PDP v SIEC

PDP v SIEC


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON THURSDAY, 8TH JUNE, 2017


Appeal No: CA/S/41/2016
CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

PEOPLE’S DEMOCRATIC PARTY

(APPELLANT)

AND

STATE INDEPENDENT ELECTORAL COMMISSION

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Causes of Action – Definition and determination of causes of action

Meaning of cause of action; How the Court determines reasonable cause of action

“For a statement of claim or an originating process to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligation of the Defendant. It must then go on to set out facts constituting infraction of the Plaintiff’s legal right or failure of the Defendant to fulfill his obligation in such a way that if there is no proper defense, the Plaintiff will succeed in the relief or remedy he seeks. See IBRAHIM vs. OSIM (1988) 3 NWLR (PT. 82) 257 AT259. In a nutshell, a reasonable cause of action merely means a cause of action with some chance of success when only the allegations in the Plaintiff’s pleadings are considered. See OSHOBOJA vs. AMUDA (1992) 7 SCNJ 317 AT 326.

It may perhaps, at this stage also be appropriate to define what a “cause of action” is. In OSHOBOJA vs. AMUDA (supra), it is simply the facts which when proved, will entitle a Plaintiff to a remedy against the Defendant. In IBRAHIM vs. OSIM (supra) at page 260, it is defined as; “the entire set of circumstances giving rise to an enforceable claim”. Usually, a claim in Court must rest and be supported by a cause of action. See EGBE vs. ADEFARASIN (1985) 1 NWLR (PT.3) 549. The relief or remedy claimed therefore is founded on the cause of action. It is for this reason, precisely, whenever there is a cause of action and the relief is properly claimed, that the Plaintiff cannot for instance be turned back simply because he has applied for it under the wrong law. See FALOBI vs. FALOBI (1976) 1 NWLR 169.”?Per OHO, JCA read in context

2. Causes of Action – Determination of a reasonable cause of action

How the Court determines reasonable cause of action

“On the question of when it can actually be said that a given suit has either disclosed or failed to disclose a cause of action or reasonable cause of action, it is trite that before the Court arrives at a decision on the issue, it is mandatory that the Court should examine the plaintiffs’ statement of claim and writ of summons or originating processes, which are to be read together for purposes of disclosing a cause of action. The success or otherwise of the action is not a matter for consideration at this stage. What is of importance is whether the statement of claim raises questions to be considered by the Court. The mere fact that the Plaintiff’s case is weak or not likely to succeed is certainly not a ground for striking out. See PANACHE COMMUNICATIONS LTD vs. AIKHOMU (1994) 2 NWLR (PT. 317) 420 AT 425 and legion of other decisions on the subject.”Per OHO, JCA read in context

3. Causes of Action –

Effect of the absence of a cause of action

“I have earlier on said that the cause of action is set out in the statement of claim or other originating processes by the facts stated therein. Where the facts, therefore, do not disclose or constitute a cause of action, the suit ought to be struck out on the application of the Defendants.”Per OHO, JCA read in context

B. EVIDENCE
4. Admissibility of Evidence – Difference between the expressions “relevancy” and “admissibility”

Whether the expressions “relevancy” and “admissibility” are the same thing

“It may be important here to state from the onset that the expressions; “relevancy” and “admissibility” are clearly not the same thing as their legal implications are different. What is perhaps, important to note on the issue is that while all admissible evidence is relevant, not all relevant evidence is admissible. In other words, the fact that admissibility is based on relevancy, does not mean that it is not governed by the principles of law. It is the question of the ascription of weight or value to a piece of evidence that is entirely another kettle of fish. While relevancy is usually based on logic and not law in the sense that it can be easily ascertained whether a particular fact is reasonably connected with the main issue or not, admissibility, on the other hand is governed strictly by the principles of law and it is for this reason, that a number of facts relied upon as probable and relevant are rejected by law as irrelevant either on the ground of public policy, rule of law or some rule of Court.”Per OHO, JCA read in context

5. Evidence in Previous Proceedings – Instances in which evidence given in previous proceedings will be considered inadmissible

Instances when evidence given in previous proceedings will be inadmissible

“The said Exhibits PDP1, PDP2 and PDP3 sought to be tendered at the Court below and which were rejected are pieces of documentary Exhibits, which the Appellant had procured from a previous judicial proceeding.The principle of law governing the receipt or admissibility of such pieces of evidence is Section 46(1) of the Evidence Act, 2011. The pertinent question to perhaps, address here is; would it then be right to suggest as contended by learned Appellant’s Counsel that so long as Exhibits PDP1, PDP2 and PDP3 are considered relevant, whether that in itself engenders a situation where the applicability of Section 46(1) of the Evidence Act, 2011 should therefore be dispensed with? For the avoidance of any doubt the said Section 46(1) of the Evidence Act is reproduced thus;

“Evidence given by a witness in a judicial proceedings, or before any person authorized by law to make it is relevant for the purpose of proving in a subsequent judicial proceedings or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or be expense which in the circumstances of the case, the Court consider unreasonable.

Provided:-

A. That the proceeding was between the same parties or their representative in interest,
B. That the adverse party in the first proceedings had the right and opportunity to cross examine, and
C. That the questions in issue were substantially the same in the first as in the second proceedings.”
The settled position of the law on the issue is that Section 46(1) of the Evidence Act, 2011 is the primary sifting tool to use in determining whether or not evidence given in a previous judicial proceeding, whether relevant or not should be brought into the Courtroom during a case. In the instant case, the Exhibits which are clearly evidence procured from a previous judicial proceeding, in suit No. SS/OS/05/2015 – MU’AZU UMAR vs. A.P.C. & 2 ORS, as constituted and from where the Appellant had sought the importation of the Exhibits, the parties are diametrically and several kilometers at variance with the parties in the instant case which is presently here on Appeal. Apart from the issue of differences of parties the suit No. SS/OS/05/2015 – MU’AZU UMAR vs. A.P.C. & 2 ORS was commenced by Originating Summons. The implication here is that the adverse party had no opportunity of cross examining on the said Exhibits as required by the provision of Section 46(1) (b) of the Evidence Act. In reality, the opportunity of the adverse party ever conducting a cross examination in a proceeding in which he was never a party could not have occurred in the first place? Thirdly, there was no evidence that the questions in issue were substantially the same in the first as in the second proceedings.

