George Odon V. Chief Nimi Barigha Amange & Anor (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED LAWAL GARBA, J.C.A.
In the National Assembly elections conducted on the 21st April, 2007 in the country by the Independent National Electoral Commission (INEC and 2nd Respondent in this appeal) the Appellant and 1st Respondent was candidates for the Bayelsa East Senatorial seat of Bayelsa State. The Appellant was sponsored by the Action Congress (AC) while the 1st Respondent was sponsored by the Peoples Democratic Party (PDP); both registered political parties for the elections. At the conclusion of the elections, the 1st Respondent was declared and returned the winner by the 2nd Respondent and being dissatisfied with the returns, the Appellant filed an election petition against same. The Appellant’s petition was presented on the 21st of May, 2008 before the National Assembly, Governorship and Legislative Houses Election Tribunal established for Bayelsa state. The petition went to trial after which the election Tribunal (hereinafter to be called lower tribunal) entered a judgment on the 5th of November, 2007 dismissing the claims of the Appellant in the petition. Dissatisfied with the judgment, the Appellant caused a Notice of appeal dated 23rd November, 2007 to be filed on the 26th of November, 2002 against same. The eight (8) grounds of appeal contained on the Notice of Appeal without the particulars are as follows:-
A. GROUND ONE
The learned Members of the Honourable Tribunal erred in law and misdirected themselves on the facts when they held that the Appellant failed to prove that the Iseni Asawo/Teme group to which the 1st Respondent agreed to membership of is a secret society.
B. GROUND TWO
The learned members of the Honourable Tribunal erred in law when they held that the Justice Adumein Commission of Inquiry report on the Odioma and Obioku Communities crises (exhibit “A”) is not admissible in evidence pursuant to Section II of the Commissions of Enquiry law, cap 24 of the laws of Eastern Nigeria, 1963.
C. GROUND THREE
The learned members of the Honorable Tribunal erred in law when they misinterpreted the provisions of Section 62A of the Criminal Code Act to mean that before a society can be designated as unlawful society, it must have been declared by an order of the president to be a society dangerous for the good government of Nigeria or any part thereof, a fact which the Honourable Tribunal said had not been so proven in this petition.
D. GROUND FOUR
The Honourable Tribunal having held that:
We agree with the learned petitioner’s counsel that the position of the law is that orders of a competent Court must be obeyed as long as they subsist; they remain binding on the parties thereto until set aside. Once a party knows of the substance of an order of court, he is obliged to obey it, no matter whatever the fundamental vice may be. An aggrieved party should apply to court that it be discharged. As long as it exists it must not be disobeyed. He cannot pick and choose which order to obey. See the cases cited by the Petitioner’s Counsel of P. P. M.C. Ltd. v. Delphi Petroleum INC (2005) 8 NWLR Part 928 page 458 Page at 483 per Salami JCA, Oshimole V. Federal Government of Nigeria (2005) part 907 Page 414 at page 437 per Muhammad JCA supra. See also the unreported case supplied to us by the Petitioner of All Nigeria Peoples Party & Anor v. INEC & 50 Ors at Pages 94-95.
It is not in doubt that injunctive orders were made by the High Court of the Federal Capital Territory against the 2nd Respondent herein and the PDP and that in spite of these orders, the 2nd Respondent proceeded with the election and returned the 1st Respondent as winner.”
erred in law when it turned around to hold that it is only a final order of the said Court pursuant to Section 32 (5) of the Electoral Act (supra) disqualifying the 1st Respondent from contesting the election that can divest this Court of jurisdiction.”
E. GROUND FIVE
The learned Members of the Honourable Tribunal erred in Law when they held that the case of Obi V. INEC. (2007) 11 NWLR (pt. 1046) pg. 436 CA. bear no relevance to this case.
F. GROUND SIX
The learned members of the Honourable tribunal erred in law when they held that the absence of the last paragraph of the affidavit of the 1st Respondent (which should contain the solemn declaration) did not make the affidavit non-compliant with the Oaths Act Cap 333 Laws of the Federal, 1990.
G. GROUND SEVEN
The learned Members of the Honourable Tribunal erred in law when it held that notwithstanding the number of inconsistencies, contradictions and outright falsehood on the part of the 1st Respondent which manifested in. his pleadings and during his cross examination, the petitioner had not done enough to prove his case.
H. GROUND EIGHT
The learned members of the Honourable Tribunal erred in law when they failed to hold that failure of the 2nd Respondent to adduce evidence in support of his Reply to the petition of ns amount to an abandonment of its averments in the said Reply.
As required by the Rules of practice in this court, briefs of argument were fired by learned counsel in support of the respective positions of the parties in the appeal. The Appellant’s brief was fired on 10th December, 2007, the 1st Respondent’s brief on 28th December, 2007 and the 2nd Respondent’s brief on the 12th of June, 2008. The Appellant’s Reply brief to the 1st Respondent’s brief was filed on the 24th of January, 2008 and the Appellant’s Reply brief to the 2nd Respondent’s brief was filed on 19th June, 2008.
At the hearing of the appeal on the 9th of October, 2008, the briefs were adopted by learned counsel for the parties as their submissions on the basis of which we were urged to dismiss the appeal as the case may be.
In his oral emphasis on the submissions, the learned senior counsel for the Appellant had said that parties and the lower tribunal had a duty under section 297(3) of the 1999 constitution of the Federal Republic of Nigeria to obey the order/s of a competent court whether interlocutory or final. He submitted that refusal or failure to obey such orders is an invitation to anarchy and chaos and distinguished the facts of the case in EREMENIMI V. OSUAGWU cited in the 1st Respondent’s brief. The case of AMAECHI V. INEC (2008) 5 NWLR (1080) 227 @ 324-5 was relied on by him and we were urged to void the election of the 1st Respondent on ground that he was disqualified to contest it and order a bye election. In the alternative, we were invited by the learned senior counsel, Prof. Taiwo Osipitan, to declare the person with the next highest votes in the person as the winner since according to him, the electorates knew of the 1st Respondent’s disqualification before the time of the election.
Mr. Tuduru Ede, learned counsel for the 1st Respondent in his oral highlight relied on a preliminary objection and said that the case of EREMEMINI V. OSUAGWU has similar facts with this appeal. He urged us to uphold the preliminary objection and dismiss the appeal.
For the 2nd Respondent, Mr. Osaze-Uzzi, learned counsel moved the preliminary objection raised and argued at pp 4-6 of the 2nd Respondent’s brief. In addition, he contended that the lower tribunal dealt with the single issue of the membership of a secret society in its decision and that the Appellant’s reply brief filed on 19th June, 2008 was in breach of Order 17, Rule 5 of the Court of Appeal Rules 2007 because it seeks to reargue the appeal or raise new issues. Sections 65 and 66 of the Electoral Act 2006 were referred to on qualification to contest the election in issue and we were urged to dismiss the appeal.
