Alhaji Bashir Zubairu Usman V. Kaduna State House of Assembly & Ors (2007)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal against the judgment of the Kaduna State High Court of Justice, holden at the Kaduna Judicial Division in Suit No. KDH/KAD/575/200G, delivered on the 31st day of October, 2006, by Hon. Justice H. Gwadah, of the Kaduna State High Court.
The appellant herein was the plaintiff at the trial court, where he instituted an action against the respondents who were the defendants by an endorsed writ of summons dated the 22nd day of August, 2006 and claimed from all the defendants jointly and severally per his paragraph 17 of his statement of claim as follows:
“17. WHEREOF, the plaintiff claims from all the defendants jointly and severally as follows:
1. A declaration that the purported expulsion of the plaintiff by the 2nd Defendant as a member of Kaduna State House of Assembly as well as declaring the plaintiff’s seat vacant by the House is unconstitutional null and void.
2. Declaration that the Plaintiff is still a member of the Kaduna State House of Assembly until he is legally and/or constitutionally removed.
3. A declaration that the 1st and 2nd Defendants are not competent to declare as vacant the seat of the plaintiff nor can the 2nd Defendant expel the plaintiff as a member of Kaduna State House of Assembly.
4. An order of perpetual injunction restraining the Defendants, either by themselves or through their servants or agents howsoever described from expelling the Plaintiff as a member of the Kaduna State House of Assembly and/or declaring his seat in the House vacant (as the 2nd Defendant purported to have done on the 9th day of August, 2006).
5. An injunction restraining the Defendants, their servants and agents from unlawfully and unconstitutionally preventing or interfering with the plaintiff’s right to continue to hold his seat as a member of the House of Assembly of Kaduna State.
6. N500,000,000 damages for a breach of the plaintiff’s Constitutional rights, embarrassment, injury to his name and reputation as a result of the said unlawful act of the Defendants.
7. For such further order or others order or orders as the Honourable Court may deem fit to make in the circumstance. ”
Pleadings were ordered, filed and exchanged by the parties. The appellant as the plaintiff filed his Statement of Claim dated the 11th day of August, 2006 contained at pages 4 – 7 of the printed record while the respondents as defendants filed their joint statement of defence dated 18/9/2006 contained at pages 39 – 43 of the printed record. The reply to the Joint statement of defence is dated 19/9/06, contained at pages 44 – 47 of the printed record.
Sequel to the hearing and determination of the motion dated 31/8/2006, brought pursuant to the
provisions of Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999, supported by a five paragraph affidavit, filed by Mr. Toro, SAN, learned Senior Counsel for the Defendants/applicants/respondents, the learned trial Judge delivered a ruling dated 12/9/06 contained at pages 129 – 136 of the printed record. Parts of which read as follows:
“A cursory look at the said reproduced paragraph 16 of the statement of claim as proceedings touches on the issue of fundamental right and or fair hearing Learned Senior Advocate Mr. Toro has argued extensively and laid heavy emphasis on section 285(1) and (2), section 246 and items 22 of the exclusive legislative list and in doing so have raised 5 questions for reference to the Court of Appeal as caut ioned in Exhibits “8” attached to the motion on notice under section 295(2) of the constitution. This question and Section 285(1) and (2) of the constitution have been argued by the respondent’s counsel Chief Usman SAN as a total misconception accordingly as they are not challenging any election petition neither challenging the return of a candidate nor questioning the qualification of candidate. Sections 285,246 and item 22 of the exclusive legislative list deal and or talk on election tribunals and elections issues or matters generally, which is not the issue at this stage. The said sections 285 and 246 are therefore totally irrelevant at this stage to this court sitting and hearing issues on fundamental right as it is which I have full jurisdiction on section 109(1)(f) of the constitution also appear very clear as it grounds jurisdiction in this court which is the substratum of the respondent’s claim.
The arguments on the issue under Section 295(2) on the reference questions do not therefore even arise because what is before the court is not touching on the issue of interpretation of vacancy of a seat. As far as I am concerned the issue does not arise because the main issue is was there any fair hearing because the claim is specific because it is just a way to delay the accelerated hearing granted all the arguments on the issues on interpretation are a mere effort by the defendant’s/applicants to embark on a journey of adventure or voyage of discovery or as put by the respondent counsel an academic exercise and does not touch on the crux of the matter before the court simply put the issue before the court is that of enforcement of fundamental right.
In view of all of the above it is my considered opinion that the questions posed and stated by Mr. Toro SAN Learned Counsel for the defendant/applicants do not involved substantial question of law and do not arise from this proceeding.
The application is therefore refused and the earlier order for accelerated hearing stands.”
(underline mine)
Following the ruling dated 12/9/06, parts of which I have reproduced above, hearing of the suit commenced as parties have joined issues in their pleadings. The appellant as plaintiff testified as PW.1 at pages 138 – 142 of the printed record in support of his case and tendered documents as exhibits in support of his case, including namely “votes and proceedings” and “Removal from office as member”, dated 9th August, 2006 and 10th August, 2006 respectively admitted in evidence and marked Exhibits “1” and “2” respectively.
At the end of the evidence of PW.1, the only witness who testified for the plaintiff/appellant he was cross examined by the learned senior counsel for the defendants/respondents at the end of which the plaintiff/appellant closed his case. On the side of the defendants/respondents also, only one witness testified as DW.1 at pages 143 – 151 of the printed record.
At the conclusion of the hearing and addresses by senior counsel to the parties, the learned trial Judge, in a reserved and considered judgment delivered on the 31st day of October, 2006, held, in conclusion at page 170 of the printed record as follows:
“I therefore for this reason hold that this court has no jurisdiction to hear and determine the substantive matters. The suit is therefore struck out for want of jurisdiction. ”
The brief facts of the case leading to this appeal as gathered from the printed record and the briefs of argument, are briefly as follows: The appellant in this appeal was formerly an Honourable member of the Kaduna State House of Assembly, representing Sabon Gari Constituency in Birnin Gwari LGA, of Kaduna State. He was first elected a member of the said House sometimes in 1999, with the advent or return of constitutional democracy in Nigeria in that year. Having served his first term of four years, he was re-elected a member of the said House, representing the same constituency in 2003. The appellant eventually emerged as the Hon. Speaker of that House and held that office until sometimes in December, 2005 when the House removed him from office as the Hon. Speaker thereof. Sequel to his said removal the appellant from henceforth reverted to his membership of the House as the Honourable Member representing the aforementioned constituency. On the 9th of August, 2006, the current Hon. Speaker of the House, believing that the appellant had been absent from the sitting of the House of Assembly for a period amounting in the aggregate to more than one-third (1/3) of the total number of sittings of the House in the relevant Legislative year, decided to enforce the provisions of Section 109(1)(f), (2) and (3) of the
Constitution of the Federal Republic of Nigeria, 1999, by merely announcing to the Hon. House at its plenary session of 9th August, 2006, that the appellant’s seat in the House has become vacant. As a result of the said announcement of the expulsion of the appellant as amember and for the purpose of retrieving his seat, the appellant instituted the action in Suit No. KDH/KAD/575/2006 in which the appellant by his paragraph 17 of his statement of claim dated 11/8/2006, claimed several declaratory reliefs leading to this appeal. Aggrieved and dissatisfied with the judgment of the trial court, the appellant, filed a Notice and grounds of appeal dated and filed on 31/10/06, the date of the delivery of the judgment, containing four grounds of appeal at pages 171 – 175 of the printed record.
