27/07/2018
Abdul Oroh Law Series
WHETHER A PARTY WHO DID NOT PARTICIPATE IN A POLITICAL PARTY'S PRIMARIES HAS THE LOCUS STANDI TO INSTITUTE AN ACTION TO CHALLENGE THE SAID PRIMARIES
SENATOR AYOGU EZE V. PEOPLES DEMOCRATIC PARTY [PDP)
& ORS (2018) LPELR-44907(SC)
APPLICABLE AREA: Electoral Matter
PREAMBLE
The term locus standi was explained in LADEJOBI & ORS v. OGUNTAYO & ORS (2004) LPELR-1734 (SC) Per MUSDAPHER, J.S.C. (P. 20, Paras. D-E) as follows: "The term 'locus standi' denotes the legal capacity to institute proceedings in a Court of law and is used interchangeably with terms like 'standing' or 'title to sue'. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law."
The issue of locus standi is therefore a condition precedent to the commencement of any action before any Court of law be it a trial Court, an appellate Court and, even the Supreme Court. To institute and maintain an action, the person instituting it must have legal capacity; otherwise the Court is robbed of the sine qua non jurisdiction to entertain such action.
Where a party lacks the requisite locus standi to institute an action, he will be said to be a busy body and the logical consequence is that the Court will not have jurisdiction to listen to him.
FACTS
The Peoples Democratic Party (1st Respondent) had, on the 1st of November, 2014, conducted ward congresses in all the wards of Enugu State, in which three delegates were elected from each ward. The delegates so elected were saddled with the responsibility of voting in the primary election fixed for 8th December, 2014 in order to elect the Peoples Democratic Party's candidate for the Governorship Election in Enugu State. When an issue arose as to the Peoples Democratic Party's commitment to utilizing the list of the delegates, some delegates proceeded to the Federal High Court and initiated an action. In his judgment, the trial Judge, sanctioned and or recognized the list submitted by the plaintiffs as the authentic delegates to the primary election.
The National Working Committee of the Peoples Democratic Party appointed a panel under the leadership of His Royal Highness King Asara A. Asara, to conduct the primary election of 8th December, 2014. Senator Ayogu Eze (Appellant) refused to participate in the primary election conducted by H.R.H Asara A Asara, on the ground that the list submitted for the primary election which was in possession of King Asara A. Asara deviated from his own. It was his claim that a parallel primary election, in which the list of delegates sanctioned by the Federal High Court was used in conducting the election, had elected him as the Governorship candidate of the Peoples Democratic Party. Senator Ayogu Eze therefore did not participate in the primary election organized by the panel that was appointed by the Peoples Democratic Party and The National Working Committee of The Peoples Democratic Party (2nd Respondent), in which Hon. Ifeanyi Lawrence Ugwuanyi (4th respondent) emerged the winner.
Senator Ayogu Eze proceeded to the trial Court, via an originating summons, against the respondents, and claimed some declaratory and injunctive reliefs. Parties filed and exchanged pleadings. Hon. Ifeanyi Lawrence Ugwuanyi filed a preliminary objection to the originating summons, questioning the locus standi of Senator Ayogu Eze to institute the action. Arguments in respect of the preliminary objections and the substantive suit were heard together by the trial Court which, in a considered judgment, overruled the preliminary objections, assumed jurisdiction and dismissed Senator Ayogu Eze’s suit on the merit.
Dissatisfied with the trial Court's dismissal of his suit on the merit, Senator Ayogu Eze appealed to the Court of Appeal. Equally aggrieved, the Peoples Democratic Party, the National Working Committee of the Peoples Democratic Party and Hon. Ifeanyi Lawrence Ugwuanyi appealed against the trial Court's assumption of jurisdiction over Senator Ayogu Eze’s suit. The Court of Appeal considered the appeals separately and affirmed the trial Court's finding that Senator Ayogu Eze had failed to prove his case and dismissed same. The Court of Appeal allowed the Peoples Democratic Party, the National Working Committee of the Peoples Democratic Party and Hon. Ifeanyi Lawrence Ugwuanyi's appeals and struck out the suit at the trial Court having been commenced by Senator Ayogu Eze who was lacking the necessary locus standi.
Further dissatisfied, Senator Ayogu Eze has further appealed to the Supreme Court.
ISSUES FOR DETERMINATION
The appeal was determined on this lone issue:
“Whether the learned Justices of the Court below were not wrong in their view and their conclusion that the Appellant has no locus-standi to initiate or institute the action, that his case was based on parallel primary of PDP when this was not the case and in striking out the case on the ground of lack of jurisdiction."
DECISION/HELD
In a unanimous decision of the Apex Court, the appeal was dismissed and the judgment of the Court of Appeal was upheld.
