the condition. See Odu v. State (1965) NMLR 129; (1965) All NLR 25 and Saidu v. State (1982) 4 S.C 41 at 52.

 

Although Chief F. R. A. Williams SAN in his brief contended that a certificate of conviction and not a record of proceedings as per exhibit ‘A’ should have been tendered, he did not go as far as to discuss the non-compliance with section 225(2). Neither have the appellants’ counsel done so. Had they so done, I would not have found the need to discuss the issue whether or not the lower court was wrong in its conclusion that exhibit ‘A’ was not valid as evidence of conviction. I shall however bear section 225(2) in mind in determining what final order to make in this appeal.

 

The lower court in its conclusion that there was no conviction in exhibit ‘A’ reasoned thus –

 

“In fact, and in law the accused before the court was never convicted. When the prosecution appealed to the court to hear in the matter under section 157(1) of the CPC after the accused pleaded guilty he was of the clear belief that the court ought to make its finding of guilt based on admission of the accused, but that rather than proceed to exercise its power under section 157(1) CPC undertook a summersault and proceeded to sentence. If the plea of guilt by the accused constitute a conviction by the court the prosecution in that trial wouldn’t have invited the court to try the accused summarily. In this situation a statement from the court that based on the plea of guilt or admission of guilt as the case ought to be, I find you liable or guilty of the offences charged would have saved the day. All the dictionary definitions of the word convict or conviction are to the effect that the word consist of the finding of guilt of an accused person, either out of the court own research or a plea of guilt by the accused himself. That exercise is lacking in the trial of 28/9/95. On what amount to a conviction, the Supreme Court had this to say in Alhaji Suleiman Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 287. While quoting Atkinson J. in R. v. London County Quartet Sessions Appeals Committee Exp. Metropolitan Police Commissioner (1948) 1 K.B 670 679-680. ‘A conviction is an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable offence. The sentence or resulting order is something distinct from the conviction. A conviction is nonetheless a conviction because an ensuring penalty is not imprisonment, nor fine, but the finding of sureties for such behaviour.’

 

Ogundare JSC therefore concluded –

 

‘In my respectful view to speak of ‘a conviction’ there must be a determination of guilt by an act if a competent court and this is irrespective of whether or not a sentence is imposed even though the sentence normally follows such a determination.’

 

I agree with the learned counsel to the plaintiffs that the area courts are not bound by the CPC they are, however to be guided while trying cases. In the present case provision of section 386 CPC cannot operate to protect the document exhibit A as the question whether there is a conviction or not is not of form but substance. The authorities cited by the learned counsel to the plaintiffs that decisions of native courts are to be given greater latitude also insist that the substance the court order or decision shouldn’t be left for a hunch or conjuncture. In the record before me the substance which involves the determination of guilty by the court was neglected and I am convinced that this court has power to say so.”

 

The learned counsel for the 1st appellant has submitted that by the reasoning of the lower court in the passage reproduced above, the lower court constituted itself as appellate court over the judgment of the Upper Area Court Bwari in exhibit A. It was submitted that exhibit ‘A’ being on the face of it the certify true copy of the proceedings of court ought to be presumed regular and valid on the maxim omnia praesumuntur rite esse acta. Counsel relied on Magnusson v. Koiki (1991) 4 NWLR (Pt. 183) 119, 129. Counsel further referred to Stroud’s Judicial Dictionary 4th edition page 609 and Jowitts Dictionary of English Law 2nd edition for the definition of conviction. He also relied on R. v. Manchester Justices (1937) 2 K.B 96, 100.

 

Chief Afe Babalola, SAN for the 2nd appellant made submissions along the same line as Chief Robert Clarke. The learned SAN relied on Dongtoe v. Civil Service Commission Plateau State (2001) 19 WRN 125;(2001) 9 NWLR (Pt. 717) 132 at 159; Onyejekwe v. State (1992) 3 NWLR (Pt. 230) 444 at 452-453; Ejelikwu v. State (1993) 7 NWLR (Pt. 307) 554 at 568. Counsel submitted that the case of Mohammed v. Olawumi (1993) 4 NWLR (Pt. 287) 25 was on its peculiar facts irrelevant to this case. Counsel submitted that native courts by virtue of section 386 of Criminal Procedure Code are only bound by sections 388, 389, 390, 392, 393, 394 and 395 of the code. Counsel referred on the point to Mohammed v. Local Govt. Police (1970) NNLR 98; (1970) 2 All NLR 202 at 205; Manama v. Borno N. A. (1964) 1 All NLR 143; Akiga v. Tiv Native Authority (1962) 2 All NLR 146 and Ogbahon v. Registered Trustees of C.C.C (2002) 1 NWLR (Pt. 749) 675 at 708.