Three (3) issues were raised and submitted for determination in the Appellant’s brief. They are thus: –
3.1. WHETHER, HAVING REGARD TO THE TOTALITY OF EVIDENCE ADDUCED BY THE PETITIONER/APPELLANT IN THE COURT BELOW, THE TRIBUNAL WAS RIGHT IN DISMISSING THE PETITION ON THE GROUND THAT IT LACKED MERIT – GROUNDS 1, 3, 6, 7 AND 8.
3.2. IN VIEW OF THE SETTLED POSITION OF THE LAW AS ENUNCIATED IN SEVERAL DECISIONS, OF THIS COURT AND THE APEX COURT WHETHER THE TRIBUNAL WAS IN ERROR IN HOLDING THAT THE JUSTICE ADUMIEN COMMISSION OF INQUIRY REPORT ON THE ODIOMA AND ABIOKU COMMUNITIES CRISIS IS NOT ADMISSIBLE IN EVIDENCE PURSUANT TO SECTION 11 OF THE COMMISSIONS OF ENUIRY (SIC) LAW, CAP 24 OF THE LAWS OF EASTERN NIGERIA 1963, NOW CONTAINED IN SECTION 12, COMMISSION OF INQUIRY LAW OF BAYELSA STATE-GROUND 2.
3.3. WHETHER THE TRIBUNAL HAVING HELD THAT THE POSITION OF THE LAW IS THAT ORDERS OF A COMPETENT COURT MUST BE OBEYED AS LONG AS THEY SUBSIS AS THEY REMAIN BINDING ON ALL PARTIES AND THAT A PARTY CANNOT PICK AND CHOOSE WHICH ORDER OF COURT TO OBEY WAS RIGHT IN HOLDING THAT ONLY A FINAL ORDER OF COURT DISQUALIFYING THE 1ST RESPONDENT COULD PREVENT HIM FROM CONTESTING THE ELECTION. GROUND 4 AND 5.
At page 10 of the 1st Respondent’s brief, two (2) issues follows were said to arise for determination in the appeal: –
(a) Whether the learned Judges/Members of the Election Tribunal were wrong in holding that the Appellant failed to prove the petition and dismissing the Petition therefore?
(b) Whether the pendency of an order of injunction or order of Court, which has not determined the substantive issues before the Court, is a ground for presentation of the Election petition under the Electoral Act?”
Similarly, two (2) issues were formulated at pp 3-4 of the 2nd Respondent’s brief as ones calling for answer in the appeal. They are: –
4.1 Whether or not the petitions/appellant has proved his case that the 1st respondent belonged to a secret cult (society) grounds 1, 2, 3.
4.2 Whether or not the tribunal was right in dismissing the petition for lacking in merit 4, 5, 6, 7 & 8.
Before commenting on the above issues, since the Respondents have raised preliminary objections in respect of the grounds from which they were (or supposedly) distilled by learned counsel, it is expedient to resolve the objections first. This is because, the primary purpose of the objections is to terminate, and stop or end the consideration of the appeal on the merits of the grounds of appeal objected to. If the objections succeed, the proceedings in the appeal would end at the stage of the success because there would no longer be any competent grounds to support the appeal and so the duty of the court to consider it abates. See GOJI V. EWETE (2001) 15 NWLR (736) 273 @ 280, OKOI V. BLAG (2002) 10 NWLR (776) 455 @ 468, UBN V. SOGUNRO (2006) 16 NWLR (1006) 304 @ 521-2.
Now the objections of the 1st Respondent are in respect of all the grounds contained on the Appellant’s Notice of Appeal. The pith of the objection on grounds 2, 4 and 6 is that they are on issues dealt with at the pre-trial conference and therefore at interlocutory stage of the proceedings at the lower tribunal which therefore require leave of court. In addition, the particulars of the grounds are said to be prolix, unwieldy, and argumentative and contain conclusions. The complaint against grounds 1 and 6 is that ground 1 is of mixed law and facts while ground 6 is said to be on the exercise of the lower tribunal’s discretion which both require leave of court. Ground 5 is said to be on a mere comment/obiter made by the lower tribunal and so unnecessary in the appeal.
The complaint in ground 7 is that is based on extract from notes of counsel and it is said along with grounds 4 and 8 not to have arisen from the decision of the lower tribunal. Several cases were cited by learned counsel for the 1st Respondent in support of the position of the law on the grounds of the objection.
For the 2nd Respondent, the objection against grounds of appeal 2, 4, 6 and 7 was on the same grounds with those relied on by the 1st Respondent. The objection against grounds 2, 4 and 6 was argued separately from the ground 7 by learned counsel for the 2nd Respondent. Cases were also cited by him in support of the arguments.
In response, it was submitted for the Appellant in the Appellant’s Reply briefs in respect of both 1st and 2nd Respondents, that ground 2, 4 and 6 questions the final judgment of the lower tribunal. Pages 475-9 of the record of appeal was referred to and in the alternative, the grounds were contended to be competent even if on interlocutory decisions of the lower tribunal. The cases of ONIBO v. INEC (1989) 2 NEPLR 24, AONDOAKAA V. AJO (1999) 5 NWLR (602) 206 @ 226 among others were relied on the alternative submissions and the cases cited by the Respondents were said not to be applicable. Furthermore, the particulars to the grounds were said to have sufficiently conveyed the complaint against the decision of the lower tribunal even if they were repetitive or argumentative.
The grounds, it was submitted, are competent on the authority of the cases cited by learned counsel for the Appellant.
Grounds 3, 5, 7 and 8 were said to have arisen from the judgment of the lower tribunal.
A calm perusal of the 8 grounds of appeal contained on the appellant’s Notice of Appeal would clearly reveal the primary complaint in each of them in respect of the decision of the lower tribunal. Though some of them are indeed unwieldy and to some extent argumentative, yet they leave no doubt (reasonable) on what the real complaint is against the judgment of the lower tribunal. In substance which the courts usually give priority to, the grounds of appeal are therefore competent. It should not be forgotten that the primary object of a ground of appeal even in normal or usual civil matters, let alone in election matters which the law now considers to be of a special nature, is to let the other party know what the real complaint is against the decision of a lower court. The form or manner in which such complaint was put or couched does not matter as long as the sincere grouse is made clear in the ground so as to give reasonable notice to the other side of what it was to meet at the appeal.
