FACT OF THE CASE
The Students Parliamentary Council of 2011/2012 academic
session in its usual plenary proceedings set up an Electoral Committee
2012/2013 (hereinafter referred to as “the Committee”) to conduct an
election into the offices of Students Parliamentary Council of 2012/2013
academic session. The chairman (hereinafter referred to as “Dawodu
Olajide”) and other members of the Committee began to strategize plans
for the conduct of the said election. During this preparation, series of
petitions were alleged to be written and submitted to the offices of
the University Authorities and the Speaker of the Students Parliamentary
Council stating the incompetence and irregularities of Dawodu Olajide
and call for his removal by the appellant. Subsequently, the Committee
conducted screening for the aspirants. Dissatisfied with the screening
results, the appellant complained, filed and served application for
motion ex parte for interim injunction dated 14th day of August, 2012
restraining the imposed speaker from acting in his official capacity.
Still dissatisfied, the appellant filed and served another application
for motion ex parte dated 16th day of August, 2012 restraining Dawodu
Olajide from declaring the result of the Speakership election but the
Committee declared it.
With the obvious dissatisfactions of the appellant with
respect to the preparations and conducts of the election by the
Committee, he petitioned the respondent in the LASUSU Election Petition
Tribunal (hereinafter referred to as “the Tribunal”).
In the Tribunal, he formulated three issues for determination which the respondent adopted. They are:
- Whether the LASUSU-IEC 2012/2013 breached the
constitutional provisions of the Lagos State University Students’ Union
Constitution, 2012.
- Whether the Students’ Parliamentary Functionaries Election was duly conducted.
- Whether the LASUSU-IEC 2012/2013 was guilty of alleged irregularities.
With respect to issue one, the Petitioner submitted that
the prerequisite CGPA to contest for any position in SEC or honourable
of the SPC is 3.0 or above and for the Committee to have gone contrary
to the constitution its acts be declared ineffective, inoperative,
nugatory and void to the extent of its inconsistencies with the
provisions of the constitution. Cited authorities are Section 103 of the
Constitution; Abacha v Fawehinmi [2001] 51 WRN 29, Balarabe Musa v
INEC.
Responding to the submission of the Petitioner, the
respondent submitted that the screening and requirements used by the
respondent was based on the approved recommendation of the Senate. He
further submitted that the recommendation of 3.0 or above CGPA only
applies to the offices of SEC and functionaries of the SPC and not
honourable members.
Concerning issue two, the Petitioner submitted that with the
orders of the court, that is, application for motion ex parte for
interim injunction dated 14th day of August, 2012 restraining the
imposed speaker from acting in his official capacity and application for
motion ex parte dated 16th day of August, 2012 restraining Dawodu
Olajide from declaring the result of the Speakership election being
disrespected, it is deemed that SPC functionaries’ election had not been
held and in actual fact, has not been conducted at all. He also
submitted that the Committee did not conduct the election in an open
secret ballot system provided by the LASUSU Constitution, 2012.
Responding to the Petitioner, the respondent submitted that
since the Dean of Students Affairs had given an order to commence the
election then no organs of the union can restrain the Committee from
conducting it. It is therefore on this premise the Committee disobeyed
the court orders. The Committee admitted that the two injunctions were
served on it. He further submitted that the Petitioner misplaced its
priority in construing open ballot system to mean the same as open
secret ballot system.
Authorities cited by the respondent are Buhari v Obasanjo; Auta v Ibe.
On issue three, the Petitioner submitted that the Committee
conduct of the election was marred with irregularities, flagrant abuse
of the law and as such the SPC screening initially conducted should be
set aside for a fresh and credible screening. He predicated his
submission on the letter of resignation of one Miss Odunuga Lateefat T.,
a 400 level psychology, Honourable member of the LASUSU SPC in
transition and a member of the Committee who claimed to resign on the
basis of lack of transparency and credibility of the Committee. He also
based it on the fact that the Committee changed the time-table to extend
the sales of form without 48 hours prior notice as provided by the
constitution. In addition, he also claimed that the screening venue for
the Faculty of Arts and Education and Faculty of Engineering and Adebola
Adegunwa School of Communication were rescheduled without 48 hours
public notice and as such, this led to the disenfranchisement of some
members of these faculties who were willing to represent their
constituencies. He also claimed that one Miss. Oludemi Oluwaseun, 300
level, Department of English Language petitioned the Committee on why
she was disqualified at the expense of one Ibrahim Olawale, Department
of English Language, who was alleged to have bought form later the
scheduled date.