 

The 5th respondent’s counsel in his brief submitted that no one was recorded as having been convicted in exhibit A. It was argued that the lower court was entitled to look at the exhibit to determine whether or not the Upper Area Court, an inferior court had jurisdiction to hear the case in exhibit ‘A’. Counsel relied on Timitimi v. Amabebe (1953) 14 WACA 374 and Ude v. Agu (1986) 1 All NLR 65. It was also submitted that the Upper Area Court was bound to be guided by the provisions of the Criminal Procedure Code – Musa Harunamu and Anr. v. Borno Native Authority (1967) NNLR 19.

 

Exhibit ‘A’ was tendered as the proceedings and judgment of the Upper Area Court, Bwari. The proceedings came into existence on 28/9/95. There was no appeal against the decision of the Area Court. I am in agreement with the 5th respondent’s counsel on the authority of Timitimi v. Amabebe (supra) and Ude v. Agu (supra) that when the judgment of an inferior court is produced before a High Court in order to prove a fact in issue in a civil case, the latter court is entitled to look at the proceedings and judgment in order to determine whether or not the inferior court has jurisdiction to entertain the matter covered by the proceedings and judgment. If the inferior court had no jurisdiction to entertain the matter, its judgment thereupon must be pronounced a nullity by the latter court.

 

In the instant case, it was not the contention of the 5th respondent before the lower court and this court that the Upper Area Court Bwari had no jurisdiction in 1995 to try the accused brought before it in exhibit of the offences alleged. The substance of the contention of the 5th respondent was/is that the Upper Area Court, Bwari in the course of exercising its undoubted jurisdiction made some technical errors in that it did not comply with section 157(1) of the Criminal Procedure Code. When a court has jurisdiction to entertain a matter, it by implication has jurisdiction to make mistakes or errors of law in the exercise of such jurisdiction. The remedy available to any party to the suit who is damnified or adversely affected by the error is to bring an appeal that the errors be corrected.

 

In the case on hand, even if as contended by the 5th respondent, the Upper Area Court was bound to follow section 157 of the Criminal Procedure Code and it did not, that only gave a cause to the accused in exhibit ‘A’ to bring an appeal against it, exhibit ‘A’ was tendered as a certified true copy of a judgment of a court. The lower court had no duty whatsoever pointing out the technical errors in exhibit ‘A’ when there was no appeal before it on the said judgment.

 

In Archbold Pleading, Evidence and Practice in Criminal Case 40th edition page 234-235, the authors write:

 

“The primary meaning of the word conviction denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence.”

 

And in Stroud’s Judicial Dictionary, 4th edition at page 609, ‘Conviction’ is defined thus:

 

“A conviction is complete as soon as the person charged has been found or has pleaded guilty.”

 

The argument of the 5th respondent was that the Upper Area Court did not follow sections 157 and 158(1) of the Criminal Procedure Code. The sections provide –

 

“157(1) if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and if he shows no sufficient cause why he should not be convicted the court may convict him accordingly and in that case it shall not be necessary to frame a formal charge.

 

(2)     The Military Governor in council may by order specify the maximum sentence of imprisonment or the maximum fine which any grade or class of court may impose on a conviction under this section.

 

(3)     No court shall exercise any powers under sub-section (1) unless an order under subsection (2) has been made in respect of that grade or class of court.

 

158(1)When the court decides not to convict the accused under section 157 or when an accused person states that he intends to show cause why he should not be convicted the court shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution.”

 

The 5th respondent’s counsel has in his brief cited the case of Musa Harunami and Madu Meremi v. Bornu Native Auhtority (1967) NNLR 19 where Hurley, CJ and Bate, J. expressed the view that at all events including where an accused pleads guilty a native court cannot convict under section 157 of the CPC above unless evidence is taken from the complainant and a charge framed.