RATIO DECIDENDI
ELECTORAL MATTERS - POLITICAL PARTY PRIMARY: Who can institute an action in court to complain about the conduct of a political party primaries
"The lower Court, at pages 971-972 a4d 976-977 of the record, on the other hand, held firstly as follows:-
"A cumulative or community reading of the paragraphs of the said Affidavit glaring shows that the Appellant did NOT TAKE PART AND DID NOT PARTICIPATE IN THE PDP Gubernatorial Primaries conducted by HRH KING ASARA A. ASARA Electoral Panel mandated by the 1st and 2nd Respondents to conduct the said Governorship Primary Election to elect the Governorship Candidate of PDP for Enugu State on 8/12/2014 whereat the 4th Respondent emerged as the Governorship Candidate of 1st and 2nd Respondents for the General Elections conducted by 3rd Respondent in 2015.
All the appellant has succeeded in doing in this Suit is that he has wittingly or unwittingly completely taken himself out of the purview of Section 87(4)(b)(i) (ii) and 87(9) of the Electoral Act 2010 as amended and thus has no locus standi to institute or maintain the action herein against any of the Respondents. In other words the limited jurisdiction of the Court under Section 87 of the Electoral Act 2010 as amended cannot be invoked in Appellant's favour. It does not enure for the benefit of the Appellant since he was neither an aspirant nor a participant at the Primary Election organized by the 1st and 2nd Respondent.
.........I hereby hold that the Appellant lacked the locus standing to initiate or institute this action and the lower Court and this Court have no jurisdiction to entertain this Suit since it borders on the Gubernatorial Primary Election of PDP conducted under the aegis of 1st and 2nd Respondents to select his flag bearer for the Office of Governor in 2015 General Elections and in which Appellant did not participate."
(Underlining supplied for emphasis).
The lower Court rationalized further at pages 978-979 of the record of appeal thus:-
"One does not begin to look at a statement of Defence or examination of counter affidavit against the affidavit in support of originating summons to determine the pivotal questions relating to jurisdiction of the Court. The perfect, settled and immutable position of the law is that the Court seised of the matter must confine itself to scrupulous examination of the writ of summons and statement of claim in order to determine whether or not the Court has jurisdiction to adjudicate on the Plaintiff's or Claimant's suit. Where as in this case it is an action begun by originating summons the processes to be examined are the originating summons and the Affidavit of the Plaintiff in support of the originating summons and no other document(s). See (1) PDP VS SYLVA & ORS (2012) 13 NWLR (PART 1316) 85 AT 127 D-F where the apex Court per BODE RHODES-VIVOUR, JSC held." (Underlining supplied for emphasis).
In the foregoing, not only has the lower Court bound itself to the superior authority of the apex Court in this country in arriving at the correct decision, it further dwelt on the decisions of the Court to clearly indicate where the trial Court faltered.
The instant appeal is against the findings of the lower Court which draws from all the earlier decisions of this Court alluded to by counsel as being appropriately applied, for their being apt, to the facts and legislation in issue. That is what the doctrine of stare decisis or precedent is all about.
The doctrine requires all subordinate Courts to subsequently follow the earlier decisions of this Court. A lower Court, therefore, would be impertinent to refuse to be bound by the earlier authoritative pronouncements of this Court on same or similar issues it is asked to subsequently determine. Being the foundation on which the consistency of our judicial decisions rests, an inferior Court's decision in clear breach of the doctrine, being perverse, will be set aside on appeal. See Olu of Warri V. Kperegbayi (1994) 4 NWLR (Pt 339) 414, N.A.B. Ltd V. Barri Engineering Nig Ltd (1995) 8 NWLR (Pt 413) 247 at 289, Osagie II V. Offor (1998) 3 NWLR (541) 205 and Dalhatu V. Turaki (2003) 15 NWLR (Pt 843) 310 at 350.
In the case at hand, the crucial facts on which the appellant seeks redress pursuant to Section 87(4) and (9) of the Electoral Act as amended are as contained more particularly in paragraphs 15 and 16 of his supporting affidavit earlier reproduced in this judgment. The lower Court's inference from these paragraphs that appellant's dissatisfaction, with the emergence of the 4th respondent as 1st respondent's governatorial candidate, is in relation to the primary election conducted on the basis of a delegate list sanctioned by the Federal High Court in its decision in suit no. FHC/ABJ/CS/80/2014, rather than the King Asara A. Asara led primary election of the 1st respondent conducted by the 2nd respondent, is beyond reproach. The fact as so held, excludes the appellant from being a participant in the very primary election that produced the 4th respondent as the Enugu State Gubernatorial Candidate of the 1st respondent, which fact the appellant purports, by his action, to contest. This Court on the basis of the very fact maintains, in the many decisions of this Court the lower Court resorted to and applied, that the platform created by Section 87 (4) (b)(i)(ii) and (9) of the Electoral Act 2010 (as amended) enures only to an "ASPIRANT", which term, by Section 156 of the Act means a person who pertook in the very primary election of the party with which conduct he is dissatisfied.
