APPEALS – notice of appeal – where an appellant files more than one notice of appeal – attitude of court thereto – an appellant is entitled to file more than one notice of appeal within the time prescribed by the rules of court for so doing but he must choose one of the notices of appeal argue the appeal

CIVIL PROCEDURE – evaluation of evidence – on whom the duty lies – It is the primary responsibility of the trial court to fully consider in totality the evidence of both parties placed before the court – the trial judge in evaluating evidence of both parties shall put the evidence on the imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary finding of facts and then come to a logical conclusion

CIVIL PROCEDURE – evaluation of evidence – failure of trial court to properly evaluate – an appellate court is entitled to intervene and revaluate such evidence – save and except instances where trial court fails to properly evaluate evidence appellate court has no business interfering with the findings of the trial court on such evidence

EVIDENCE – evaluation of and ascription of probative value or weight to – on whom the duty lies – the trial Judge who saw and heard the witnesses testify – the trial judge is in a position to access the credibility and watch the demeanour of witnesses

EVIDENCE – evaluation of evidence by a particular judge – when in issue or is being challenged – the guiding principles

EVIDENCE – affidavit evidence – probative value of – constitutes evidence and must be so construed – unchallenged or uncontroverted deposition in affidavit deemed admitted

EVIDENCE – documentary evidence – failure on the part of trial court to carry out its primary function to evaluate same – Court of Appeal and the Supreme Court is in a position to evaluate same

RULES OF COURT – Order 8 Rule 2 of the Supreme Court Rules 2000 (as amended) – sets out the requirements of a valid notice of appeal

WORDS AND PHRASES – evidence – defined

WORDS AND PHRASES – estoppel by silence – meaning of – estoppel that arises when a party is under a duty to speak but fails to do so

Précis

Appellant as Plaintiff by Originating Summons commenced the instant action at the Federal High Court originally against 1st and 2nd Respondents only, as defendants. Later, the Originating Summons was amended to join 1st Respondent (3rd defendant at the trial Court). The gravamen of the appellant’s suit in the trial Federal High Court was that 1st Respondent was not cleared to contest 2nd respondent’s primary election held on Thursday 6th January 2011, for the purpose of picking 2nd respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April 2011 general election.

At the end of the day judgment was entered in favour of the Appellant as per her amended Originating Summons.

1st and 2nd defendants appealed to the Court of Appeal, which set aside the trial Federal High Court’s judgment. To initiate the appeal, Appellant filed two Notices of Appeal. Upon being served with Record of Appeal, Appellant filed her brief of argument and 1st and 2nd Respondents filed a joint brief of argument. Appellant also filed a Reply brief of Argument in response to 1st and 2nd Respondents’ joint brief of argument.

When the appeal came up for hearing at the Court of Appeal, 1st and 2nd Respondents sought for and obtained leave of court to move a preliminary objection that they filed separately. In the main, the ground of 1st and 2nd Respondents’ preliminary objection was that it constituted an abuse of court process for the appellant to maintain two Notices of Appeal, and urged the apex court to dismiss the appellant’s appeal with costs. Appellant’s counsel referred to a Motion on Notice he had filed for leave to appeal on grounds other than law alone and for leave to amend the appellant’s brief of argument and argued that the said motion if granted will cure any defect in the processes filed by appellant. He urged the court to so hold. It was also contested on behalf of the appellant that an appellant is at liberty to file two or more Notices of Appeal so long as they are filed within time and is at liberty to choose whether to use all or some or one of them and withdraw or abandon the others, but that the filing and maintenance of more than one notice of appeal in the same matter before the same court does not render any of the notices incompetent. Appellant canvassed arguments in support of the two notices in her brief of argument as well as at the hearing of the respondents’ preliminary objection, but asked for leave to withdraw her earlier notice of appeal in the alternative. The apex court in a considered ruling dismissed the respondents’ preliminary objection in favour of hearing the appeal on the merits.

ISSUES:

1. Whether the 1st Respondent was duly cleared to contest the primary elections held on Thursday 6th January 2011, for the purpose of picking 2nd respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April 2011 general election.

2. Whether the Court of Appeal appreciated the basis for the trial court’s application of the principle of estoppel and this notwithstanding whether the 1st respondent who failed to challenge the decisions of the 2nd respondent’s screening Electoral and Electoral appeals panels disqualifying him from contesting the 2nd respondent’s primaries could turn around to complain or extricate itself from the effect of the said decision.

HELD, dismissing the appeal,

1. An appellant is entitled to file more than one notice of appeal within the time prescribed by the rules of court for so doing. But whenever there is more than one notice of appeal and all the notices were filed within the time prescribed, the appellant cannot use or rely upon more than just one of the notices of appeal to argue the appeal. He must choose which of them he intends to rely upon. See: Bilante International Ltd. V. Nigeria Deposit Insurance Corporation (2011) 8 SCM 40 at 540; Iteshi Onwe vs. The State (1975) 9 – 11 SC 41.

2. On the appellate jurisdiction of this court, Order 8 Rule 2 of the Supreme Court Rules 2000 (as amended) provides as follows:

‘‘Order 8(2)(1) – All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘‘the Notice of Appeal’’) to be filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or part only of the decisions of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.’’

