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Tag: Court

  • Court adjourns APC member’s suit

    The Federal High Court in Lagos will on November 20 hear a motion for substituted service in a suit by an All Progressives Congress (APC) member Mr Bamidele Avoseh against the party.

    The plaintiff is praying the court to nullify the party’s state congress held in May for allegedly being irregular.

    The APC, Mr Joseph Ayodeji, Mr Tayo Sanyaolu, Hon. Tunde Balogun, Chairman APC Lagos, APC National Chairman and the Independent National Electoral Commission (INEC) are the respondents.

    Earlier, Avoseh’s lawyer Mr Omoniyi Aruwayo, had sought to move his motion ex-parte, but Justice James Tsoho directed that the defendants be put on notice, adding that it would be tidier to do so before it is moved.

    At the resumed hearing, the lawyer said he was unable to serve Sanyaolu and Chairman of APC in Lagos, alleging they evaded service.

    Aruwayo, therefore, sought to serve them by alternative means, such as by pasting the suit on the walls of their offices or publishing it in a newspaper.

    The plaintiff is seeking a declaration that the alleged refusal to submit his name as a delegate duly listed to contest the state Delegates’ Congress was contrary to the Electoral Act.

    In a supporting affidavit, Avoseh said the APC guidelines required the state congress committee to display the names of candidates vying for party positions in wards, local government and state congresses.

    He said that the committee was to announce aspirants’ names within 48 hours before the election, and forward them to INEC, informing it of the congress venue.

    The plaintiff said his name and those of four others were listed as state congress aspirants from Apapa Ward C on a harmonised list, signed by Ayodeji, the council chairman.

    Avoseh said Sanyaolu was listed as an aspirant for the Local Government Area (LGA) Election in Apapa Ward C

    According to the plaintiff, on April 25, the list of all Wards in Apapa LGA was published and delegates’ tags released to aspirants, but Apapa Ward’s list was missing.

    The delegates’ tags, he said, were not given to him and others who were listed on the harmonised ward list, and so he was not allowed into the APC state’s secretariat, venue of the congress on April 26, on the basis that he was not accredited.

    Avoseh said Sanyaolu was then hand-picked as an aspirant for the state congress election without vying for the position, and was eventually elected APC youth leader.

    The plaintiff is, therefore, seeking a declaration that the non-accreditation of aspirants and the exclusion of his name is unconstitutional, and constituted an affront on due electoral process.

    He is seeking an order nullifying results of the APC local government and state congresses for irregularities, and for not complying with electoral guidelines.

  • Appeal Court to computerise operations

    The Court of Appeal is set to modernise its operations by introducing electronic filing and more use of technology.

    Its President, Justice Zainab Bulkachuwa led a team on a visit to Australia to study how they apply technology in their courts.

    The choice of Australia, it was learnt, was because the country operates a hybrid judicial system which copies the United States and the United Kingdom.

    The team visited the Federal Family Court of Australia to see its e-filing system, and was received by the court’s Chief Justice, Diana Bryant.

    It is believed the e-filing, when functional, will transform the Court of Appeal from a paper-based system to an electronic one, where interactions can occur via internet or automated voice-responseS.

    It was learnt that when the technology is deployed, lawyers can file cases through their computers or tablets, get hearing dates, receive notices, access cases electronically, track cases and recall decided cases. It could also help reduce conflicting judgments.

    An information technology expert, Adegbenro Alao, who was a part of the visit, said: “We are confident that the PCA is on the right path to modernise legal administration in Nigeria and hopefully her vision will be appreciated by generations to come.”

    It was learnt that the e-filing will be based on the online electronic filing system developed for the appellate courts, and the pilot project will begin in the Lagos Division.

    However, analysts say poor power supply, erratic internet services and computer illiteracy of some lawyers, justices and judicial personnel may work against the project.

    Still, others believe application of technology in court processes will speed up cases’ adjudication. Mrs Mrs Funke Adekoya (SAN), said: “This is something that is being practiced all over the world, so it is not entirely new. If we say Nigeria is the giant of Africa, we should demonstrate that in all ramifications.

    “For those countries that have adopted it, it often makes judicial process easier and faster for them, so we stand to benefit a lot from it. I think Nigerian judicial system is ready for it.”

     

  • Court rules on ex-Transcorp directors’ trial tomorrow

    The Federal High Court sitting in Abuja will tomorrow rule on a no-case submission made by a former Group Managing Director of Transnational Corporation (Transcorp) Plc Mr Thomas Iseghohi and two others.

    The Economic and Financial Crimes Commission (EFCC) arraigned him, the former Company Secretary Mohammed Buba and Deputy General Manager Mike Okoli in 2009.