In the case at hand the lower Court, contrary to what the trial Court wrongly held, on finding that the relevant averments in the affidavit in support of appellant's originating summons have taken him outside the purview of Section 87(4) and (9) of the Electoral Act 2010 as amended, rightly concludes that the appellant, not being an "ASPIRANT" in the primary elections he challenges, lacks the locus standi to pursue the reliefs he seeks by the instant suit. In failing to place his case within the context of the enabling law his suit is not, therefore, justiciable. In Daniel V. INEC (2015) 9 NWLR (Pt 1463) 113 at 148, 155 this Court particularly held thus:-
"...lt amounts to inverse reasoning for a party who says he scored the highest number of votes in a primary election, he says he never participated in to expect a Court to consider his claims after he has taken such a stance... The stance taken by the appellant makes further consideration of his claims a worthless exercise... No reasonable Court can do anything to assist such a slippery claimant. Refer to Ajide V. Kelani (1985) 3 NWLR (Pt 12) 248."
The foregoing decision and numerous others still bind not only the lower Court but this Court as well." Per MUHAMMAD, J.S.C. (Pp. 28-33, Paras. A-F).
ELECTORAL MATTERS - POLITICAL PARTY PRIMARY: Who can institute an action in court to complain about the conduct of a party's primaries
"The appellant's complaint relates to the primary election conducted by his party (PDP) on 8th December 2014 to select its candidate for the Governorship Election of Enugu State in the 2015 general elections, in which the 4th respondent was returned as the winner. He contends that his claim falls within the purview of Section 87 (9) of the Electoral Act 2010, as amended.
This Court has held in several cases that ordinarily, matters relating to the selection and nomination of candidates for an election are within the sole preserve of the political party and the Courts have no jurisdiction to look into any complaint arising thereform. See: Onuoha vs Okafor (1983) SCNLR 244: Dalhatu VS Turaki (2003) 15 NWLR (Pt. 843) 310; Agi vs P.D.P (2017) 17 NWLR (Pt.1595) 386. However, Section 87 (9) of the Electoral Act 2010, as amended gives the Courts very limited jurisdiction to ensure that in the selection or nomination process, political parties do not act arbitrarily but within the confines of their Constitution and Electoral Guidelines and in accordance with the provisions of the Electoral Act.
Section 87 (9) of the Act provides a window for an aspirant who complains that any of the provisions of the electoral Act or his party's guidelines have not been complied with in the selection or nomination of the party's candidate for the election, to ventilate his grievance before the Federal High Court, a State High Court or the High Court of the FCT. Not only must his complaint relate to non-compliance with the Act or his party's Guidelines, he must also bring himself within the purview of the sub-section by showing that he was an aspirant in the election complained of.
Who is an aspirant? An aspirant is a person who contested the primary election of his party. He must be someone who actually participated in the primary election he is challenging. See: P.D.P Vs Sylva (2012) 13 NWLR (Pt.1316) 85 @ 126 A-E; Lado vs. C.P.C (2011) 18 NWLR (Pt.1279) 689: Shinkafi vs. Yari (2016) 7 NWLR (Pt.1511) 340. What is more, the primary election he is complaining about must have been conducted by the National Executive Committee or National Working Committee of the party. See: Emenike vs P.D.P & Ors (2012) 12 NWLR (Pt.279) 689: NWLR (Pt. 1448) 123 @ 198 A-H.
By his own showing, the appellant did not participate in the primary election conducted by the King Asara A. Asara Election Committee set up by the 1st respondent. He was adamant that the election conducted using ad- hoc list of delegates sanctioned by the Federal High Court in suit No. FHC/ABJ/C5/816/2014, Barr. Orji Chineye. Godwin 2 Ors v.P.D.P & 4 Ors. was the authentic election.
The resolution of this matter is quite straightforward. Having not participated in the primary election conducted by HRH King Asara A. Asara Electoral Panel, mandated by the 1st and 2nd respondents to conduct the primary election, the appellant failed to bring himself within the purview of Section 87 (9) of the Electoral Act. He was not an aspirant in the primary election from which the 4th respondent emerged. He therefore lacked the locus standi to institute the action." Per KEKERE-EKUN, J.S.C. (Pp. 37-39, Paras. A-E).
COURT - COMPETENCE OF COURT: When is a court deemed to be competent
"A Court is competent to adjudicate in a cause or matter in the following circumstances:
"1. When it is properly constituted as regards numbers and qualifications of the members of the Bench, and no member is disqualified for one reason or another;
And
2. the subject matter of the case is within its jurisdiction, and there is no feature of the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity, no matter how well conducted: the defect is extrinsic to the adjudication."
These are the immortal words of Bairamian, JSC in the well known and oft-cited case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 341. See also Skenconsult (Nig) Ltd VS Ukey (1981) SC 6 @ 62: Inakoju VS Adeleke (2007) 4 NWLR (Pt.1025) 427@ 588 F; N.N.P.C VS Clifco Nig (2011) 4 SC (Pt.1) 108.
One of the features of a case that might affect the jurisdiction of the Court is the competence of the claimant to institute the action in the first place. The legal capacity or standing of a party to institute on action in a Court of law is what is known as locus standi. The term was explained in Egolum vs Obasanjo (1999) 7 NWLR (Pt.611) 355 @ 410 F-G thus:
"it is trite that the locus standi of a plaintiff or petitioner is a crucial matter touching on the competence and the jurisdiction of the Court to adjudicate on the suit, or petition, or application before it. It is a fundamental jurisdictional question that can be raised at any time during the trial as a preliminary issue or even raised for the first time on appeal."