Having regard to the Notice of preliminary objection filed in this appeal challenging the competence of the Notice of Appeal, it is pertinent to reproduce the grounds of appeal with their particulars. They are as follows:
“(i) The Honourable learned trial Judge erred in law in holding that the court lacks jurisdiction to entertain the suit and thereby setting aside and sitting on appeal over her earlier decision of 12/9/06 where the court held otherwise.
PARTICULARS OF ERROR
(i)
(ii)
(iii)
(ii) The Honourable learned trial Judge erred in law in holding that only the Election Tribunal has jurisdiction to entertain the matter, when the plaintiff’s case only question the constitutionality and writ of fair hearing by the defendant’s action in expelling from the House.
(iii) The Honourable learned trial Judge erred in law in holding that the court lacks jurisdiction to entertain the suit.
PARTICULARS OF ERROR
(i) Section 285(2) of the Constitution relied upon by the Honourable Learned trial judge completely excludes the issue of vacancy of seat in a State House of Assembly from the jurisdiction of Election Tribunals. The Section provides:-
(2) There shall be established in each State of the Federation one or more election tribunal to be known as the Governorship or Legislative House Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative House.
(ii) The House of Assembly at all material times did not make any law upon which section 119 of the Constitution of the Federal Republic of Nigeria could be utilized as required by the said section, even if the matter (suit) fell under the said Section 119.
(iii) Section 119 of the ,Constitution reads:-
“The National Assembly shall make provisions as respect-
(b) Persons who to an election tribunal for the determination of any question as to whether –
(i) Any person has been validly elected as a member of a House of Assembly.
(ii) The term of office of any person has ceased, or
(iii) The seat In a House of Assembly of a member of that House has been vacant;
(c) Circumstances and manner in which, and the conditions upon which, such application may made; and
(d) Powers, practice and procedure of the election tribunal in relation to any such application” .
(iv) The section 119 applies only to members of the House-of Assembly who intend to declare another member’s seat vacant.
(v) Before section 119 can come into force or play, a law to that effect must have first and foremost been passed by the House of Assembly.
ERROR IN LAW
(IV) The judgment is against the weight of evidence.”
Briefs of arguments consisting of the appellant’s brief, respondents’ brief and reply brief were filed and exchanged by the parties in accordance with the rules of practice and procedure of the Rules of this Court.
Appellant’s issues for determination distilled from the appellant’s four grounds of appeal are as follows:
“(1) Whether, having earlier on held that:
“A cursory look at the said reproduced paragraphs 16 of the statement of claim as proceedings touches on the issue of fundamental rights and/or fair hearing. This question and Section 285(1) and (2) of the Constitution as a total misconception sections 285, 246 and item 22 of the Exclusive Legislative list deal and talk of election tribunals and election issues or matters generally, which is not the issue. The said Sections 285 and 264 are therefore totally irrelevant at this stage to this court sitting and hearing issues on fundamental rights as it is which I have full jurisdiction. On section 109(1)(f) of the constitution also appears very clear as it grounds jurisdiction in this court which is the substratum of the respondent’s claim.”
The self-same Honourable learned trial Judge can legally hold the exact opposite in her final judgment.
(Ground 1).
“(ii) Even if the 1st issue were to be answered in the positive, whether the Plaintiff/Appellant’s case which only calls for the interpretation of the provisions of section 109 and Chapter IV of the Constitution is not a matter within the jurisdiction of a State High Court as provided for under section 272 of the constitution of the Federal Republic of Nigeria, 1999. (Grounds 2 and 3).
(iii) Whether, from the preponderance of evidence particularly with the admission by the only Defence witness who admitted that the Plaintiff was not absent even up to one-third of the sittings of the House in a year contrary to the reason for expelling him from the House, the plaintiff had not proved his case (Ground 4).”
The respondents also formulated issues for determination in the respondents’ brief as follows:
“1. Whether having regard to the pleading and the entire circumstances of this case, and the fact that the jurisdiction of the court could be challenged at any stage of the proceedings, the learned trial Judge was right to have decided at judgment stage that the High Court indeed lacked constitutional jurisdiction and competence to hear and determine this suit and to thereby strike it out.
(Ground of appeal No.1).
2. Whether having regard to the exclusive original jurisdiction vested in the Governorship and Legislative Houses Election Tribunals’ with respect to, inter alia, the matters specified in section 109(1) of the Constitution of the Federal Republic of Nigeria, 1999, by the combined effect of the provisions of Sections 119, 246 and 285 of the said Constitution read along with item 22 of the second schedule to the said Constitution, the High Court is vested with original jurisdiction and competence to hear and determine this suit. (Ground of appeal No.3).
3. Having regard to the fact that the principal or main claim of the appellant before the court below concerned the vacancy of his seat in the House of Assembly under section 109(1) (f) (2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999, in respect of which only the competent Tribunal had exclusive original jurisdiction to hear and determine under section 285(2) of that Constitution, whether the appellant could simply by the manner he formulated his claim or pleadings confer original jurisdiction on the court below to hear and determine the ancillary or accessory claim of denial of fair hearing under section 36(1) of the same Constitution.
(Ground of appeal No.2).
4. Whether having regard to the pleadings and the credible evidence adduced before the trial court, the appellant succeeded in proving his case on a balance of probabilities.
(Ground No.4 – Omnibus ground).”
The appeal came up before this court on the 31st day of January, 2007 for hearing. As soon as the appeal was called, Mr. Toro, SAN, learned Senior Counsel for the respondents, informed the court that the respondents have filed a Notice of preliminary objection in this appeal, dated and filed on 11/1/07, and prayed for the indulgence of the court to formerly move the objection. He stated that the preliminary objection is challenging the competence of the Notice of appeal and the four grounds of appeal set out on the notice and grounds of appeal.
That by the order of this court made on the 15th day of January, 2007, the respondents’ brief of argument dated and filed on 11/1/07 was deemed duly filed and served.
