HON. CHIEF OGBUEFI OZOMGBACHI v. MR. DENNIS AMADI & ORS(2018)

HON. CHIEF OGBUEFI OZOMGBACHI v. MR. DENNIS AMADI & ORS

(2018) LCN/4758(SC)

In The Supreme Court of Nigeria

On Friday, the 20th day of July, 2018

SC.292/2017 (CONSOLIDATED)

RATIO

WHETHER WHERE GROUNDS OF APPEAL ARE NOT OF LAW ALONE, LEAVE IS REQUIRED TO BE FIRST SOUGHT AND OBTAINED BEFORE THEIR FILING

I agree with Dr. Ikpeazu, SAN, of counsel to the 2nd Respondent in the appeal No. SC.292/2017 and 1st Respondent in the appeal No. SC.293/2077 that the grounds of appeal in respect of which he objected to are incompetent. They, not being grounds involving questions of law alone, require leave first sought and obtained before their filing in this Court. Leave of Court first sought and obtained is what validates those grounds of appeal (on facts or mixed law and facts) and issues raised therefrom. The said grounds of appeal and the issues raised therefrom are incompetent without leave first sought and obtained. That is the effect of Section 233(3) of the 1999 Constitution, as amended. The following cases aptly demonstrate what I am saying: KTP LTD v. G & H (NIG) LTD (2005) 13 NWLR (Pt.943) 680 (SC); OJEMENI v. MOMODU (1933) 1 SCNLR 188 at 205; MAIGORO v. GARBA (1999) 10 NWLR (Pt.624) 555 at 568; EKUNOLA v. CBN (2013) 15 NWLR (Pt.1377) 224 at 260. PER EJEMBI EKO, J.S.C.

WHETHER A PARTY CAN MAINTAIN ON APPEAL, A CASE DIFFERENT FROM THAT WHICH WAS PRESENTED AT THE LOWER COURT

The law is settled that a party must be consistent in the case he presents at the trial Court and the appellate Court his appeal being a continuation of the case at the trial Court. He is not permitted “to chop and change his case from one stage to another in the litigation progress” if I may borrow the phrase from Abiru, JCA in ALHAJI IBRAHIM SHEKA v. ALHAJI UMARU BASHARI (2013) LPELR – 21403 (CA). A party is therefore not permitted to do a total volte – face at the appeal Court from his case at the trial Court. He must be consistent from trial Court to the last stage of the appeal. The following cases demonstrably deprecate that practice, that is: AWUSE v. ODILI (2003) 16 NSCQR 218; AGBASO v. OHAKIM 7 EPR 420; OSUJI v. EKEOCHA 39 NSCQR 523 at 555; OLUFEAGBA v. ABDULRAHEEM (2009) 40 NSCQR 684; PACERS v. DANCING SISTER (2012) 1 SCNJ 1 at 6; ADEOSUN v. EKITI STATE (2012) 1 SCNJ 260. He is not allowed to maintain on appeal a different case from the case he pursued at the trial Court: ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2005) 16 NWLR (Pt. 1006); EMMANUEL v. GOMEZ (2009) 7 NWLR (pt. 1139) 1. PER EJEMBI EKO, J.S.C.

WHETHER A COURT CAN GRANT TO A PLAINTIFF A RELIEF NOT CLAIMED BY HIM

It is trite law that in our adversary system, a Judge must strictly confine himself to the relief or reliefs in the adjudication process – C. C. B (NIG) Plc v. Ozobu (1998) 3 NWLR (Pt. 514). A Court of law has no power to grant to a plaintiff a relief not claimed by him. It should always be borne in mind that a Court of law is not a charitable institution. The Court is only to grant a part what was expressly claimed. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER IT IS THE INDIVIDUALS AS CANDIDATES THAT WIN ELECTION OR THE POLITICAL PARTIES OF THE CANDIDATES

…I believe the Supreme Court has laid to rest the contention that it is the political party which contests and wins an election. In C.P.C. v OMBUGADU (2013) 18 NWLR (Pt. 1385), the Court was categorical that individuals as candidates win election and not the political parties. PER MARY UKAEGO PETER-ODILI, J.S.C.