    They were tried on 32-count charge of fraud and money laundering in connection with the botched acquisition of Nigeria Telecommunications (NITEL) by Transcorp.

    The prosecution opened its case on January 23 last year. Trial began before Justice D.U Okorowo before it was transferred to Justice Evoh Chukwu.

    The first prosecution witness (PW1) was Helen Iwuchukwu, now Company Secretary and former Legal Adviser, Department of Shared Services and Strategic Partnership of Transcorp when the alleged crime was committed.

    She testified that her job was to review and draw up commercial contracts. She said the Department of State Security Services (DSS) collected all the contracts in her possession for investigation.

    When asked on cross examination if she could tell the court how the accused persons transferred N15 billion to three companies, she said she was not in a position to know.

    She also stated that she knew nothing about a company or any contract drawn for Global Employment Solutions Incorporated (GESI) as alleged in counts three and four of the charge.

    Five other witnesses testified for the prosecution, with PW4, who was in charge of audit and finance, saying he did not trace any money to the accused persons.

    The prosecution could not secure the attendance of former Transcorp chairman Mrs Ndi Okereke Onyuike to testify despite adjournments.

    The fifth prosecution witness, Aminueem Mohammed, an EFCC operative, said he investigated the case but added under cross examination that the commission did not receive any petition from Transcorp and NITEL against the accused persons, nor did they complain about missing funds.

    EFCC, on May 22, closed its case, but the defendants’ lawyers believe the prosecution did not prove the allegations.

    Consequently, they filed a no-case submission, urging the court to dismiss the charge because it established no prima facie case against the defendants.

    According to them, the core ingredients of all the offences were not proved, adding that all the companies named in the charge have no link to the accused persons.

  • Lawyers ask Rights’ Commission to probe attacks on Ekiti court, others

    Lawyers ask Rights’ Commission to probe attacks on Ekiti court, others

    Some lawyers involved in the suit challenging the eligibility of Ekiti State’s Governor-elect, Mr. Ayo Fasose, have petitioned the National Human Rights Commission   (NHRC).

    They accused Fayose and his party, the People’s Democratic Party (PDP), of threatening their lives and violating their rights to practice their profession.

    The lawyers, Norrison Quakers (SAN) and M.J. Onigbanjo (SAN), in a petition addressed to NHRC’s Executive Secretary, Prof. Bem Angwe, dated September 29, accused the PDP of organising the thugs that invaded the Ekiti High Court premises on September 22.

    The petitioners said the thugs attacked Justice Olusegun Ogunyemi, the claimants, lawyers, judiciary workers and others in court.

    The petition reads: “We write to report to your office and formally bring to your attention the barbaric and barefaced violation of the constitutionally guaranteed rights of the claimants (litigants), claimants’ counsel, the judge and other officers of the court by thugs who were organised by the PDP on the September 22, 2014 and invaded the Ekiti State High Court, particularly Honourable Justice Olusegun Ogunyemi’s courtroom.

    “The claimants, having instituted a suit challenging the eligibility of Mr. Peter Ayodele Fayose to contest the June 21, 2014 Ekiti gubernatorial election were in court on the said September 22, 2014.

    “On the said date, the claimants were represented in court, the 1st to 3rd defendants, the 4th defendants, the second defendants were all represented , while a handful of Fayose’s supporters, who were sporting Fayose branded shirts, were hanging outside the courtroom, which was full by the corridor.

    “The court, in delivering its ruling, held that it has jurisdiction to hear and determine the substantive matter before it, as striking out the names of the 2nd claimant and 2nd defendant for being non-juristic persons did not affect the substantive suit before the court.

    “The court thereafter stood down the matter till 12p.m for ruling on the application of the 1st and 3rd defendants. After the court rise, Owoseni Ajayi met with the supporters and explained to them what had transpired in court and the implications because shortly after, there were mumblings and arguments outside.

    “Sometime after 11a.m, the police and other security operatives told the gathering in the court premises to leave as they were growing in numbers. Around 11.30a.m, we heard voices from inside the courtroom and upon looking outside the window, we discovered that a light-skinned man wearing a white Yoruba traditional attire, whom we later learnt is one of Fayose’s right-hand men, led the crowd into the court premises and court room. Although the police initially resisted, however, the crowd under the leadership of the light-skinned man prevailed due to their large numbers.

    “Subsequently, the man and a part of his crowd marched into Justice Ogunyemi courtroom where they started to stir trouble by challenging the police officers on their partiality in allowing the claimants to sit in the courtroom and not the defendants. It was obvious that this group of people had another agenda, which subsequently unfolded. One of the litigants was dragged from his seat, assaulted and physically brutalised before forcefully dragging him on the floor out of the courtroom while police officers stood by helplessly.”