Learned Senior Counsel for respondents further stated that the respondents have canvassed argument at pages 1 – 4 of the respondents’ brief covering all the grounds of objection. He urged the court to uphold the objection and strike out all the grounds of appeal in this appeal.
The learned Senior Counsel for the appellant, Mr. Usman, SAN, responding to the preliminary objection, stated that the appellant has filed their reply brief dated and filed on the 23rd of January, 2007. Thereafter, learned senior counsel for the appellant adopted the appellant’s brief dated 8/11/06 filed on 9/11/06 and the reply brief dated and filed on 23/1/07 and advanced oral argument in line with the written submission in the appellant’s briefs.
The learned senior counsel for the respondents also adopted the respondents’ brief dated and filed on 11/1/07 with the leave of the Court. He also advanced oral argument in amplification of his written submission in the respondents’ brief.
The Notice of preliminary objection filed by the respondents is contained at pages 1 – 2 of the respondents’ brief and it reads as follows:
“NOTICE OF PRELIMINARY OBJECTION PURSUANT TO ORDER3 RULE 15 AND ORDER 3 RULES 2(2), (3) & (4) OF THE COURT OF APPEAL RULES, 2002 TAKE NOTICE that before or at the hearing of this appeal, the Respondents will by way of preliminary objection pray the Court to strike out the entire notice and grounds of appeal dated and filed on the 31st of October, 2006.
AND FURTHERTAKE NOTICE that the grounds of the objection are:
(i) Grounds 1 & 3 and their particulars are argumentative, prolix, repetitive and narrative.
(ii) Ground 2 is vague and rather hypothetical and in any even is not supported by any particulars.
(iii) Ground 2 as well as ground 4 did not arise from the decision of the Court below now appealed against.
(iv) Afortiori, the Respondents would further pray the Court of Appeal to strike out all issues formulated in the Appellant’s brief of argument predicated on the said incompetent grounds of appeal and to dismiss the entire appeal for want of a competent appellant’s brief of argument.”
The learned Senior Counsel for the respondents in the respondents’ brief on the preliminary objection, submitted that grounds 1 and 3 and their particulars are argumentative, prolix, repetitive and narrative and are therefore incompetent having contravened the provisions of Order 3 rule 2(3) and (4) of the Court of Appeal Rules, 2002. He referred to the cases of OCHIN v. EKPECHIN (2005) 5 NWLR (PT.656) 225 at 238; ADODO v. ISMAILA (1998) 11 NWLR (PT.573) 214 at 222 and JAMIYU ALIYU v. ATURU (1999) 2 NWLR (PT.629) 21 at 39 and KHALIL v. YAR’ADUA (2003) 16 NWLR (PT.847) 446 at 478 – 479 in support of his submission on the grounds of appeal No. 1 and 3. On ground 2 of the grounds of appeal he submitted that it is vague and rather hypothetical and in any event not supported by any particulars in contravention of Order 3 rule 2(2) of the Court of Appeal Rules and should consequently be struck out or discountenanced. It is argued that the ground is left bare and hanging in the air, unsupported, citing NWABUEZE v. NWURA (2005) 8 NWLR (PT.926) 1 at 20 – 22 and many other cases in support of his submission. He pointed out that the learned trial Judge restricted the scope of his judgment to only the threshold and fundamental issue of jurisdiction and held that the court below lacked jurisdiction ab initio, to entertain the suit. According to the learned Senior Counsel for the respondents, the trial court did not delve or indulge in the determination of the suit on its merit and referred to pages 169 – 170 of the record, the relevant portion of the judgment of the court below. That it is therefore plain and obvious that ground 4 of the notice of appeal, which is the omnibus ground of appeal does not relate or emanate from the decision appeal against and it is therefore incompetent and should be struck out. That in the same vein, since the court below did not also determine the issue of denial of the constitutional right to a fair hearing, the 2nd ground of appeal is ipso facto also incompetent and should be struck out as well. Learned Senior Counsel for the respondents, referred to several cases in support of his submission including M.B.N. PLC v. NWOBODO (2005) 14 NWLR (PT.945) 379 S.C. at page 388 paras B – D and 389 paras D – E. Relying on SARKI v. KOTOYE (1997) 3 NSCC 331 at 355, OBA v. EGBERONGBE (1998) 8 NWLR (Pt.615) 485 at 489 and IGWUEGBE v. EZURUWA (1999) 6 NWLR (PT.606) 228 at 234, he submitted that an appeal is a challenge against the decision of a lower court and also a challenge to the validity of it’s decision as the appeal is always against the ratio of the lower court’s decision and can never be at
large.
It is contended that it is now trite law that issues for determination are formulated from ground of appeal and that any issue that is formulated or culled outside recognizable or competent grounds of appeal is itself incompetent and liable to be struck out. Learned Senior Counsel for the respondents urged the court to strike out all the three issues formulated by the appellant from the four incompetent grounds of appeal which should also be struck out.
Responding to the submissions of the learned Senior Counsel for the respondents in the respondents’ brief on grounds 1 and 3 of the notice of appeal, learned Senior Counsel for the appellant, submitted in his reply brief, that the argument of the respondents’ counsel is a total misconception of what a ground of appeal should be as it is not the respondents’ claim that they did not understand the appellant’s complaints in these grounds of appeal. It is submitted by the learned Senior Counsel for the appellant that once the respondents understood the appellant’s complaint in the appellant’s ground of appeal, such as grounds 1 and 3 of the appellant’s notice of appeal, then the grounds are competent and ought not to be struck out. He argued that this is the position of the law as of today, placing reliance on the case of SOSANYA v. ONADEKO (2005) 8 NWLR (PT.926) 213 para D – 216 paras A – C and 226 paras C – H.
On the attack of the appellant’s ground of appeal No.2, it is submitted that a cursory look of the ground shows that the particulars of error are embedded in the ground of appeal and such a ground is competent citing the case of ATUYEYE v. ASHAMU (1981) 1 SCNLR 72 at 86 in support of his submission. It is argued that the said ground is neither vague nor hypothetical. He contended that the said ground arises from the decision of the trial court and can not be said to be at large. According to the learned Senior Counsel for the appellant, ground 4 of the grounds of appeal, is equally competent because a ground of appeal is intended to be a concise statement of the head of complaint of an appellant in the appeal. See IDIKA v. ERISI (1988) 2 NWLR (PT.78) 563 at 578. He elaborated that the object of a ground of appeal is to appraise the opposite party of the nature of the complaint of the appellant and so where such a complaint is clear, unambiguous and no rule of court is violated, such a ground should be regarded as a competent ground of appeal: See the recent decisions of the Supreme Court of Nigeria in ADEROUNMU v. OLOWU (2000) 4 NWLR (PT.652) 253, HAMBE v. HUEZE (2000) 4 NWLR (PT.703) 372 at 385, 389. That consistent with this liberal approach, it is not even uncommon for an appeal court to formulate an issue or issues for determination based on the grounds of appeal filed where the issues formulated by the parties are inadequate for the determination of the appeal: See OGBUNYINYA v. OKUDO (NO.2) (1990) 4 NWLR (PT.146) 551; BANKOLE v. PELU (1991) 8 NWLR (PT.211) 523; LEKWOT v. JUDICIAL TRIBUNAL (1993) 2 NWLR (PT.276) 410, SHA (JNR) v. KWAM (2000) 8 NWLR (PT.670) 685 at 708 – 709.