 

On the supposition that section 157 of the CPC applies to the proceedings of a Native Court, there is no doubt that the Upper Area Court, Bwari did not in exhibit ‘A’ observe the provisions of section 157. The accused in exhibit ‘A’ pleaded guilty and the court thereafter proceeded to impose a sentence. The only conclusion to be arrived at on that hypothesis is that the Upper Area Court did not observe the essential pre-requisites laid down under section 157(1) of the CPC before proceeding to convict the accused. It is in my view clearly unarguable to say that there was no conviction. The procedure leading to the conviction may be deficient and liable to be set aside by an appellate court upon a proper appeal against the judgment of the Upper Area Court; but it is nonetheless still a conviction. I am therefore unable to agree with the conclusion of the lower court that no conviction was recorded. That approach smacks in my view of undue legalism and irrelevant hair-splitting in a case where the purpose of tendering exhibit ‘A’ was merely to show that the accused therein was convicted. It was not tendered to show that the Upper Area Court erred in its decision. This appeal must therefore succeed on this score. It seems to me unnecessary answering the question whether or not a Native Court is bound by the Criminal Procedure Code. The situation in this case does not impose the need to decide that question since the case on appeal was not as to whether the Upper Area Court had been wrong in its decision in exhibit ‘A’.

 

The appellants in their approach to this appeal laboured under the notion that once they succeed in their appeal, their success would lead to the conclusion that the 5th respondent was an ex-convict who could not be allowed to contest for the office of Governor of Delta State pursuant to section 182(1)(e) of the 1999 Constitution. That obviously must be a false notion given the procedure followed by the lower court to the determination of the appellants’ suit.

 

It is patent from the record of proceedings that parties with the concurrence of the lower court had merely isolated an issue from the other possible issues in the case for determination. It was thought that if the lower court decided that exhibit ‘A’ was invalid as evidence of conviction, the need to call evidence would not arise; and that if the same court decided that the said exhibit was a valid evidence of conviction, the need would then arise to call evidence to show that the person who was tried and convicted in exhibit ‘A’ was the 5th respondent. There are clear indications in the record of proceedings that this was pre-occupation of the court and parties in the proceedings out of which this appeal arose. Indeed in the concluding part of the ruling of the lower court appealed against, the court said that it was the decision it made on preliminary issue that removed the necessity to pursue the appellants’ other claims.

 

I have decided earlier on that the lower court was wrong in its conclusion to the effect that no conviction was done by the Upper Area Court in exhibit ‘A’. The ordinary consequence is that the case must now be sent back to the lower court for hearing to conclusion. I am however of the view that the procedure adopted by the lower court in its attempt to first determine whether or not there was a conviction in exhibit ‘A’ without taking evidence was a clear infraction of section 225(2) of the Evidence Act. The 5th respondent having vigorously denied that he was ever tried and convicted by the Bwari Upper Area Court, the duty on the lower court was to first take evidence as to the identity of the person tried and convicted in exhibit ‘A’ before admitting the same document in evidence.

 

The approach that best assures justice and fairness to all the parties is for the case to be re-heard de novo before another Judge of the High Court, Abuja. Parties ought to file fresh pleadings where it will be clearly made manifest the issues for adjudication by the court. This is necessary because even the process filed by the appellants before the lower court and captioned “facts in support of the application” should have been considered irregular by the lower court as it was not an affidavit as should be the case where a suit is commenced by originating summons.

 

This appeal succeeds. It is allowed. The ruling of Yusuf, J. given on 24/3/2003 is set aside. It is ordered that the case be heard afresh by another Judge of the Abuja High Court. I make no order as to costs.

 

UMARU ABDULLAHI, PCA.: I had the benefit of reading in draft the judgment just delivered by my learned brother, Oguntade, JCA.

 

I am satisfied that my learned brother had dealt with all the salient issues in this appeal. I have nothing more useful to add. I accordingly adopt all the reasons given and the conclusion reached in the leading judgment.

 

It is also my order that the case be sent back to the Honorable Chief Judge, Abuja to assign to another Judge for hearing de novo. I also make no order as to costs.

 

IBRAHIM TANKO MUHAMMAD, JCA.: I have had a preview of the judgment of my learned brother Oguntade, JCA. I agree with his reasoning and conclusion. I abide by the consequential orders made in the lead judgment including order as to costs.

 

ZAINAB ADAMU BULKACHUWA, JCA.: Engineer Goodnews Agbi and Barrister Anthony Alabi as plaintiffs instituted an action by way of originating summons before the High Court of the Federal Capital Territory against Chief Audu Ogbeh, Chief Vincent Ogulafor, The Peoples Democratic Party and The Independent National Electoral Commission as defendant whereby they claimed the following reliefs;

 

“1.     A declaration that by virtue of the combined effects of sections 112, 114, 115 and 124 of the Evidence Act, Cap. 112 Laws of the Federation 1990, the records of proceedings of the Bwari Upper Area Court of 28/9/95 in case No. CR-81-95 is presumed genuine and sufficient for the respondents to rely on same to act against the ex-convict Chief James Onanefe Ibori.

