➥ CASE SUMMARY OF:
Engr. Goodnews Agbi & Barr. Anthony Alabi V. Chief Audu Ogbeh, Chief Vincent Ogbulafor, PDP, INEC, Chief James Onanefe Ibori (CA/A/42/2003, 16 APR 2003)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Proving conviction.
Certificate of conviction.
➥ CASE FACT/HISTORY
The appellants were the plaintiffs in suit No. CV/133/03 at the High Court of Abuja where they sought an originating summons against the 1st four respondents as the defendants seeking the determination of the following questions: That the 1st, 2nd and 3rd respondents are in error in its apparent and express refusal in disqualifying and withdrawing its flag and certificate of affirmation given to Chief James Onanefe Ibori to contest the 2003 gubernatorial elections on the party’s platform in Delta State despite legal proof of his being an ex- convict within the meaning of sections 182, i.e. of the 1999 Constitution. That by virtue of sections 112, 115 and 124 of the Evidence Act, Cap 112 Laws of the Federation, the duly certified true copy of the record of proceedings of the Bwari Upper Area Court in case No. CR-81-95 is presumed genuine and from A proper custody. That within the meaning of section 182(1)(e) of the 1999 Constitution, the 1st, 2nd and 3rd respondents candidate for the gubernatorial elections in Delta State Chief James Onanefe Ibori being an ex-convict stands disqualified to contest the 2003 elections.
Rather strangely, I must say, the plaintiffs did not file an affidavit deposing to the facts they intended to rely upon in support of their case. Instead, they filed a paper captioned “ Facts in support of the application ”. In the said paper they set out under 28 paragraphs some facts relied upon in support of their case. Again, although the plaintiff’s case centered around Chief James Onanefe Ibori who they wanted the court to restrain from running for the Governorship of Delta State, they did not make him a party to the originating summons. Later however, the said Chief James Onanefe Ibori brought an application that he be joined to the suit. On 17/2/03, in a considered ruling the trial Judge Yusuf, J. joined Chief James Onanefe Ibori to the suit as the 5th defendant. He is now the 5th respondent in this appeal.
The lower court had on 18/3/03 expressed that because of the contentious issues of fact raised in the processes filed by parties, it was better to order that pleadings be filed. It ordered that the originating summon be converted to pleadings and gave parties 48 hours to file pleadings and additional documents.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Whether the success of the appeals of the 1st and 2nd appellants on the issues set out for resolution in this appeal implies that the convict in exhibit A is the 5th defendant so as to warrant his automatic disqualification from the current race for the Governorship of Delta State of Nigeria by virtue of the provisions of section 182(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999?
RESOLUTION: IN APPELLANT’S FAVOUR.
[BY THE ‘EXHIBIT A’ TENDERED THERE WAS A CONVICTION
‘The 5th respondent’s counsel has in his brief cited the case of Musa Harunami and Madu Meremi v. Bornu Native Authority (1967) NNLR 19 where Hurley, CJ and Bate, J. expressed the view that at all events including where an accused pleads guilty a Native Court cannot convict under section 157 of the CPC above unless evidence is taken from the complainant and a charge framed. On the supposition that section 157 of the CPC applies to the proceedings of a Native Court, there is no doubt that the Upper Area Court, Bwari did not in exhibit ‘A’ observe the provisions of section 157. The accused in exhibit ‘A’ pleaded guilty and the court thereafter proceeded to impose a sentence. The only conclusion to be arrived at on that hypothesis is that the Upper Area Court did not observe, the essential pre-requisites laid down under section 157(1) of the CPC before proceeding to convict the accused. It is in my view clearly unarguable to say that there was no conviction. The procedure leading to the conviction may be deficient and liable to be set aside by an appellate court upon a proper appeal against the judgment of the Upper Area Court; but it is nonetheless still I conviction. I am therefore unable to agree with the conclusion of the lower court that no conviction was recorded. That approach smacks in my view of undue legalism and irrelevant hair-splitting in a case where the purpose of tendering exhibit ‘A’ was merely to show that the accused therein was convicted. It was not tendered to show that the Upper Area Court erred in its decision. This appeal must therefore succeed on this score. It seems to me unnecessary answering the question whether or not a Native Court is bound by the Criminal Procedure Code. The situation in this case does not impose the need to decide that question since the case on appeal was not as to whether the Upper Area Court had been wrong in its decision in exhibit ‘A’.’