In conclusion, learned Senior Counsel for the appellant urged the court to overrule the objection.
I believe that the main grouse of the learned Senior Counsel for the respondents on the grounds of appeal is as regards the compliance with the provisions of Order 3 rule 2(3) and (4) of the Court of Appeal Rules, 2002, which provides as follows:
“2(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
In SOSANYA v. ONADEKO (2005) 8 NWLR (PT.926) 185 at 212 – 213, the Supreme Court of Nigeria relied on the portion of the judgment of Ogundare, JSC in HUMBE v. HUEZE (2001) 4 NWLR (PT.703) 372 at 385 where Ogundare, JSC stated thus:
“This issue has recently been resolved by this Court in ADEROUNMU & ANOR v. OLOWU (2000) 2 SCNJ 180, (2000) 4 NWLR (PT.652) 253 at 265. It is there decided that a ground of appeal alleging error in law and misdirection in fact is not thereby incompetent if it otherwise complies with the Rules of court requiring that a ground of appeal be not vague or general in term (save what is generally known as the omnibus ground) and discloses a reasonable ground of appeal such that the respondent is given notice of the precise nature of the appellant’s complaint.”
Then at page 386, Ogundare, JSC, made this observation in respect of the decision referred to in ADEROUNMU v. OLOWU(Supra):
“In my judgment in the case after setting out the Rules of Court, I did say at page 198: These provisions spelt out what are required of a ground of appeal and the purpose is to ensure that the respondent is not taken by surprise. Once, therefore a ground clearly states what the appellant is complaining about and there compliance with rules of court, I can not describe such a ground as bad and therefore incompetent.”
In the Supreme Court decision of AMUDA v. ADELODUN (1994) 8 NWLR (PT.360) 23 at 31, per Ayoola, JSC, it was held that the law is that the particulars or nature of error or misdirection alleged in relation to a ground should be the specific reasoning, finding or observation in the judgment or ruling in question relating to the error or misdirection complained of. They should be
the enumeration of the error or misdirection in the judgment or ruling. See GLOBE FISHING INDUSTRIES LTD v. COKER, (1990) 7 NWLR (Pt.162) 265.
From a careful perusal of grounds of appeal No.1 and 3 contained at pages 171 – 175, I am unable to agree with the submission of the learned Senior Counsel for the respondents that the said grounds and their particulars are argumentative, prolix, repetitive and narrative in that they have not in any way contravened the provisions of Order 3 rule 2(3) and (4) of the Court of Appeal Rules, 2002. Relying on the authorities cited above, it cannot be disputed that the learned Senior Counsel for the respondents has not clearly understood the nature of the complaint of the appellant in the two grounds of appeal. I therefore agree with the submission of the learned Senior Counsel for the appellant in his reply brief that the said grounds 1 and 2 have inbuilt particulars and can stand on their own even without particulars See ATUYEYE v. ASHAMU(1987) 1 SCNJ1 at 75 – 80.
With the greatest respects to the learned Senior Counsel for the respondents, I disagree with his submission that ground of appeal No.2, is vague and rather hypothetical and not supported by any particulars in contravention of Order 3 rule 2(2) of the Court of Appeal Rules, 2002.
It is well settled preposition of the law in respect of which there can hardly be a departure that a ground must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. See EGBE v. ALHAJI (1990) 1 NWLR (PT.128) 546 at 590.
Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as issues arise from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground.
In couching particulars of error or misdirection in grounds of appeal, the particulars and nature of error or misdirection alleged in a ground of appeal which are required to be specified, are the specific reasoning, finding or observation of the judgment or ruling relating to or projecting the error or misdirection complained of. They are in a sense the itemization of the error or misdirection in the judgment or ruling. On the authority of ATUYEYE v. ASHAMU (supra) an appellant is allowed to have the particulars built-in, in the ground of appeal. See SOSANYA v. ONADEKO(supra).
Having carefully examined ground of appeal No.2 under attack, I am of the humble view that apart from the fact that the said ground of appeal has not violated the provisions of Order 3 rule 2(2) and (3), it has clearly conveyed the nature of the complaint of the appellant hence it is competent and there is no reason whatsoever for its being struck out.
On the learned Senior Counsel for the respondents objection on ground of appeal No.4, the omnibus ground of appeal, I tend to agree with him that that the ground does not relate to the judgment as the learned trial Judge declined jurisdiction consequently did not decide the case on its merits even though evidence was led by the parties in support of their respective cases. It is well settled preposition of the law in respect of appeal that a ground of appeal must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. See M.B.N. PLC v. NWOBODO (2005) 14 NWLR (PT.945) 379 at 387. As there was no evaluation of evidence by the learned trial Judge in the instant appeal, I hold the view that a complaint of judgment being against the weight of evidence does not even arise. In fact, in my opinion the judgment is what I consider a “2nd ruling.” On the whole, the objection to grounds of appeal Nos.
1, 2 and 3, are hereby over-ruled and refused while the objection in respect of ground of appeal NO.4 is upheld consequently ground of appeal NO.4 as well as the argument canvassed thereon are incompetent and are hereby struck out. In conclusion, I therefore hold that grounds of appeal numbers 1, 2 and 3 of the notice of appeal are competent grounds of appeal.
Having determined the preliminary objection, I will now proceed to consider and determine issues 1, 2 and 3 distilled from grounds 1, 2 and 3 of the notice of appeal which in my view are competent grounds of appeal as earlier held.
After studying the issues formulated by the parties in this appeal, I find the issues formulated by the learned counsel for the appellant all encompassing and I adopt them for the determination of this appeal. As the issues are inter woven, I will take the submission of the learned counsel for the parties together and resolved them together.
