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Ganiyu v. Oshoakpemhe & Ors. (Ize-Iyamu & APC) (2021) – CA

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➥ CASE SUMMARY OF:
Ganiyu v. Oshoakpemhe & Ors. (Ize-Iyamu & APC) (2021) – CA

by PipAr Chima

➥ COURT:
Court of Appeal – CA/B/12A/2021

➥ JUDGEMENT DELIVERED ON:
Monday, March 08, 2021

➥ AREA(S) OF LAW
Discrepancy in name;
Locus standi;
Forgery;
Statute bar.

➥ NOTABLE DICTA
⦿ JURISDICTION GOES TO THE FOUNDATION OF ANY MATTER
Jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such a situation, zealousness to do substantial justice, where there is no competence, is not a virtue. It is simply over zealousness. This is so because “Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain”. – B.A. Georgewill, JCA.

⦿ GUIDELINES/REGULATION ARE SUBJECT TO THE PRINCIPAL LEGISLATIONS
In law, Exhibit P9 is at best a regulation or guideline made by INEC and subject to the substantive provisions of Section 31(3) of the Electoral Act and therefore, where there is a conflict between guidelines/regulations issued by the Electoral body and substantive provisions of the statute, the latter would prevail. – B.A. Georgewill, JCA.

⦿ THE ORIGINAL COPY OF A PUBLIC DOCUMENT CAN BE TENDERED WITHOUT CERTIFICATION
There is no law that prohibits the tendering of an original document, be it public or private document. This is the reason why in law, the original of a public document in the hands of a private person can be tendered in evidence without any certification since certification is in respect of secondary evidence whilst the original document produced is the primary evidence, which in all cases, subject to relevancy and pleadings and other requirements of law, is ordinarily admissible in evidence. – B.A. Georgewill, JCA.

⦿ ACADEMIC MATTERS ARE NOT FOR THE COURTS, BUT FOR FACULTIES OF LAW
My lords, in law the Court lacks jurisdiction to hear and determine matters which are merely academic or hypothetical or which due to the occurrences of certain vents had rendered such matters even if pending merely academic or hypothetical. The Court are loath to saddle themselves with the consideration of matters which though pending before them had become merely academic and therefore, of no utilitarian value to either of the parties. To embark on such exercise of the jurisdiction of the Court over matters which are no longer live and are best suited for the Faculties of Law in the several Universities scattered all over the Country, would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, such matters must remain live and of utilitarian value to one or more of the parties in the matter. – B.A. Georgewill, JCA.

⦿ PRE-ELECTION MATTER CANNOT BE STALLED BECAUSE ELECTION IS OVER
So, does the mere holding of an election and the declaration of a winner or even the swearing in of a winner into office alone render a pre – election matter duly commenced and pending before a Court of competent jurisdiction to become merely academic and or over taken by events and thus liable to be struck out? In law whether a pre-election matter is academic or not is dependent on the facts giving rise to the pre-election matter and if those facts or issues remain live, then the pre – election would be determined on its merit notwithstanding whether or not the election has been held and or the outcome of the election. – B.A. Georgewill, JCA.

⦿ LAWYERS VS POLITICIANS: MASTERS OF THE LAW VS MASTERS OF THE GAME
While lawyers pride themselves as masters of the law, the Politicians are master game planners and they would never give up unless and until either they realize their desire to ‘serve their people’ or the Apex Court in an appeal before them tell the Politicians with finality that it is all over, then they would take a bow and rest but bid their time for the next election. In this wise, they are far wiser than the lawyers. – B.A. Georgewill, JCA.

⦿ THERE MUST BE IMPROPER EVALUATION FOR APPEAL COURT TO RE-EVALUATE EVIDENCE
Unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of probative value to the evidence before it, the duty of the appellate Court to re – evaluate the evidence on the printed records would not arise. The law is that for an appellate Court to embark on such a duty it must be demonstrated that the Court below had either not carried out its duty of evaluation of the evidence led before it or had carried out an improper evaluation of the evidence and had arrived at findings which are perverse, and which ought in law to be set aside so that proper findings as dictated by the proved evidence as in the printed record are made by the appellate Court in the interest of justice and to avoid the perpetuation of injustice should the perverse judgment of the trial Court be allowed to stand. – B.A. Georgewill, JCA.

