➥ CASE SUMMARY OF:
Imoro Kubor & Anor v. Hon. Seriake Henry Dickson & Ors. (2012) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.369/2012
➥ JUDGEMENT DELIVERED ON:
Thursday, the 25th day of October, 2012
➥ AREA(S) OF LAW
Nomination of candidate;
Secondary evidence of document.
➥ PRINCIPLES OF LAW
⦿ THE COURT AND PARTIES ARE BOUND BY THE PLEADINGS
I have to state from the onset that it is settled law that issues for trial are joined in the pleadings and that parties and indeed the court are bound by the pleadings of the parties. — Onnoghen, JSC.
⦿ INJUNCTION ACTS IN PERSONAM
It is settled law that an injunction is a judicial process or mandate operating in personam by which upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. An injunction is also a writ framed according to the circumstances of the case, commanding an act which the court regards as essential to justice or restraining an act which it deems contrary to equity and good conscience – see Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172 at 228. — Onnoghen, JSC.
⦿ INTERIM ORDER WHICH HAS EXPIRED DOES NOT MAKE ORDERS ACHIEVED DURING THE INTERIM ORDER NON-EXISTENT
Generally speaking interim orders are not permanent as they are made to last for a while – usually pending the determination of the suit or motion on notice as in this case. The legal question in this issue is whether whatever such interim orders achieved in the interim can be ignored or considered nonexistent after the expiration of the time it was in operation particularly when the order is mandatory in nature and the command had been obeyed. Can the law undo what had been done in obedience of court order in the circumstances of this case I do not think that the coming to an end of an interim order adversely affects whatever that order was meant to achieve or achieved. If the order was a restraining order you cannot say that while it lasted or remained in operation, the party sought to be restrained was never restrained. It only means that the restrain is now at an end and that the party is free of the restraint. The same applies where the order is restorative or mandatory in terms of relief No. 2 supra. — Onnoghen, JSC.
⦿ WHEN CAN IT BE SAID THAT A POLITICAL PARTY IS SPONSORING A CANDIDATE
I have pondered over the submissions of counsel for appellants on this sub-issue and have not clearly seen the connection between publications of the names of candidate by 3rd respondent and qualification to contest any election to which the publication or non publication relates. I hold the view that publication of names of candidates by 3rd respondent is not evidence of sponsorship by a political party which nominated the candidates. Evidence of nomination and sponsorship of a candidate by a political party lies in the declaration of the winner of the party’s primary election conducted to elect the party’s candidate for the general election in question coupled with the political party forwarding the names of the said elected candidate to the 3rd respondent as its nominated candidate for the election see Section 31 of the Electoral Act, 2010, as amended, which enacts thus. — Onnoghen, JSC.
⦿ COURT CAN SUO MOTO EXPUNGE EARLIER ADMITTED EVIDENCE IF ERROR IN ADMISSION IS DISCOVERED LATER
On the sub issue as to whether the court has the power to expunge from its record evidence or documents earlier admitted without objection by counsel, it is settled law that the courts can do that and has been doing that over the years; see NIPC Ltd. v. Thompson Organization Ltd. (1966) 1 NMLR 99 at 104 where LEWIS, JSC stated the law as follows:- “It is of course the duty of counsel to object to admissible evidence and the duty of trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court to when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted”. — Onnoghen, JSC.
⦿ DECISION OF A COURT OF LAW OF COMPETENT JURISDICTION IS TO BE OBEYED
The true position of the law is that an order of a court whether it is to preserve the status quo or an executory order as such as the instant interim order to restore the name of the 1st respondent in the list of candidates for the aforesaid election clearly being an interim order with a mandatory character cannot be determined simply by looking at the form of the application or cause (from which it is generated) in order conclusively to say whether it is final or interlocutory but has further to be scrutinized from the view point of its intrinsic nature that is to say the nature of the order itself vis-a-vis the rights of the parties in the suit. It is furthermore my view that whether or not the instant order is final or interlocutory does not affect it being all the same a decision of a court of competent jurisdiction to be obeyed. — C.M. Chukwuma-Eneh, JSC.
⦿ SECTION 177 & 182 IS THE RELEVANT PROVISION FOR QUALIFICATION TO CONTEST AS GOVERNOR
Before rounding off this matter there can be no doubt that the qualification or non-qualification of a candidate for election purposes as here is within the purview of sections 177 and 182 of the 1999 constitution (as amended) and not Section 34 of the Electoral Act as failure to comply with the provisions of section 34 (supra) cannot in my view succeed in disqualifying a candidate properly so sponsored by this political party. Howbeit, once a sponsored candidate has satisfied the provisions sections 177 and 182 (supra) he is qualified to stand election for the office of Governor. The 1st respondent is therefore qualified to stand election for the office of Governor for Bayelsa State having so qualified under the aforesaid provisions of the amended constitution. And I so hold. — C.M. Chukwuma-Eneh, JSC.