    The lawyers added that “in close sequence to coming into the courtroom, outside the window, we saw hoodlums in large numbers carrying cudgels, branches that were snapped off the tree in the court premises, metal objects and other instruments we could not ascertain at that point, they proceeded to harass and assault litigants in the court premises. The hoodlums later came back to the court where we were and were saying ‘awon APC na da’ (where are the APC supporters).

    “Owoseni Ajayi, the lawyer, who appeared for the 1st and 3rd defendants (PDP and Fayose), instructed the hoodlums not to assault any lawyer. He was also heard saying, ‘this kind of thing is bound to happen, you cannot expect the judge to deliver the kind of ruling he delivered and this breakdown will not happen. They are justified to react this way.’

    “We are therefore apprehensive for our safety and that of our legal team’s lives, the dignity of our human persons, our right to practice our profession and our clients’ rights as citizens of Nigeria to seek redress in the court of law. All the foregoing rights mentioned above were clearly violated by the instigated mob, whose objectives included ensuring that the court did not deliver its scheduled ruling at 12 noon and or conduct any other business thereafter and to bully, intimidate and instill fear in the court in an attempt to obstruct justice to the point where the court would be too apprehensive to subsequently hear the case prior to the swearing in of Fayose on the October 16, 2014.

    “Should this unfortunate display of desecration of the hallowed temple of justice, which is supposed to be the last hope of the common man be allowed to persist unprosecuted, we all would be recorded for posterity as the people who sat with arms folded while miscreants and hooligans took over and controlled the administration of justice and overall balance of the society.”

    The petitioners urged the NHRC to use its good office and wherewithal to investigate the matter, with a view to unearthing those behind “this shameful display of banditry and gross violation of human rights with a view to prosecuting and bringing them to justice.”

  • Open ballot system on trial at Appeal Court

    On August 28, 2013, the Appellant as Applicant by an originating motion on notice commenced a suit in the Federal High Court at Abakaliki against the Respondents applying for the enforcement of his fundamental right to privacy and praying for the following reliefs amongst others: (a) a declaration that the applicant and other voters in Ebonyi State are entitled to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered); (b) a declaration that the open ballot system of voting, that is queuing behind the candidate of your choice in the full glare of everybody constitutes a violation of the right of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered); (c) a declaration that Section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 violates the rights of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by Section 37 of the Constitution of Nigeria, 1999 (as altered) and as such, ineffectual; (d) a declaration that Section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 is inconsistent with section 52 (1) of Electoral Act, 2010 (as amended) and, as such, null and void; (e) an order of perpetual injunction restraining the 1st respondent from using open ballot system of voting to conduct the Local Government Election slated for the 28th September, 2013 or any other Local Government Election.

    The 1st, 2nd and 3rd Respondents filed a notice of preliminary objection to the application along with a written argument of same. They also filed a counter-affidavit in opposition of the application and a written argument opposing the application.  The Appellant filed an affidavit in reaction to the preliminary objection of the 1st 2nd and 3rd Respondents and a written argument of same. On the 20th September, 2013, the trial Court delivered its ruling upholding the preliminary objection and stating that it will not go into the substantive motion having upheld the said objection.  It dismissed the suit. Dissatisfied with this ruling, the Applicant filed an appeal at the Court of Appeal against the part of the ruling dismissing the application for not falling within the purview of Section 37 of the 1999 Constitution.

    The Appellant’s brief of argument raised the following issues for determination:

    Whether the court below was right when it held that the complaint of the applicant does not fall within the contemplation of Fundamental Rights and cannot be enforced through the Fundamental Rights Enforcement Procedure

    Whether the court below was right when it failed to apply the definitions of privacy and rights to privacy as given by Black’s Law Dictionary, 8th Edition and Supreme Court in the case of Medical and Dental Practitioner’s Disciplinary Tribunal V Dr John E. N. Okonkwo (2001) 5 NSCQR; 650 at 683 -685.

    Whether the court below was right when it held that the right to privacy contemplates only of “right to privacy at home, privacy of one’s communications, privacy in family life and other incidentals thereto” without seeing right to privacy while voting at an election as being incidental thereto.

    The Court adopted the issues as formulated by the Appellant in the determination of the appeal.

