➥ CASE SUMMARY OF:
Halima Hassan Tukur v. Garba Umar Uba & Ors. (2012) – SC
by PipAr Chima
➥ COURT:
Supreme Court – SC.390/2011
➥ JUDGEMENT DELIVERED ON:
9th day of July, 2012
➥ AREA(S) OF LAW
Candidate for political party;
➥ NOTABLE DICTA
⦿ APPELLANT ENTITLED TO FILE MORE THAN ONE NOTICE OF APPEAL
There is also no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the Rules of court. But whenever there are more than one Notices of Appeal and all the said Notices were filed within the time so prescribed, the Appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon. – O. Ariwoola, JSC.
⦿ EVALUATION, ASCRIBING PROBATIVE VALUE, DUTY OF TRIAL JUDGE
Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial judge who saw and heard the witnesses testified. The trial judge is therefore in a position to access the credibility and watch the demeanour of the witnesses. – O. Ariwoola, JSC.
⦿ GUIDING PRINCIPLES FOR EVALUATION OF EVIDENCE
However, when the evaluation of evidence by a particular trial judge is in issue or being challenged, the guiding principles are as follows: (i) whether the evidence is admissible (ii) whether the evidence is relevant (iii) whether the evidence is credible (iv) whether the evidence is conclusive (v) Whether the evidence is probable than that given by the other Party. – O. Ariwoola, JSC.
⦿ AFFIDAVIT EVIDENCE CONSTITUTES EVIDENCE
It is already a settled law that an affidavit evidence constitutes evidence and must be so construed, hence, any deposition therein which is not challenged or controverted is deemed admitted. – O. Ariwoola, JSC.
⦿ INELEGANCE & UNTIDINESS CANNOT RENDER AN APPEAL INCOMPETENT
It is to be seen that it can be said that filing more than a notice of appeal and using more than one could be inelegant, untidy or even confusing, but the law and its practice have had it settled that the inelegance or untidiness are not enough reason for rendering those notices of appeal incompetent or invalid as to do that would be taking technicality too far and not covered by law. – Peter-Odili, JSC.
➥ PARTIES
Halima Hassan Tukur
v.
Garba Umar Uba
Peoples Democratic Party
Independent National Electoral Commission (INEC)
➥ LEAD JUDGEMENT DELIVERED BY:
Olukayode Ariwoola, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Ameh, SAN.
⦿ FOR THE RESPONDENT
Maikyau SAN.
Ahmed Raji Esq. (for 3rd Respondent)
➥ CASE HISTORY
The appellant contended that notwithstanding the votes scored by the 1st respondent and his emergence as the winner of the said primaries, she was entitled to be nominated as the candidate of the 2nd respondent because according to the 2nd respondent, the 1st to 3rd candidates at the primaries had been disqualified by the screening committee of the 2nd respondent and as such ought not to have participated in the primaries.
The Appellant herein had earlier commenced an action before the Abuja Federal High Court by an Originating Summons filed on 7/02/2011 against the 1st and 2nd Respondents then described as Defendants. The suit was later transferred to Sokoto Federal High Court on 7/3/2011. The Originating Summons was later amended to join the 3rd Defendant now 1st Respondent to the suit.
At the end of the day, judgment was entered in favour of the Appellant as per her amended Originating Summons filed.
Aggrieved by the decision of the trial Federal High Court, the 1st & 2nd Defendants appealed to the court below and the judgment of the trial Federal High Court was set aside on 8/9/2011 in their favour.
Dissatisfied with the judgment of the court below led to the instant appeal to this court by the 1st Respondent. The appellant filed two Notices of Appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
I. Whether the court below was right in disturbing the finding of the trial court to the effect that the 1st respondent was not cleared to contest the 2nd respondent’s primary election held on Thursday 6th January 2011 for the purpose of picking the 2nd respondent’s candidate for the Yauri/Shanga Ngaski Federal constituency in the April 2011 General Election?
RULING: RESOLVED AGAINST APPELLANT.
I.A. There is no doubt at all that the trial court did not consider and evaluate the affidavits evidence contained in the depositions in the Counter affidavit of the 1st and 2nd Respondents. Neither did the court consider the documents attached to the Counter affidavit as Exhibits. The court below was therefore perfectly right to have considered those Exhibits along with the affidavit evidence of the Respondents. The 2nd Respondent as the Political Party (PDP) which was sponsoring candidates for an election is the proper person/body, so to speak, to know which of the aspirants amongst its members it has cleared for the primaries and general election afterwards. As long as the guidelines and Constitution of the Political party are not violated or breached, the court has no power to question the choice of a party’s candidate presented for election.
I.B. In the instant case the 2nd Respondent (PDP) was in the best position to state whether or not the 1st Respondent was cleared and it has stated so in its counter affidavit and documentary evidence marked as Exhibits. But rather unfortunately the depositions and documentary evidence adduced by the Respondents were not considered by the trial court before concluding that the 1st Respondent was not qualified to contest the primary elections, much more the general elections into the National Assembly. In the circumstance, the court below was therefore right in disturbing the finding of the trial court, which is perverse, to the effect that the 1st Respondent was not cleared to contest the 2nd Respondent’s primary election held on Thursday 6th January, 2011 for the purpose of picking the 2nd Respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April, 2011 general election.
.
.
II. Whether the court below appreciated the basis for the trial court’s application of principle of estoppels and this notwithstanding whether the 1st Respondent who failed to challenge the decision of the 2nd Respondent’s Screening Electoral and Electoral Appeal Panels disqualifying him from contesting the 2nd Respondent’s primaries could turn around to complain or extricate itself from the effect of the said decision?
RULING: RESOLVED AGAINST APPELLANT.
I.A. From the available affidavit and documentary evidence before the trial court which the Judge failed to consider but which were rightly considered as they should by the court below to dispel the injustice done to the 1st Respondent, the trial court wrongly applied the doctrine of estoppels against the 1st Respondent. The 1st Respondent can therefore not be said to have kept silent when he was expected to talk nor stood by and watch things happen against or for him without taking action. In other words, the doctrine is inapplicable, to say the least.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ MORE THAN ONE NOTICE OF APPEAL FILED WITHIN TIME IS VALID
Tukur Vs Government of Gongola State (1988) 1 NSCC 30 at 36: It is more correct to say that the Rules of the Court of Appeal did not expressly provide for the filing of more than one notice. The Rules were silent on the Issue and it is therefore my opinion that every notice of appeal filed within time is valid. If more than one notices are filed within time, the others may be superfluous but not invalid. All the notices combined have been in exercise of a right of appeal. They may have stated different grounds which if permissible in law, gives validity and competency to the notice. Where several notices of appeal have been validly filed, I cannot see anything preventing an application for leave to consolidate them into one or for withdrawal of all except one.
➥ REFERENCED (OTHERS)