In the appellant’s brief dated 8/11/06 filed on 9/11/06, learned Senior Counsel for the appellant referred the court to the ruling of the trial court dated 12/9/06, reproducing a portion of the said ruling and the subsequent judgment dated 31/10/06, where the learned trial Judge in a sharp contradiction to the earlier ruling held in his judgment that the court lacks jurisdiction to hear and determine the matter as a result the court struck out the suit for want of jurisdiction. It is submitted that since the learned trial Judge had decided that the issue before the court was squarely that of want of fair hearing and fundamental rights breach after interpreting sections 285, 244 and item 22 of the Constitution, the learned trial Judge had no power to hold otherwise in the same case upon the same fact as he had done. According to the learned senior counsel for the appellant the learned trial Judge had become functus officio and ought to have left the issue for the Court of Appeal to decide as the trial Judge’s action in reversing his ruling amounts to sitting on appeal over his own decision. He contended that the judgment dated 31/10/06 is therefore unconstitutional, null and void, placing reliance on IN BAKARE v. APENA (1986) 17 NSCC (Pt.II) 935 at 940 and LADEGA & ORS. v. DUROSIMI & ORS. (1977/78) 17 NSCC174. Concluding his submission on his issue No.1, learned Senior Counsel for the appellant urged the court to answer the issue in the negative, resolve it in favour of the appellant and allow the appeal.
On issue No.2 of the appellant, it is submitted that the appellant’s case is a challenge to the expulsion of the appellant from the House and a declaration of the vacancy of his seat in the House of Assembly and not an action for determination of vacancy of seat in the House. Pointing
out that the 2nd respondent had already made the declaration of vacancy and so, it cannot be said that this case which challenges the said declaration already made can be construed as an action for a declaration of a vacancy of the seat or for determining whether a vacancy had occurred. He stated that as rightly held by the Hon. Learned trial Judge in his ruling of 12/9/06, the plaintiff’s (appellant) case challenges the constitutionality of his expulsion from the House of Assembly and breach of his fundamental right to fair hearing. It is contended that since the appellant did not absent himself from the sittings of the House for more than one-third of the sittings of the House in the year as alleged, the defendants/respondents have violated the provisions of Section 109(1)(f) of the Constitution of the Federal Republic of Nigeria, 1999, by erroneously expelling him from the House. It is also argued that since the defendants/respondents did not satisfy the requirement of the provisions of the sub-section of section 109 of the 1999 Constitution before expelling the plaintiff/appellant, they have also breached the provisions of the sub-section of section 109 of the Constitution as well.
According to the learned senior counsel for the appellant, the respondents as defendants had also breached the provisions of Section 119 of the Constitution which, section prevents the respondents from declaring any member’s seat in the House vacant unless authorized to do so by a law to be made pursuant to the said Section.
It is also the case of the appellant that his expulsion without first and foremost affording him an opportunity to be heard is a breach of his right to fair hearing guaranteed by the Constitution of the Federal Republic of Nigeria 1999. Learned Senior counsel then posed a question as to whether these complaints and claims can be construed by any stretch of imagination to amount to an electoral matter or matter outside the provision of section 272 of the 1999 Constitution? He reproduced the provisions of sections 109 and 272 of the 1999 Constitution at pages 12 – 13 of the appellant’s brief and referred to the cases of OLOYO v. ALAGBE (1985) 6 NCLR 35 and DIN v.
ATTORNEY-GENERAL OF THE FEDERATION (1988) 2 NSCC 449 at 478 in support of his submission.
On his final submission on issue 2, he submitted that it follows, therefore that by virtue of section 272 of the 1999 Constitution that the appellant can go to a State High Court, as he has done for a declaration that the defendants/respondents have violated the provisions of sections 109 and 119 of the Constitution of the Federal Republic of Nigeria, 1999 and ask the court to declare the action of the defendants/respondents unconstitutional, null and void. He urged the Court to resolve issue No.2 also in favour of the appellant against the respondents.
In conclusion, learned senior counsel for the appellant urged the court to allow the appeal and gave four reasons listed at pages 20 – 21 of the appellant’s brief why the appeal ought to be allowed.
In his response to the submission of the learned Senior Counsel for the appellant on issue No.1, in his written submission, Mr. Toro, SAN, submitted that the makers of the 1999 Constitution had in their wisdom donated exclusive original jurisdiction over the subject matter of the suit in the Governorship and Legislative Election Tribunal by the combined effect of sections 119, 246 and 285 of the said Constitution read along with item 22 of the 2nd Schedule to the Constitution. He stated that in paragraphs 17 and 18 of the respondents’ joint statement of defence dated and filed on the 18th day of September, 2006, at pages 42 – 43, the respondents raised the issue of jurisdiction which was also raised in the respondents’ written submission dated and filed on the 3/10/06 at the trial court. Reference was made to the cases of MADUKOLU& ORS. v. NKEMDILIM (1962) ALL NLR 581 at 595; (1962) 2 SCNLR341 at 348; WESTERN STEELWORKS LTD v. IRON & STEEL WORKERS UNION (1986) 3 NWLR (PT.30) 617 at 627 – 628 paras B – B and UTIH & ORS. v. ONOYIVWE& ORS. (1991) 1 NWLR (PT.166) 166 at 206 on the issue of jurisdiction. It is submitted that the issue of jurisdiction can be raised at any stage even on appeal before the Supreme Court, as it is now trite law. See BABALOLA v. OBAOKUOTE (2005) 8 NWLR (PT.927) 386 at 402 – 403. It is further submitted by the learned senior counsel for the respondents that what is at stake is the fundamental and crucial issue of jurisdiction and that the cases of BAKARE v. APENA and LADEGA v. DUROSIMI (supra) are inapplicable to the peculiar facts and circumstances of the present case, citing a number of cases, including AKINBOBOLA v. PLISSON FISKO (NIG) LTD(1991) 1 NWLR (PT.167) 270 in support of his submission.
In conclusion of his submission on this issue, issue No.1, learned senior counsel for the respondents urged the court in view of the extensive submissions made above to give an affirmative answer to the first issue for determination and to dismiss this appeal on that score.
In his reply on the second issue distilled from the second ground of appeal, the sole and lone issue upon which the court below arrived at its decision that the court below lacked original jurisdiction to hear and entertain the suit and therefore struck it out (see page 169 – 170) of the printed record, learned senior counsel for the respondents, stated that the legal principles on the fundamental and crucial issue of jurisdiction has been stated and canvassed earlier in this brief under 1st issue for determination which are hereby also adopted in respect of issue NO.2 for determination in this appeal. He reiterated his earlier submission that it is trite principle of law that the issue of jurisdiction can be raised at any stage of the proceedings and could even be raised for the first time before the Supreme Court, placing reliance on SENATE PRESIDENT v. NZERIBE (2004) 9 NWLR (PT.878) 251 at 272. Reference was made on the issue of jurisdiction of the State High Court, particularly to sections 272, 285 and paragraph 2(3) of the 6th Schedule to the 1999 Constitution on the issue of jurisdiction. It is further emphasized that the scope and ambit of the provisions of section 285 of the Constitution are meant to embrace only electoral matters as contained in other related provisions of the same Constitution.