This position of the law applies more in election matters which are required to be determined in their essential substance and not form. See YUSUF V. OBASANJO (2004) 1 EPR 467, AGBI V. AGBE (2006) 2 EPR, 180 in addition to the other cases cited by learned counsel on the point. I should also point out that the objection taken on grounds 2, 4 and 6 as being on interlocutory decisions of the lower tribunal and therefore require leave of court, is misconceived because section 246 (1) (b) (i) of the 1999 constitution of the Federal Republic of Nigeria confers a right of appear as of right to the Appellant against the decision of the lower tribunal to this court. The provisions are thus:
“249 (1) An appeal to the Court of Appeal shall lie as of right from: –
(b) decisions of the National Assembly Election tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether;
(i) any person has been validly elected as a member of the national Assembly or of a House of Assembly of a State under this Constitution.” (Underlining mine)
trial conference were made in the course of the hearing of the Appellant’s petition and so qualify as decisions of the lower tribunal which fall within the meaning of decision in section 318 of the 1999 Constitution of the Federal Republic of Nigeria. An appeal against any of those decisions is therefore as of right and requires no leave of court. See ABURIME V. ABURIME (2002) 10 NWLR (276) 441, UZODINMA V. UDENWA (2004) ALL FWLR (213) 1813. I should further say that all the grounds of appeal are undoubtedly from or related to the decision of the lower tribunal because each of them questions that decision on the ratio decendi thereof though not as succinctly And concisely as required by the Rules of this court. However I agree with the learned counsel for the 1st Respondent that the particulars to grounds 7 and 8 are pure arguments and conclusions and not matters of facts which are borne out by the record of appeal.
This however does not affect the competence of the grounds which like I mentioned before now, clearly set out what the real grievances are. So even without the particulars, these grounds are valid and effective grounds of appeal in law. See SASANYA V. AJAJI (2004) 5 SC (1) 88 @ 96, ATUYEYE V. ASHAMU (1987) 1 NWLR (49) 267 @ 282, SHYLLON V. ASEIN (1994) 6 NWLR (353) 670, OLAWUYI V. ADEYEMI (1990) 4 NWLR (147) 746 @ 765.
On the whole, I do not find merit in the preliminary objections raised by the learned counsel to the 1st and 2nd Respondents respectively. The objections are accordingly overruled.
I now turn back to the issues submitted by the learned counsel for the parties to the appeal.
It would appear to me from a reading of the judgment of the lower tribunal and the grounds of appeal against same that the fulcrum of the complaint by the Appellant is the lower tribunal’s decision that the Appellant had failed to produce legally admissible evidence to prove that the 1st Respondent was disqualified or not qualified to contest the election in question. By paragraphs 32, 33 and 34 of the Appellant’s petition filed in the lower tribunal, the Appellant challenged the contest and election of the 1st Respondent on the sole ground that the latter was unqualified or disqualified to contest the said election. In these premises, the primary and crucial issue that calls for determination in this appeal is: –
“Whether the Appellant had adduced legally admissible evidence sufficient to prove that the 1st Respondent was at the time of the election, unqualified or disqualified from contesting the election.”
A determination of this sole issue will in my firm view, adequately take, care of answer all the points raised in the issues distilled by the earned counsel in the appeal. Because the court is vested with the discretion by law to identify and raise the issue/s that will ultimately resolve the main real and crucial point/s of dispute between the parties to the appeal, I intend to determine the appeal on the above single issue in line with the submissions of the learned counsel on the relevant points made therein. See BANKOLE V. PELU (1991) 8 NWLR (21U 523, SHA V. KWAM (200) FWLR (II) 1798 @ 1815 & 1825-6, OGBUANYINYA V. OKUDO (NO.2) (1990) 4 NWLR (146) 551, AGBAREH V. MIMRA (2008) 2 NWLR (1971) 378 @ 410 on the discretion by an appellate court to formulate or reformulate issue/s which in its view is/are pertinent in the determination of the matter in controversy.
Before delving into the issue however, I would take a look at the oral submission of the learned counsel for the 2nd Respondent that the Appellant’s Reply brief filed on 19th June 2008 seeks to raise new issues and reargue the appeal.
Without much ado, the said Reply brief after the response to the preliminary objection raised in the 2nd Respondent’s brief clearly went on to re-open and reargue the appeal in most portions thereof by way proffering further submissions on the issues already canvassed in the Appellant’s brief. Let it be remembered that the only purpose for which a Refry brief can properly be in this court as permitted in order 17, Rule 5 of the court of Appeal Rules 2007 is to deal with all new points arising form the Respondent’s brief. As a result where new points did not arise from the Respondent’s brief, a Reply brief would not be necessary and even when fired will not be in accordance with the provisions of the Rules of court. The purpose of a Reply brief in appeals had been stated and rested in several decisions of this court and the apex court including the very recent case of OCHEMAJE V. THE STATE (2009) 15 NWLR (1109) 57 decided on 27th June 2008. At page 85, paragraph C-D, the vasfly proficient TOBI, JSC set out the purpose of a Reply brief in the following leave no doubt manner.
“A reply brief is not one for repetition of the arguments in the appellant’s brief. It is not a forum for emphasizing the averments in the appellants brief. On the contrary, a reply brief, as the name implies replies to t he respondent’s brief. In the exercise, an appellant need not repeat an argument in the appellant’s brief if the respondent’s brief has join issues with the appellant’s brief the appellant need not repeat the issue joined either by emphasis or by expatiation.”
Absolutely nothing more can be said on the purpose of a reply brief than this very weighty and final authority. See ADEBIYI V. SORNMADE (2004) ALL FWLR (239) 933, NWALI V. STATE (1991) 3 NWLR (182) 663, OJUKWU V. OBASANJO (2004) 7 SC (1) 117.
Even a cursory reading of the arguments in paragraph 3.1 – 5.20 at pp 3 – 13 of the named Reply brief would leave no doubt whatsoever that they are merely further submissions and contentions in support of the appeal which are substantially contained in the Appellant’s brief. They do not deal with any fresh or new issues or points arising from the Respondent’s brief. Perhaps I should point out here that the fact that the submissions in the 2nd Respondent’s brief are based on the two (2) issues formulated therein, does not mean that the issues raised are new or fresh and therefore different from the ones formulated in the Appellant’s brief. The issues formulated by the 2nd Respondent are from the Appellant’s grounds of appeal as indicated in the brief and are substantially on the same points contained in the 3 issues raised by the Appellant though in a concise form. Having fully canvassed the issues in the Appellant’s brief the Reply brief cannot properly be used as forum to reargue or further argue them by way of repetition. It is not the contention of the Appellant (which will be unviable in law) that the 2nd Respondent could not formulate issues from the Appellant’s grounds of appeal which may be different in form to the ones raised by the Appellant.
The law allows the 2nd Respondent to raise issues from the Appellant’s ground of appeal if it was not satisfied or it did not agree with the formulation by the Appellant. See AKINBOBOLA V. STATE (1991) 8 NWLR (208) 191.
Before leaving the issue, I wish to observe that the Appellant’s Reply brief to the 1st Respondent’s brief filed on the 24h of January, 2008 was afflicted by the same vice as that filed later on 19th June, 2008. Though the issue was not canvassed by the learned counsel for the 1st Respondent at the hearing of the appeal since the law is that a Reply brief cannot be used to reargue or further argue by way of expatiation, an appeal already argued in the Appellant’s brief, paragraphs of the Reply brief filed on the 24th of January, 2008 which do not deal with any new point arising from the 1st Respondent’s brief, are incompetent and would be discountenanced in- this appeal. I would consider the relevant and competent points raised.
With the above done, I now review the submissions of learned counsel as contained in their respective briefs in line with the crucial issue set out earlier.