⦿ WHEN THE SUPREME COURT WILL SET ASIDE A CONCURRENT DECISION OF A COURT
From the onset it must be emphasized that being a concurrent finding of fact by the two courts, this Court is very slow at intervening except where the Appellants succeed in showing to us that notwithstanding the fact of concurrence in the decisions of both courts, the finding is perverse or that the finding has violated some essential principle of law or procedure and that the violation is substantial enough to lead to miscarriage of justice. See Onowan v Isarhjen (1976) 9-10 SC 95, Fashanu v. Adekoya (1974) 1 ALL NLR (PT. 1) 35 and Onwuka v Ediala (1989) 1 NWLR (pt.96) 182 at 202. It is only if this is demonstrated that this court will interfere. See Abinabina v Enyimadu 12 WACA 171 at 173, Omoborinola II v Military Governor Ondo State (1998) 14 NWLR (pt 584) 89 at 107, U.A.C Nig. Ltd. v Fashoyiten (1998) 11 NWLR (pt.573) 199 at 185 and Chinwedu v Mbamah & Or (1980) 3-4 SC 31 at 75. — M.D. Muhammad, JSC.
⦿ AN E-DOCUMENT THAT HAPPENS TO BE A PUBLIC DOCUMENT MUST BE CERTIFIED AS A TRUE COPY
Furthermore and on the document exhibit ‘D’, which is an internet print out of the Punch Newspaper, it is by nature a secondary evidence of the original by reason of the provisions of sections 85 and 87(a) of the Evidence Act 2011. The law is trite on the admissibility of such category of secondary evidence. In other words and on the authority of sections 90(1) (c) and 102(b) of the Evidence Act, it is only the certified True Copy of the document as secondary evidence and non other that is admissible. It is my considered view therefore that the absence of certification had rendered Exhibit ‘D’ a worthless document and inadmissible. Also and on the same footing is the document exhibit ‘L’ which is a computer/internet generated document allegedly printed by the appellants from the website of the 3rd respondent. As rightly submitted on behalf of the respondents, by virtue of section 102 (ii) of the Evidence Act, such document is classified as public document and only a Certified True copy of same is admissible in law. It follows therefore that the two exhibits ‘D’ and ‘L’ share the same fate and are rendered of no legal effect. The lower court was therefore on a sound footing in upholding the Tribunal’s stand by expunging the documents. The following authorities are relevant in support. – N.I.P.C. Ltd V. Thompson Organization Ltd (1966) 1 NMLR 99 @ 104 Kankia V. Maigemu (2003) 6 NWLR (Pt. 817) 496 and Owonyin V. Omotosho (1961) 2 SC NLR 53. — C.B. Ogunbiyi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Walter Samuel Nkanu Onnoghen, J.S.C.
⦿ FOR THE APPELLANT
Rickey Tarfa, SAN
⦿ FOR THE RESPONDENT
Tayo Oyetibo, SAN
➥ CASE FACT/HISTORY
This appeal is against the judgment of the Court of Appeal Holden at Port Harcourt in appeal no. CA/PH/EPT/10/2012 delivered on the 31st day of August, 2012 in which the court affirmed the decision of the Bayelsa State Governorship Election Petition Tribunal, Holden at Yenagoa in petition no. EPT/BYS/GOV/01/2012, delivered on the 11th July, 2012.
On the 1st day of March, 2012 the appellants presented a petition before the Governorship Election Tribunal, Holden at Yenagoa, against the respondents in which they claimed the following reliefs in paragraph 9 thereof.-
“(a) Your petitioners pray for a declaration of the Honourable Tribunal that the 1st respondent was not qualified to contest the election into the Office of Governor of Bayelsa State conducted by the 3rd respondent on the 11th February, 2012, and accordingly, the return of 1st respondent as the elected Governor of Bayelsa State at the said election is null and void.
(b) A declaration that the 1st petitioner is the qualified candidate who scored the majority of lawful votes at the election into the Office of Governor of Bayelsa State conducted by the 3rd respondent on 11th February, 2012, and accordingly the 1st petitioner is entitled to and should be returned as the duly elected Governor of Bayelsa State in the said Bayelsa State Governorship Election held on 11th February, 2012.