The exhibits attached to the brief of the appellant ranged from A-Q.
The respondent submitted that the evidence of Miss Odunuga
Lateefat is worthless and baseless on the ground of her alleged selfish
interest. In addition to the contentions of the respondent, the
Committee admitted that Miss Odunuga wrote a letter titled “An appeal to
annul the abrupt change of screening venue”. The respondent stressed
further that Miss Odunuga forged some aspirants’ signature and she
admitted to Election Petition Tribunal that she was the person that
wrote the letter.
The respondent further submitted that it released a public
notice to the effect of the change of venue on the 30th July, 2012,
which was before the initial date of screening which was dated 2nd day
of August, 2012. It is still the contention of the respondent that it
extended the date of the sales of forms because of the administrative
bottleneck of the University Management cum avoiding the
disenfranchisement of some aspirants. This also resulted in the
scheduling of election time-table.
Attached documents to the respondent’s brief are:
- Letter of apology
- LASU Senate Secretariat Decision Extract dated 1st June, 2012 referenced
LASU/SEN/ST/.200/012/030
- Screening results
- LASU Official Bulletin dated August 27th, 2012
- LASUSUIEC 2012/2013 public notice for new screening schedule as re-amended
- LASUSUIEC 2012/2013 Letter of disclaimer
- An appeal to annul the abrupt change of screening venue
- Letter of notification
- LASUSU Constitution, 2012.
The prayers of the Petitioner are:
- The Students’ Parliamentary Council initial election should be set aside;
- The LASUSU-IEC should be dissolved to pave way for a
new committee to conduct a credible screening and SPC functionaries
election in earnest and in accordance to the provisions of the
LASUSU Constitution, 2012;
- All former aspirants who intended seeking another
screening exercise in the constituted committee and hence met the
constitutional provisions should not be allowed to pay a new fee
for their nomination forms;
- Members of the LASUSU-IEC who were involved in the
irregularities of the Committee should be bared from being members
of the new independent electoral committee for abuse of court
orders, breach of the trust reposed on them and breach of the
constitutional provisions.
The respondent did not enumerate his prayers.
From the foregoing, the Tribunal decided that:
- Those members of the SPC in the just concluded
screening not meeting up with the requirement of 3.0 should be
disqualified;
- The functionaries’ election should be nullified and a fresh one be conducted in due course.
The Petitioner still dissatisfied with the decisions of
the Tribunal, came to this Court to appeal. In the course of his appeal,
he raised two grounds of appeal without formulating issues therefrom.
They are:
- Whether or not there were enough evidence sufficient for the dissolution of the LASUSU-IEC 2012/2013;
- Whether or not the Election Petition Tribunal erred in refusing to dissolve the LASUSU-IEC 2012/2013.
The respondent, having been served, not only adopting
the grounds of appeal of the appellant, but crossed appeal against the
decision of the Tribunal through which one ground was raised. He too,
never formulated issue or issues from the grounds of appeal and the
cross appeal. The ground of the cross appeal is:
- Whether or not the Election Petition Tribunal erred
in ordering for a fresh parliamentary election to usher in
functionaries to the Students Parliamentary Council
The arguments of the appellant in this Court and Court
below are synonymous and I find it unnecessary to enumerate them again.
Same applies to the respondent but what make them different a little are
the arguments of non-discharged burden of proof on the part of the
appellant. He submitted that the appellant has not proved his case
beyond reasonable doubt. He cited the following authorities: Fayemi v
Oni (2009) 7 NWLR (Pt. 1140) 229; Yusuf v Obasanjo (2005)1 NWLR (Pt.
956) 96; Wulgo v Bukar (1999) 3 NWLR (Pt. 597)539; Adeola v Owoade (Case
No. 127).