At page 386 A-B (supra), Ogundare JSC referred to the statement of Ademola, CJN in Lawal Vs Younan & Sons & co. Ltd (1961) 1 ALL NLR 254 0 253, to wit:
"we think it is settled that competency to Institute an action is an essential or indeed a vital factor in deciding the competency of the action itself, and if challenged by a defendant, the plaintiff has the onus of establishing it."
Thus the locus standi of the appellant to institute the action is crucial in determining whether the Court was clothed with the necessary jurisdiction to entertain it." Per KEKERE-EKUN, J.S.C. (Pp. 35-37, Paras. A-A).
ACTION - LOCUS STANDI: What the Court considers in determining whether a plaintiff has locus standi
"Again, where a plaintiff's locus standi to maintain an action is challenged, it is the plaintiff's claim that determines the objection. If, however, the action is commenced by an originating summons it is the averments in the affidavit in support alone that is examined in determining whether or not the Court is competent to proceed. See lzenkwe V. Nnadozie 14 W.A.C.A. 351 at 353, Adeyemi v. Opeyori (1976) 9-10 5C 31 at 51 and Tukur V. Government of Gongola State (1989) LPELR-3272 (SC)." Per MUHAMMAD, J.S.C. (Pp. 22-23, Paras. F-B).
APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: Effect of failure to obtain leave of Court to appeal where same is required
"It is indeed trite that where an appellant requires leave of Court to file his grounds of appeal but does so without having obtained the leave of Court such grounds, unless they are grounds challenging the jurisdiction of the Court against which judgment the appeal is brought, being incompetent must be discountenanced. Incompetent grounds of appeal, I further agree with learned senior counsel Chief Wole Olanipekun for the 4th respondent, cannot give rise to competent issue. See Nalsa and Team Associates V. NNPC (1991) 8 NWLR (Pt 212) 652, Olanrewaju V. Ogunleye (1997) 2 NWLR (Pt 485) 12 and Organ and ors V. N.L.N.G. Ltd and anor (2013) LPELR-20942 (SC)." Per MUHAMMAD, J.S.C. (P. 14, Paras. A-D).
OTHER AUTHORITIES
DAVID v. CP, PLATEAU STATE COMMAND (2018) LPELR-44911(SC)
Applicable Area: Criminal Law and Procedure
Decision/Held: Appeal Dismissed
RATIO DECIDENDI
CRIMINAL LAW AND PROCEDURE - DEFENCE OF SELF-DEFENCE: Conditions that must be established for a successful plea of self defence
"The learned trial Judge had correctly espoused the law on self-defence, relying on the authorities of OMOREGIE v. THE STATE (2008) 12 S.C.N.J. 723 at 741, and UWAEKWEGHINYA v. THE STATE (2005) 9 N.W.L.R. (Pt. 930) 227 at 230, to the effect that the accused person pleading self-defence must himself be free from blame in bringing the encounter, and that for the defence to avail him:
a. There must be present an impending peril to life or of great bodily harm, real or so apparent, as to create honest belief of an existing necessity.
b. There must be no safe or reasonable mode of escape by retreat; and
c. There must have been a necessity for taking life.
One piece of evidence that stands resolutely stubborn against the Appellant's plea of self-defence in this case is the fact that he seized from the deceased, his assailant, the offensive weapon, the iron pipe. Having disarmed the deceased, the Appellant had thus removed from the deceased, his attacker, "the present impending peril to his life or of great bodily harm." For the defence of the right to self-defence to avail the accused and exclude his criminal responsibility, there must be evidence showing that the accused at the material moment was faced with imminent apprehension of death or grievous hurt from the attacker: UWAGBOE v. THE STATE (2008) 12 N.W.L.R. (Pt. 1102) 621 at 639; ADEYEYE v. THE STATE (2013) 11 N.W.L.R. (Pt. 1364) 47 at 70. In the instant case, the Appellant was not the aggressor, unlike the accused person in UWAGBOE v. STATE (supra). The fact that the Appellant had effectively disarmed the attacker, who also was the aggressor, would deny him the benefit of the plea of the right of self-defence. This fact escaped the Appellant's Counsel. The material fact, contrary to the forceful submission of the Appellant's Counsel, is not whether the Appellant had an opportunity to escape, which route of escape was allegedly blocked by the deceased attacker. The issue, rather, is: whether the Appellant having disarmed his attacker was still at the moment exposed to any present or impending peril to his life or grevious bodily harm? This is a question of fact. The concurrent findings of fact by the trial Court and the lower Court are not in any way perverse to warrant this Court's interference with them. The principle of law on this is quite explicit and reasonable. The defence of self-defence does not avail a person who killed his attacker after successfully disarming the attacker since that person's life was no longer in danger: OKORO AMEH v. THE QUEEN (1958) S.C.N.L.R.33 at 34.