    The central argument of Learned Counsel for the Appellant in respect of the case brought by the Appellant is that, compelling an individual to disclose who he/she votes for in an election, by queuing publicly behind the person, violates the individual’s right to privacy under Section 37 of the 1999 Constitution and also exposes him or her to the danger of being attacked by political thugs and that it was this situation that led to the deaths and destructions that characterized the PDP primaries in Ebonyi State that was conducted via open ballot system, as those who saw that they were losing caused confusion with ensuring shootings leading to death and destructions. Learned Counsel further argued that the trial Court was wrong to have held that the Appellant’s complain does not come within the ambit of Section 37 of the 1999 Constitution as the right to privacy in that section contemplates only “right to privacy at home, privacy of one’s communication, privacy in private family life and matters incidental thereto.” According to Learned Counsel, this interpretation by the trial Court is over restrictive and dry, and that the fact that the Constitution did not expressly mention the right to privacy while casting vote in an election does not mean that the right to privacy provided for in Section 37 of the 1999 Constitution does not extend to privacy while casting vote in an election. Learned Counsel for the Appellant finally submitted that compelling people to vote by queuing behind the candidate of their choice is archaic, primitive and risky, that it is noteworthy that this is being practiced only in Ebonyi State, that majority of the voters who do not want to vote openly, stay away from voting and that the 1st Respondent unless judicially restrained, will continue to use this method.

    The Learned Attorney General for the 1st, 2nd and 3rd Respondents argued relying on the decisions in UNILORIN VS. OLUWADARE (2006) 27 NSCQR 18; (2006) LPELR-3417(SC), AMALE VS. SOKOTO LOCAL GOVERNMENT (2012) 492 NSCQR 1271; (2012) LPELR-7842(SC), and ABDULHAMID VS. AKAR (2006) ALL FWLR (PT 324) 1191 AT 1209 that the rights that can be enforced via the Fundamental Rights Enforcement Procedure Rules must be the rights contained in Chapter IV of the Constitution and that an application can be brought under those Rules only where the principal claim is one for the enforcement of the fundamental rights in the said Chapter IV of the Constitution and not where it is incidental or ancillary to a right not enforceable by those Rules. He then submitted that an application brought under the Fundamental Right Enforcement Procedure Rules to enforce a right not contained in Chapter IV of the Constitution is not initiated in accordance with the due process of law. The Learned Attorney General then submitted that the Appellant’s main grouse is against the mode of voting in the 2013 Ebonyi Local Government Elections, that the other complains are ancillary to the challenge of the validity of Section 5(1) of the Ebonyi State Independent Electoral Law and that he is unable to see where Section 5 (1) of the said Law which provides for mode of voting is inconsistent with Section 37 of the Constitution. The Learned Attorney General further argued that the right to vote and the mode of voting in secret is not a fundamental right provided in Chapter IV of the Constitution.

    In determining the appeal, the Court interpreted the phrase “privacy of citizens” generally, liberally, and expansively to include privacy of citizens’ body, life, person, thought, belief, conscience, feelings, views, decisions (including his plans and choices), desires, health, relationships, character, material possessions, family life, activities et cetera. Therefore the Court held that privacy of the choice of a candidate and the privacy of voting for that candidate constitute part of “privacy” as a citizen. The Court held that the Appellant was entitled to the privacy of his decision to vote for a particular candidate, his choice of that candidate and his casting his vote for that candidate. Therefore requiring or compelling him to vote openly in the public watch and knowledge by queuing in front of the poster carrying the portrait of the candidate he has decided to vote for intrudes into, interferes with, and invades the privacy of his said decision, choice and voting, completely removing that privacy, therefore amounting to a clear violation of his fundamental right to the privacy of a citizen guaranteed him and protected by Section 37 of the 1999 Constitution.

    The Court further held that Section 5 (1) of and paragraph 21 (2) to (5) of the 1st schedule of the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 which provide for voting by open ballot system by requiring a voter to vote for a candidate by queuing in front of the poster bearing the portrait of the said candidate in the full public view, deprives the Appellant the right to privacy of his decision to vote for a candidate and his vote for that candidate and is therefore inconsistent with Section 37 of the 1999 Constitution. In the light of the foregoing, the Court held that Section 5 (1) and paragraph 21 (2), (3), (4) and (5) of the 1st schedule to the Ebonyi State Electoral (Amendment) Law 2010 and all provisions therein providing for voting by open ballot are void ab initio for being inconsistent with Section 37 of the 1999 Constitution and for not complying with Section 45 (1) of the same Constitution.

    On the whole, the Court held that the appeal succeeds and it was allowed. The part of the ruling of the Federal High Court sitting at Abakaliki, per M.A. Oyetenu J. in suit No.FHC/AI/CS/38/2013 delivered on 20th September, 2013 upholding the 1st, 2nd and 3rd Respondents’ preliminary objection and dismissing the Appellant’s suit was set aside.