The prayers of the Petitioner/Appellant in the court below
are the same with the reliefs sought in this Court. But the difference
in this Court is general damages (N2, 000) and litigation cost (N5,
000).
In contrast, the reliefs sought by the respondent are:
- The Students’ Parliamentary Council initial screening was valid and should be upheld;
- The LASUSU-IEC 2012/2013 has discharged her duty to the best of her ability, thus, her act should be upheld;
- The appellant relief sought on paragraphs 1, 2, 3, 4, 5 and 6 should be discarded and thrown into trash can;
- The order of the Election Petition Tribunal stipulating
that the fresh election of the functionaries of the Students’
Parliamentary Council should be conducted be quashed;
- An order for general damages of N2, 000;
- An order for litigation cost of N10, 000;
- Any other order the court deems fit as necessary.
I now depart from the above-stated claims of both the
appellant and the respondent to expatiate on the principles of law that
are associated with the claims.
Before delving into elucidation of the principles of law, I find importance in stating this:
On the first day of hearing this suit, through Order 20 rules
3 (1-2) of the Lagos State University Students Judicial Council Court
of Appeal Rules, 2012 (hereinafter referred to as “the Rules”), this
Court, posed this question to counsel of both the appellant and the
respondent:
What is the effect of raising ground of appeal without formulating therefrom?
All the counsel were unable to respond sufficiently and on
that basis, the court proposed an adjournment so as to allow counsel
conduct research on the question and give response to same on the day
fixed for further hearing of the suit. In the further hearing of the
case, counsel of both the appellant and the respondent having conducted
their research argued that a ground of appeal raised without formulating
any issue is deemed abandoned and any argument therefrom is also
abandoned. See: AKOMOLAFE & Anor v Guardian Press Ltd & 3 Ors
(2010) 1 S.C. (Pt. I) 58;Haruna v K.S.H.A (2010) 7 NWLR (Pt. 1194) CA
604; Omoworare v Omisore (2010) 3 NWLR (Pt. 1180) 58;Sunday v INEC
(2009) 12 NWLR (Pt. 1154) 194 CA; Alli v Osakwe (2009) 14 NWLR (Pt.
1160) 75 CA; Aigbobahi v Aifuwa (2006) 2 (Pt. 1) 82 SC.
With this, the Court ought to strike out the grounds of
appeal of both the appellant and the respondent but because of the
provisions in Order 20 rule 3 (1-2) of the Rules, the Court waived this
power in order to attain substantial justice.
Having painstakingly read through the briefs of the appellant
and the respondent, the issues formulated by the Court for both the
former and the latter are:
Appellant issues:
- That the Election Petition Tribunal erred in law
for not dissolving LASUSU-IEC with the enough evidence presented
before it.
- That the Tribunal should have dissolved the Committee for disobeying Court order.
The above-stated issues are distilled from the first and second grounds of appeal raised by the appellant.
Respondent issue:
- The Tribunal should not have declared the election null and void on the basis of 3.0 CGPA;
- That the appellant has failed to prove his case beyond reasonable ground.
The preceding issues are distilled from the adopted two
grounds of appeal of the appellant and the ground of appeal raised in
the cross appeal.
Now, I am only concerned with four issues:
- That the Election Petition Tribunal erred in law
for not dissolving LASUSU-IEC with the enough evidence presented
before it;
- That the Tribunal should have dissolved the Committee for disobeying Court order;
- The Tribunal should not have declared the election null and void on the basis of 3.0 CGPA;
- That the appellant has failed to prove his case beyond reasonable ground.
For achieving clarity, it is necessary to consider issues 2-3 and 1 and 4 separately.
I shall now consider issues 2 and 3:
2 That the Tribunal should have dissolved the Committee for disobeying Court order;
- The Tribunal should not have declared the election null and void on the basis of 3.0 CGPA.