Against the backdrop of the points considered in the wake of this analysis, I am simply unable to fault the lower Court’s decision in rejecting the said Exhibits PDP1, PD2 and PDP3 for reason of the Appellant’s failure to fulfill the conditions precedent in Section 46(1) of the Evidence Act, 2011. See EGHOBAMIEN vs. FMBN (2002) 17 NWLR (PT. 797) 488; BAMGBEGBIN vs. ORIARE (2009) 13 NWLR (PT. 1158) 370.”Per OHO, JCA read in context

6. Affidavit Evidence – Effect of unchallenged facts in an affidavit

Effect of uncontroverted facts in an affidavit

“It is elementary principle of law that facts contained in an affidavit form part of the documentary evidence before the Court. Where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or a reply as the case may be, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. See ADEKOLA ALAGBE vs. HIS HIGHNESS SAMUEL ABIMBOLA & 2 ORS (1978) 2 SC39; BADEJO vs. FED. MINISTRY OF EDUCATION & ORS (1996) LPELR -704 (SC).”Per OHO, JCA read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA


This Appeal is against the judgment of the High Court of Sokoto State in Suit No . SS/OS/01/2016 in which the Court delivered its judgment on the 30-3-2016, striking out the suit of the Appellant on grounds that it disclosed no reasonable cause of action. See pages 108-109 of the records. The Appellant’s suit at the Court below had been a fall out of the Appellant’s dissatisfaction with the manner in which the Respondent had organized and conducted the Local Government Council Elections in Sokoto State on the 12-3-2016.

The Appellant as Plaintiff at the Court below filed his Originating Summons on the 24-2-2016 brought pursuant to Order 3 Rules 5 & 8 (1) of the Sokoto State High Court Civil Procedure Rules, 2015 against the Respondent as Defendant. See pages 1-46 of the records.

The questions and/or the issues earmarked for the Court’s determination on account of the Originating Summons are as follows:

1. Whether the Defendant under the extant provisions of the Local Government Law, No. 2 of 2009 is not under the statutory duty to issue Guidelines for the Local Government Council Elections 2016 prior to the conduct of any Local Government Council Elections in Sokoto State which is schedule to come up on the 12th of March, 2016 or any other subsequent adjourned dates?

2. Whether having regards to Paragraph 9 of the Counter affidavit deposed to by the Secretary of the Defendant sworn to on the 7th of January, 2016 at the High Court Registry Sokoto in Suit No. SS/OS/5/2015 (MUAZU UMAR vs. ALL PROGRESSIVES CONGRESS& 2 ORS) wherein the Secretary of the Defendant deposed to the fact that it never issued Exhibit AH3 (Guidelines for the Local Government Council Elections 2016), the Defendant can be said to have complied with the express, clear and unambiguous provisions of Section 17 of the Local Government Law, No. 2 of 2009?

3. Whether having regards to Paragraph 9 of the Counter affidavit deposed to by the Secretary of the Defendant sworn to on the 7th of January, 2016 at the High Court Registry Sokoto in Suit No. SS/OS/5/2015 (MUAZU UMAR vs. ALL PROGRESSIVES CONGRESS & 2 ORS) wherein the Secretary of the Defendant deposed to the fact that it never issued Exhibit AH3 (Guidelines for the Local Government Council Elections 2016), the Defendant can still proceed with the Local Government Council Elections scheduled for the 12th of March, 2016 or any other subsequent adjourned dates?

4. Whether having regards to Paragraph 9 of the Counter affidavit deposed to by the Secretary of the Defendant sworn to on the 7th of January, 2016 at the High Court Registry Sokoto in Suit No. SS/OS/5/2015 (MUAZU UMAR vs. ALL PROGRESSIVES CONGRESS & 2 ORS) wherein the Secretary of the Defendant deposed to the fact that it never issued Exhibit AH3 (Guidelines for the Local Government Council Elections 2016), all acts done by the Defendant towards the conduct of the Local Government Council Elections scheduled for the 12th of March, 2016 or any other subsequent adjourned dates are not null and void abinitio?

In the resolution of the Originating Summons, the Appellant prayed for the following orders:

a. A DECLARATION that the Defendant under the extant provisions of the Local Government Law, No.2 of 2009 is under the statutory duty to issue Guidelines for the Local Government Council Elections 2016 prior to the conduct of any Local Government Council Elections in Sokoto State which is schedule to come up on the 12th of March, 2016 or any other subsequent adjourned dates.

b. A DECLARATION that having regards to Paragraph 9 of the Counter affidavit deposed to by the Secretary of the Defendant sworn to on the 7th of January, 2016 at the High Court Registry Sokoto in Suit No. SS/OS/5/2015 (MUAZU UMAR vs. ALL PROGRESSIVES CONGRESS & 2 ORS) wherein the Secretary of the Defendant deposed to the fact that it never issued Exhibit AH3 (Guidelines for the Local Government Council Elections 2016), the Defendant cannot be said to have complied with the express, clear and unambiguous provisions of Section 17 of the Local Government Law, No.2 of 2009.