(c) In the alternative of relief (b), an order nullifying the election into the Office of Governor of Bayelsa State conducted by the 3rd respondent on 11th February, 2012, and directing the 3rd respondent to conduct a fresh election for the said office.”
➥ ISSUE(S) & RESOLUTION(S)
I. Whether 1st respondent was sponsored by 2nd respondent as its candidate for the election in issue?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE 2ND RESPONDENT SPONSORED THE 1ST RESPONDENT AS HER CANDIDATE
“The wording of Exhibit “N” lends credence to the case of the respondents that 1st respondent was the sponsored candidate of 2nd respondent for the election and that 1st respondent’s name was on the earlier lists published by 3rd respondent but was later removed leading to Exhibit “N” ordering that the name be “restored” in the list. I therefore agree with the concurrent findings of fact on this point by the lower courts.”
B. THAT THERE WAS AN UNCHALLENGED INTERIM ORDER MANDATING THE INCLUSION OF THE 1ST RESPONDENT’s NAME
“In this case, the order was obeyed by restoring the name of 1st respondent in the list of candidates and the election in question was subsequently conducted and 1st respondent declared the winner thereof before the coming to an end of the reign of the order. If the contention of appellants is accepted it means that whereas at the time the said election was conducted, 1st respondent was the sponsored candidate for that election by 2nd respondent and he won it – both completed acts, the court should pretend that these things never happened because the interim order which allegedly gave legality or validly to the act has ceased to exist. Unfortunately for the case of appellants Exhibit “N” had achieved its purpose before becoming extinct. It was obeyed by 3rd respondent as it is constitutionally required of every person or authority in this country to do so. I hold the considered view that the extinction of Exhibit “N” following the striking out of the suit in which it was made and after it was carried out does not retrospectively affect whatever the order secured or effected at the time it existed. If it conferred any right on a party that right remains valid and subsisting unless set aside on appeal by a court of competent jurisdiction. In this case, the 3rd respondent who was affected by the order never challenged it but obeyed same.”
II. Whether the lower court rightly affirmed the decision of the Trial Tribunal which rejected Exhibits “D” and “L”, which are e-documents, tendered by the appellants counsel from the bar and admitted in evidence?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE APPELLANT DID NOT SATISFY THE CONDITIONS IN SECTION 84 OF THE EVIDENCE ACT
“There is no evidence on record to show that appellants in tendering Exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act, 2011.”
B. THAT EXHIBIT “D” BECAME IRRELEVANT
“It is settled law that what determines the issue of admissibility of evidence is relevancy. What is the relevance of Exhibit “D” in the proceedings. The lower court found/held and I agree with the court that it was intended to prove that 1st appellant scored the highest number of valid votes cast in the election in the event the 1st respondent is declared not qualified to contest the election; that with the withdrawal of Ground 2 of the petition to which Exhibit “D” is relevant, the document became irrelevant and consequently inadmissible in evidence. The court made the findings/holdings at pages 839 – 840 of the record as follows:- “However, Exhibit “D” is meant to show that appellants scored the highest number of votes cast at the election in the event the 1st respondent was held to have been disqualified. Ground 2 of the petition which supported this contention was abandoned by the appellants. Having abandoned Ground 2, Exhibit “D” which was produced in support of the ground had ipso facto become irrelevant even though it was admitted… I therefore agree with learned counsel for the 1st and 2nd respondents who submitted that the tribunal was right in striking them out for being irrelevant”.”
C. THAT THE E-DOCUMENTS ARE PUBLIC DOCUMENTS AND NEEDED CERTIFICATION
“However, looking closely at Exhibits “D” and “L”, they are clearly public documents and it is settled law that the only admissible secondary evidence of public documents is a certified true copy of same. Exhibits “D” and “L” not being certified true copies of the Punch Newspaper and the list of candidates which 3rd respondent is mandated to keep in the course of the performance of its official duties, are clearly inadmissible in evidence and the lower courts are right in so holding. The fact that the exhibits are computer print outs or e-documents does not change their nature and character as public documents.”
“In conclusion, I see no reason, haven regards to the resolution of issues 1 and 2 which I consider crucial to the determination of the appeal against the appellants, to go into the remaining issues as the same have become irrelevant and of no moment; they have become hypothetical and are consequently discountenanced by me. I therefore find no merit whatsoever in the appeal which is accordingly dismissed by me. I however order that parties bear their costs. Appeal dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 177, 182, Nigerian Constitution 1999 (as amended);
Section 84 Evidence Act 2011;
Sections 31(1) and 34 of the Electoral Act 2010.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)