⦿ FORGERY ARE CRIMINAL AND MUST BE PROVED BEYOND REASONABLE DOUBT
Now, allegations bordering on forgery and/or making of false statement to INEC are not only criminal and grievous but are not matters or things one party alleges and then fold his hand akimbo to see how the other party wriggles out of it. Allegations of forgery and or false statements are not issues of mere discrepancies but of commission of crimes which must be proved beyond reasonable doubt by the person who makes the allegations. – B.A. Georgewill, JCA.

⦿ NOTHING BARS A POLITICAL CANDIDATE FROM USING LOWER QUALIFICATION THAN HE HAS
Once, a candidate has met the minimum requirement to contest an office, he is under no obligation to provide more and higher qualifications. Thus, the decision to use his own option at the latter election in 2020 not to present his higher qualifications presented in earlier elections in 2014 and 2018 does not in any legal way or manner amount to making of false statement to INEC. – B.A. Georgewill, JCA.

⦿ CRIMINAL RESPONSIBILITY REQUIRES ACTUS REUS & MENS REA
In law, criminal responsibility cannot be treated as mere function of actus reus, the physical act, unless in strict liability offences or as mere civil responsibility. Thus, to allege a crime against another person is not and cannot be a mere tea party to be embarked upon carelessly or thoughtlessly or lightly. It is a decision that must be weighed and reached properly and must be intended to achieve justice to the society more than to the individual. This is perhaps, why crimes are usually said to be committed against the state even where the primary or nominal person against whom it was done may be an individual. – B.A. Georgewill, JCA.

⦿ FORGED CERTIFICATE – HAS THE CANDIDATE PRESENTED A CERTIFICATE WHICH DOES NOT BELONG TO HIM?
If a person is alleged to have forged his certificate or qualifications or had made false statement to INEC, it must relate to whether he has presented certificates belonging to any other person, dead or alive, which does not belong to him or that he has arrogated to himself qualifications which he does not possess to make him qualified for the office he seek or had presented names that does not belong to him but to another person or that he has lied to the umpire, INEC, on matters in aid of his qualification and above all his intention the mens rea, must be that he had answered names not belonging to him but to another person or had forged his qualifications or age or made false statements in respect of the requirements of the law for purposes that the falsifications should be acted upon by INEC. – B.A. Georgewill, JCA.

⦿ DISCREPANCIES IN NAMES OR DOCUMENTS WITHOUT MORE ARE MERE TRIFLES
Now, here is a man dragging another person to Court over what at best are mere discrepancies in names when he himself is a victim of some discrepancies in his name on Exhibit P2 without any legal consequences whatsoever. Was he also guilty of forgery by the differences in the spelling of his surname in Exhibits P1 and P2 as admitted by him and confirmed by the Court below? Perhaps not. In my finding, these are things which are bound to occur from time to time in human affairs and so long as no criminal intention is imputed and attributed or attributable to them they remain mere trifles tolerated by the society as mere discrepancies. It amounts to no crime of forgery and or false statement at all merely on account of such mere discrepancies. These are mere discrepancies that should not ipso facto without more invoke and ignite grave allegations capable of disqualifying a candidate in law from aspiring to ‘serve his people’. Curiously though as an aside now and no more considering issue three having concluded my consideration of issue three, as I was reading the appellate briefs of counsel, I came across the name of the learned counsel for the 1st Respondent written and signed as ‘J. I. Odibeli Esq,’ then I saw his NBA Seal in the name of ‘Ibezimako Joseph Odibeli, which translates to ‘I. J. Odibelei’ and not ‘J.I. Odibeli.’ – B.A. Georgewill, JCA.

Available:  Adeniyi Kayode (Alias Black Jesus) v. The State (2007)

⦿ DECISION NOT FLOWING FROM ESTABLISHED FACTS IS PERVERSE
In law, a decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. – B.A. Georgewill, JCA.