The factual circumstance of this case does not warrant the Appellant's plea of self-defence, a statutory defence under Section 59 the Penal Code entitling the accused person to acquittal.
Accordingly, I hereby resolve this issue against the Appellant. The lower Court, therefore, was right in affirming the trial Court's finding that the Appellant did not establish the statutory right of self-defence." Per EKO, J.S.C. (Pp. 5-7, Paras. A-D).
CRIMINAL LAW AND PROCEDURE - CONVICTION: Whether a conviction under a wrong law will be deemed fatal
"Issue 2, in actuality, is a complaint that the lower Court had erroneously imposed the life sentence on the Appellant under Section 222(1) of the Penal Code, instead of Section 224 of the same Penal Code. Section 222(1) of the Penal Code, as correctly submitted by the Appellant's Counsel, "has nothing to do with sentencing but provides for situations when culpable homicide is not punishable with death such as provocation, mistake or accident." Section 224 of the Penal Code, on the other hand, provides the penalty or punishment for the offence created by Section 221(1) of the Penal Code. For clarity, I hereby reproduce the two provisions, to wit:
222.(1) Culpable homicide is not punishable with death if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
224. Whoever commits culpable homicide not punishable with death shall be punished with imprisonment for life or for any less term or with fine or both.
There is no doubt whatsoever that the Appellant was sentenced under the definition section (i.e. Section 222(1) of the Penal Code for the offence of culpable homicide not punishable with death. The appropriate provision of the Penal Code prescribing punishment for the offence created by Section 222(1) of the Penal Code is Section 224 thereof. Mr. Shaseet of Counsel for the Respondent, conceding that although the lower Court sentenced the Appellant under a wrong provision of the Penal Code, submits that the error would not render the sentence imposed, upon the exercise of the Court's discretion, a nullity; the Appellant having not proved the injustice he had suffered by that error. The Appellant, submits in response, that the lower Court in sentencing the Appellant under a wrong provision of the Penal Code, "simply connotes that (it) did not know or failed to avert its mind to the exact Section of the law applicable and consequently the Court is not aware of the discretion provided by law."
Now, apart from merely "standing on the pedestal of technicality to knock justice on its face" what miscarriage of justice has the Appellant suffered by the mere fact that the Appellant was sentenced under Section 222(1) of the Penal Code instead of Section 224 of the same Penal Code for the offence created by Section 222(1) of the Penal Code? The same Appellant has, in paragraph 6.06 of his Brief, urged us, my Lords, to-
set aside the sentence of the Appellant to life imprisonment under Section 222(1) of the Penal Code and in its place sentence the Appellant under Section 224 of the Penal Code -
This is a clear admission that the error of the lower Court stating that the sentence was under Section 222(1) of the Penal Code, instead of Section 224 of the same Penal Code, was an innocous slip that has actually not occasioned any miscarriage of justice to the Appellant.
In OGBOMOR v. THE STATE (1985) 1 N.S.C.C. 224 this Court made it clear that a mere misdescription of the law under which charge has been brought does not necessarily render the offence charged one not known to the law at the time of its commission; and that as long as the charge discloses an offence in a written law and such law exists at the time of the commission or omission of the act alleged in the charge to be an offence such information, though merely defective, is valid. Only recently OKORO, JSC, in BONIFACE ADONIKE v. THE STATE (2015) L.P.E.L.R - 24281 (S.C) page 22, in the same refrain, had stated that a conviction under a wrong law is not fatal if there is a provision under the law on which the conviction can stand unless the Appellant establishes that he was infact misled by such error or that a miscarriage of justice has been occasioned by the reason of some error. Such error, it is settled, cannot be held to fundamentally vitiate the judicial act.
Equity, it is said, looks at the substance and not the form.
It needs only be stressed that not every error committed in a case by the lower Court will result in the appeal being allowed.
Only such error(s) that occasion miscarriage of justice, which are regarded as fundamental will be the basis of disturbing the decision appealed: OJENGBEDE v. ESAN (2001) 18 N.W.L.R. (Pt. 746) 771 (S.C). Buoyed by these authorities I will, and do hereby invoke Section 168(1) of the Evidence Act, 2011 to presume the validity of the sentence imposed on the Appellant, the decision appealed having been done in a manner substantially regular.
Issue 2 is hereby resolved against the Appellant. The lower Court clearly had convicted the Appellant under Section 222(1) of the Penal Code and had intended to sentence the Appellant for that offence under the existing provisions of Section 224 of the same Penal Code." Per EKO, J.S.C. (Pp. 7-11, Paras. D-E).
CRIMINAL LAW AND PROCEDURE - SENTENCING: Circumstances under which an appellate Court will not interfere with the sentence imposed by the trial Court
"The sentence imposed on the Appellant for the offence under Section 222(1) of the Penal Code is life imprisonment.
The Penal Code, in Section 224 thereof, gives the Court the discretion to punish the Appellant "with imprisonment for life or for any less term or with fine or with both."
Section 224 of the Penal Code has thus given the Court, upon convicting an accused person for an offence under Section 222 of the Penal Code the liberty to impose one of the four options provided in Section 224 of the Penal Code.