c. A DECLARATION that having regards to Paragraph 9 of the Counter affidavit deposed to by the Secretary of the Defendant sworn to on the 7th of January, 2016 at the High Court Registry Sokoto in Suit No. SS/OS/5/2015 (MUAZU UMAR vs. ALL PROGRESSIVES CONGRESS & 2 ORS) wherein the Secretary of the Defendant deposed to the fact that it never issued Exhibit AH3 (Guidelines for the Local Government Council Elections 2016), the Defendant cannot still proceed with the Local Government Council Elections scheduled for the 12th of March, 2016 or any other subsequent adjourned dates.

d. A DECLARATION that having regards to Paragraph 9 of the Counter affidavit deposed to by the Secretary of the Defendant sworn to on the 7th of January, 2016 at the High Court Registry Sokoto in Suit No. SS/OS/5/2015 (MUAZU UMAR vs. ALL PROGRESSIVES CONGRESS & 2 ORS) wherein the Secretary of the Defendant deposed to the fact that it never issued Exhibit AH3 (Guidelines for the Local Government Council Elections 2016), all acts done by the Defendant towards the conduct of the Local Government Council Elections scheduled for the 12th of March, 2016 or any other subsequent adjourned dates are null and void abinitio?

e. A MANDATORY ORDER of this Honorable Court directing and compelling the Defendant to immediately issue Guidelines for the Local Government Council Elections 16 which is to be used for the conduct of Local Government Council Elections in Sokoto State before any steps are taken towards the conduct of the Local Government Council Elections 2016.

f. AN ORDER OF COURT setting aside anything done by purported to be done by the Defendant in furtherance to the conduct of the Local Government Council Elections 2016 for the forthcoming Local Government Council Elections scheduled for the 12th of March, 2016 or any other subsequent adjourned dates.

g. A PERPETUAL ORDER OF INJUNCTION restraining the Defendant by itself, agents, servants, privies or assigns from conducting the Local Government Council Elections 2016 scheduled for the 12th of March, 2016 or any other subsequent adjourned date until the Guidelines for the Local Government Council Elections 2016 is issued.

h. And such further order (s) as this Honorable Court may deem fit to make in the circumstances.

Upon being served with the Originating Summons, the Respondent filed a conditional memorandum of appearance, which was accompanied by a notice of preliminary objection, a counter affidavit and a written address filed on the 7-3-2016. See pages 48 – 64 of the records. The Appellant’s reply to the preliminary objection and which was accompanied by a written address on points of law was filed on the 14-3-2016. See pages 84-101 of the records.

At the close of the exchange of written addresses by the parties at pages 102 – 107 of the records alongside adumbration by learned Counsel, the case was adjourned to the 30-3-2016 for judgment. See page 107 of the records of Appeal. The Judgment of the Court below was delivered on the 30-3-2016 and in which the Court below sustained the preliminary objection raised by the Respondent and struck out the Appellant’s suit on grounds that it disclosed no reasonable cause of action. See pages 108 -119 of the records.

Dissatisfied with the judgment of the Court below, the Appellant has appealed to this Court vide his Notice of Appeal dated and filed on the 7-4- 2016 with three (3) Grounds of Appeal. See pages 120 – 123 of the records. The three (3) Grounds of Appeal are reproduced here without their particulars as follow;

GROUNDS OF APPEAL;

1. The Court below erred in law which occasioned a miscarriage of justice when in upholding the preliminary objections of the Respondent, it held that Exhibits PDP1, PDP2 and PDP3 are inadmissible documents for failure to comply with Section 46(1) of the Evidence Act.

2. The Court below erred in law which occasioned a miscarriage of justice when in upholding the preliminary objection of the Respondent it relied on Section 46(1) of the Evidence Act, 2011 rather than on relevancy of the said documents to reject Exhibits PDP1, PDP2 and PDP3 respectively when the said Section does not apply to the circumstances of the Appellant’s case before the Court below.

3. The Court below erred in law which occasioned a miscarriage of justice when in upholding the preliminary objection of the Respondent it held that the Appellant did not disclose a reasonable cause of action having declared Exhibits PDP1, PDP2 and PDP3 as inadmissible documents and thence not likely to succeed and therefore failed and or neglected to proceed with the determination of the Originating Summons of the Appellant on it merit.

ISSUES FOR DETERMINATION

There are three (3) issues nominated by the Appellant for the determination of this Court as follows;

1. Was Section 46(1) of the Evidence Act 2011 applicable to the facts and circumstances of the Appellant’s case at the Court below? (Ground 2).

2. Was the Court below correct in law when it held that Exhibits PDP1, PDP2 & PDP3 were inadmissible documents for their failure to comply with the said Section 46(1) of the Evidence Act 2011? (Ground 1).

3. Was the Court below correct in law when it held that the Appellant suit did not disclose a reasonable cause of action having declared Exhibits PDP1, PDP2 & PDP3 as inadmissible documents and thence refused to determine the Appellants case on the merits ? (Grounds 3).

On the part of the Respondent the three (3) issues nominated by the Appellant were promptly adopted and it was in respect of these issues that learned Counsel to the parties addressed Court extensively in their briefs of argument. The Appellant’s Brief of argument dated the 15-9-2016 was settled by IBRAHIM ABDULLAHI ESQ., and filed on the 22- 9 – 2016 and deemed properly filed and served on the 6-10-2016; while the Respondent’s Brief of argument dated the 20-3-2017 and filed on the same date was settled by Hon. SULAIMAN USMAN, Attorney-General, Sokoto State. At the hearing of this Appeal on the 20-3-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF LEARNED COUNSEL TO THE PARTIES;

APPELLANT;

ISSUE ONE;

Was Section 46(1) of the Evidence Act 2011 applicable to the facts and circumstances of the Appellant’s case at the Court below?