Appellant’s Submissions:
It was submitted for the Appellant that the decision of the lower tribunal was based on speculation or conjunctive, perverse and manifestly unsupportable. According to learned counsel for the Appellant, the evidence adduced by the Appellant was uncontradicted and so should have been accorded full weight by that Tribunal which instead wrongfully excluded vital documentary exhibits thereby occasioning a miscarriage of justice to the Appellant.
Reference was made to the evidence before the lower tribunal particularly Exhibits R1, R2, R3, R4, P2A and P2B and it was argued that the 1st Respondent was shown to be the sponsor, leader and financier of the Iseni Asawo/Teme cult group. It was further contention of the learned counsel for the Appellant that the lower Tribunal was wrong in its interpretation of Section 62 (A) of the Criminal Code Act on when a society can be designated as an unlawful society. That the provisions of Section 62 A (1) – (2) (i) – (g) of the 1999 Constitution are disconjunctive and not conjunctive as was construed by the lower tribunal. In addition, it was the view of learned counsel that the case of OBI V. INEC (2007) 11 NWLR (1046) 436 “dismissed with a wave of the hand, by the lower tribunal was as a matter of fact relevant to the appear. Observations by the learned justices of the Apex court in the case were set out and it was submitted by learned counsel that the rower tribunal should have followed that decision which he commended to us. He also argued that the absence of the last paragraph on solemn declaration in the affidavit of the 1st Respondent made the affidavit non-compliant with the Oath Act Cap 333, Laws of the Federation of Nigeria, 1990 and so the effect was that the 1st Respondent’s motion to strike out the petition was incompetent because the affidavit was not cognizable under section 13 of the oath Act. Learned censer said a court is not competent to correct an error in an affidavit nor can the deponent do so in court and that all corrections must be done before the Commissioner for Oath, citing the case of AGBA KOBA V. DIRECTOR SSS (1993) 7 NWLR (305) 353 @ 365 as authority. The cases of NEW NIG. BANK PLC V. IBW ENTERP. NIG (1998) 6 NWLR (5541 446 @ 54 and LONESTAR DRILLING NIG. LTD V. TRIVENI ENG. IND. (1991) 1 NWLR (588) 622 @ 629 said to have been relied on by the lower tribunal were distinguished on the point.
According to him, Section 84 of the Evidence Act cannot cure substantial and fundamental defects in an affidavit, but can only save a defective affidavit under section 89 (now 90) relying on the case of INLAND REVENUE V. BABOYE (1974)1 NLR 136. It was also submitted by learned counsel that failure on the part of the 2nd Respondent to call evidence in support of the Reply to the petition left the petition and evidence adduced by the Appellant unchallenged and deemed to have been admitted by the 2nd Respondent. He then set out from p. 14-18 of the Appellant’s brief the 1st Respondent’s reply to the petition and evidence given to show that the two are contradictory and therefore unreliable in law. Authorities were cited on the submission and the one before it on effect of pleadings that are not supported by evidence.
Furthermore, it was the view of counsel that the lower tribunal was wrong to have rejected the Justice Adumien Commission of inquiry Report because it was not tendered to show that 1st Respondent was indicted for ernbezzlement or fraud. Rather he said it was tendered to show that the 1st Respondent was a member of a secret society contrary to section 66 (1) (g) of the 1999 Constitution which did not require that a while paper be issued by a Government before it could be used in proof. Section 66 (1) (g) and (h) were set out and it was argued that paragraph (h) is not applicable to the Appellant’s petition. That the Report is a public document and since the 1st Respondent did not deny its existence, it is admissible. We were then urged to consider Sections 109 (a) (ii) 111, 112, 114 and 115 of the Evidence Act which were set out in the brief while the cases of BAGGASH V. BULAMA (2004) 14 NWLR (892) 144 and ABDULLAH V. HASHIDU (supra) were said not to be applicable.
Section II of the commissions of Inquiry Law, Cap 24 of the Laws of Eastern Nigeria, 1963 (applicable to Bayelsa state) which purports to render the Report inadmissible, was said to be void for being inconsistent with the above named sections of the Evidence Act under sections 1(3) and 4(5) of the 1999 Constitution.
In addition, it was submitted that the order of injunction issued by the Federal Capital Territory High court which the Respondents were aware of and was subsisting as at the date of the erection made the 1st Respondent disqualified for the election. The cases of OSHIOMHOLE V. F.G.N. (2005) 1 NWLR (907) 414 @ 432, P.P.M.C. v. DELPHI PETROLEUM INC. (2005) 8 NWLR (928) 458 @ 483 were relied on for the submissions. Similarly several other authorities were cited on the unqualified duty and obligation of every party to whom an order (interim or final) was made by a court of competent jurisdiction, to obey same until discharged. They include ODU V. JOLAOSO (2005) 16 NWLR (950) 178 @ 195, NWANKWO V. ONONOEZE (2005) 4 NWLR (916) 470 @ 483, PDP V. ABUBAKAR (2007) 2 NWLR (1018) 303. Section 32 (4) & (5) of the Electoral Act 2006 was referred to on the power of the courts to disqualify a candidate from elections and we were finally urged to allow the appeal, set aside the judgment of the rower Tribunal and declare the Appellant duly elected having polled the next highest number of lawful votes cast at the election. Costs were also asked for.
1st Respondent’s Submissions
For the 1st Respondent, it was submitted that the rower tribunal rightly rejected at the pre-trial hearing the commissions, Report and that left no other legally admissible evidence to support the allegation that the 1st Respondent was a cult member disqualified to contest the election. That the appellant has failed to prove that the Iseni/Asawo/Teme is a secret society in line with Section 66 (1) (g) and section 319 of the 1999 constitution for there was no evidence of any secret sign, insignia or practices, membership or declaration that it was a secret society. That the allegation of being a member of a secret society constitutes an allegation of crime under Section 62 A and 64 of the criminal code Act and had to be proved beyond reasonable doubt. It was contended that the evidence adduced by the Appellant fell far short of the burden of proof. The cases of NNACHI v. IBOM (2004) 16 NWLR (900) 615 @ 636, IMAM V. SHERIFF (2005) 4 NWLR (914) 80 @ 178, A.D. V. FAYOSE (2004) 8 NWLR (876) 639 among others were cited and it was further argued that the
Commission Report was inadmissible because:-
(i) It offended section 11 of commissions of Inquiry Law Cap 24, Laws of Eastern Nigeria 1963 applicable to Bayelsa State.
(ii) It offended section 167 Evidence Act.
(iii) There was neither evidence of acceptance, issuance of while paper or evidence of gazette of its acceptance by Government and so founded no reasonable cause of action in favour of Appellant,
(iv) The Report raises conclusions of findings of criminal allegations/commission of crimes against the 1st Respondent without regard to and in gross contravention of section 66(1) (g) read together with section 36(1) of 1999 constitution.