Provocation under Section 222(1) of the Penal Code mitigates the rather serious or harsh punishment for culpable homicide punishable under Section 221 of the same Penal Code. It is not totally exculpatory unlike the defence of the right to self-defence under Section 59 of the Penal Code.
The maximum sentence the Court can impose on the convict upon conviction for culpable homicide not punishable with death under Section 224 of the Penal Code is life imprisonment. It connotes, or implies that the prisoner so sentenced shall remain in custodial imprisonment for life, though the prisoner may become eligible for release on good behaviour, rehabilitation, or the like - Black's Law Dictionary 9th Ed.
Under this issue 3, it is not the contention of the Appellant that the life imprisonment he was sentenced to serve is excessive. That is not his case, and it could not have been also, because excessive sentence connotes that the Court had imposed a sentence more than, or in excess of the term allowed by law. If it is ultra vires the sentencing power of the Court.
The Appellant, from the manner the issue is couched or phrased, seems to suggest that the sentence he was ordered to suffer or undergo is "too harsh, given the options provided by Section 224 of the Penal Code." The word "harsh," shorn of the prefix too (an adverb), is an adjective meaning or conveying the meaning of the sentence being cruel, severe and unkind. It is also suggestive of the feeling that the sentence is severe, unfeeling, brutal etc: Geddes & Grosset - English Thesarus.
Both Counsel, M/S Okoro and Shaseet, respectively for the Appellant and the Respondent, are idem that Section 224 of the Penal Code gives the lower Court some discretion in the sentence to impose. They are also idem that this Court can only vary the exercise of the discretion by the lower Court if it is shown as my Lord, Rhodes-Vivour, JSC, stated in OGUNSANYA v. THE STATE (2011) 12 N.W.L.R. (Pt. 1261) 401 at 438:
An appellate Court is always reluctant to interfere with the way a trial Judge exercised his discretion but would be compelled to do so if -
a. the discretion was wrongly exercised;
b. the exercise of the discretion was tainted with some illegality or substantial irregularity;
c. there is miscarriage of justice, or
d. it is in the interest of justice to interfere.
It behoves the Appellant, complaining that the discretion was wrongly exercised, to show or establish in what ways or manner the discretion exercised in his regard was wrongly exercised. It is not enough for him to loudly whine and whimper, and submit rather sentimentally that the ends of justice demand that the sentence of life imprisonment be reduced to a lesser term of imprisonment. This is a Court of law, and also of justice. It is trite that sentiments command no place in judicial deliberations: EZEUGO OHANYERE (1978) 6 S.C. 17; MOHAMMED IDRISU v. MODUPE OBAFEMI (2004) 11 N.W.L.R. (Pt. 884) 396 at 409. Fabiyi, JSC said it all in STATE v. JOHN (2013) L.P.E.L.R. that "a judex should avoid sentimental adjudication" and must call a spade a spade.
On this note, without the Appellant, showing in what respects the lower Court had wrongly exercised its discretion when; upon finding that the Appellant ought to have been convicted for the offence under Section 222(1) of the Penal Code, punishable under Section 224 of the same Penal Code; and upon convicting the Appellant for culpable homicide not punishable with death and setting aside the conviction for culpable homicide punishable with death and substituting therefore the sentence of life imprisonment, is asking us to further interfere with the discretion thus exercised in his favour.
The facts of OKORO AMEH v. THE QUEEN (supra) are almost on all fours with the facts of this case. In that case, this Court, upon finding that the defence of self-defence does not avail an accused person who vengefully killed his attacker, after disarming the attacker, with the same weapon seized from him (the attacker), affirmed the conviction and sentence imposed by the trial Court. The same scenario had played out in this case. The lower Court in this case, however convicted the Appellant for a lesser offence and thereafter reduced the sentence in its discretion exercised under Section 15 of the Court of Appeal Act, 2004 read together with Section 224 of the Penal Code. If any person should complain about the manner the lower Court exercised this discretion, it should not be the Appellant, but the Respondent, as the prosecutor.
The two principles regarding the exercise of discretion by the Courts, below which have been mentioned and applied in the appellate Courts in this realm, as formulated by Heward, LCJ, in SAMUEL v. GUMBS 19 C.A.R. 74 at 75, are:
1. That the appellate Court never interferes with the discretion of the Court below merely on the ground that the appellate might have passed a somewhat different sentence, and/or
2. For the appellate Court to interfere with sentence and revise it, there must be some error in principle.
Taylor, J cited with approval the above authority in I.G.P. v. AKANO & ORS (1957) W.N.L.R 103. These principles are very much now part of our jurisprudence. And I ask: what error in principle has this appellant laid before us in this appeal to warrant any interference with the sentence imposed on him by the lower Court in exercise of its discretion? None!
This issue is accordingly resolved against the Appellant."Per EKO, J.S.C. (Pp. 11-16, Paras. E-F).