⦿ USING LETTERS TO REPRESENT DEPONENTS NAME IN STATEMENT ON OATH IS NOT PROHIBITED, INTER ALIA
Now, the use of letters to represent witnesses to be called in their written statements on oath is intended not only for their safety but also to avoid possible compromise of witnesses in highly sensitive and often sensationalized trials, more especially Election Petitions. The instant case is not an Election Petition but is not a far cry from one being a Pre – Election matter in which, just like in Election Petition, the safety of witnesses due to the volatility of our political environment remains the same. Thus, safety of both the parties and their witnesses is and must be given utmost priority. So, did the 1st Respondent suffer or complain upon being served with the frontloaded written statements of these witnesses of any miscarriage of justice by reason of the non – disclosure of the name and identity of DW3 and did he take any step prior to this witness appearance in the Court below and in the witness stand to set it aside for any irregularity? No, he didn’t. – B.A. Georgewill, JCA.

⦿ LONG GONE ARE THE HEYDAYS OF TECHNICALITY
These days the Courts should or ought to concern themselves less with mere technicality and concern themselves more with matters of real substance and substantial issues in contention between the parties in order to render substantial justice to them. Long gone are the heydays of technicality riding roughshod over substantial justice. The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord mere technicality, just for its own sake, any pride of place except in very well deserving cases. Thus, the stance of the Court below, and sought to be justified in this appeal by the learned counsel for the 1st Respondent under issue five, resonates more with undue technicality than with substance and justice. The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. Thus, in the legal jurisprudence in Nigeria today, substantial justice is king. – B.A. Georgewill, JCA.

⦿ APPELLATE COURT IS MORE CONCERNED WITH THE DECISION REACHED THAN THE REASONS GIVEN
It is the law that an appellate Court will not interfere once the conclusion reached by a trial Court is correct, since an appellate Court is more concerned with the conclusion reached than with the reason adduced, more so where as in the instant appeal the reason which is the pathway to the above correct conclusion or finding is also perfectly correct. – B.A. Georgewill, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Roland Otaru, SAN.

⦿ FOR THE RESPONDENT
Roland Otaru SAN, for 1st Respondent;
J. I. Odibeli Esq, for 2nd Respondent;
A. T. Kehinde SAN, for 3rd Respondent.

➥ CASE HISTORY
This is an appeal against the Judgment of the High Court of Edo State, Benin Judicial Division, Coram: Courage – Ogbebor J, in Suit No. B/358/2020: Kadiri Sunday Oshoakpemhe V. Audu Abudu Ganiyu & Others delivered on 6/1/2021 in which the claims of the 1st Respondent as Claimant were grant against the Appellant and the 2nd and 3rd Respondents disqualifying the Appellant and 2nd Respondent from contesting the Edo State Gubernatorial Election held on 19/9/2020 as the Governorship and Deputy Governorship candidates of the 3rd Respondent, whilst the counter claim of the Appellant against the 1st Respondent for damages for Defamation was dismissed for lacking in merit.

The Appellant was thoroughly dissatisfied with the said Judgment and had appealed against it.

➥ ISSUE(S) & RESOLUTION
[PRELIMINARY OBJECTION: DISMISSED]
I. That this Appeal is an abuse of Court process being that a similar appeal has been filed already by the 2nd & 3rd Respondents on similar issues & facts.

RULING:
A. My lords, whilst it may be desirable for the purpose of convenience and expeditious determination of all the issues arising from the judgment of the Court below in one appeal and perhaps by means of cross appeals, I think in the peculiar circumstances of this appeal, the Appellant is the principal person most affected by the judgment of the Court below which had condemned him of forgery and of making of false statement to INEC, and in my view it is right in law that such a party should be able, and indeed he has the undoubted constitutional right as even conceded to by the learned counsel for the 1st Respondent, to approach this Court in an appeal in which all the specific orders made against him and all the issues personally affecting can be conveniently challenged.