That section 11 excludes the Commissions, Report from evidence that can be admitted except in the situation mentioned therein and so it is inadmissible. The case of OGUNBADEJO V. OWOYEMI (1993) 1 NWLR (271) 517 @ 527 was relied on for the submission. In addition, that the Commission’s Report was not accepted by the Government and a white paper published in respect thereof and so it remained private unpublished official records in custody of the Government which could not be obtained without permission under Section 167 of the Evidence Act. That there was no evidence that the required permission was given for the Report and it was rightly rejected by the lower tribunal on the authority of EDOHO V. ATT-GENERAL, AKWA IBOM STATE (1996) 1 NWLR (425) 488 @ 501, COOKEY V. FOMBO (2005) 15 NWLR (947) 182 @ 200, UMANAH V. ATTAH (2004) 7 NWLR (871) 63.
On the issue of the defect in the 1st Respondent’s affidavit, it was contended that it only related to form and not substance of the affidavit. That the law, that is, Section 84 of the Evidence Act permits the lower tribunal to use it since it has substantially complied with the Act. Sections 82-85 of the Evidence Act as well as the cases of OGWEGBU V. AGOMUO (1999) 1 NWLR (609) 144, LONESTAR DRILLING V. TRIVENI ENG. & IND (supra) and Order 10 Rules of the Federal High Court Rules 2000, were cited. It was further argued that the duty was on the Appellant to prove his case and not to rely on the alleged inconsistencies in the evidence of the 1st Respondent or other weakness in the latter’s case as was held in the case of AKINFOSULE V. IJOSE (1960) 5 FSC 192 @ 197-8. That the Exhibits R1, R2 and R3 are pleadings in previous or another suit which do not constitute evidence but could only be used to impeach a witness which was not done by the Appellant. Sections 208, 209 of the Evidence Act and BAMIGBADE V. BALOGUN (1994) 1 NWLR (323) 718 @ 752, AWARA V. ALALIBO (2002) 18 NWLR (799) 484 @ relied on. Sections 114 and 115 of the Evidence Act are said not to be applicable to the commissions. Report and that section 11 of the commissions of Inquiry Law is not inconsistent with the Evidence Act since it is im pari materia with section 8 of the Tribunal of Inquiry Act Cap 477 of the Laws of Federation of Nigeria. The case of OGUNBADEJO V. OWOYEMI (supra) at page 534 was cited in support of the position.
In another vein, it was submitted that the pendency of an order of injunction or court order against the holding of an election is not a ground for presentation of an election petition. Section 145 (1) of the Electoral Act, 2006 and the cases of EMERENINT V. OSUAGWU (supra) OGBORU V. IBORI (2004) Z NWLR 192 @ 215 inter alia were relied on and it was contended that Section 66 (1) – (3) of the 1999 constitution are similar to section 11 of the Local Government Decree dealt with in the EMERENINI v. OSUAGWU case. Learned counsel said the case of OBI V. INEC (2007) 11 NWLR (1046 436 is different since the Appellant was not a party to the suit in the Federal Capital territory High Court, the PDP was not a party in the petition filed by the Appellant and so did not claim any relief against it in the lower tribunal. That the complaint of the Appellant that election was held during the pendency of an order of injunction was one that questioned the nomination of the 1st Respondent by the PDP to contest the election which is not one of the grounds for presenting an election under Section 145 (a)-(d) of the Electoral Act. The position and posture of the appellant in the lower tribunal and the appeal are said by learned counsel to be akin to the situation in the case of MAIKORI V. LERE (1992) 3 NWLR (231 525 @ 537.
In conclusion, we were urged to dismiss the appeal and uphold the election and return of the 1st Respondent.
2nd Respondent’s Submissions:
For the 2nd Respondent after reference to the pleadings and the evidence of the Appellant, it was submitted that there was no direct evidence that the 1st Respondent belongs to a cult group or that he was a cultist. That the Iseni Asawo/Teme group was not shown to be a secret society even in the Commission Report which was rightly according to counsel, rejected by the lower tribunal. The definition of secret society in Section 318 of the 1999 Constitution was set out and it was argued that the pleadings and evidence of the Appellant in the lower tribunal did not meet the requirements of the section. The case of EMERENINI V. OSUAGWU (supra) was relied on the submission that the pendency of an injunction is not a ground for nullifying an election conducted in disobedience to the injunction. It was the further submission of learned counsel that Section 352 (5) of the Electoral Act, 2006 contemplates a final order disqualifying a candidate and not an interlocutory order restraining the 2nd Respondent from recognising the 1st Respondent as a candidate for the election. That the 2nd Respondent was under a duty to recognise the 1st Respondent as a candidate subject to Section 35 (5) of the Electoral Act 2006. Relying on the case of PETER V. OKOYE (2002) 3 NWLR (755) 5291 it was contended that the case of OBI V. INEC is not relevant to the appeal since the facts are different. On the defect on the 1st Respondent’s affidavit, it was submitted that it was not fatal on the authority of IGRUBIA V. IGRUBIA a decision of the court delivered on 10th December 2000 in appeal no. CA/PH/EPT/334M/07. In addition that the Appellant was to succeed or fail on the strength of his own case and not inconsistencies or weakness of the 1st Respondent’s case. The case of AGUNWA V. LADENWIKA (1998) 7 NWLR (577) 221 was cited as authority and it was submitted that the Appellant had failed to prove his case and the lower tribunal was right to dismiss it. Turning to the failure of the 2nd Respondent to adduce evidence in support of the Reply filed, it was contention of the learned counsel that the law does not insist that a defendant must file a defence or call evidence. According to him the Appellant had failed in both his pleadings and evidence to say in which way or manner the 2nd Respondent contravened the law on the conduct of the election in question. That the absence of any allegation against the 2nd Respondent made it unnecessary for the 2nd Respondent to adduce any evidence and it did not amount to abandonment of the Reply to the petition. It was also argued that the Appellant is not entitled to judgment merely because the 2nd Respondent did not call evidence without the discharge of the primary burden of establishing his case. That for the lower tribunal to hold that a person belongs to a secret society, there must be clear evidence of government proclamation or conviction by a court of law that he is a member of such society or cult, which was said to be lacking in the Appellant’s case.
On the whole, we were urged to dismiss the appeal for lacking in merit.
It may be recalled that I have before now found most portions of the Appellant’s Reply brief to the Respondent’s brief to be mere repetitions or further arguments of the appeal and said that I would consider the relevant points which answer new or fresh ones arising from the Respondent’s briefs.
One of the new points raised in the 1st Respondent’s brief is on the requirement of proof beyond reasonable doubt of the allegation of being a member of a secret society. In response, learned counsel for the Appellant in the Reply brief filed on 24th January 2008 said the issue was not a ground relied on by the lower tribunal and since the 1st Respondent did not file a Respondent’s notice, it was not opened to him to introduce it at the appeal. Order 9 rules 1 and 2 of the Court of Appeal Rules, 2007 as well as the case of OGBEIDE V. OSULA (2003) 15 NWLR (843) 266 @ 283, ODU V. FAWEHINMI (2005) 15 NWLR (949) 518 and BOB-MANUEL V. BRIGGS (2003) 5 NWLR (813) 323 @ 339 were cited as support for the submission. That it was incorrect to conclude that secret societies are unlawful societies by virtue of Section 62 of the Criminal Code as to justify the requirement of burden of proof beyond reasonable doubt under section 61 (G) and 318 of the 1999 Constitution. Allegation of memberships of a secret society is not one of a crime, according to learned counsel. In addition that Section 167 of the evidence Act is not applicable because it deals with “State privilege” and that not of an individual even though it was a ground relied on by the lower tribunal. Finally, it was submitted that Section 1 of the Tribunal of Inquiry Act was not relied on by the lower tribunal and so should be ignored.