 

2. A declaration that the ex-convict Chief James Onanefe Ibori, by virtue of his conviction and sentence in case No. CR-81-95 is not qualified to carry the defendants flag as its gubernatorial candidate in the 2003 elections within the meaning of section 182(1)(e) of the 1999 Constitution.

 

3. An order compelling the 1st, 2nd and 3rd defendants to disqualify and withdraw its flag and certificate of affirmation given in this case to the ex-convict Chief James Onanefe Ibori to contest the 2003 gubernatorial elections in Delta State, on the platform of the PDP.

 

4. An injunction restraining the 4th defendant from recognizing and accepting the candidature of Chief James Onanefe Ibori, the candidate of the 1st, 2nd and 3rd defendants for the 2003 gubernatorial elections in Delta State.”

 

The 5th respondent Chief James Onanefe Ibori applied and was granted leave by the trial court to be joined as party interested/affected by the outcome of the proceedings. And by a sustained preliminary objection also raised by the 5th respondents contesting the institution and the commencement of the suit by way of originating summons the trial court ordered parties to file pleadings.

 

At the close of pleadings the court also on the application of the 5th respondent asked the parties to identify the material questions in controversy for purpose of settlement and trial thereof pursuant to order 35 rules 1 and 2 of the High Court of the Federal Capital Territory Civil Procedure Rules.

 

The court framed and was addressed by the parties on this issue;

 

“Whether on the face of the record of proceedings in CR/81/95 between COP v. James Onanefe Ibori, the accused was convicted.”

 

The court in its ruling of 24/3/2003 found that there was no conviction on the face of exhibit A and dismissed the claims of the plaintiffs. The plaintiffs being dissatisfied with the said ruling have now appealed to this court originally on a joint notice of appeal filed on the 24th day of March 2003.

 

At the hearing of this appeal on the 11/4/2003 various applications were made and the preliminary objection raised by the 5th respondents was also heard along with the submissions of learned counsel to the parties on the appeal.

 

I have read in advance the lead judgment just delivered by my learned brother Oguntade JCA. I agree with his reasoning that the following application should be granted.

 

1. Leave to strike out the name of the 2nd appellant from the joint notice of appeal filed on the 24th March 2003.

 

2. Appeals filed by the 5th respondent on the 25th March 2003 and 1st April 2003 abandoned are hereby struck out.

 

3. Application to raise and argue new issues as contained in the 5th respondent’s brief filed by the learned Senior Advocate Chief Williams is hereby granted.

 

I have read the draft of the judgment just delivered by my Lord Oguntade, I agree with his reasoning and the conclusions reached in allowing the appeal and adopt them as mine.

 

The main contention before the trial court was whether on the face of exhibit A – a record of proceedings of the Bwari Upper Area Court – the 5th respondent was a convict to disqualify him to be elected a Governor by virtue of the provisions of section 182 (1)(e) of the 1999 Constitution. By a counter-claim filed by the 5th respondent before the lower court on the 28/1/2003 the 5th respondent as plaintiff therein claims for;

 

“A declaration that the criminal proceedings of the Upper Area Court Bwari in case No. CR/81/95 between the Commissioner of Police and one James Onanefe Ibori dated the 28th September 1995 did not and does not in any way whatsoever relate to the plaintiff herein as alleged or at all by virtue of the fact that the plaintiff herein has never appeared before the Upper Area Court Bwari in relation to any proceedings whether civil or criminal before, up to and including the 28th September 1995 and as such cannot be the person said to have been arraigned and sentenced before the said court on the said date.”

 

The trial court on the 18/3/2003 converted the originating summons and the counter claim to pleadings for the matter to be tried and for the court to deal with the issues involved on the merit.

 

The court having reached that far should have proceeded to trial, for while there is an allegation there is also a denial. The issue then before the court would be “whether the 5th respondent was the same as person convicted as per exhibit A.”

 

In determination that the procedure is as laid down in sections 225(1)(2)(3) and 226(1)(2) of the Evidence Act.

 

Rather than going into that procedure the trial court instead reviewed the proceedings in exhibit A and came to the conclusion that there was no conviction. In effect it had assumed the duty of an appellate court over the decision in exhibit A. A court will only be competent to review the decision of another court if that decision is brought before it by way of an appeal. See in particular orders 44 and 45 of the High Court of the Federal Capital Territory Civil Procedure Rules – which provides the manner and form appeals should be filed, heard and determined before the trial court.