     

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23682(CA)

     

  • CONTEMPT OF COURT THREAT: NFF can’t confirm receipt of court injunction

    CONTEMPT OF COURT THREAT: NFF can’t confirm receipt of court injunction

    Nigeria Football Federation (NFF) General Secretary Musa Amadu has told NationSport in Abuja that he is currently on leave in America and cannot confirm that the secretariat was served a court order prohibiting Saturday’s NFF Congress which held in Warri.

    On Friday, a Federal High Court in Jos issued an injunction ordering the FIFA-recognised Aminu Maigari-led NFF not to hold the congress on Saturday, September 20 in Warri, as directed by FIFA.

    The injunction, obtained by two members of the Chris Giwa-led faction of the NFF, directed that the Maigari faction should be served through the electronic and print media.

    Nevertheless, the Congress went ahead and approved September 30 as the date for a new election into the board of the federation.

    Principal officers of the NFF as well as delegates to the Congress of Saturday have now been threatened with contempt charges.

    “I cannot confirm to you now if the letters have been received at the secretariat of the NFF,” Amadu said. “I am on my annual leave and currently in the United States with my family.

    “They may have served them the letter, but it is only those at the secretariat that can confirm this.”

    When NationSport visited the NFF secretariat on Wednesday, none of its principal officers were available to confirm the receipt of the document.

    However, the form 48 from the Jos High Court was seen posted on the wall near the entrance door of the secretariat, although NationSport could not confirm that the document was received by any of the secretariat staff.

  • Appeal Court does not unduly interfere with findings of fact

    Appeal Court does not unduly interfere with findings of fact

    The Appellant, Ayiere Godsgift (alias Alex) was charged before the High Court of Cross River State, Calabar Division on two-count charge of child stealing contrary to Section 371(1) of Criminal Code and murder contrary to Section 319 of the Criminal Code. From the evidence, the facts are that on 8th October, 2007 between 12.00 noon and 1.00p.m the Appellant went to Grace and Gold Nursery/Primary School, State Housing Estate Calabar and fraudulently enticed and stole away John Okon Edem aged 10years (the deceased). It was alleged that the Appellant deceived both the security man and John Okon Edem’s teacher (PW2) by showing them the snacks he bought for the lad. The Appellant was given access to young John Okon Edem by the class teacher. The deceased was excited to see the Appellant whom he affectionately referred to as “uncle”. As the teacher who had somebody in her hand turned around to keep them, the Appellant left with John Okon Edem.

    The teacher waited for a while for the Appellant to return with John. After some time, she left the classroom for the security post to enquire from the security man (PW3) if he had seen John. It was at that point the teacher was informed by the security man that the Appellant had taken John away. The teacher promptly informed the head teacher who called PW1 (the father of the deceased) to find out if he had sent someone to pick up John from school. PW1 said he did not and called his wife to find out if she did while the search for Johnson Okon was going on, PW1 claimed to have received a telephone call from someone who identified himself as “Johnson” who demanded a ransom of N3million for the release of John Okon Edem.

    According to PW1 “Johnson” sounded like the Appellant, a former employee of PW1 whose voice PW1 was very familiar with because they talk regularly on telephone. This fact aroused PW1’s suspicion. “Johnson” made several calls to the deceased boy’s father to demand the payment of the ransom until later PW1 reported to the Police who arranged “paper money” in a bag to be given to Johnson. On 11th October, 2007, the faceless “Johnson” directed PW1 to take the money to PW5 who operated a commercial call centre of B52, Border Road, Ikom. Johnson also sent a commercial motorcyclist, Samuel Ezaka to pick up the money from PW5. It was in an attempt by Mr. Ezaka to pick up the money at Ikom that he was arrested by the Police. Later in the day of 11th October, 2007, the Appellant was also arrested by the Police for his role in the disappearance and death of the deceased, John Okon Edem.

    In his defence, the Appellant denied any involvement in the kidnap and eventual murder of John Okon Edem. The case went on trial. In proof of its case, the prosecution called five witnesses and tendered several exhibits while the Appellant testified for himself. At the conclusion of the trial, the leaned trial judge, Philomena Ekpe, J., of the Cross River State High Court, Calabar Judicial Division in a judgment delivered on 17th March, 2010, convicted the Appellant of the offence of murder and sentenced him to death. The Appellant dissatisfied with that judgment of the trial Court appealed to the Court of Appeal.