In the Reply to the 2nd Respondent’s brief, the case of AWONIVI V. REG. TRUSTEES OF ARMOC (1990) 6 NWLR (154) 42 were cited as the authority which decided that the proof the existence and membership of a secret society is perfectly possible with: –
(a) prior conviction
(b) prior finding of Tribunal of Inquiry
(c) acceptance of report of inquiry vide a gazette.
It was also submitted that by the provisions of Sections 287 (3) and 318 of the 1999 Constitution no distinction was made between interlocutory or final order was made and every order of a competent court has to be obeyed until it was set aside.
Now, I have at the stage of formulation of issues stated that the Appellant’s petition was premised on the single or sole ground that the 1st Respondent was not qualified to contest the election. Specifically in paragraph 32 of the petition, the Appellant averred thus:-
“32. The Petitioner shall contend at the hearing of the petition that the 1st Respondent was not qualified both under Section 137 (i) (h) of the Constitution of the Federal Republic of Nigeria, 1999, and under the electoral Act 2006, to seek election into the office of a senator of the Federal Republic of Nigeria or for any electible position at that.”
As a follow up, the Appellant prayed the lower tribunal in paragraph 35 (a) of his petition, to determine that:- “(a) at the time of the election, the 1st Respondent was not qualified to contest the election.” with the pleading and the prayer or relief sought in the petition, the Appellant had predicated his complaint against the election and return of the 1st Respondent solely on disqualification under section 137 (i) (h) of the 1999 constitution and unnamed sections of the Electoral Act. Well Section 137 (i) (h) of the constitution provides for disqualification of a person seeking election into the office of the president of the Federal Republic of Nigeria for being a member of a secret society. The section is therefore clearly inapplicable for the purposes of election into the senate as is the case in the present appeal. However, learned counsel had in their respective briefs cited and relied on the applicable and therefore relevant section of the constitution on the points, that is section 66 (1) (g) which is im pari materia with Section 132 (i) (h). Section 66 (1)
(g) has provisions as follows: –
“66 (1) No person shall be qualified for election to the Senate or the House of Representatives if
(g) he is a member of a secret society.”
In section 318, the Constitution defines a secret society as follows:-
“secret society” includes any society, association, group or body of persons (whether registered or not) –
(a) that uses secret signs, oaths, rites or symbols and which is formed to promote a cause, the purpose or part of the purpose of which is to foster the interest of its members and to aid one another under any circumstances without due regard to merit, fair play or justice, to the detriment of the legitimate interest of those who are not members;
(b) the membership of which is incompatible with the function or dignity of any public office under this Constitution and whose members are sworn to observe oaths of secrecy; or
(c) the activities of which are not known to the public at large, the names of whose members are kept secret and whose meeting and other activities are held in secret.”
Though the above definition appears quite wide and not exclusive because of the use of the words “include” at the beginning of the definition, before a society, association, group or body of persons can properly be called or termed a secret society, the requirements set out in paragraphs (a) and (b) or (c) have to be established or positively shown to exist. It would appear that the requirements in paragraph (a) and (b) are conjunction while that in paragraph (c) stands alone by the use of the words “or” at the end of paragraph (b) instead of a semi-colon used at the end of paragraph (a). That is plain and since the interpretation of the definition is not directly in contention, I need not say more on it. However after the proof that a society qualifies as a secret society under the above provision, in order to be disqualified thereunder, a person has to be shown to belong to or be a member of such a society. The proofs of a secret society as well as its membership are matters of evidence to be adduced by the person/s calling for such findings. Because everything about a secret society as clearly shown in the definition above is secret, it is usually onerous to prove its existence and membership.
The question that needs to be asked at this stage is whether the allegation that a person is a member of a secret society in an election petition is an allegation of a crime. For our purposes neither the 1999 Constitution nor the Electoral Act defines what a crime is. Put in simple language, a crime is an offence which is punished by law or activities that involve breaking the law or prohibited by the law. In the Blacks Law dictionary, a crime is defined as follows: –
“An act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding.”
Since the 1st Respondent was alleged to be a member of secret society in Bayelsa State, the Criminal Code applicable to that State becomes relevant. Section 64 makes membership of secret society or cult a felony punishable by imprisonment for three years. The Criminal Code has provisions for what it defined as an unlawful society under Section 62 (2) and not a secret society used in the Constitution or secret cult used by the Appellant. However, for the purposes of the appeal, each of the phrases deals with activities that involve breaking the law or prohibited by law.
Consequently, an allegation of being a member of a secret society/cult is an offence, an activity or act in breach of the law and prohibited by law. Consequently it is an allegation of a criminal nature which by the provisions of section 138 of the Evidence Act requires proof beyond reasonable doubt. The standard of proof remains the same even in election matters or petitions that are considered to be sui generic or of a special nature. See ADEDEJI V. KOLAWOLE (2006) 2 EPR, 70 @ 93, OLATUNJI V. AKANDE (2006) 2 EPR 962 @ 972-3, HASHIDU V. GOJE (supra), YUSUF V. OBASANJO (supra). I therefore agree with the learned counsel for the 1st Respondent that the allegation of being a member of a secret society/cult made by the Appellant against the 1st Respondent is one that constitute an allegation of a crime that has to be proved beyond reasonable doubt and not just on the preponderance of evidence.
The next question now is whether the Appellant had adduced evidence in proof of the assertions made in the petition that the 1st Respondent was a member of secret society/cult to discharge the legal burden of proof beyond reasonable doubt. The pith of the evidence put forward by the Appellant in the lower tribunal was the Commission’s Report (as stated earlier).
Was that Report admissible in evidence? Put another way; was the lower tribunal right to have rejected the Report in evidence? Perhaps it should be remembered at the on set that the Report was issued by the commission which was set up under the commissions of Inquiry Law as applicable to Bayelsa state. It is therefore the report of a Commission set up by and pursuant to a Law of Bayelsa State deemed to have been enacted for the good governance of that state by the State House of Assembly. The Commission as well as its powers, recommendations or Report is governed by the law of the State pursuant to which it was set up in the first place. It may be recalled that the lower tribunal had rejected the Report in evidence because of the provisions of Section 11 of the Commissions of Inquiry Law which provide thus: –
“No evidence taken at under this law shall be admissible against any person in any civil or criminal proceedings whatsoever, except in the case of a person charged under Section 13 of the law with giving false evidence before the Commissioners.”