WHETHER PARTIES CAN DEPART FROM THEIR PLEADINGS AND EMBARK ON A FRESH OR BRAND NEW CASE DIFFERENT FROM THE VERY BEGINNING

It needs be reiterated that parties are bound by their pleadings and no party is allowed to make a case different from what it set out from inception and so for the appellant to seek to depart from their pleadings and embark on a fresh or brand new case different from the very beginning is an act in futility. The obvious reason is that a case retains its original nature from commencement and the colour would not change because it is on appeal since an appeal or appeals are merely a continuum of that matter that entered for the very first time at the Court of first instance. It follows that the brilliant address of counsel would not scratch the surface in the apparent quest for a change of nature of the case. See Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 106; Alhassan v. Ishaku (supra) at 286 per Ogunbiyi JSC; Ogunsanya v. The State (2011) LPELR – 2349 (SC) 44 – 54 per Rhodes – Vivour JSC. PER MARY UKAEGO PETER-ODILI, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

Between

HON. CHIEF OGBUEFI OZOMGBACHI Appellant(s)

AND

MR. DENNIS AMADI
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
SC.292/2017AND1. PEOPLES DEMOCRATIC PARTY (PDP)
2. MR. DENNIS AMADI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
SC.293/2017 Respondent(s)

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The two appeals have a common source. Their fountain head was the suit No.FHC/ABJ/CS/1026/2014 brought on the originating summons by the Appellant herein against the three Respondents (as defendants) in each of the two appeals. It is therefore right that the two appeals be taken together, especially as the issues for determination in the two appeals are almost identical.

The Appellant, as the plaintiff, sought the Federal High Court to determine the following three(3) questions and sought nine (9) reliefs, namely:
1. QUESTION FOR DETERMINATION
a. Having regard to the Subsisting judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 BARR. ORJI CHINENYE GODWIN & ORS v. PEOPLES DEMOCRATIC PARTY & 4 ORS, the Ward Congress held by the 2nd Defendant in Udi and Ezeagu LGAs in Enugu State remain the only valid and authentic Ward Congress for the purpose of conducting Primary Election for the selection/nomination of the PDP candidate for the Udi and Ezeagu Federal Constituency.

Whether the selection/nomination of the 2nd Defendants candidates for the office of Member Federal House of Representatives in the forthcoming General Election can be conducted except by the Ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 in Udi and Ezeagu LGA as per the subsisting Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 aforesaid.
c. Whether the Plaintiff having been elected/nominated by the approved and authentic delegates at the primary election held on 6th December, 2014 for the selection/election of the PDP candidate for Udi and Ezeagu Federal Constituency for the forthcoming General Elections, his name ought to be submitted to the 3rd Defendant as the PDP candidate for the election to the offence of the Member Federal House of Representatives for Udi and Ezeagu Federal Constituency.
2. UPON THE DETERMINATION OF THE FOLLOWING (SIC-FOREGOING) QUESTIONS, THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS:
i. A DECLARATION that by the subsisting final judgment suit No.FHC/ABJ/CS/816/2014, the Ward Congress held by the 2nd Defendant for the Udi and Ezeagu LGA on 1st November, 2014 for the purpose of electing the Ad hoc delegates for the conduct of the

Primary Election for Udi and Ezeagu Federal Constituency is valid, authentic and only legitimate Ward Congress for the conduct of primary election in Udi and Ezeagu Federal Constituency.
ii. A DECLARATION that the Ad hoc delegates elected/selected at the Ward Congress held on 1st November 2014 by the 2nd Defendant as per the subsisting Judgment in suit No.FHC/ABJ/CS/816/2014 are the only valid and legitimate delegates under the PDP Constitution and electoral Guidelines 2014 for the purpose of electing/selection/nominating the PDP candidate for the election to the office of Member House of Representatives for Udi and Ezeagu Federal Constituency.
iii. A DECLARATION that the primary election conducted by the delegates elected at the Ward Congress referred to above and which said primary election was conducted on 6th December, 2014 is valid, legitimate and subsisting.
iv. A DECLARATION that the plaintiff having been elected/selected/nominated as the winner of the primary election conducted on 6th December, 2014 is the duly selected/elected candidate of the 2nd Defendant whose names and particulars should be submitted to the 3rd Defendant under the Electoral Act, 2010, as amended.