 

The trial court in the circumstances of the case having converted the originating summons and the counter-claim into pleadings should have proceeded to trial on the issues as agreed by the parties.

 

In the circumstances and for the fuller reasons in the lead judgment, I hereby allow the appeal and remit the case to the Chief Judge of the High Court of the FCT for full trial on the facts as pleaded before another Judge. I abide by the order as to costs in the lead judgment.

 

ALBERT GBADEBO ODUYEMI, JCA.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Oguntade, JCA.

 

I am in full agreement with the reasonings and conclusions in the judgment relating to each of the several preliminary interlocutory applications and I adopt them as mine.

 

Similarly, with regard to the main appeals of the 1st and 2nd appellants I am again, in full agreement with reasonings therein and the conclusion to allow the appeals of the 1st and 2nd appellants and to remit the case to the lower court for a full trial on the merits in accordance with the pleadings of the respective parties.

However, I wish to add the following comments by way of contribution – particularly on the question whether the success of the appeals of the 1st and 2nd appellants on the issues set out for resolution in this appeal implies that the convict in exhibit A is the 5th defendant so as to warrant his automatic disqualification from the current race for the governorship of Delta State of Nigeria by virtue of the provisions of section 182(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999.

 

The facts of the case leading to this appeal have been fully stated in the lead judgment and I would not repeat them in this contribution except in so far as any restatement of such may be necessary for the purpose of emphasis.

 

In answer to the question herein, it is the contention of 1st appellant thus: –

 

Based upon the issue settled before the lower court, all that was necessary after the lower court shall have found that exhibit A the certified true copy of the proceedings and decision of the Upper Area Court, Bwari delivered on 28th September 1995 duly convicted the accused therein it must automatically be pronounced that the accused person in those proceedings was none other than the 5th defendant/respondent.

 

It is the contention of 1st appellant that the question of identity was not in contest in the issue settled before the lower court; and upon which the lower court was called upon to make a pronouncement. Learned counsel submitted that the issue was settled as the sole issue for determination after the close of pleadings, that as such the implication is that all other issues are deemed admitted.

 

Reliance is placed on Maximum Insurance Co. Ltd. v. Owoniyi (1994) 3 NWLR (Pt. 331) page 178,194.

 

The arguments and submissions of learned senior counsel for the 2nd appellant on the question of identity of the convicted person vis-à-vis the 5th defendant/respondent is also to rely on the effect and implications of the sole issue as settled after pleadings by the parties. Learned senior counsel however adds that the 5th respondent in formulating the issue did not formulate any issue on his counterclaim; that as such 5th respondent has, to quote the words at page 2 of the 2nd appellant’s amended reply brief:

 

“Lawfully, legally and regularly abandoned his pleadings and his right to call evidence in the pleadings.”

 

For the 5th respondent, it is contended thus:

 

The issues as put forward in the respective briefs of 1st and 2nd appellants do not reflect the sole question actually tried by the court below but have brushed under the carpet the case of the 5th defendant who in paragraph 4 of his counterclaim pleaded that:

 

“4.     The defendant states that at no time in his life has he ever appeared before the Upper Area Court, Bwari in case No. 81-95 nor was he ever convicted by the said court on 28/9/95 on the charges of negligent conduct and criminal breach of trust or any other charges or offence whatsoever, at any other time.”

 

In effect, it is the contention of 5th respondent that his denial that he was the person mentioned in the proceedings before the Upper Area Court is still a “live issue” for determination after the issue as to whether exhibit A in law amounted to a conviction might have been decided.

 

It is also the contention of learned senior counsel for 5th respondent that it was never the intention of learned counsel for 5th defendant in setting the issue in the lower court to foreclose the trial of further matter after the issue settled had been tried.

 

In support of their respective positions counsel on either side relied heavily in their oral address before this court on portions of the record of proceedings between pages 116 and 126 thus, and I intend for the sake of clarity to quote the relevant excerpts:

 

A: order 35(1) of the rules of this court we can identify the issues and address the court upon them. The issue in controversy is that the 5th defendant is an ex-convict. The law is that no oral evidence can be given of a judgment or proceeding of court if reduced to writing except if found intimidating neglect (sic) or want of due execution are alleged.

There is need for expeditious trial.