On issue two, this Court has taken judicial notice of
the orders of the Court below as to motion ex parte. Two orders were
filed and served on the respondent which he never doubted. One is dated
14th day of August, 2012 wherein the appellant prayed to the Court below
to give an order restraining the imposed speaker from acting in his
official capacity. The second is dated 16th day of August, 2012 wherein
he prayed to the Court below to restrain Dawodu Olajide from declaring
the result of the Speakership election. The respondent, having admitted
that it was served the two orders, proceeded to announce the result of
the speakership election on the premises that since the Dean of Students
Affairs (hereinafter referred to as “the Dean”) had given an order to
commence the election then no organs of the union can restrain the
Committee from conducting it.
With respect to the first order dated 14th day of August,
2012, it is apparent that the appellant has not shown to this Court
whether the alleged imposed speaker acted in his official capacity.
Hence, it cannot be said that the alleged imposed speaker has disobeyed
the Court order. It is even needless to say that the alleged imposed
speaker was/is not a party in the Court below and in this Court. So, of
what relevance is this motion?
Concerning the second order dated 16th day of August, 2012,
the respondent having admitted that it was served during the doing of
the act, still went ahead to disobey it. He never halted the act. His
defence is simply that since the Dean had given an order to commence the
election then no organs of the union can restrain the Committee from
conducting it.
The preceding premise is an obvious misconception of the law
by the respondent as to the sacred nature of the judiciary. Before
delving into the elucidation of the sacred nature of the judiciary, it
is important to expatiate on the interpretation of the powers and
functions of the Dean.
In truth, the Dean is vested with the powers to oversee the
activities of all students of the University (LASU) in Lagos State
University Law 2007 (hereinafter referred to as “the law”). It is also
the position that the law does not permit the Dean to breach the rights
of students in the course of overseeing their activities. In order
words, the law only permits the Dean to prevent the rights of the
students from being violated. The judiciary of the Union is established
to protect or redress the rights of the students. Hence, whenever the
judiciary gives an order to correct the wrongs did to students, such
must be complied with by the Dean since it is within his duty. It is
also the position that if he does otherwise, then he will be acting
outside this duty. This order must also be complied with by the students
concerned.
Therefore, before the decisions or orders of the Students
Judicial Council are reported to the Dean for execution, they are
binding. This is the rationale for section 40 (3) of the LASUSU
Constitution.
It is also true that even if the decision of the Court is
extremely wrong, because of the sacred nature of the Court, it must be
complied with. Though, this is not so in this case.
I now depart from the above-stated powers and functions of the Dean to the elucidation of sacrosanct nature of the judiciary.
It is trite law that the judiciary is sacrosanct and sacred.
Naturally, its decisions or orders are sacrosanct and sacred. It is a
constitutional principle of great antiquity that any person shall not
distort or frustrate or delay the doings of the judiciary through the
instrument of law.
The preceding paragraph has been preserved in the 1999
Constitution of the Federal Republic of Nigeria as amended. See: section
6 and chapter VII of the 1999 Constitution of the Federal Republic of
Nigeria as amended.
Thankfully, Lagos State University Law, 2007 and LASUSU
Constitution, 2012 are errand boys to the Big Boss of the 1999
Constitution and as such, whenever the errand boys have transcended the
limit set by their Boss, they will be punished accordingly. Sometimes,
perhaps, the Boss will forgive. If they are punished or forgiven, the
fact of disobedience cannot be erased.
This fact of disobedience is what the judiciary must guard against in order to maintain its sacred nature.
The respondent cannot use the directives of the Dean to
disobey the judiciary because the law that vests power to the Dean is an
errand boy to the 1999 Constitution. Naturally, the application of the
errand boy of LASU LAW, 2007 by the respondent in this circumstance has
transcended the limit set by its Big Boss which eventually disobeyed the
sacred nature of the judiciary. Then, punishment or forgiveness must
follow. Who will then bear it? Is it the law or the respondent? It is
only the respondent and not the errand boy that disobeyed the judiciary
because it could have obeyed the order if had wanted to.
In these circumstances, the respondent shall pay N3000, 000 to the Registrar of the High Court.
As regards issue three, the contention of the appellant is
that 3.0 CGPA is the prerequisite condition for contesting the position
of honourable (including the functionaries) of Students Parliamentary
Council (SPC). In contrast, the respondent submitted that 3.0 CGPA is
only meant for the functionaries of SPC and that less than 3.0 is meant
for the honourables of the SPC.