The contention of the Appellant under this issue is that the provisions of Section 46(1) of the Evidence Act 2011 relied upon by the Court below in deciding that the Appellant’s case did not disclose any reasonable cause of action was not applicable to the case of the Appellant at the Court below. It was further contended that the fundamental principle of law is that the jurisdiction of a Court is determined solely by reference to the Claimants claim. Counsel cited the cases of ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT . 788) 58 AT 56; AG – ANAMBRA vs . AG – FEDERATION (1993) 6 NWLR (PT. 302) 692 AT 742.

This being the case, Counsel submitted that it is the facts and reliefs stated in the writ of summons and or statement of claim that the Court below (in this appeal, the questions submitted for the determination of the Court below and the reliefs sought) that has to be looked at and not the preliminary objection or counter affidavit of the Respondent in the determination of a reasonable cause of action. He cited the cases of A.G. FEDERATION vs. AG ABIA (2001) 11 NWLR (PT. 725) 689 AT 740; KWARA vs. OLAWALE (1993) 1 NWLR (PT. 272) 645 AT 675.

On the question of the applicability of Section 46 (1) of the Evidence Act 2011, Counsel contended that the Respondent must show that the parties, in the previous judicial proceedings and as well as the issues are the same. He also argued that in Suit No. SS/OS/5/2015, the Appellant was never a party to the proceedings and the issues were never the same before the trial Court and therefore that Section 46(1) of the Evidence Act was not applicable in the instant case of the Appellant at the Court below. According to Counsel since the Appellant was not a party to Suit No. SS/OS/5/2015, there is no way the deponent to the tendered Exhibits could be subjected to cross – examination.

It was further argued that the previous case at the trial Court was fought on the basis of affidavit evidence, the substantive matter being one commenced by originating summons. Counsel argued that in such a case the deponent to the counter affidavit (Exhibit PDP3) at pages 45 – 46 of the records will not have to be subjected to cross – examination; that the effect of this, is that the admission of the documentary evidence tendered at the Court below will not be made under the provision of Section 46 (1) of the Evidence Act 2011, but under some other provisions of the Evidence Act, which learned Counsel did not cite. Counsel, however cited the cases of OKONJI vs. NJOKANMA (1999) 14 NWLR (PT. 638) 250; ONU vs. IDU (2006) 12 NWLR (PT. 995) 657 AT 496 PARAS B – E on the role which, relevancy plays in the admissibility of any document in a Court of law. He also contended that the decision of the Court below occasioned a miscarriage of justice as the position clearly shows the applicability of other Sections of the Evidence Act, other than Section 46(1) relied upon by the Court below. He urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE TWO;

Was the Court below correct in law when it held that Exhibits PDP1, PDP2 & PDP3 were inadmissible documents for their failure to comply with the said Section 46(1) of the Evidence Act 2011?

Under this issue, the submission of learned Counsel is that Section 46(1) of the Evidence Act 2011 relates only to evidence given by a witness in a judicial proceedings and not necessarily previous judicial proceedings as stated by the Court below at page 118 lines 15 – 16 of the records. It was further submitted by Counsel that Exhibits PDP1 and PDP2, which the Court below held to be covered by Section 46(1) of the Evidence Act 2011, were not related to the evidence of any witnesses, but to processes filed before a competent Court of law via Suit No. SS/S/05/2015.He said in addition, that the Court below in striking out the suit of the Appellant on the grounds that all the Exhibits annexed therein were incompetent was a wrong conclusion of the law since Section 46(1) of the Evidence Act 2011, does not apply to documentary Exhibits. In truth, Counsel argued that the test of admissibility of any piece of evidence still remains its relevancy under Section 6 of the Evidence Act.

In emphasizing the relevance of the documents sought to be tendered at the Court below and which the Court rejected, Counsel reiterated that their importance as annexed to the originating summons filed at the Court below cannot be over – emphasized in line with Section 15 (a – g) of the Evidence Act 2011. He contended that there was a denial by the Respondent on oath that it never issued Exhibit AH3 (Guidelines for the conduct of Local Government Elections 2016) used in Suit No . SS/OS/5/2015. According to Counsel, Exhibit AH3 is similar to Exhibit PDP2 annexed to the supporting affidavit of the originating summons and that the position canvassed by the Appellant at the Court below shows the need for the applicability of some other provisions of the Evidence Act other than Section 46(1), which the Court below relied upon and that this has occasioned grave miscarriage of justice in the circumstances of this case. Counsel therefore urged the Court to resolve this issue in favour of the Appellant and against the Respondent.

ISSUE THREE;

Was the Court below correct in law when it held that the Appellant suit did not disclose a reasonable cause of action having declared Exhibits PDP1, PDP2 & PDP3 as inadmissible documents and thence refused to determine the Appellants case on the merits?

Under this issue, Counsel submitted that the Court below after declaring Exhibits PDP1, PDP2 and PDP3 as inadmissible documents went in the course of its judgment at page 118 lines 23 – 33 of the records to hold that the action of the plaintiff is baseless and did not disclose any reasonable cause of action in the absence of those Exhibits. He further contended that the Court below saw no need for it to entertain the claims of the Appellant simply because the Court was of the opinion that only the Exhibits declared inadmissible by it could have sustained the claims of the Appellant at the Court below.

In demonstrating the germaneness of the Appellant’s claims at the Court below, Counsel argued that the question one (1) submitted for the determination of the Court below and which formed the platform of its relief one(1) in the originating summons has nothing to do with the rejected Exhibits PDP1, PDP2 and PDP3. According to Counsel, what question one (1) and the relief one (1) calls for, is the interpretation of the extant provisions of the Local Government Law, No.2 of 2009 as it relates to the statutory duty of the Respondent to issue Guidelines for the conduct of Local Government Council Elections 2016, prior to the conduct of the Elections in Sokoto State, scheduled then for the 12-3-2016 or any other convenient dates. It was also argued by Counsel in the token that reliefs 5 – 8 in the originating summons has nothing to do with the rejected Exhibits as the success or otherwise of those reliefs had nothing to do with the Exhibits.