” The above provisions are clear and unambiguous and in their plain, grammatical and ordinary sense or meaning, they make any evidence given and taken at the proceedings of a commission set up under the law, inadmissible against any person in all civil or criminal proceedings whatever, save in the exception provided therein. The indisputable purport of the provision is to exclude from evidence in any proceedings whatever the record of evidence taken pursuant to or under the law by a commission or other body/tribunal in its proceedings. Such record of evidence is not admissible and cannot be admitted in evidence against any person in subsequent proceeding be they civil or criminal under the provisions except that person is charged with giving false evidence before the commission. The duty of the rower tribunal and indeed the courts in the interpretation of these provisions is to give them meaning that accord with the clear intention stated therein. See IDEHIN v. IDEHIN (1991) 6 NWLR (198) 382, ADEWUNMI V. ATT. GENERAL, EKITI STATE (2002) 2 NWLIT (751) 474, ODUTOL.A HOLDINGS V. LADEJOBI (2006) 5 SC (Pt.1) 83.
Learned counsel for the Appellant had contended that the Report being a public document is admissible under section 109 (a) (ii), 111, 112, 114 and 115 of the Evidence Act. Let me remind counsel that the law is that ordinarily it is relevancy and the law that govern the admissibility of evidence in proceedings before the courts or tribunals. See Section 6 of the Evidence Act N. A. B. LTD V. SHUAIBU (1991) 4 NWLR (186) 450, FAWEHINMI V. N. B. A. (NO. 2) (1992) 2 NWLR (105) 588 @ 583, AGBAHOMOVO V. EDUYEGBE (1999) 3 NWLR (514) 170 @ 183, OYEDIRAN v. ALEDIOSU II (1992) 6 NWLR (249) 550 @ 559. The provisions of the Evidence Act cited above by the learned counsel make the documents mentioned therein admissible ordinarily and in the absence of any other provisions of the law excluding them from evidence. Section 6 (b) of the Evidence Act, makes the following provisions: –
“6. Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereunder declared to be relevant and of no other:
Provided that –
(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.”
In my view, the effect of the above provision is to render irrelevant, evidence of any fact which by the operation of a law, a person is not entitled to prove. Since a person is disentitled to prove a fact by evidence under a law, that evidence becomes irrelevant in the proceedings by the operation of that law such that it is rendered inadmissible as proof of the fact in issue or question.
The provisions of Section 11 of the Commissions of Inquiry Law set out above rendered any evidence taken under it against any person, irrelevant and therefore inadmissible in any subsequent proceedings whatever.
Learned counsel for the Appellant had argued that section 11 of the Commission of Inquiry Law is inconsistent with the provisions of the sections of the Evidence cited by him and therefore void. My simple answer is that the provisions of the section are not in conflict with the Evidence Act as indicated above. Section 6 (b) of the same precludes a person from giving evidence of a fact which by the provision of a law, he is disentitled to prove. The fact that the provisions of the evidence Act make a piece of evidence (oral or documentary) admissible does not mean that the piece of evidence must be admitted in all situations and circumstances without regard to other relevant provisions that regulate such evidence as demonstrated in section 6 (b). There is therefore no conflict between the law and the Act on the admissibility of the Report in evidence.
Learned counsel had also maintained that under Section 66 (1) (g) of the Constitution; acceptance of the Report by the Government was not nor a requirement for its admissibility since the allegation was not one of indictment for embezzlement or fraud under Section 66 (1) (h).
It should be pointed out that the decisions in the cases of SOKEFUN V. AKINYEMI (1980) 5-7, SC 1, GARBA V. UNIMAID (1986) 1 NWLR (18) 550 followed and applied in the case of AMAECHI V. INEC (2008) 33 NSCQRN (1) 332, (2008) 5 NWLR (1080) 227 were based on the fact that the allegations made therein were criminal in nature. The courts held that only the court of law had the proper power and jurisdiction to indict a person for a criminal allegation after a trial and finding of guilt or conviction.
I would readily agree with the learned counsel that there is no requirement set out in section 66 (1) (g) that the Report of a Commission should be accepted by Government or that a white paper was required in respect of the Report. It should however be pointed out the Report of the Commission only contains recommendations on the investigations conducted by the Commission in line with the terms of reference given to it by the appointing authority; which was the State Governor. By the provisions of section 19 (2), the State Governor was at liberty to either accept or reject any recommendations made in the Report by the Commission.
This section provides this: –
“19 (2) The decisions of the Governor on the finding of a Commission of Inquiry, including disciplinary action against holders of public offices, shall be implemented by the Governor or any other person or authority acting under the direction of the Governor.”
The provisions make it clear that the State Governor has to decide on the recommendations contained in the Report of the Commission before any of them could be effective and acted upon by way of implementation.
The usual and known mode or manner of making the position of the State Governor on the recommendations contained in the Report is by way of publishing a Government white paper thereon. So until the State Governor makes his position on the recommendations known, they remain inchoate and incapable of being used as evidence in proof of the facts set out or recorded therein. It should be noted that the Commission did not conduct a trial even though it was chaired by a judicial officer, but investigations of the Odioma Crises, made a findings of fact and recommendations thereon to the appointing authority. Because I have earlier found that the allegation of membership of a secret society constitutes an allegation of a crime by the authorities of SOKEFUN V. AKINYEMI (1080) 5-7 SC 1, GARBA V. UNIMAID (1986) 1 NWLR (18) 550 and AMAECHI V. INEC (2008) 33 NSCQRN (1) 332, (2008) 5 NWLR (1080) 227, only a court of law has requisite power and jurisdiction to indict a person on allegation of a crime.
It can visibly be seen and easily appreciated therefore why the Report had to the accepted by the State Government before it could properly form the basis of any evidence of the facts recorded therein. Until accepted by the Government, the Report remained merely the views, opinion and suggestions of the Commission on the facts of the Odioma crises which it investigated and nothing more.
For all I have said above, I agree with the lower tribunal that the Report of the Judicial Commission of Inquiry to the Odioma Crises tendered by the Appellant was inadmissible in law under Section 11 of the Commissions of Inquiry Law, Bayelsa State and Section 6 (b) of the Evidence Act. That tribunal was right to have rejected it in evidence.
Apart from the Report, the Appellant had testified and called one other witness in support of the disqualification of the 1st Respondent. The evidence given by the Appellant and his other witness to the effect that the 1st Respondent was indicted in the Report rejected in evidence. Their written statements on oath filed on 21st May 2007 and adopted at the hearing of the petition simply said that 1st Respondent was the financier, sponsor and leader of Iseni/Asawo/Teme group that was found by the Commission of Inquiry to have been seriously implicated in the Odioma crises. However, nowhere in the two statements was the Iseni/Asawo/Teme group shown to be a secret society as defined by the constitution. The mere calling or labeling of the group by the Appellant and the other witness, as “illegal, criminal, nefarious and dreaded did not in any way constitute legal evidence that can reasonably establish that the group was a secret society for the purposes of the provisions of Section 66 (1) (g) of the Constitution. In other words, the testimony of the Appellant and his other witnesses did not prove even on the balance of probabilities that Iseni/Asawo/Teme group was in fact a secret society. Consequently, there was no evidence whatsoever to discharge the legal burden placed on the Appellant to prove that the 1st Respondent was indeed a member of a secret society. In the absence of proof of a secret society, there can not be proof that a person is a member of such a society. You can’t put someone or a person into nothing; a non-existent secret society.