ANAGBADO v. FARUK (2018) LPELR-44909(SC)
Applicable Area: Land Law
Decision/Held: Appeal Dismissed
RATIO DECIDENDI
EVIDENCE - DOCUMENTARY EVIDENCE: Instances where documents will be admissible in law without certification
"...This brings me to the point raised by the appellant regarding the non certification of the documents which are photocopies or secondary evidence. As rightly found by the lower Court, looking at Exhibits P1, P3, and P5, it is not doubtful that they are documents made by the respondent. Exhibit P1 is a letter or application made by the respondent/plaintiff to the ministry, applying for the allocation of the plot in dispute, while Exhibit P3 represents the plaintiffs/respondent's letter dated 6/10/97 accepting the allocation of the said plot. Exhibit P5 is also an application authored by the plaintiff/respondent. These documents exhibited or tendered by the plaintiff/respondent, emanated from him. To my mind even though photocopies, they do not require any certification since they are not public documents requiring certification but are rather private documents which in law, do not require any certification since they are correspondences between the plaintiff/respondent and government officials or agencies. I must reiterate here that Exhibits P1, P3 and P5 constitute documents authored or written by the respondent and to my mind those exhibits are private documents by virtue of the provisions of Section 103 of the Evidence Act and therefore though photocopies, they do not require any certification. With regard to Exhibits P2, P4, P6 and P7 such document are surely public documents within the meaning or definition by Section 102(a) (1) and (2) of the Evidence Act, since they were original documents executed or made by public officers or public agency while carrying out official act. Such documents being public document do not also therefore require any certification. See PDP v INEC (2014)17 NWLR (pt.1437) 525 at 563; Invest Ltd Vs Witt & Bush Ltd (2011) 8 NWLR (pt. 1250) 500 at 527. It is my view that Exhibits P1 to P7 are admissible in law and the trial Court rightly admitted them in evidence and acted on them. The lower Court on the other hand also rightly affirmed the trial Court's admission of same and its finding on them." Per SANUSI, J.S.C. (Pp. 17-18, Paras. B-F).
EVIDENCE - DOCUMENTARY EVIDENCE: Whether an objection can be raised on appeal as to the admissibility of a document not objected to when tendered in evidence at the lower court
"The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, can not later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (pt.26) 97. The doctrine of estoppel by conduct is even applicable on that." Per SANUSI, J.S.C. (P. 16, Paras. D-F).
EVIDENCE - ADMISSIBILITY OF EVIDENCE: Whether evidence procured during the pendency or in anticipation of a case is admissible in law
"The law is trite, that evidence procured during the pendency or in anticipation of a case is not admissible in law. See Abdullahi vs Hashidu (1999) 4 NWLR (pt. 600) 638 at 645; Anyanwu vs Uzowuaka (2009)13 NWLR (pt.1159) 445 at 476." Per SANUSI, J.S.C. (P. 20, Paras. E-G).
LAND LAW - IDENTITY OF LAND: Whether proof of identity is required where the identity of the land in dispute is known to the parties
"The parties, themselves, know the portion of the land in dispute. In the circumstance, the identity of the disputed portion of land is not in dispute. The principle well established since BARUWA v. OGUNSHOLA (1938) 4 W.A.C.A 159, is that the onus is on the Plaintiff who seeks a declaration of title to land to show clearly the area of land to which his claim relates.
Where however, the parties themselves know the portion of land in dispute this principle does not strictly apply." Per EKO, J.S.C. (Pp. 30-31, Paras. F-B).
UMOR v. STATE (2018) LPELR-44934(CA)
Applicable Area: Criminal Law and Procedure
Decision/Held: Appeal Dismissed
RATIO DECIDENDI
CRIMINAL LAW AND PROCEDURE - DEFENCE/PLEA OF ALIBI: Duty on an accused person to raise the defence of alibi timeously
"The Appellant contended that he timorously raised a defence of alibi and that once that is done, the burden is on the prosecution to investigate and rebut the defence. This case was investigated and Exhibits A & C being statements obtained in evidence. However, there is no where the Appellant raised a defence of Alibi in either Exhibit A or C. It is a settled principle of law as handed down by the Supreme Court, that alibi as a defence should be raised at the earliest opportunity and that opportunity is in investigation room. This will enable the police to investigate the alibi. The police cannot investigate an alibi raised at the trial. It is too late, it is an afterthought. See Ndidi v State (2007) ALL FWLR (pt 381) 1617 at 1647 Paras E-F; Ebenehi v State (2009) ALL FWLR (pt 486) 1625 at 1833 Paras C-E. An Alibi defence is a defence which is aimed at persuading the Court that the accused person could not possibly be at the scene of the crime as he was somewhere else. Most probably there were people who could testify that the time the alleged crime and the date of the crime too, he was not at the scene of crime in raising the defence of Alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi to enable the police to check the details. Failure to do same weakens the defence. See Sowemimo v. State (2004) 11 NWLR (PT. 885) 575, Nsofor v. State (2007) 10 NWLR (PT. 775) 274. The Appellant in this case did not furnish any details to substantiate his defence of alibi. Consequently, the defence of alibi does not avail him." Per ELECHI, J.C.A. (Pp. 24-26, Paras. F-A).