B. It would be most unjust in the circumstances of this appeal, in my view, to deny the Appellant his right of appeal as of right to ventilate his grievances against the judgment of the Court below. Thus, the Appellant’s right of appeal coupled with his right to be heard in a Court of law to ventilate his grievance against a judgment with which he is aggrieved and dissatisfied with is inviolable and sacrosanct.
.
.
.
[APPEAL: ALLOWED, IN PART]

I. Whether the action or the Suit as initiated by the 1st Respondent was not Statute barred in view of the mandatory provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), AND whether the Court below was right in expunging Exhibit D2 tendered by DW1 on the ground that the document was a private document and not a public document AND whether the Court below was right in admitting Exhibit P9 tendered by the 1st Respondent a document not made by the Election Petition Tribunal?

RULING: IN APPELLANT’S FAVOUR.
A. Firstly, the purported certification by the Edo Sate Election Tribunal of a document made by INEC, which is under law the custodian and who can certify it in accordance with the provisions of Section 104(1) of the Evidence Act, 2011, of the Evidence Act 2011 was wrong in law and improper. It is akin to allowing INEC to certify copies of judgment of the Election Tribunal merely because it had in its possession a copy of such judgment. Thus, Exhibit P9 was never in the custody of the Election Tribunal for the purposes of its certification within the meanings and provisions of the Evidence Act 2011. Truly, at best it was in its possession but the law here talks not about mere possession but custody so that the copy to be certified is to be compared with the original copy in the custody of the public body or officer or authority. This to my mind is the purport of the requirement of certification. It was not and still is not made for the fun of it for persons or institutions or bodies or authorities to certify documents in the custody of another person or bodies or authorities merely in its position without reference to the other person or authority in custody of the original of the document.

B. However, since on the face of Exhibit P9, it appears to have prior been certified by INEC but was re-certified by the Election Tribunal, and to that end, I agree with the apt submission of leaned counsel for the 1st Respondent that on the extant law, a photocopy of certified true copy of a public document is admissible in evidence without the need for further certification. It is for this reason, I find that Exhibit P9 was rightly admitted but wrongly relied upon solely by the Court below as proof of the actual date of publication of the names and particulars of candidates for the said election by INEC, which it is not. It was merely a time table and cannot and is not by itself proof of the actual occurrence of any of the events or activities scheduled therein and I so hold.

C. My lords, having taken time to consider the pleadings and evidence as led by the parties and having made specific findings as above on the status of Exhibit P9 and Exhibit D2, and having reviewed the evidence of CW1, DW1 and DW5, as in the Record of Appeal, I find as fact that the cause of action of the 1st Respondent arose on 2/7/2020 and not on 6/7/2020 as perversely held by the Court below … The Appellant’s Suit, commenced by means of Writ of Summons, was filed on 17/7/2020, whilst his cause of action arose on 2/7/2020, it is thus crystal clear to me and I so hold that the claim of the 1st Respondent filed on 17/7/2020 to enforce his cause of action, which arose on 2/7/2020 was undoubtedly and irredeemably statute barred by virtue of and the operation of the provision of Section 285(9) of the Constitution of Nigeria 1999 (as amended), which prescribes a constitutional limitation period of 14 days for the competent commencement of the claim of the 1st Respondent in a Court of law. In the light of this finding, I hold that the Writ of Summons filed by the 1st Respondent on 17/7/2020 was clearly statute barred. I find that the claim of the 1st Respondent at the time it was filed against the Appellant suffered a ‘still birth’ and had thus become stale and therefore, in law incapable of any enforcement by an action in a Court of law.
.
.
II. Whether the action or the 1st Respondent Suit has not become academic having regard to the fact that the Appellant and the 2nd Respondent did not win the Edo State Governorship Election?

Available:  Alliance For Democracy v Fayose (2004) - CA

RULING: IN RESPONDENT’S FAVOUR.
A. In law therefore, a pre-election matter does not become academic or hypothetical merely because the election had taken place. Thus, pre-election matters commenced in line with the extant law on electoral matters would remain live issue notwithstanding the holding of the election while the pre – election matter was already pending in Court.
.
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III. Whether the 1st Respondent proved his allegation(s) of forgery and false information against the Appellant beyond reasonable doubt in accordance with the law?