Without stretching further, section 103 (1) of the LASUSU Constitution has said it all.
I hereby agree with the arguments of the appellant that 3.0
CGPA is the prerequisite condition for contesting the position of the
honourable (including the functionaries) of SPC.
This issue is then resolved in favour of the appellant and against the respondent.
I will now consider the remaining two issues:
- That the Election Petition Tribunal erred in law
for not dissolving LASUSU-IEC with the enough evidence presented
before it;
- That the appellant has failed to prove his case beyond reasonable ground.
The rights of the parties in this case will be
determined after the preceding two issues are considered thoroughly. I
will start by considering the fourth issue because it encapsulates the
first issue. This is so because if the appellant has failed to prove his
case beyond reasonable doubt, the first issue will die naturally. The
respondent is a wise man simply because he makes the Court use its
juristic knowledge to decipher if the appellant has been able to prove
his case beyond reasonable doubt. I shall so do.
It is not in doubt that this suit is an electoral matter, and
it is on this I say that the Court cannot apply evidential rules
without recourse to the Act regulating the election. To put it in a
positive mode, it is the electoral rules that determine the application
of the evidential rules.
In N.S.I.T.F.M.B v Klifco Nig. Ltd [2010] 13 NWLR (Pt. 1211) 307 at 335, Adeleke JSC averred that:
“Where the law prescribes a particular method of
exercising a statutory power, such power must be exercised accordingly
and no other method is permissible”.
See also: Ogualaji v A.G., Rivers State (1997) 6 NWLR (Pt.
508)209; Okenwa v Military Governor of Imo State (1997) 6 NWLR (Pt. 507)
136; Republic Bank (Nig.) Ltd v C.B.N. (1998) 13 NWLR (Pt. 581) 306.
It is not in doubt that there is Electoral Act regulating the
electioneering processes in the LASUSU elections. This Act can be
perceived in the LASUSU Constitution, 2012. It is in Part II and
consisted of twenty nine sections (92-120). With a thorough perusal of
these sections, I find no rule determining the nature of evidence to be
adopted in proving any electoral disputes in a case when there are
dissatisfactions over the conduct of the elections. The only rules left
now are those in the Evidence Act. This is so because LASUSU
Constitution, 2012, is subject 1999 Constitution.
It is now safe for me to elucidate on the evidential rules and relate them to the suit before this Court.
It is trite principle of law that before any documents are
admissible as documentary evidence to prove facts in issue, they must be
relevant, pleaded and tendered in court. To put it in a negative mode,
if the documents are irrelevant, unpleaded and untendered, they cannot
be relied on to prove facts in issue before the Court. Even if the
documents are relevant but unpleaded and untendered, they cannot prove
facts in issue. The same faith extends to documents relevant and pleaded
but not tendered in the Court.
It is also the true position of law that if primary documents
are not tendered in Court, secondary documents can be tendered unless
there is a foundation for doing same before they can be admissible. See:
sections 83 and 85-91 of the Evidence Act, 2011.
In summing up the whole, secondary documents that are
relevant, pleaded and tendered in court will not be admissible if there
is no foundation stating reasons for not tendering primary documents.
In the words of Orji-Abadua JCA in Udoro v Governor of Akwa Ibom State [2010] 11 (NWLR) (Pt. 1205) 322 at 337:
“Generally, there are three criteria govern the admissibility of a document in evidence namely:
- Is it pleaded?
- Is it relevant to the inquiry being tried by the Court?
And
- Is it admissible in law?
See Okonji & Ors v Njokanma & 2 Ors
(1991) 1 NWLR (Pt. 202) 131. But whenever the inadmissible evidence is
tendered, it is the duty of the opposite party to immediately object to
its inadmissibility, where he fails to object, the court may, in civil
cases, reject such documents and must reject such evidence in criminal
cases. See Nigeria Custom Service v Bazuaye (2006) 3 NWLR (Pt. 967) 303.
In the juristic revelation of Ogunbiyi JCA in Omoworare v Omisore [2010] 3 NWLR (Pt. 1180)58 at 116-117:
“The law is trite and settled that there could not be
admissible evidence (oral or documentary) of what has not been pleaded.