CRIMINAL LAW AND PROCEDURE - IDENTIFICATION PARADE: Circumstances where an identification parade will not be necessary
"It is trite that where there is a clear evidence linking the Appellant with the offence alleged, it will not be necessary to carry out an identification parade whether or not the Appellant was arrested at the scene of crime or not. See Emmanuel Ugbunba v. The State (1993) 6 SCNJ 217. Consequently as a rule, an identification parade is not a sine qua non for identification of suspects in every case where there has been a fleeting encounter with the victim of the crime, if there is any other piece of evidence leading overwhelmingly to the identity of the perpetrator of the crime. See Jonathan Igbi & Anor v. The State (2000) 2 SCNJ 63." Per ELECHI, J.C.A. (Pp. 27-28, Paras. F-C).
CRIMINAL LAW AND PROCEDURE - OFFENCE OF ARMED ROBBERY: Whether a person charged with the offence of armed robbery must be armed
"Learned Appellant counsel had submitted that there was no evidence that the Appellant was armed. Be it so or not, it is however not necessary that the person charged with robbery be armed with any Firearm or any offensive weapon himself. Once it is observed that the Appellant was found to be in company of any person who is so armed when the offence was committed, it will suffice to find him guilty of the offence of armed robbery. See Section 1 of the Robbery and Fi****ms (Special Provisions) Act Cap 11 Laws of the Federation of Nigeria 2004, Osung v State (2012) ALL FWLR (pt 650) 1226 at 1245." Per ELECHI, J.C.A. (P. 23, Paras. A-C).
AJAYI & ORS v. AKAWA & ANOR (2018) LPELR-44933(CA)
Applicable Area: Land Law
Decision/Held: Appeal Dismissed
RATIO DECIDENDI
EVIDENCE - PROOF OF TITLE TO LAND: Ways by which ownership/title to land may be proved; whether a plaintiff needs to prove all the five ways
"It is already an age principle of law that there are different ways of proving title to land and among the ways are the following five legally accepted
1. Proof by traditional evidence
2. Proof by production of document of title duly authenticated, unless they are documents twenty or more years old produced from proper custody.
3. Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion there of extending over a sufficient length of time numerous and positive enough to warrant the interference that the person exercising such property acts are the tune owners of the land.
4. Proof by ownership by acts of long possession and enjoyment in respect of the land to which the acts are done.
5. Proof of possession of connected or adjacent lands would in addition be the owner of the land in dispute. See IDUNDUN V OKUMAGBA (1976) 9-10 SC 227
The law is that the establishment of one of the ways is sufficient proof of ownership. See NKADO V OBIANO (91997) 5 NWLR (pt 503)31." Per ELECHI, J.C.A. (Pp. 17-18, Paras. D-C).
EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required of a person relying on evidence of traditional history in an action for declaration of title to land
"It is settled law that where evidence of tradition is relied upon, in proof of declaration of title to land as in the instant case, the claimant in order to succeed must plead and establish the following facts
(a) Who founded the land
(b) How he founded it and
(c) The particulars of the intervening owners through whom he claims down to him. See ANYAFULU V MEKA (2014) 7 NWLR(pt 1406) 396 at 418." Per ELECHI, J.C.A. (P. 18, Paras. D-F).
APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: When an appellate court will not disturb an award of damages made by a lower court
"On the quantum damages, the Court of Appeal will not generally alter an award of damages unless it is established that the trial judge proceeded on a wrong principle of law or that the award was wrongly manifestly too large or too simple. See BHOJSONS PLC V DANIEL KALIO (2006) ALL FWLR (PT 312) 2038-2064, GARI V SEIRAFINA NIG LTD (2008) 2 NWLR (PT 1070)20.
It is trite that damages follow upon a breach of a right or invasion of same. In this case, it is the commando-like invasion of the Appellants according to learned Respondents counsel on their farmland and the destruction of their farm crops and properties on the land in dispute. Even the Appellants have not complained that the award is either too high or very low. The crux of their complain is that the lower Court ought not to have awarded same in view of the insufficient evidence on record. This to my mind is not enough attack on the damages so awarded nor does the authority of authority of LAWSON V AJIBULU (supra) cited by the Appellant help his case. What I am saying therefore is that there is nothing in this case as per the Appellants argument that the damages so awarded are excessive.
I therefore do not find any reason to tamper with the award on damages. See IJEBU-ODE L.G. V. BALOGUN & CO LTD (1991) NWLR(PT 156) 136, ODUWOLE V WEST(2010) 5 SCNJ 97 at 108, KAYDEE VENTURES LTD V MIN. FCT (2010) 7 NWLR (PT 1192)171 at 205 at 212-214 the Supreme Court per Muhammad JSC held
"it is trite law, that an Appellte Court shall not disturb the award of damages by the trial Court. The award of damages can only be altered by an Appellte Court when the award is shown to be either manifestly too high or manifestly too low or was made on a wrong principle of law that the Appellant Court is convinced that the award is made as an entire erroneously estimate." Per ELECHI, J.C.A. (Pp. 29-30, Paras. A-D).