    The Appellant formulated a sole and single issue for determination of the appeal as follows:

    “Whether or not the prosecution proved the appellants guilt beyond reasonable doubt as required by law as to justify his conviction”?

    In arguing the appeal, the learned Appellant’s Counsel submitted that in a case of murder as the present case the prosecution must prove not only the cause of death, but also that the act of the accused caused the death of the deceased. Omogodo v. The State (1981) 5 SC 5 of 26 – 27; (1981) LPELR-2644(SC. In holding that it was the act of the appellant that caused the death of the deceased Ekpe J., the trial judge placed much weight on identification evidence. It was submitted that the conviction of the Appellant based on the identification of the Appellant by PW2, PW3, PW4 and PW5 was not proper. See Abudu v. State (1985) 1 NWLR (Pt. 1) 55; (1985) LPELR-57(SC). It is submitted that the consideration that govern a proper identification exercise have been stated by the apex court in many cases. It was further submitted that none of the witnesses gave the description of the Appellant to the Police or state the opportunity they had in observing the Appellant of his feature which they noted and communicated to the Police. That they did not also say an identification parade was conducted by the Police for the purpose of identifying the Appellant. See Eyisi v. State (2000) 15 NWLR (Pt. 691) 555; (2000) LPELR-1186(SC) and Ebri v. State (2004) 11 NWLR (Pt. 885) 589; (2004) LPELR-996(SC). The Appellant submitted that no identification parade was carried out and if there was one it was improperly made and hastily done. It was submitted that the procedure as outlined for conducting an identification parade were not followed. Consequently that the identification of the Appellant was improper and wholly irregular.

    It was also submitted for the Appellant that the law requires the accused to raise the defence of alibi promptly at the earlier opportunity and that the Appellant raised the defence promptly in the very statement he made to the Police and in the aftermath of his arrest. It was contended that having done so it is incumbent for the police consistent with the duty for the prosecution to disprove the alibi, to investigate it. It was alleged that the Police failed to verify and check the alibi properly and timely put by the Appellant. It was submitted that the failure to investigate or check the alibi ought to have created a reasonable doubt in the mind of the Court as to whether the Appellant was actually responsible for the death of the deceased. Ikemson v. State (1989) NWLR (Pt. 110) 455; (1989) LPELR-1473(SC) and Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 at 109; (1990) LPELR-2888(SC). It was further submitted that it is well settled that the defence of alibi where successful, results in the acquittal of accused. The Court was urged to quash the conviction of the Appellant on this ground.

    On the defence of alibi purportedly set up by the Appellant and the allegation that it was not investigated, the brief of the Respondent stated that the Respondent’s witnesses specifically and unequivocally linked the Appellant to the scene of the crime thereby making the investigation of the Court unnecessary. On the submission from the Appellant’s brief that the circumstantial evidence in this case is not credible and compelling enough to arrive at an irresistible conclusion that the deceased was last seen with the Appellant, the Respondent’s response is that this submission from the Appellant’s brief is misconceived. The Respondent submitted that the deceased was last seen with the Appellant who came and lured him out of school. PW2 and PW3 both testified to this fact and PW2 evidence was never challenged. The deceased disappeared thereafter until his corpse was found with the assistance of the Appellant at Bendghe Ekurim forest, along Ikom/Obudu Road a distance of over 200 kilometres from where he was taken.

    On the whole, the Court held that an Appeal Court is always slow or reluctant to interfere with the findings of fact by a trial court which had the opportunity of hearing and seeing the witness. The Court held that it only interferes where the finding of facts and evaluation of evidence and ascription of probative value to such evidence were improperly done, the trial court made imperfect or improper use of its opportunity to hear and see the witness or to draw a wrong conclusion from the accepted or proved facts or a wrong conclusion or arrived at a perverse decision. The Court stated that there is no question of perversity in the evaluation said to be done by the learned trial judge. See Lion Buildings Ltd. v Shadipe (1976) 12 SC 135; (1976) LPELR-1785(SC). The lone issue on these reasons was therefore resolved against the Appellant.

    With the only lone issue in the appeal having been resolved against the Appellant, the Court held that the appeal therefore does not succeed and must be dismissed. It was thereby accordingly dismissed by the Court. The judgment of Philomena Ekpe of High Court, Calabar Division, of Cross River State, was affirmed.

     

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23514(CA)

     

  • Court urged to void INEC’s new polling units

    Court urged to void INEC’s new polling units

    The Federal High Court in Abuja has been urged to nullify the 30,027 new polling units created by the Independent National Electoral Commission (INEC).

    This forms part of the prayers in a suit filed by three men, Ikogi Joseph, Odumegwu Chinedu and Omotoso Nicholas (who claimed to be indigenes of Bayelsa, Anambra and Ekiti states).