He argued that it is now well settled that in interpreting the provisions of a statute including the constitution, same are to be read as a whole and not the sections thereof in isolation reliance placed on the Court of Appeal decision subsequently applied by the Supreme Court of Nigeria in the case of ADELEKE v. OYO STATE HOUSEOF ASSEMBLY & ORS. (2006) 16 NWLR (PT.1006) 608 at pages 668 – 670 paragraphs H – D and pages 681 – 682 paragraphs G – G and cited a number of authorities in support of his submission.
Concluding his submission on issue No.2 for determination, learned Senior Counsel urged the court, having regard to all the foregoing submissions to return a negative answer to the 2nd issue for determination, to find and hold that only the Governorship and Legislative Houses Election Tribunal as duly appointed and constituted by the President of the Court of Appeal has original jurisdiction to the exclusion of any other Court of law or Tribunal in Nigeria to hear and determine the suit. He finally urged the Court to affirm the judgment of the trial court, declining jurisdiction.
A court is entitled to look at the record in its possession and make use of the information: WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. v. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (Pt. 56) 299 at 306. In the case of TEXACO RAVANA INC. v. S.P.D.C. LTD.
(2002) 5 NWLR (Pt.157) 209 at 234, the Supreme Court per Kalgo, J.S.C, held that an appeal court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it. See FUNDUNK ENGINEERINGCO. LTD. v. M.C. ARTHUR (1995) 4 NWLR (Pt.392) 640 at 652. In the instant appeal, the learned trial Judge at pages 129 – 136 of the printed record, after considering all the necessary materials in particular the statement of claim, held in his ruling dated 12/9/06 that he has jurisdiction to hear and determine the suit No. KDH/KAD/575/06, but the court in its Judgment at pages 154 – 170, delivered by the same learned trial Judge, for reasons which are not apparent on the printed record, changed his mind and held a contrary view that the court has no jurisdiction to entertain the same suit No. KDH/KAD/575/2006, relying on the same materials. In effect, the learned trial Judge reversed his earlier ruling in the same suit.
In any judicial proceedings, the word, “judgment” connotes a binding determination by a court or Tribunal in a dispute between two parties. See OSAFILE v. ODI (NO.1) (1990) 3 NWLR (Pt.137) 130. And the expression final decision has been construed as a decision completely determining the rights of the parties before the court. See OMONUWA v. OSAODIN (1985) 2 NWLR (Pt. 10) 924; AKINSANYA v. U.B.A. (1986) 4 NWLR (Pt.35) 273; UDE v. AGWU (1961) ALL N.L.R. 65; CHIKE OBI v. D.I.P. NO.2 (1961) ALL N.L.R. 458; AKINTOLA v. ADEREMI (1962) 2 S.C.N.L.R. 131; (1962) 1 ALL N.L.R. 442. Decision is defined by section 318(1) of the 1999 Constitution, means, in relation to a court, any determination of that court and includes, judgment, decree, order, conviction sentence or recommendation.
From this definition it is clear that decision includes a ruling and a final judgment.
In BAKARE (Supra) at page 940, the Supreme Court of Nigeria, held:
“Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been effective then the court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply.”
See also MAJOROH v. FASSASSI (1.987) 2 NSCC 774 lines 47 – 55.
Again, in the case of MINISTER OF LAGOS AFFAIRS, MINES AND POWERS & ORS v. AKIN OLUGBADE & ORS. (1.974) 1. ALL N.L.R. (PT.2) 266, 235, the Supreme Court adopted with approval the dictum of Morris, C.J. in TAYNNE v. TAYNNE (1.955) 3 ALL E.R. (1.29) 1.46 to the following effect:
“Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been effective then the court cannot re-open the matter and can not substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply.”
Once a trial court delivers its final judgment or ruling it becomes functus officio and ceases to be seized with the matter except for making ancillary orders such as a stay of execution etc. Nevertheless, the trial court has inherent powers to interfere with its judgment in order to correct accidental omissions or mathematical error. See STERLING CIVIL ENG. (NIG) LTD v. YAHAYA (2005) 11 NWLR (PT.935) 181 at 201, 202.
It is crystal clear in the instant appeal from the pages of the printed record earlier referred that the learned trial judge in this appeal delivered a judgment reversing his earlier ruling hence the learned trial judge was functus officio at the time he delivered the judgment.
Applying the authorities cited in this judgment, I have no hesitation in holding that the learned trial judge lacked the competence and jurisdiction to reverse his own decision once delivered as the learned trial judge did in the instant appeal. In fact, in my humble opinion, taking the definition of judgment into consideration the learned trial Judge in the instant appeal, simply delivered what I regard as a 2nd ruling, which he titled “judgment” for reasons best known to the learned trial Judge as the reasons for the ‘2nd ruling’ are not stated in the printed record. While I agree with the learned senior counsel for the respondents that issues of jurisdiction can be raised at any time even in the Supreme Court, I do not agree that an issue already decided by a court can be re-opened and the decision substituted by another different decision, relying on the said facts or materials.
In view of the aforesaid, I answer issue No.1 in the negative in favour of the appellant as the trial Judge, was in substituting his ruling dated 12/9/06 functus officio and lacked the competence and the jurisdiction to do so. I now go to issue No.2 for determination in this appeal, the issue of jurisdiction.
Jurisdiction is a hard matter of law which is donated by the Constitution and the Statutes establishing the court. Where a trial Judge goes on an unguarded journey in search for jurisdiction, appellate court will call him to order. See ARJAY v. A.M.S. LTD. (2003) 7 NWLR (Pt.820) 577 at 635.
It is now well settled that when a court’s jurisdiction is challenged in a statement of claim it is rather fair and far better for the court to settle that issue one way or the other before proceeding to the hearing of the case on the merit. The reason is that jurisdiction is a radical and crucial question of competence, for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity. Jurisdiction is defined as the power of the court to hear and determine the subject matter in controversy between the parties. See BABALOLA v. OBAOKU-OTE(2005) 8 NWLR(PT.927) 386 at 403. Both Learned Senior Counsel for the parties in this appeal arguing issue No.2, dealing with jurisdiction referred to sections 285, 109 and 119 of the Constitution which I reproduce hereunder for ease of reference.
“285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) any person has been validly elected as a member of the National Assembly;
(b) the term of office of any person under this Constitution has ceased;
(c) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and
(d) a question or petition brought before the election tribunal has been properly or improperly brought.