RULING: IN APPELLANT’S FAVOUR.
A. In law forgery cannot be inferred or proved merely by production of the alleged forged document without the original undisputed document alleged to have been forged not produced before the Court to enable the Court compare same with the allegedly forged copies and this was what the 1st Respondent woefully failed to do.

B. Putting together Exhibits P4, P5 and P6 by themselves alone without any evidence of any claim by any person that his names and or certificates were forged and used by the Appellant or that the names do not belong to the Appellant or that he neither attended any of the Institutions nor obtained the qualifications conferred by the certificates, I can neither see nor find any proof of forgery and or making of false statement as alleged by the 1st Respondent against the Appellant.

C. The 1st Respondent as CW1 was taken to the cleaners under his cross examination evidence. He was exposed to be merely fishing for anything to hang the Appellant with, if he had not as much as even taken time to enquire anything about the certificates of the Appellant from the Institutions they were issued to him to ascertain if they were actually issued to any other person other than the Appellant neither does he even know the meaning and versions of the names of the Appellant. He was a most miserable and pitiable witness under cross examination as he ended up admitting knowing next to nothing of the claims he was making against the Appellant. At that stage alone, his claims failed and ought to have been dismissed even without calling on the Appellant to enter upon his defense.

D. I am emboldened to liken allegations of forgery against the Appellant by the 1st Respondent to that of ‘making a mountain out of a molehill.’ These are mere discrepancies and in an allegation of crime it is not even enough to merely prove the actus reus, in the nature of these various documents, most of which were not even presented by the Appellant to INEC in 2020, but fished out by the 1st Respondent from previous submissions by the Appellant to INEC and therefore, truly having no bearing on the candidacy of the Appellant in the 2020 dispensation, but the 1st Respondent was also under a duty to go further to prove the mens rea, the mental intention of the Appellant to either mislead or cause INEC to rely on these documents to its detriment and to his own advantage. I find not even a scintilla of neither any pleading nor evidence by the 1st Respondent disclosing any mens rea or mental intention of the Appellant.

E. This ought to have been the proper course in the trial before the Court below. Indeed, shorn of the shenanigans and the display of legal sophistry by learned counsel to the parties, the claims of the 1st Respondent as pleaded and evidence led in support of it was dead on arrival and very undeserving of the so much attention by means of judicial time and space accorded to it by the Court below. In sum, the Appellant going by the qualifications he presented satisfying the minimum requirements of the law, his unchallenged age and his names and certificates not attributed even by the 1st Respondent to any other person, living or dead, the Appellant was under the Constitution of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended) eminently qualified to contest for the office of Deputy Governor of Edo State and I so hold.
.
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IV. Whether the Court below was right in expunging the evidence of DW3 on the ground inter alia that his initials rather than his name were used in his witness statement on oath in support of the Appellant’s Counter– Claim?

RULING: IN APPELLANT’S FAVOUR.
A. I have scanned through the Record of Appeal and it is clear that when DW3 appeared before the Court below, he took an oath in the witness stand before testifying and identifying and adopting his written statements on oath with the letters used to hide his identity. I think in law, and here I am in complete agreement with the apt submission of learned Senor Advocate for the Appellant, that whatever defects that may have existed in the written statement on oath of the DW3 had been cured by the oath administered on him in the witness stand.

B. I have also taken time to read through the Rules of the Court below, particularly Order 3 Rule 3, Order 15 Rule 1(2) and Order 5 Rule 1 of the Edo State High Court (Civil Procedure) Rules, 2018 dealing with filing of pleadings and I find that they do not either expressly prohibit or impliedly disallow the use of initials or alphabets by witnesses. Interestingly, at worst noncompliance with Order 3 Rule 3 and Order 15 Rules 1(2) amounts to mere irregularities which does not nullify the proceedings.