From the above rule of this court, it is clear that an appeal to this court is required to be argued on a Notice of Appeal but not more than one. As stated earlier, there is no doubt that an appellant may file more than one Notice of Appeal within the time prescribed by the rules so to do but the argument on the appeal shall be hinged on only one Notice of Appeal which may incorporate the grounds in other notices by or with leave of court at any time. [See: Rule 4 of Order 8, supra]

3. What then is evidence?

‘‘Evidence, broadly defined, is the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain. ‘Evidence’ is the demonstration of a fact, it signifies that which demonstrates, makes clear, ascertains the truth of the very fact or point in issue, either on the one side or on the other. In legal acceptation, the term ‘Evidence’ includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. ‘Evidence’ has also been defined to mean any species of proof legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, and the like.’’ See: Black’s Law Dictionary, Ninth Edition, page 635

4. Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial Judge who saw and heard the witnesses testify. The trial judge is therefore in a position to access the credibility and watch the demeanour of witnesses. See: Bartholomew Onwubuariri & Ors v. Isaac Igboasoiyi & Ors (2011) 1 SCM 100 AT 119; Michael Eyo v. Emeka Collins Onuoha & Anor (2011) 2 SCM 178 at 106; Guardian Newspapers Ltd & Anor v. Rev. Pastor Ajeh (2011) 5 SCM 111 at 124

5. When the evaluation of evidence by a particular judge is in issue or being challenged, the guiding principles are as follows:

(i) Whether the evidence is admissible

(ii) Whether the evidence is relevant

(iii) Whether the evidence is credible

(iv) Whether the evidence is conclusive

(v) Whether the evidence is more probable than that given by the other party

See: Mogaji v. Odofin (1978) 4 SC 91

6. It is the primary responsibility of the trial court to fully consider in totality the evidence of both parties placed before the court. In doing this, the trial judge shall put the evidence on the imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary finding of facts and then come to a logical conclusion.

7. When the trial court saddled with the responsibility of evaluating evidence fails so to do, or to do so properly, then an appellate court is entitled to intervene and revaluate such evidence. Otherwise the appellate court has no business interfering with the findings of the trial court on such evidence. See: Agbi & Anor v. Ogbeh & Ors (2006) 11 NWLR (pt. 990) 65; Fabenro v. Arobadi & Ors (2006) 3 SCM 99, (2006) 7 NWLR (pt. 978) 174; Bashaya v. State (1998) 5 NWLR (pt. 550) 351; Ojokolobo v. Alamu (1998) 9 NWLR (pt. 565) 226; Shah v. Kwan (2000) 5 SC 178; Military Governor of Lagos State & Ors v. Adebayo Adeyig & Ors (2012) 2 SCM 183 at 210

8. In the instant case, the case was tried on affidavit and documentary evidence. There was affidavit and further affidavit in support of the Originating Summons by the appellant at the trial court. There were also counter affidavits and reply to further affidavit of the respondents to oppose the Originating Summons. It is already a settled law that affidavit evidence constitutes evidence and must be so construed, hence, any deposition therein which is none challenged or controverted is deemed admitted. See: Ajomale v. Yaduat & Anor (No.2) (1991) 5 NWLR (pt. 191) 226 at 282-283, (1991) 5 SCNJ 178; Magnuson v. Koiki (1993) 12 SCNJ 114; Henry Stephens Engineering Ltd v. Yakubu (Nig) Ltd (2009) 6 SCM 90 at 99

9. The court below as well as this court is in a position, once there is a failure on the part of the trial court to carry out its primary function of evaluation of documentary evidence adduced to evaluate same. See: Mallam Yusuf Jimoh & Anor v. Mallam Karimu Akande & Anor (2009) 1 SCM 34 at 58.

10. In the instant case, the 2nd Respondent (PDP) was in the best position to state whether or not the 1st Respondent was cleared and it has stated so in its counter-affidavit and documentary evidence marked as Exhibits. But rather unfortunately the depositions and documentary evidence adduced by the respondents were not considered by the trial court before concluding that the 1st respondent was not qualified to contest the primary elections, much more the general elections into the National Assembly. In the circumstance, the court below was therefore right in disturbing the finding of the trial court, which is perverse, to the effect that the 1st respondent was not cleared to contest the 2nd respondent’s primary election held on Thursday 6th January 2011, for the purpose of picking the 2nd Respondent’s candidate for the Yauri/Shanga/Ngaski Federal Constituency in the April 2011 general election.

11. Generally, estoppel means ‘‘a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. A bar that prevents re-litigation of issues.’’ See: Black’s Law Dictionary, Ninth Edition, page 629

12. Estoppel by silence means ‘‘estoppel that arises when a party is under a duty to speak but fails to do so.’’ See: Black’s Law Dictionary, Ninth Edition, page 630

13. From the available affidavit and documentary evidence before the trial court which the judge failed to consider but which were rightly considered as they should by the court below to dispel the injustice done to the 1st Respondent, the trial court wrongly applied the doctrine of estoppel against the 1st Respondent. The 1st Respondent can therefore not be said to have kept silent when he was expected to talk nor stood by and watch things happen against or for him without taking action. In other words, the doctrine is inapplicable, to say the least.