(2) There shall be established in each State of the Federation one or more Election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any Legislative House.
(3) The composition of the National Assembly Election Tribunals, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth Schedule to this Constitution. ”
“109(1) A member of a House of Assembly shall vacate his seat in the House if- (f) without just cause he is absent from meetings of the House of Assembly for a period amounting in the aggregate to more than one-third of the total number of days during which the House meets in anyone year.
(2) The Speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.”
(underline mine)
“119(1) The national Assembly shall make provisions as respects-
(a) persons who may apply to an election tribunal for the determination of any question as to whether-
(i) any person has been validly elected as a member of a House of Assembly,
(ii) the term of office of any person has ceased, or
(iii) the seat in a House of Assembly of a member of that House has become vacant;
(b) circumstances and manner in which, and the conditions upon which, such application may be made; and
(c) powers, practice and procedure of the election tribunal in relation to any such application.”
It is settled and a fundamental principle that jurisdiction is determined by plaintiff’s claim or relief. In otherwords it is the claim that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the court. See for example WESTERN STEEL WORKS LTD. v. IRON STEEL WORKS UNION OF NIGERIA (1987) 1 NWLR (PT.49) 284; TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT.117) 517; ADEYEMI v. OPEYORI (1976) 9 – 10 S.C.
It is therefore pertinent to reproduce the relevant part of the appellant’s statement of claim in ascertaining the issue of jurisdiction. Paragraph 17 of the statement of claim containing the reliefs sought by the appellant as plaintiff before the trial court has already been reproduced in this judgment. Paragraph 16 of the statement of claim reads:
“16. The plaintiff shall also contend at the hearing of the action: (i) His so expulsion from the House as well as declaring his seat vacant without giving him an opportunity to be heard is a breach of both his Constitutional and Natural rights to fair hearing and therefore null and void. (ii) The act of defendants complained of violate the mandatory provisions of Chapter IV, Sections 6(6) and 109 of the Constitution of the Federal Republic of Nigeria, 1999, and Rules of the House of Assembly of Kaduna State, including Order II, Rule I, Order VIII. (iii) Only a court of law can declare the plaintiff’s seat in the House vacant.”
The jurisdiction of the High Court of a State is provided under section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 which reads.
“272(1) Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”
In my view, giving a literal or plain meaning to the provisions of section 285, I am unable to agree with the learned Senior counsel for the respondents that section 285 is applicable to the case under consideration because no election is involved and no provision of issue of vacancy of a seat of member of House of Assembly is included in that section. Above all, looking at the appellant’s claim before the trial court, it can be seen that the claim is mainly that of declaratory reliefs which going by the provisions of section 272 of the Constitution of the Federal Republic of Nigeria, 1999, the High Court, in my humble view has jurisdiction to hear and determine as rightly held by the learned trial judge in the ruling dated 12/9/06. I am also of the view that a High Court of a State has also the jurisdiction to hear and determine a matter of breach of a fundamental human right. See Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as well as the interpretation of the Constitutionality of the provisions of section 109(1) (f) (2) of the 1999 Constitution. See ABDULHAMID v. AKAR (2006) 13 NWLR (PT.996) 127 at 146, 149 – 150.
I do not intend to delve into the provisions of section 119, an enabling provisions in the determination of the issue of jurisdiction since from the authorities cited above, the only material required to be considered in the determination of jurisdiction is only the appellant/plaintiff’s statement of claim in the suit.
In conclusion, issue NO.2 is also resolved in favour of the appellant against the respondents as the State High Court in my view, has jurisdiction to hear and determine the said suit.
In the final analysis, this appeal must be and is hereby allowed. The judgment of the Kaduna State High Court in suit No. KDH/KAD/575/2006 delivered on 31/10/2006 by H. Gwadah, J, of the Kaduna State High Court is hereby declared null and void for want of competence and jurisdiction.
From what has been stated above, I hold that the High Court of Justice, Kaduna State has jurisdiction to hear and determine the suit No. KDH/KAD/575/2006 filed in the Kaduna State High Court.
The learned Senior Counsel for the appellant, urged the court to invoke the provisions of section 16 of the court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1999, which reads:
“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competence jurisdiction.”
(underline mine)
It should be noted that in the instant appeal evidence was led in support of the case of the respective parties which the learned trial Judge did not consider having declined jurisdiction.
The plaintiff/appellant who testified as PW.1 commenced his testimony at page 138 of the printed
record by introducing himself as follows:
“My names are Bashir Zubairu Usman
I live at No.2 Rock Road, Kaduna.
I am a politician.”
He then proceeded:
“The reason for my expulsion is not stated in Exhibit 1 the votes and proceedings of 9/8/06, I was not told of the years neither the member of sittings. We have met for three times, the committee sittings 20 and the suspension period 20 which are not suppose to be counted making a total of 40 sittings. I was not absent for 1/3rd of the sittings. I was not heard in respect of the allegation on the last paragraph on page 27 – 1st and 2nd paragraphs of 28 of Exhibit “1” I don’t know the exact days I was absent and from my estimation
I was not absent for 1/3rd of the sittings.
I was never invited to any panel or written that I aided any allegation. I want the court to cancel the decision taken by the 2nd defendant in Exhibits ‘1’ and award me N500 million damages.”
PW.1 was cross examined at pages 142 – 145 of the printed record.
DW.2, Mohammed Lawai Aliyu, acting D.O. Legislative Matters, (2nd in rank to the Head of Department of the Legislative Matters the Clerk of the Kaduna State House of Assembly) testified at pages 143 – 151 and was cross-examined at page 151 of the printed record by the learned senior counsel for the appellant and part of the cross examination reads:
“The Legislative year for which the plaintiff was expelled started from 20/07/05 to 30/05/06. Exhibit ‘1’ does not show the period for which the plaintiff was said to have been absent.
He was not queried to the best of my knowledge. There was announcement before the expulsion and once the speaker makes a declaration it stands.
There is no where on Exhibit ‘1’ that the speaker said the plaintiff was absent for 1/3 of the sittings. During the legislative year the speaker was on suspension for a month and had no power to attend the sittings either plenary or committee sittings. It is the speaker and speaker alone who appoints members of the committee. The speaker did not appoint the plaintiff into any of the committees up to the time he was expelled. The present speaker is not a member of any committee because he ought not to be a member. The plaintiff was a speaker of the House from 20/07/05 to 06/12/05 and equally he was not supposed to be a member of any of the committees. The total number of the committees sittings from 20/07/05 to when the plaintiff was removed were 29 sittings.