The following authorities are relevant in point: A.C.B. Ltd v Gwagwada
(1994) 4 NWLR (Pt. 342) 25; Olabanji v Omokewu (1992) 6 NWLR (Pt. 250)
671; Consolidated Breweries Ltd v Aisowieren (2001) 15 NWLR (Pt. 736)
424 and Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1”.
In the judicial voyage of Sankey JCA in Oladipo v Moba L.G.A. [2010]5 NWLR (Pt. 1186)117 at 163:
“If a document is wrongly received in evidence by a trial
court, an appellate court has inherent jurisdiction to exclude it
though counsel at the lower court did not object to its admissibility.
Any evidence on facts outside the pleadings must be jettisoned as they
go to issue, even on appeal, so as to ensure that cases are resolved on
properly and legally admitted evidence. See also: Dada v Dosunmu (2006)
18 NWLR (Pt. 1010)134; Fasade v Babalola (2003)11 NWLR (Pt. 830) 26;
Ayanwale v Atanda (1988) 1 NWLR (Pt. 68) 22; Osho v Ape (1998) 8 NWLR
(Pt. 562)492”.
His Lordship further averred that:
“Where evidence by law is inadmissible in any event, it
ought never to be acted upon by the court, (whether of first instance or
of appeal), and it is immaterial that its admission in evidence was as a
result of consent of the opposite party or that party’s default in
failing to make objection at the proper time. Neither a trial court nor
any of the parties has the power to admit a document that is in no way
or circumstance admissible in law. See: Alao v Akano (2005)11 NWLR (Pt.
935)160”.
In view of all these principles of law, has the appellant proved his case beyond reasonable doubt?
Before I venture into the response to this question, it is
pertinent to expatiate on the standard of proof in electoral matters. In
electoral cases, an aggrieved party must prove his case beyond
reasonable doubt. This does not mean that he needs to prove his case
beyond all shadow of doubt. The burden of prove lies on the party who
asserts. Failure to discharge the burden is resolved against the person
who asserts and in favour of a party whom assertion was made against.
Sections 131-132, 136 and 138 of the Evidence Act, 2011.
See also: Omoworare v Omisore supra; Oladipo v Moba L.G.A. supra; Shurumo v State [2010] NWLR (Pt. 1226)73 SC.
It is now time for me to respond to the question: In view of
all these principles of law, has the appellant proved his case beyond
reasonable doubt?
There is no evidence before the Court proving that all the
attached documents to the brief of the appellant are relevant, pleaded
and tendered in the Court below. Though the respondent admitted the
testimony of one Miss Odunuga Lateefat, it is not in the record of the
Court that her evidence was pleaded or tendered. Assuming without
conceding that her evidence was pleaded and tendered, there is nothing
in the record of the Court as to whether the document proving her oral
evidence is primary or secondary. Even if it is not primary but
secondary, the appellant ought to have laid a foundation for not proving
Miss Lateefat oral evidence with primary evidence.
I therefore, answer the question in the negative, and this is resolved against the appellant and in favour of the respondent.
The first issue, will therefore, die naturally.
Hence, the decisions of the Tribunal are hereby set aside.
The screening of the honourable members of the SPC and the election of
the functionaries of the SPC conducted by the Committee are hereby
valid.
SUMMARY JUDGMENT
- The respondent shall pay N3000, 000 (three thousand naira only) to the Registrar of the High Court;
- That 3.0 CGPA is the prerequisite condition for
contesting the position of the honourable (including the
functionaries) of SPC;
- The appellant has not proved his case beyond reasonable doubt;
- The screening of the honourable members of the SPC and
the election of the functionaries of the SPC conducted by the
Committee are hereby valid.
DA-SLVA ADEKUNMI JCA Concurred
KING ADEBAYO JCA Concurred
COUNSEL:
Nurudeen, Yusuf Temilola, Ibojoh Julius of Gani Fawehinmi Chambers
LASU
Chapter
Appellant
Tijani Mubarak Oluwaseun of Gani Fawehinmi Chambers Respondent
LASU Chapter
This judgment is delivered on the 17th day of September, 2012