On the question of whether the Appellant’s suit disclosed a reasonable cause of action, Counsel argued that a reasonable cause of action is one which discloses some cause of action or some questions fit to be decided by the Court. He cited the cases of THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669 AT 682; YUSUF vs. AKINDIPE (2000) 8 NW R (PT. 669) 376 AT 386. It was further argued that the Respondent was shown via affidavit evidence not to have issued the requisite Guidelines for the conduct of the said Local Government Elections contrary to Section 17 of the Local Government Law 2009, which mandates the Respondent to issue Guidelines as to regulate the conduct of the Local Government Council polls.

Against the background of this position, Counsel stated that the Appellant sufficiently, at the Court below pleaded facts which showed the wrongful acts of the Respondent in not complying with the provisions of Section 17 of the Local Government Law of Sokoto State 2009 and that there was every reasonable chance of success on the part of the Appellant with regards to the reliefs sought at the Court below, which displayed and/or showed reasonable cause of action to the hilt. On account of this position, Counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.

RESPONDENT;

ISSUE ONE;

Was Section 46(1) of the Evidence Act 2011 applicable to the facts and circumstances of the Appellant’s case at the Court below? (Ground 2)

Under this issue, it was submitted for the Respondent that the entire gamut of the Plaintiffs case at the Court below was hinged on the documents that was used in an earlier proceeding. It was further submitted that all the annexure in that case constituted evidence used in a previous proceeding. Counsel contended that there are requirements of the law that certain conditions must be fulfilled where a party to an action wants to rely on evidence used in a previous proceeding. According to Counsel, failure of the Appellant at the Court below to fulfill the conditions under Section 46(1) of the Evidence Act, 2011 resulted in the Court below expunging the said Exhibits PDP1, PDP2 and PDP3 and subsequently, the striking out of the entire action for lack of disclosure of reasonable cause of action. Counsel cited the case of JOHN AJIBO vs. STATE (2013) LPELR 21359, where this Court per AGIM, JCA held thus:

“Furthermore, previous judicial proceedings can be used or admitted in subsequent proceeding to prove the truth of the fact which it states, irrespective of the outcome of the proceeding or how it was concluded provided that the provision of Section 46(1) of the Evidence Act precluding the admissibility of such previous judicial proceeding in subsequent judicial proceeding because it was struck out, dismissed or terminated in some other way. There is no doubt that Exhibit D was not admissible under Section 46(1) of the Evidence Act 2011 because the requirements for its admissibility under those provisions were not complied with.”

As far as Counsel was concerned there are three (3) conditions precedent which a party must fulfill under Section 46(1) of the Evidence Act in order to rely on an earlier decision or proceeding which Counsel gave as follows;

1. The proceeding was between the same parties or their representatives in interest.
2. The adverse party in the first proceeding had the right and opportunity to cross examine.
3. The questions in issue were substantially the same in the first and as well as in the second proceeding.

In emphasizing the seriousness of the conditions present under Section 46(1) of the Evidence Act, 2011, Counsel drew attention to the fact that at the Court below, the Appellant’s suit was rightly struck out due to reasons of failure to disclose a reasonable cause of action, when the parties were not the same with the suit whose Exhibits PDP1, PDP2 and PDP3 were imported and sought to be tendered. He argued that while the parties in the suit herein are the P.D.P vs. S.I.E.C as constituted in suit No. SS/OS/01/2016; the suit from whence the Appellant imported the previous judicial processes was between MU’AZU UMAR vs. A.P.C.& 2 ORS as constituted in suit No. SS/OS/05/2015. In therefore, urging this Court to hold that the Appellant could not have relied upon and used Exhibits PDP1, PDP2 and PDP3 in the botched action, Counsel urged this Court to resolve issue one in favour of the Respondent. Counsel also cited the following cases; OKONJI vs. NJOKANMA (Supra); ONU vs. IDU (2006) 12 NWLR (PT. 995) 657 AT 496.

In further argument of the position of relevance to be accorded the conditions precedent of Section 46(1) of the Evidence Act, 2011, Counsel also submitted that the deponent who signed the counter affidavits in the rejected Exhibits PDP1, PDP2 and PDP3 is still alive and kicking, and that his address is known to the Appellant and that no amount of delay will be occasioned in calling the said deponent rather seeking to rely on a previous judicial process deposed to by the said deponent. It was therefore submitted that in a situation where no attempt was made by the Appellant to comply with the conditions in Section 46(1) the Evidence Act, 2011 resulted in the striking out of its suit at the Court below. He said in addition that it has long been pronounced upon with force in ALADE vs. ABORISHADE (1960), NSCC 111 AT 115 per ABBOT, FJ when the Supreme Court had this to say on the subject;

“The evidence given in a previous case can never be accepted as evidence by a Court trying a later case where Section 34(1) of the Evidence Ordinance applies. The Evidence given in an earlier case by persons who also testify in a later case may be used for cross examination as to credit but is of no higher value than that. The judgment in an earlier case frequently is used perfectly properly in a later case, the classic instance being of course, on a plea of res judicata but it can properly be used there, provided the incidents necessary to support such as plea are fully observed.”

It was therefore submitted on behalf of the Respondent that Exhibits PDP1, PDP2 and PDP3 so annexed to the originating summons are documents which are irrelevant to the facts in issue in the Court below and that the Court was right in holding in lines 19-22 at page 118 of the records, that the Exhibits annexed to the affidavit in support of the originating summons are not admissible in evidence and cannot be used by that Court to determine the case of the Plaintiff and Counsel urged this Court to so hold in resolving this issue in favour of the Respondent.