C. I hold firmly therefore, by reason of the above provision of the Rules of the Court below that the use of the letters H.E by DW3, which is not even prohibited by the said Rules of the Court below, at worst amounted to an irregularity and that alone without more did not render the written statement on oath of DW3, as erroneously held by the Court below, incompetent. There was in my finding, therefore, no legal or any other valid basis for the Court below to expunge the evidence of DW3, who had appeared before it in the witness stand and was duly sworn on oath, identified and adopted his written statements on oath and was duly cross examined. I cannot see any miscarriage of justice suffered by the 1st Respondent by reason of these circumstances as would warrant and legally justify the most drastic, but gravely erroneous, step taken by the Court below to expunge the entirety of the evidence of DW3.

D. I find the expunging of the evidence of DW3 by reason only of his use of letters on his written statement on oath to secure his identity before appearing in the Court below under oath to identify and adopt his written statement on oath to be far too technical, most unfair, erroneous and unjust. It is my view, that whether Election Petition or Pre – Election matters both are usually volatile and carries with them great risk to witnesses in Nigeria due to the hostile and volatile political climate. In Dahiru Sale V. Auwalu Abdu & Ors (2011) LPELR – 9170, it was firmly held inter alia that the use of alphabets or initials is to grant parties the liberty to hide the identity of their witnesses and hence insulating them from the likelihood of any harm to their persons or exposing them to the possibility of inducement. This succinct statement of the law, in my view, holds true for both Election Petition and Pre – Election matters in Nigeria and any attempt to differentiate between these two special categories of cases in this regard would merely be an attempt to distinguish between six and half a dozen. It would hold no water at all.
.
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V. Whether the 1st Respondent had locus standi to institute the Suit before Court below?

RULING: IN RESPONDENT’S FAVOUR.
A. Now, having carefully considered the averments of the 1st Respondent as to why he has instituted the action against the Appellant and the 2nd and 3rd Respondents before the Court below and having looked at the provisions of Section 31(5) of the Electoral Act 2010 (as amended) under which the 1st Respondent’s Suit was filed, I am satisfied and I so hold that the 1st Respondent has the plenitude and abundance of requisite locus standi to institute this action against the Appellant. The Court had already found so and I agree with it that the 1st Respondent has the locus standi to institute the Suit against the Appellant.
.
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VI. Whether the Court below was right in dismissing the CounterClaim of the Appellant against the 1st Respondent?

Available:  Abubakar Atiku & PDP v. INEC & Ors. (CA/PEPC/05/2023, 6th of September, 2023)

RULING: IN RESPONDENT’S FAVOUR.
A. I have taken time to review the pleadings and evidence of the Appellant as DW2, as well as his witnesses, DW1 and DW3 in line with the requirements of the law on proof of Defamation, particularly libel as alleged by him against the 1st Respondent. It is true that that the 1st Respondent neither filed any defense to the Counter – Claim nor gave any evidence in relation to the Counter – Claim. At any rate, having not filed any pleading he could not even had given any evidence in defense of the Counter – Claim. Thus, to all intents and purposes the Counter – Claim of the Appellant remained undefended and unchallenged as was rightly submitted by the learned Senior Advocate for the Appellant, yet in law even an unchallenged claim must reach the threshold of minimum proof to succeed. In an action for Defamation, failure to prove ‘publication’ would amount to failure to make out even minimum proof, or more aptly put prima facie case against the adverse party. It follows therefore, whether or not a Defendant filed a defense and whether or not a Defendant gave evidence, once the threshold minimum proof has not been attained the claim of the Claimant, or Counter – Clamant as the case may be, even though unchallenged, would still fail, and be dismissed.

B. In the circumstances of this appeal, and in the absence of any evidence of publication save the filing of written statements on oath by the 1st Respondent at the proceedings before the Court below, I hold that the Counter – Claim of the Appellant against the 1st Respondent was dead, as dead as ‘dodo’ on arrival. It had no life at all and therefore, the Court below, in my view, was indeed extraordinarily charitable to have even considered the issue of ‘privilege’ – whether absolute or qualified, which in reality in the law of Defamation are likely defenses open to a Defendant in a claim for damages for Defamation against whom at least a prima facie case of Defamation has been made out. In other words, on the failure of the Appellant to prove publication, there was never any case of Defamation, not even on prima facie basis to warrant a consideration of any of the likely defenses open to a Defendant in an action for Defamation.