The law is that the person who asserts bears or has the legal burden of proof because judgment would be given against him if no evidence was adduced in a case. See Sections 135, 136 and 137 (1) of the Evidence Act, AMODU V. AMODE (1990) 5 NWLR (150) 356, FAMUPOTI V. AGBEKE (1991) 5 NWLR (189) 1, AKINTOLA V. LASUPO (1991) 3 NWLR (180) 508, BUHARI V. OBASANJO (2004) 1 EPR 160, AWUSE V. ODILI (2005) ALL FWLR (261) 248 @ 313. The law is also trite that until the plaintiff who usually asserts, discharges the legal burden owed, there will be nothing for the defendant or Respondent to react to by way of defence.
In effect where a plaintiff fails to adduce satisfactory evidence to prove what was asserted; there will be no duty on the Defendant to adduce evidence because the plaintiff is to succeed on the strength of his own case and not the absence of evidence from the defendant.
See OWIFADE V. OYEDEMI (1999) 5 NWLR (601) 54 @ 56, BUHARI V. OBASANJO (2006) 2 EPR 295, ADEDEJI V. KOLAWOLE (supra), AWUSE V. ODILLI (supra).
As shown earlier, the Appellant hereon who has the burden of proof, did not adduce or proffer evidence before the lower tribunal to discharge that burden. The only evidence of the Appellant and the other witness has fallen short of the requirements of the proof on balance of probabilities and so even if unchallenged, will not entitle the Appellant to judgment. For unchallenged evidence to merit acceptance and probative value, it has to be credible and sufficient to support the pleadings of a party. See GONZEE (NIG) LTD V. N.E.R.D.C. (2005) ALL FWLR (274) 235 @ 248, YAHAYA V. OPARINDE (1997) (1997) 10 NWLR (523) 523) 126, ADELEKE V. IYAWIDA (2001) 13 NWLR (729) 1. The above finding has fully and adequately taken cane of the argument by learned counsel for the Appellant that the lower tribunal was under a duty to accept and act on the unchallenged evidence given by the Appellant and the other witness. That duty of the lower tribunal to accept and act on that evidence is not at large or automatic because as established by the Supreme Court in the case of GOWZEE V. N.E.R.D.C. above, the unchallenged evidence has to be credible and sufficient to support the claim of the plaintiff. It was not in the appellant’s petition at the lower tribunal and so the tribunal was entitled to omit or decline to accept and act on same.
One other point raised and canvassed by the Appellant strenuously on the disquali1cation of the 1st Respondent to contest the election in question was on the order of injunction issued by the Federal capital Territory High court restraining the 2nd Respondent from recognising the 1st Respondent as the PDP candidate in the election.
Learned counsel for the Appellant has insisted that the said order disqualified the 1st Respondent from contesting the election or because of the order he was not qualified to have contested the election since it was not vacated or set aside.
Let me quickly say that the authorities cited by learned counsel on the unqualified obligation and duty of all parties in a case to obey a subsisting order made or issued by a court of competent jurisdiction has put the position of the law on the point beyond dispute. I also agree entirely with the submission that as far as the law is concerned, no distinction exists between an interim, interlocutory or final order in the duty to obey and comply with such order while it subsists. For the sake of emphasis, an order once issued by a court clothed with the requisite jurisdiction and competence must be obeyed by a party even if in his/its opinion the order was perverse. It does not lie in the mouth of a party and so cannot say that such order was void or invalid, irregular or wrong and that he/it will not obey same as the right and power to so declare reside in another court. In addition to the authorities cited by learned counsel, see NIGERIAN ARMY V. MONARCN (1992) 4 NWLR (235) 345, ONWUALU V. MOKWE (1999) 1 NWLR (585) 146 @ 154-5, C.O.P. V. OMANUKWUE (1999) 2 NWLR (590) 190 @ 200, FAME PUBLIC V. ELOMIUM VENTURES (2000) 8 NWLR (667) 105 @ 111& 113.
From the state of the pleadings and evidence before the lower tribunal there is no doubt that both the 1st and 2nd Respondents were aware of the order of injunction before and at the date of election. The 1st Respondent in particular had attempted without success to have or get the order vacated by the Federal Capital Territory High Court. However the question I now pose is whether the intended and actual effect of the said order of injunction was to disqualify the 1st Respondent from contesting the election. I am aware and in no doubt of the law that it is the courts including the Federal Capital Territory High, Court that possess the power to disqualify a candidate from contesting an election under the Electoral Act. By the authorities cited by learned counsel, this position of the law is now established and commonly known.
My answer to the question is in the negative for the simple reason that the suit in which the order of injunction was made by the Federal Capital Territory High Court was still pending as at the date of the election and the principal claim and relief sought was that the 1st Respondent, was not qualified to contest the election on ground of being a member of a secret cult or society.
The interlocutory injunction order issued or made by the Federal Capital Territory High Court could not have been intended and did not have the effect of granting the main relief claimed in the main suit at an interlocutory stage. To hold that the injuriction order amounted to a disqualification or disqualified the 1st Respondent from contesting the election would mean in effect that the Federal capital Territory High court had decided the principal claim and relief in the substantive suit at the interlocutory stage. That would clearly be in conflict with another trite principle of the law that courts do not decide substantive cases or claims while dealing with interlocutory issues that arise therein. See OLANIYI v. AROYEHUN (1991) 5 NWLR (194) 652, SGB LTD V. BURAIMOH (1991) 1 NWLR (168) 428, OKOTIE-EBOH V. MANAGR (2004) 11-12 SC 174, OGUNRO V. DUKE (2006) ALL FWLR (308) 1287, OWOI V. WILSON (2006) ALL FWLR (320) 1155. Since the disqualification of the 1st Respondent was the substantive and sole issue in the suit in which the order of injunction was issued, it is clearly untenable and even absurd to contend and insist that the said order ipso facto disqualified the 1st Respondent from contesting the election in question. I am not prepared to accept such a contention and have no difficulty in rejecting same. I do.
With the finding on the failure of the Appellant to adduce evidence to support or prove the primary ground of disqualification of the 1st Respondent for being a member of a secret society, all other issues or points raised by the learned counsel have become practically academic and of no moment in the appeal.
In the final result, I find no merit in the appeal and dismiss same. The election and return of the 1st Respondent as the duly elected Senator for the Bayelsa East Senatorial district of Bayelsa State made by the 2nd Respondent is hereby affirmed. Costs assessed at N30, 000.00 are awarded in favour of the 1st Respondent.
Other Citations: (2008)LCN/2995(CA)