ISSUE TWO;

Was the Court below correct in law when it held that Exhibits PDP1, PDP2 & PDP3 were inadmissible documents for their failure to comply with the said Section 46(1) of the Evidence Act 2011?

Under this issue, learned Counsel submitted on behalf of the Respondent that the Court below was right in holding that Exhibits PDP1, PDP2 and PDP3 were inadmissible documents by reason of failure to adhere strictly to Section 46(1) of the Evidence Act 2011. Counsel contended that Exhibit”AH3″ used in the previous case was not dated, signed and issued by the Respondent. He however, stated that by the counter affidavit in Paragraphs 8, 9 and 10 thereof the said Guidelines for the conduct of the Elections was issued by the Respondent on the15-10-2015 and duly signed by the Chairman of the Respondent one Alhaji Usman Abubakar. He added that to demonstrate the truthfulness of this contention, the said Guideline was attached to the counter affidavit and marked as Exhibit “A”. It was argued by Counsel that the fact that Respondent disclaimed an earlier Guideline, which was not dated, signed and issued by the Respondent does not constitute a basis to conclude that the Respondent was in breached of Section 17 of the Local Government Law, 2009.

Learned Counsel also submitted on behalf of the Respondent that it has carried out its statutory duties assigned to it by the provision of Section 17 of the Local Government Law, 2009 where the Elections into Chairmen and Councillorships was conducted in a friendly and peaceful atmosphere where the Electorates came out en-mass and exercised their civic responsibilities including the supporters of the Appellant. Counsel urged this Court to resolve the 2nd issue against the Appellant and in favour of the Respondent.

ISSUE THREE;

Was the Court below correct in law when it held that the Appellant suit did not disclose a reasonable cause of action having declared Exhibits PDP1, PDP2 & PDP3 as inadmissible documents and thence refused to determine the Appellants case on the merits?

Under this issue, learned Respondent’s Counsel argued that the Court below was right in holding that the suit did not disclose any reasonable cause of action having declared Exhibits PDP1, PDP2 and PDP3 inadmissible. Counsel submitted that the entire case of the Appellant at the Court below squarely rested on the veracity of Exhibits PDP1, PDP2 and PDP3, which the lower Court in its considered findings declared inadmissible. He argued that since the Appellant built its case on nothing else, that the case collapsed like a pack of cards.

Learned Counsel drew attention to Paragraphs 8, 9 & 10 of the counter affidavit of the Respondent, which showed clearly that the Respondent indeed dated, signed, issued a genuine and authenticated Guidelines for the proper conduct of the said Local Government Council Elections, which was scheduled for the 12th March, 2016 and, which was carried out as planned successfully, and violence free. For the sake of emphasis and in respect of the Appellant’s relief 5, Counsel submitted that the Respondent issued the requisite Guidelines for the conduct of the Local Government Council Elections 2015 and duly complied with Section 17 of the Local Government Law No. 2 of 2009. Counsel finally urged this Court to resolve this issue in favour of the Respondent and against the Appellant and to dismiss the Appeal.

RESOLUTION OF APPEAL

What seemed to have taken center stage in the argument of the instant Appeal by learned Counsel to the parties on both sides of the divide are the following issues: the one, which has to do with the exact relationship between the concepts of “relevancy” and “admissibility” under the law of Evidence with particular reference to Section 46(1) of the Evidence Act, 2011; while the other, which has to do with when it can be said in legal theory that a given suit discloses or does not disclose a cause or reasonable cause of action.

Learned Appellant’s Counsel made a heavy weather of the concept of relevancy, which he rightly argued is the test of admissibility, but had by so doing unwittingly, given the impression that the expressions-“relevancy” and “admissibility” are rather synonymous in the sense that one can be exchanged for the other. He had contended that Section 46(1) of the Evidence Act, 2011 was not applicable to the issue of the admissibility of Exhibits PDP1, PDP2 and PDP3 sought to be tendered by the Appellant as Plaintiff at the Court below even though these were documentary Exhibits obtained from a previous judicial proceeding. Appellant’s Counsel had rather argued that in so far as these pieces of documentary Exhibits were relevant, what was important in the given situation and, which the Court below ought to have taken into consideration before rejecting the Exhibits in evidence was not whether there was a compliance with the provisions of Section 46(1) of the Evidence Act, but rather whether the said Exhibits were relevant to the proceedings at the Court below or not.

It may be important here to state from the onset that the expressions; “relevancy” and “admissibility” are clearly not the same thing as their legal implications are different. What is perhaps, important to note on the issue is that while all admissible evidence is relevant, not all relevant evidence is admissible. In other words, the fact that admissibility is based on relevancy, does not mean that it is not governed by the principles of law. It is the question of the ascription of weight or value to a piece of evidence that is entirely another kettle of fish. While relevancy is usually based on logic and not law in the sense that it can be easily ascertained whether a particular fact is reasonably connected with the main issue or not, admissibility, on the other hand is governed strictly by the principles of law and it is for this reason, that a number of facts relied upon as probable and relevant are rejected by law as irrelevant either on the ground of public policy, rule of law or some rule of Court.