 

Odiri Esq.: I refer to counter affidavit filed, which we just received this morning. We intend to go through the averments before we respond. As a legal practitioner of several years standing I cannot be a party to impersonation by anybody. However I suggest that oral evidence be had to show if the Governor was convicted.

 

CT: This is taken care of by the order of the court.

………………………………………………………………………………………

 

C: the case. I submit that the court can so direct under order

 

35(1) of the rules of the court. there is very narrow issue of law for determination of the court. It is whether anybody has been convicted at all based on the exhibit A. Which is the case in Upper Area Court in CR/81/95. this is the foundation of the plaintiff’s case wherein it is said that by virtue of that record the 5th defendant is an ex-convict. By that record is there anybody convicted at all?

……………………………………………………………………………

D: the qualification of the 2nd plaintiff is not for the moment. I am restraining myself in (sic) the issue I have formulated. It is after that, that we could take oral evidence.

 

CT: No need for adjournment based on the reason given by the counsel to plaintiff. Counsel to 4th defendant has not adduced reason for conceding. We can take the issue raised in the absence of any other one. I agree that the issue identified is genuine to making further progress in this matter. I hereby direct that parties should address the court on it.

 

Signed

Hon. Judge

20/3/03

 

Odiri Esq.: On the date of adjournment I said I would be coming with my witness. I am not ready for an address. I ask for tomorrow.

 

Iziyon Esq.: Based on the directive of the court I am ready to address the court. the sole issue is whether based on the document annexed to the summons and marked as exhibit A which is the CTC of Bwari Upper Area Court in CR/81/95 there is a convicton of anybody at all.

………………………………………………………………………………………

 

E: fact to be proved.”

Ruling

 

F: same took place before the court cannot be determined through this procedure under order 35 of the rules of this court. This is because from the documents before the court both parties are deemed to agree that such questions can only be determined through oral evidence. I shall therefore be dealing with the issue raised by learned counsel to the 5th defendant as adopted by the learned counsel to the plaintiffs. It is simply put, whether on the face of the record of proceeding in CR/81/95 between COP v. James Onanefe Ibori, the accused was convicted.

 

………………………………………………………………………………

 

1. section 386 CPC cannot operate to protect the document exhibit A as the question whether there is a conviction or not is not of form but substance. The authorities cited by the learned counsel to the plaintiffs that decisions of native courts are to be given greater latitude also insist that the substance the court order or decision shouldn’t be left for a hunch or conjuncture. In the record before me the substance which involves the determination of guilt by the court was neglected and I am convinced that this court has power to say so. Now that there is no conviction in exhibit A which is CR/81/95 what is the effect of it on the claims of the plaintiffs? The effect is to sweep the claims off the ground.

 

………………………………………………………………………

 

H: the view that the issues decided renders the trial of the claims of the plaintiffs unnecessary. I accordingly dismiss them.”

 

From the above extracts of the proceedings and the ruling of the court, it is clear to me and I find that the decision on the issue of whether exhibit A amounted in law to a conviction of the accused person was not meant by everyone concerned with the proceedings in the lower court – Judge and counsel inclusive, to be conclusive as to the connection of 5th respondent in relation to exhibit A but that oral evidence, if necessary, would later be taken on the identity of the accused person should that need arise.

 

In the event, the lower court decided that there was no conviction in law of the accused in exhibit A by the Upper Area Court concerned and so found it unnecessary to try any further issues including the counterclaim of the 5th defendant by which the 5th defendant denied being the person accused in exhibit A.

 

To my mind that was a correct approach to order 35 rules 6 and 7 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules, 1990 under the issue was settled.

 

The order provides thus: –

 

“6. –(1) The court may order any question or issue arising in a cause or matter, whether of fact or of law or partly of fact and partly of law and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated.

 

(2)     An order under this rule may be made on application by a party or by the court or a Judge in chambers on its or his own motion.

 

(3)     Applications by any party for such order shall be by motion on notice stating the question or issue sought to be tried.

 

7. If it appears to the court, that the decision of any question or issues arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.”

 

However, now that this court has found fault with the decision of the lower court and concluded that exhibit A was in fact a conviction of the accused person therein, it becomes necessary to try other issues arising from the pleadings of the parties including in particular, the counterclaim of the 5th defendant.

For the above reasons as well as the fuller reasons given in the lead judgment which I adopt as mine, I too agree that the matter be sent back to the lower court to be tried on its merits in accordance with the pleadings of the parties.

 

I make no order as to costs.