    They also wanted the court to restrain INEC from giving effect to the new polling units. The suit has INEC and the Attorney-General of the Federation (AGF) as defendants.

    It is the plaintiffs’ contention that INEC acted beyond its powers under Section 73 (1) and (2) of the constitution by creating the new polling units.

    They argued that a fresh national population census must first be conducted before new polling units could be created and that since no such census was conducted, the new polling units were illegally created.

    The plaintiffs’ lawyer, Olukayode Olatoke (SAN), raised six questions for the court’s determination. The questions queried the basis for the creation and the legitimacy of the new polling centres announced by INEC.

    The plaintiffs want the court to declare that: “The act of INEC in creating more polling units for the North in utter neglect of the South is discriminatory and against the provision of Section 42 (1) (b) of the 1999 Constitution.”

    Joseph, who deposed a supporting affidavit filed with the originating summons, said INEC, without any basis, increased the number of polling units from 119,973 to 150,000 and allocated same to states.

    He said INEC, without justification, discriminatorily allocated 24,386 polling units to the North out of the 30,027 polling units and allocated the remaining 5,641 to the South.

    Joseph said with the new polling units distribution, the 20 states in the North would have 83,607 polling units, while the 17 states in the South were allocated 66,393 units.

    “I know that in the North, over 500,000 people have died and another 650,000 have been displaced, following the Boko Haram insurgency.

    “I know that most people, who fled from Borno, Bauchi, Yobe, Adamawa, Niger, Kano, Kaduna, Plateau states and Abuja fled to the southern part of the country and Cameroon.”

    He argued that the voting population of the North had reduced by over 20 million due to insurgency.

    Joseph said the fact that many in the North had been forced to relocate to the South implied that the South should have more polling units, while the North should have less.

    “Rather than adding to the number of polling units in the South, INEC removed and closed down many polling units in five states, namely Anambra, Bayelsa, Ekiti, Enugu and Osun.

    “That the formula for the creation of the new polling centre is a ploy for the North to continue to dominate the South.”

    He argued that there was no justification or any development to the voting regime in the North to justify that astrological increase to give advantage of about 14,000 polling units over the South.

    Other relief contained in the originating summons include:

    *A declaration that Section 42 of the Electoral Act, 2010 is not exercisable alone without recourse to Section 73 of the 1999 Constitution as amended;

    *A declaration that INEC could not alter or approve the creation of additional new polling units nationwide in the absence of another national population census after 2011 or any other verifiable and acceptable statistical basis, and;

    *A declaration that the creation of new polling centres without any statistical basis is unconstitutional, null and void.

    INEC and the AGF are yet to respond to the suit filed on September 10.

  • My husband wants to kill me, divorce seeking wife tells court

    A middle aged woman, Mariam Adegoke has dragged her husband, Akeem before the Grade C customary court sitting in Agodi area of Ibadan over alleged death threat by her spouse.

    Mariam, who resides with her husband and children at Apete area of Ibadan wants their 18 year-old marriage dissolved because she suffers lot in the marriage with her bearing all the financial burden.

    The distressed woman told the court that she couldn’t on her own walk out of the marriage out of fear for her life, because her husband’s first wife died two years after divorcing him.

    “I’m his second wife and I had wanted to divorce him before now, but he threatened me that any woman that divorced him would die. And I learnt his first wife died two years after divorcing him. So I’m pleading with this court to help dissolve this union so I can go my way”, she said.

    According to her, Akeem has not been taking care of her and the children but rather depends on her business for his financial needs.

    “He has no job to support the family, but rather depends on me. I have been through a lot with him, but what further made up my mind is the fact that he also beats me”.

    Akeem while responding to the allegation denied threatening his wife and told the court that he was not ready to divorce Mariam because of their children.

    A businessman turned farmer, Akeem said when things went though for him, he had to go into farming in order to make ends meet and sustain the family. He said he still puts food on the table and also assisted his wife to set up a business to aid her financially.

    “I never threatened her with death and I never wanted her dead because I want the two of us to reap the fruits of our labour. I have taken care of my family to the best of my ability and the children know. I don’t want this marriage dissolved because I want our children to be well brought up and responsible in our society”, Akeem said.

    Their 17 year-old son, Tunde, when summoned before the court as his father’s witness affirmed to the discord between his parents but pleaded with the court to reunite them for the benefit of his siblings and himself.

    “I don’t want our family apart and that was why I had all my siblings stay at home hoping this will make our parents to reconcile”, he said.