C. The Appellant having therefore, failed to prove any publication of the alleged defamatory statement indeed failed woefully to prove any case of Defamation against the 1st Respondent, not even a mere prima facie case. The Court below was therefore perfectly right to have dismissed the Appellant’s CounterClaim for lacking in merit. I hereby resolve issue against the Appellant in favour of the 1st Respondent.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Evidence Act 2011 [section 104(1), 83(3), 135(1), 114, ]
Electoral Act 2010 [sections 31(5), 31(3), ]

➥ REFERENCED (CASE)
⦿ COMPETENCE IS SOUL OF ADJUDICATION – JURISDICTION MUST BE SATISFIED
African Songs Limited & Anor v. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366: “My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”

⦿ TENDER DOCUMENT FROM THE BAR – PARTY WHO MAKES DOCUMENT MUST BE CALLED TO TESTIFY
Abubakar v. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110: “Before I conclude on this issue, let me state that whenever documents are tendered from the Bar in election matters, the purport is to speed up the trial in view of time limitation in election matters. Such tendering is not the end itself but a means to an end. The makers of such tendered document must be called to speak to those documents and be crossexamined on the authenticity of the documents. The law is trite that a party who did not make a document is not competent to give evidence on it. It is also the tested position of the law that where the maker of the document is not called to testify, the document would not be accorded probative value by the Court. That in deed is the fate of exhibits P80 and P24… Finally, on this issue, it was contended by the appellants that the variation in the names of 2nd respondent on Exhibits R19 and R21 makes his relationship with the two documents doubtful. Is “Mohammed” and “Muhammadu” the same name and belong to the 2nd respondent? The Court below made an elaborate discussion on the issue and concluded that RW5 gave explanation on the names and stated that they are the same…. For me, as the appellants failed to prove that any of the documents belong to another person and as nobody has come out to claim any of the two exhibits, I do agree with the explanation given by the RW5 and the conclusions of the Court below that both names “Mohammed” and “Muhammadu” as contained in exhibits R19 and R21 belong to the 2nd respondent. On this note, I resolve issues one and two against the appellants.”

⦿ THERE MUST BE A CASE TO BE ANSWERED PRIMA FACIE
Jolayemi v. Olaoye (2004) 12 NWLR (Pt. 887) 322, where, Uwaifo JSC, had so succinctly put this position of law in its proper perspective thus: “I realise that a Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie, in order that the necessity of the Defendant to confront the case so made out may arise.”

⦿ DECISION OF THE TRIAL COURT IS BIASED IF IT DOES NOT FLOW FROM THE ESTABLISHED FACTS
C.S.S Book Shop Ltd. v. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310 “A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”

⦿ THERE IS LOCUS STANDI WHERE CIVIL RIGHTS ARE IN DANGER – TWO TESTS FOR DETERMINING LOCUS STANDI
B.B. Apugo & Sons Ltd V. Orthopedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206@ p. 269: “A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are: 1. The action must be justiciable, and 2. There must be a dispute between the parties…To have locus standi the Plaintiff’s Statement of Claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action…”

⦿ DEFENSE OF ABSOLUTE PRIVILEGE TO DEFAMATION
Nwaenang v. Ndarake & Ors. (2013) LPELR – 20720 (CA): “I should state that the law on defamation or libel has recognized situations which would constitute a complete defence to an action or defamation or libel. For instance, there are occasions on which the law regards the freedom of speech as essential and provides a defence of absolute privilege which can never be defeated no matter how untrue the words or statement may be. Such occasions includes when the words or statement were said or made in parliament….words or statements said or made in the course of judicial proceedings by judges, counsel, witnesses and other officials or persons which relates to the proceeding…”

⦿ APPELLATE COURT IS ONLY CONCERNED WITH DECISION OF COURT NOT REASONS GIVEN
Ndayoko & Ors. V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie JSC., had pronounced with finality on this vexed issue, thus: “An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”

➥ REFERENCED (OTHERS)

End

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