THE LOWER COURT OUGHT TO HAVE DETERMINE FIRST WHO WAS THE SUBJECT OF THE PROCEEDING BEFORE DETERMINING WHETHER THERE WAS A CONVICTION
‘It is patent from the record of proceedings that parties with the concurrence of the lower court had merely isolated an issue from the other possible issues in the case for determination. It was thought that if the lower court decided that exhibit ‘A’was invalid as evidence of conviction, the need to call evidence would not arise; and that if the same court decided that the said exhibit was a valid evidence of conviction, the need would then arise to call evidence to show that the person who was tried and convicted in exhibit ‘A’was the 5th respondent. There are clear indications in the record of proceedings that this was the pre-occupation of the court and parties in the proceedings out of which this appeal arose. Indeed in the concluding part of the ruling of the lower court appealed against, the court said that it was the decision it made on the preliminary issue that removed the necessity to pursue the appellants’ other claims. I have decided earlier on that the lower court was wrong in its conclusion to the effect that no conviction was done by the Upper Area Court in exhibit ‘A’. The ordinary consequence is that the case must now be sent to the lower court for hearing to conclusion. I am however of the view that the procedure adopted by the lower court in its attempt to firstdetermine whether or not there was a conviction in exhibit ‘A’ without taking evidence was a clear infraction of section 225(2) of the Evidence Act. The 5th respondent having vigorously denied that he was ever tried and convicted by the Bwari Upper Area Court, the duty on the lower court was to first take evidence as to the identity of the person tried and convicted in exhibit ‘A’ before admitting the same document in evidence.’
THIS CASE IS REMITTED TO BE HEARD DE NOVO
‘The approach that best assures justice and fairness to all the parties is for the case to be re-heard de novo before another Judge of the High Court, Abuja. Parties ought to file fresh pleadings where it will be clearly made manifest the issues for adjudication by the court. This is necessary because even the process filed by the appellants before the lower court and captioned “ Facts in support of the application” should have been considered irregular by the lower court as it was not an affidavit as should be the case where a suit is commenced by originating summons.’]
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✓ DECISION:
‘This appeal succeeds. It is allowed. The ruling of Yusuf, J. given on 24/3/2003 is set aside. It is ordered that the case be heard afresh by another Judge of the Abuja High Court. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ CERTIFICATE TO BE PRODUCED TO PROVE CONVICTION CAN BE REPLACED BY CTC OF THE PROCEEDINGS
I am satisfied that the lower court correctly decided the point. Although it is the requirement of section 225(1) that a certificate should be produced to prove a conviction, there is nothing magical about therequirement as the section itself sets out what the certificate to be produced must contain. It was undisputed that exhibit ‘A’ was the certified true copy of the proceedings of the Upper Area Court for 28/9/95. The said exhibit ‘A’was signed by the Judge and the court member who sat with him. Exhibit ‘A’ also shows the requirements laid down in section 225(1). It is my view that exhibit ‘A’ in the circumstances was as good as a certificate which section 225(1) of the Evidence Act prescribes. — Oguntade JCA.
⦿ WHEN LOWER COURT JUDGEMENT IS PRODUCED TO ESTABLISH A FACT, THE HIGHER COURT MAY INQUIRE INTO WHETHER THE LOWER COURT HAS JURISDICTION
Exhibit ‘A’ was tendered as the proceedings and judgment of the Upper Area Court, Bwari. The proceedings came into existence on 28/9/ 95. There was no appeal against the decision of the Area Court. I am in agreement with the 5th respondent’s counsel on the authority of Timitimi v. Amabebe (supra) and Ude v. Agu (supra) that when the judgment of an inferior court is produced before a High Court in order to prove a fact in A issue in a civil case, the latter court is entitled to look at the proceedings and judgment in order to determine whether or not the inferior court has jurisdiction to entertain the matter covered by the proceedings and judgment. If the inferior court had no jurisdiction to have entertained the matter, its judgment thereupon must be pronounced a nullity by the latter court. — Oguntade JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Oguntade, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Robert Clarke.
Chief Afe Babalola, SAN.
⦿ FOR THE RESPONDENT(S)
Chief FRA Williams SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ COURT DETERMINE ISSUES ON LEGALLY ADMISSIBLE EVIDENCE
In Kale v. Coker (1982) 12 SC 252 at 257-258, the Supreme Court per Obaseki, JSC said – “Courts of law determine issues before them on legally admissible evidence. They have no discretion to act on evidence made inadmissible by the express provision of a statute. A court of law cannot admit such piece of evidence by consent. Where the lower court has erroneously admitted such inadmissible evidence and the attention of an appeal court is drawn to the error at any stage of the proceedings, it will consider the issue and ensure that the court acts only on the legally admissible evidence available.”
➥ REFERENCED (OTHERS)
⦿ MEANING OF CONVICTION
✓ In Archbold Pleading, Evidence and Practice in Criminal Cases , 40th Edition p. 234-235, the authors write: “The primary meaning of the word conviction denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence.”
✓ And in Stroud’s Judicial Dictionary, 4th Edition at page 609, ‘Conviction’ is defined thus: “A conviction is complete as soon as the person charge has been found or has pleaded guilty.”