    The presiding court president, Chief Amusa Makinde, who observed that the duo could still be reconciled adjourned the matter till September 9 for possibility of any positive development.

  • Court orders firm to pay N60m to clearing agent

    Court orders firm to pay N60m to clearing agent

    Justice Ebenezer Adebajo of a Lagos High Court, Igbosere has  ordered a pharmaceutical firm,Nichben Pharmaceutical Industries Limited, to pay a clearing agent, Mr. Raphael Okonkwo, N60million it owed him since 2003 for clearing the company’s container load of 655 cartons of Top Gel at Cotonou Port, Benin Republic.

    The firm had sued Okonkwo, claiming N51.4million as general damages for the loss of its goods valued at N36.4million that allegedly disappeared on April 25, 2003.

    In suit no. LD/673/2006, the company (claimant), claimed interest on the N51.4million at the rate of six per cent per annum from May 2003 until determination of the indebted amount.

    However, the defendant, who reportedly cleared 263 containers, in his amended statement of defence dated May 15, 2008, asked the court to declare that the firm owed him N60million.

    The defendant, through his lawyer, Mr A. Mpandiok, further asked the court to direct the claimant to pay six per cent interest on the  amount with effect from December 2003 till when the judgment debt is liquidated.

    Justice Adebajo, while delivering judgment on the matter,  dismissed the claimant’s claim, saying he is satisfied with the facts before him that the defendant delivered the one container load of 655 cartons from Cotonou.

    “The evidence of the defendant, having been accepted as truthful and Exhibit D1 having been admitted and its evidential value not having been diminished, it is obvious in my view that the defendant has placed before the court credible material to entitle him to his counter-claim. Judgment is hereby entered in favour of the defendant,” Justice Adebajo ruled.

    The judge declared that the Power of Attorney, dated November 20, 2002, given by the claimant to the defendant, was binding on both parties.

    Justice Adebajo declared further that the claimant is indebted to the defendant in the sum of N60million.

    “It is hereby ordered that the claimant shall pay the defendant the sum of N60million within 30 days of this judgment. The claimant shall pay six per cent interest on the judgment sum from January 1, 2004 until the same is liquidated. Cost of this suit is awarded the defendant/counter-claim in the sum of N120,000,” the judge said.

    The case was first taken before an Igbosere Magistrate Court. The defendant had earlier reported the case to the Interpol section at Alagbon, but was arrested by men of the Special Anti Robbery Squad (SARS) and charged on a three- count charge of stealing a 40-feet container, containing 655 cartons of Top gel valued N36,400,000, property of Transpharm Industries Limited.

    Relying  on the judgment of Chief Magistrate, in-charge of the case, (Suit No. A/55/2004: Commissioner of Police v. Raphael Okonkwo),  Justice Adebajo held that “the findings of that court were never challenged on appeal nor was it impeached in this court.

    “I accept the findings of the Magistrate Court on the facts of the transactions as between the parties in the charge,” he said.

    It was gathered that the former counsel to the claimant, S.O Kolawole, now deceased, commenced the suit with a writ of summons dated April 28, 2006 and appeared before Justice Adebajo on December 3, 2009. His death was announced at later proceedings by another lawyer, Biodun Onikosi, who took over the brief. Onikosi also died on December 23, 2013.

    During the trial, the firm’s Chief Executive, Chief Nicholas Onwumere, told the court that the defendant has always been the firm’s  clearing agent.

    Onwumere, in his evidence-in-chief, said his company imports  products on behalf of other organisations, adding “the claimant had in fact, imported well over 50 containers of approved MCA products and the defendant has always carried out the clearing of goods from Lagos and Cotonou Ports for agreed valuable consideration and cause the goods to be delivered to Chief Raphael Obi.”

    Under cross-examination by the defence counsel, Onwumere said by a letter on March 28, 2003 he revoked the Power of Attorney given to the defendant to enable him interact with police, customs and NAFDAC officials over faking of his products.

    On the modality of their business, the witness  told the court that on April 25, 2003, two bills of lading were given to the defendant in respect of 655 cartons of Top Gel at Apapa Port and Cotonou.

    He pointed out that the defendant delivered the goods from Apapa Port, but refused to deliver the 655 cartons cleared at the Cotonou Port, adding that the defendant did not return the bill of lading but has received consideration for the clearing and delivery of the 655 cartons.  Onwumere told the court that the business relationship with the defendant took place between 2000 and 2004, noting that once payment is made delivery is usually within two weeks.

    “It took three months to deliver the Apapa container. There could not have been problems with the clearing except it was caused by the defendant. The container was not arrested by the customs or NAFDAC,” the witness added.