The plaintiff was present 24 plenary sittings. I am not very sure of the number of committees sittings whether 29 or 49. When the plaintiff was on suspension the committee sat 21 times and the plenary sittings during his absence were 12 sittings. The total during when he was a speaker and the suspension when added together will not be 1/3 of the total sittings.”
According to my understanding the complaint of the appellant as plaintiff is centered on the non-compliance with the provisions of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and section 109(1)(f) (2) of the same Constitution by the 2nd respondent/defendant in expelling the appellant from the Kaduna State House of Assembly on 9/8/06.
The relevant provisions of section 109 of the Constitution of the Federal Republic of Nigeria, 1999 has earlier been reproduced in this judgment. The other relevant provision of the Constitution relied upon by the appellant as the plaintiff in his action before the Kaduna State High Court is Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, which reads:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is now well settled that parties are bound by their pleadings and a plaintiff will be held to a case he has put forward in his writ of summons and pleadings vide: JONAH KAWO & ORS v. CHIEF M.D. KAWO (1975) 2 S.C. 15 at 21, ETOWA ENANG & ORS v. FIDELIS IKOR ADU (1981) 11 – 12 S.C. 25 at 36, EDWARD EGONU & ORS v. MADAM E. EGONU& ORS. (1978) 11 – 12 S.C. 111 at 133; CHIEF BOLA IGE v. DR. OMOLOLU OLUNLOYO (1984) 1 S.C.N.L 158 at 162, NKANU v. ONUN (1977) 5 S.C. 13 at 22 and RANSOME-KUTI v. ATTORNEY GENERAL OF THE FEDERATION (1985) 2 NWLR (PT.6) 211.
There is no doubt at all that the principle of fair hearing is fundamental to all court, procedure and proceedings, and like jurisdiction, the absence of it vitiates proceedings however well conducted. See SALU v. EGEIBON (1994) 6 NWLR (PT. 348) 23 at 40; CEEKAY TRADERS v. G.M. CO. LTD. (1992) 2 NWLR (PT.222) 132, ATANO v. A-G, BENDEL STATE (1988) 2 NWLR (Pt.75) 201. Fair hearing according to our law envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the court or tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties. See ELIKA v. NWAKWOALA & ORS. (1984) 12 S.C. 301 and ISIYAKA MOHAMMED v. KANO N.A. (1968) 1 ALL N.L.R. 424.
It is elementary that the burden of proof in a civil matter is on the party who makes the assertion and in this case, is the appellant/plaintiff. He must satisfy the court that he is entitled to the declaration sought as it relates to the claim.
Proof in a civil case is on the balance of probability or on the preponderance of evidence. This means that where the party gives evidence as to the claim before the court, judgment will be given to the party that the evidence tilts in favour of in the case.
In determining either balance of probability or preponderance of evidence, the trial Judge is involved in some weighing by resorting to the imaginary scale of justice adumbrated in MOGAJI v. ODOFIN(1978) 4 S.C. 91.
It is interesting to observe that in the instant appeal, the respondents/defendants’ witness, DW.1, gave evidence in support of the appellant/plaintiff’s case as reproduced in this judgment.
In the case of ADEBAMBO v. OLOWOSAGO (1985) 3 NWLR (PT.11) 740, it was held that where a witness called by a defendant gives evidence which supported the plaintiff’s case and the defendant did not treat him as hostile witness, the evidence of such witness must be treated as an admission upon which the plaintiff is entitled to rely as further re-enforcement of his case. See AKINOLA & ORS. v. OLUWO (1962) 1 SCNLR352, (1962) 1 ALL NLR 224 at 227, OKAFOR v. IDIGO (1984) 1 SCNLR 481 at 512; OLATUNJI v. ADISA (1995) 2 NWLR (PT.376) 167 at 181 and AKINTOLA v. SOLANO (1986) 2 NWLR (PT.24) 598.
I am fully aware of the fact that this Court ought not to interfere with the findings of the trial court which saw, heard and observed the demeanour of a witness by substituting its own views of facts of those of the trial Judge whose province is the ascription of probative value to the evidence adduced before the trial court. It is interesting to observe in the instant appeal that the learned trial Judge did not utilize the opportunity of the evaluation of evidence and ascription of probative value to the evidence adduced in the instant appeal. This being the position, I can comfortably enter into the shoes of the learned trial Judge and exercise the discretion of the learned trial Judge by virtue of the provisions of Section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, as the credibility of witnesses is not involved because the learned trial judge who had the first option to evaluate the evidence declined to do so. See BALOGUN v. AGBOOLA (1974) 1 ALL NLR (PT.2) 66; OMEREGIE v. IDUGIEMWANYE (1985) 2 SC 150 and NZEKWU v. NZEKWU (1989) 2 NWLR (PT.104) 373.
In my humble opinion, from the evidence adduced by the appellant corroborated by the evidence of OW.1, it cannot be disputed that the respondents did not comply with the provisions of Section 36 and 109(1)(f)(2) of the Constitution of the Federal Republic of Nigeria, 1999, in expelling the appellant from the Kaduna State House of Assembly. There is nothing to show that the appellant was requested to show reasonable cause for the alleged non-attendance of the sittings of the Kaduna State House of Assembly. Above all, no evidence of the absence of the appellant for an aggregate of 1/3 in a known particular year was presented to the Kaduna State House of Assembly by the 2nd respondent before the announcement of the expulsion of the appellant as required by section 109(1)(f)(2) of the Constitution hence there was a violation of the said provisions of the Constitution by the respondents as clearly shown by the evidence adduced by the appellant as the plaintiff.
On the whole, the appeal succeeds and is hereby allowed. The judgment of the Kaduna State High Court in suit No. KDH/KAD/575/2006 delivered by H. Gwadah, J, of the Kaduna State High Court delivered on 31/10/06 is hereby set aside for the reasons stated above. I hold that the Kaduna State High Court has jurisdiction to hear and determine the suit No. KDH/KAD/575/2006 filed before it by the appellant as the plaintiff.
In view of the aforesaid, judgment is hereby entered in favour of the appellant as plaintiff in terms of his reliefs 1 and 2 of the statement of claim, viz:
(1) It is hereby declared that the purported expulsion of the appellant/plaintiff by the 2nd respondent/defendant as a Member of the Kaduna State House of Assembly as well as declaring the appellant/plaintiff’s seat vacant by the House is unconstitutional null and void.
(2) It is hereby declared that the appellant/plaintiff is still a Member of the Kaduna State House of Assembly until he is legally and or constitutionally removed. Reliefs 3, 4, 5 and 6 of the statement of claim are refused and dismissed.
As costs follow events, I award costs assessed at N10,000.00 to the appellant/plaintiff in this court and N5,000.00 in the court below against the respondents.
Other Citations: (2007)LCN/2305(CA)