The said Exhibits PDP1, PDP2 and PDP3 sought to be tendered at the Court below and which were rejected are pieces of documentary Exhibits, which the Appellant had procured from a previous judicial proceeding.The principle of law governing the receipt or admissibility of such pieces of evidence is Section 46(1) of the Evidence Act, 2011. The pertinent question to perhaps, address here is; would it then be right to suggest as contended by learned Appellant’s Counsel that so long as Exhibits PDP1, PDP2 and PDP3 are considered relevant, whether that in itself engenders a situation where the applicability of Section 46(1) of the Evidence Act, 2011 should therefore be dispensed with? For the avoidance of any doubt the said Section 46(1) of the Evidence Act is reproduced thus;

“Evidence given by a witness in a judicial proceedings, or before any person authorized by law to make it is relevant for the purpose of proving in a subsequent judicial proceedings or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or be expense which in the circumstances of the case, the Court consider unreasonable. Provided:-

A. That the proceeding was between the same parties or their representative in interest,

B. That the adverse party in the first proceedings had the right and opportunity to cross examine, and

C. That the questions in issue were substantially the same in the first as in the second proceedings.”

The settled position of the law on the issue is that Section 46(1) of the Evidence Act, 2011 is the primary sifting tool to use in determining whether or not evidence given in a previous judicial proceeding, whether relevant or not should be brought into the Courtroom during a case. In the instant case, the Exhibits which are clearly evidence procured from a previous judicial proceeding, in suit No. SS/OS/05/2015 – MU’AZU UMAR vs. A.P.C. & 2 ORS, as constituted and from where the Appellant had sought the importation of the Exhibits, the parties are diametrically and several kilometers at variance with the parties in the instant case which is presently here on Appeal. Apart from the issue of differences of parties the suit No. SS/OS/05/2015 – MU’AZU UMAR vs. A.P.C. & 2 ORS was commenced by Originating Summons. The implication here is that the adverse party had no opportunity of cross examining on the said Exhibits as required by the provision of Section 46(1)

(b) of the Evidence Act. In reality, the opportunity of the adverse party ever conducting a cross examination in a proceeding in which he was never a party could not have occurred in the first place? Thirdly, there was no evidence that the questions in issue were substantially the same in the first as in the second proceedings.

Against the backdrop of the points considered in the wake of this analysis, I am simply unable to fault the lower Court’s decision in rejecting the said Exhibits PDP1, PD2 and PDP3 for reason of the Appellant’s failure to fulfill the conditions precedent in Section 46(1) of the Evidence Act, 2011. See EGHOBAMIEN vs. FMBN (2002) 17 NWLR (PT. 797) 488; BAMGBEGBIN vs. ORIARE (2009) 13 NWLR (PT. 1158) 370.

On the question of when it can actually be said that a given suit has either disclosed or failed to disclose a cause of action or reasonable cause of action, it is trite that before the Court arrives at a decision on the issue, it is mandatory that the Court should examine the Plaintiffs’ statement of claim and writ of summons or originating processes, which are to be read together for purposes of disclosing a cause of action. The success or otherwise of the action is not a matter for consideration at this stage. What is of importance is whether the statement of claim raises questions to be considered by the Court. The mere fact that the Plaintiff’s case is weak or not likely to succeed is certainly not a ground for striking out. See PANACHE COMMUNICATIONS LTD vs. AIKHOMU (1994) 2 NWLR (PT. 317) 420 AT 425 and legion of other decisions on the subject.

For a statement of claim or an originating process to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligation of the Defendant. It must then go on to set out facts constituting infraction of the Plaintiff’s legal right or failure of the Defendant to fulfill his obligation in such a way that if there is no proper defense, the Plaintiff will succeed in the relief or remedy he seeks. See IBRAHIM vs. OSIM (1988) 3 NWLR (PT. 82) 257 AT259. In a nutshell, a reasonable cause of action merely means a cause of action with some chance of success when only the allegations in the Plaintiff’s pleadings are considered. See OSHOBOJA vs. AMUDA (1992) 7 SCNJ 317 AT 326.

It may perhaps, at this stage also be appropriate to define what a “cause of action” is. In OSHOBOJA vs. AMUDA (supra), it is simply the facts which when proved, will entitle a Plaintiff to a remedy against the Defendant. In IBRAHIM vs. OSIM (supra) at page 260, it is defined as; “the entire set of circumstances giving rise to an enforceable claim”. Usually, a claim in Court must rest and be supported by a cause of action. See EGBE vs. ADEFARASIN (1985) 1 NWLR (PT.3) 549. The relief or remedy claimed therefore is founded on the cause of action. It is for this reason, precisely, whenever there is a cause of action and the relief is properly claimed, that the Plaintiff cannot for instance be turned back simply because he has applied for it under the wrong law. See FALOBI vs. FALOBI (1976) 1 NWLR 169.

I have earlier on said that the cause of action is set out in the statement of claim or other originating processes by the facts stated therein. Where the facts, therefore, do not disclose or constitute a cause of action, the suit ought to be struck out on the application of the Defendants. What then are the claims of the Plaintiff in this case? The instant suit, being one commenced by originating summons, the place to turn for facts are the supporting affidavit to the originating summons filed on the 24-2-2016 and contained at pages 5-6 of the printed records. In the entire supporting affidavit of the Appellant as Plaintiff at the Court below, there are twenty-three (23) paragraphs in all. Of the twenty-three (23) paragraphs, the only paragraphs which make any reference to the Defendants’ obligations or so it seems, and not even to the Plaintiff are the Paragraphs 4, 5, 13 and 17. All other paragraphs contain facts, which tend to show what the Defendant/Respondent had done or not done in some other suit at the Court below precisely in suit No. SS/OS/5/2015. For purposes of emphasis, I shall next reproduce the Paragraphs 4, 5, 13, and 17 for the avoidance of any doubt and also with a view to unraveling whether a combination of the facts contained therein, clearly reveal whether the activities of the Defendants have given the Plaintiff the right to complain, thus culminating in his cause of action.

Paragraph 4:

“That I know as a fact that Defendant is a body established by the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) with the responsibility among others to organize, supervise and conduct Local Government Councils Election in Sokoto State. The Defendant is also by the provisions of the extant Local Government Law 2009 responsible for the issuance of guidelines for elections to the offices aforementioned as well supervising the conduct of primary election, by all political parties for the purpose of selecting or nominating candidates to contest election, organize or conducted by the Defendant as well as subsequently accrediting and or endorsing such candidates”.

Paragraph 5:

“That further to the preparation being made by the Defendant for the conduct of Local Government Council Election in Sokoto State hitherto scheduled for 9th of January, 2015 and directives issued by the Defendant to all interested political parties to present candidates for election to various elective offices, the plaintiff started its preparations in earnest based on the time table issued by the Defendant.”

Paragraph 13:

“That I know as a fact that under Section 17 of the Local Government Law 2009, the Defendant is mandatorily required to issue Guidelines as to how the Local Government Council Elections are to be organized and conducted.”

Paragraph 17:

“That I know as a fact that the Defendant under the extant provisions of the Local Government Law, No. 2 of 2009 is under the statutory duty to issue Guidelines for the Local Government Council Elections 2016 prior to the conduct of any Local Government Elections in Sokoto State, which is scheduled to come up on the 12 March, 2016 or any other subsequent adjourned dates.”

I have carefully perused the supporting affidavit and reproduced the Paragraphs 4, 5, 13 and 17, which I earlier on said, made references to the obligations of the Defendant and also contained the perceived allegations of infraction of rights on the side of the Defendant but not necessarily against the Plaintiff. The other paragraphs, that is, the paragraphs of the supporting affidavit not set out here were also duly considered and taken into consideration in the determination of this issue.

Perhaps, the relevant question to address at this stage is; whether the allegations of the Plaintiff in the supporting affidavit as it stands, even if proved, are sufficient to entitle the Plaintiff/Appellant to the reliefs claimed? From the averments of the entire supporting affidavit considered together, it would appear rather unfortunately, that the Plaintiff/Appellant, simply because it is a Political Party registered under the laws of Nigeria entitles it to file just any sort of matter in Court for no plausible reasons at all other than just for the sake of doing so. I shall say no more on this issue.

It is instructive, nevertheless to observe that apart from the reproduced paragraphs there does not seem to be anything in the supporting affidavit other than that in some other suit entirely to wit; No. SS/OS/05/2015 –between MU’AZU UMAR vs. A.P.C. & 2 ORS, there were certain depositions made by the Defendant in 2015 in a counter affidavit and that for that reason, there are clear indications that no Guidelines as required for the conduct of the forthcoming Council elections have been made. That shockingly of course, is all there is to the Appellant’s pleading in this case. Against this background, I am simply unable to agree that there is any relationship created between the parties to give rise to a reasonable cause of action.

A reasonable cause of action, for the umpteenth time and at the risk of repetition merely means a cause of action with some chance of success when only the allegations in the statement of claim and in this case that in, which only the depositions in the supporting affidavit are considered. As it stands from the depositions before the Court, even if all the allegations of fact contained therein are established, the Appellant would still not be entitled to the reliefs sought. I simply could not find any legal rights one could ascribe to the Appellant and, which rights demand a corresponding obligation on the part of the Respondent as Defendant towards the Appellant. In short, going by the contents of the depositions of the supporting affidavit, the Respondent owe the Appellant no legal obligations whatsoever. I simply fail to see the wrongful act of the Respondent, which would give the Appellant his corresponding cause of complaint.

To make matters rather worse for the Appellant, the Respondent presumably in an attempt to douse the embers of an unnecessary and to say the least mischievous and frivolous inferno as Defendant, filed a counter affidavit to the action at the Court below on the 7-3-2016 and in which it deposed in Paragraphs 7, 8 and 9 that the appropriate Guidelines, whose alleged absence is the sole cause of this action were duly issued as expected and the elections peacefully conducted. For the avoidance of any doubt, these paragraphs are reproduced as follows;

“7. That contrary to the depositions contained in the Plaintiff originating summons the Defendant has issued Guidelines for the forthcoming local government elections scheduled to hold on March, 12, 2016 as required by law.

8. That the said Guidelines issue on the 15th day of October, 2015 and duly signed by the Chairman of the defendant Alhaji Usman Abubakar is hereby attached and marked Exhibit A.

9. That a copy of the Guidelines is shown to me is hereby attached for ease of reference.”

With depositions as germane as these, this Court would have expected nothing short of a reply to the counter affidavit on the part of Appellant as Plaintiff at the Court below. It is elementary principle of law that facts contained in an affidavit form part of the documentary evidence before the Court. Where an affidavit is filed deposing to certain facts and the other party does not file a counter affidavit or a reply as the case may be, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. See ADEKOLA ALAGBE vs. HIS HIGHNESS SAMUEL ABIMBOLA & 2 ORS (1978) 2 SC39; BADEJO vs. FED. MINISTRY OF EDUCATION & ORS (1996) LPELR -704 (SC).

Apart from the fact that the Appellant had paraded such a watery affidavit at the Court below, which was bereft of any cogent and sufficient facts this Court would have expected the Appellant at that stage to have eaten the humble pie of its actions, but that was not to be. This Appeal to say the least is moribund and it is accordingly dismissed. There shall be no orders as to cost.

MUKHTAR, JCA

I have had the honour of previewing the lead judgment just rendered by my learned brother, Frederick O. Oho, JCA. I entirely agree with the articulated reasoning therein and the conclusion that the appeal is devoid of substance.

The appeal is accordingly dismissed. I subscribe to the orders made in the judgment.

SHUAIBU, JCA

I have had the advantage of reading in draft the lead judgment of my learned brother, Frederick O. Oho, JCA which has just been delivered. I entirely agree with him that there is no merit in the appeal which is hereby dismissed. The judgment of the trial Court is hereby affirmed.