AN ORDER OF INJUNCTION restraining the 2nd Defendant by itself, its officers, servants, privies or any organ whatsoever from submitting any other name save the names/particulars of the plaintiff as the 2nd Defendant’s candidate for Udi and Ezeagu Federal Constituency (election to the office of Member, Federal House of Representatives, Udi and Ezeagu Federal Constituency).
vi. AN ORDER OF INJUNCTION restraining the 1st Defendant or any other person acting for and in his behalf from interfering with the Plaintiff’s right as the elected PDP candidate for Udi and Ezeagu Federal Constituency for the forthcoming 2015 General elections.
vii. AN ORDER OF INJUNCTION restraining the 1st Defendant by himself or his privies, servants or otherwise howsoever from parading himself as the 2nd Defendant’s candidate for Udi and Ezeagu Federal Constituency and or from presenting himself to any person or authority including the 2nd and 3rd Defendants as being the 2nd Defendant’s candidate for the Udi and Ezeagu Federal Constituency.
viii. AN ORDER OF INJUNCTION restraining the 3rd Defendant from accepting the name

of the 1st Defendant or any other person save the plaintiff as the duly selected/elected PDP candidate for Udi and Ezeagu Federal Constituency for the purpose of election of Member of the Federal House of Representatives in the forthcoming 2015 General Election.
ix. And for such further and or other orders as the Honourable Court may deem fit to make in the circumstances.

Ex Facie, reliefs V – IX are merely consequential upon the grant of the main declaratory Reliefs I – IV. And the centre of reliefs I – IV is the validity, existence and subsistence, in law, of the judgment of the Federal High Court in the suit No. FCH/ABJ/CS/816/2014.

The trial Federal High Court (Coram: O. E. Abang, J), upon hearing the parties on the Originating Summons, entered judgment for the Appellant as the plaintiff. The main bastion of its decision was that the Peoples Democratic Party (PDP) Appeal Panel had, in Exhibit 12, affirmed that the Appellant, as the plaintiff, duly “won the only primary election conducted by the Peoples Democratic Party in Udi/Ezeagu Federal Constituency on 6th December, 2014″. The learned trial Judge whose attention was drawn to the Court

of Appeal decision in appeal No.CA/A/28/20I5: PDP v. BARR. ORJI GODWIN & ORS, which not only set aside the decision of Ademola, J in suit No. FHC/ABJ/CS/816 /2014 but also struck out the entire suit held; (at page 1573 – 4 of the Record) on the status of the suit No. FHC/ABJ/CS/816/2014 viz-a-viz appeal No.CA/A/28/2015, that:
The basis for setting aside the judgment was that this Court per Ademola, J. had no jurisdiction in entertaining the said suit. The fact still remains that those delegates were elected at the Peoples Democratics Ward Congresses held at (sic) Enusu State on 1st November, 2014. This was the position of the Court of Appeal in Appeal No. CA/A/177/15: PDP & ORS v. ASADU judgment of the Court of Appeal dated 1st July, 2015, wherein it was held at p.33 of the said judgment thus:
The judgment of the said Federal High Court was set aside in Appeal No: CA/A/28/2015. That notwithstanding the decision of the appellate Court had nothing to do with regard genuity or otherwise of the delegate list.
I have not even seen any problem here. From the pronouncement of the Court of Appeal, their Lordships of the

Court of Appeal have not set aside the people’s Democratic Party Ward Congress delegates’ list obtained in the ward congress election of the Peoples Democratic Party on 1st November 2014. People’s Democratic Party, the 2nd Defendant herein, did not produce any ratified or harmonised list before this Court that it claimed existed at the time of the primary election. Therefore, the list of delegate used by the 2nd Defendant in election of 6th December, 2014, subsist and it was rightly used to elect the Plaintiff as the Peoples Democratic Party candidate for 2015 general election in Udi/Ezeagu Federal Constituency.

The 1st and 2nd Respondent, respectively the 1st and 2nd Defendant at the trial Court, appealed against the decision to the Court of Appeal (hereinafter called the Lower Court”). The 1st Respondent’s appeal was CA/A/355A/2016; while the 2nd Respondent’s appeal was CA/A/355/2016. The Lower Court in its reserved judgment delivered on 15th February, 2017, observed at page 2316 of the Record –
One of the bones of contention between the parties is the approved delegates qualified to vote at the congress. Appellant contended (that) the approved Delegates are the

tree delegates elected from each ward in the constituency plus statutory delegates selected in accordance with the Party’s Guidelines.
The 1st Respondent (the present Appellant) took the rigid position and insisted that the only delegates that were qualified to vote at the special congress aforesaid are those on the list of delegates sanctioned by the Federal High Court in FHC/ABJ/CS/816/2014 per Ademola, J. The Appellant’s position is that the judgment of Ademola J., did not sanction the delegates contained in his judgment as the only delegates that will vote at the special congress to nominate PDP flag bearer for House of Representatives election for Udi/Ezeagu Constituency.

The Lower Court, upon its analysis of the judgment of Ademola, J, in the suit No. FHC/ABJ/CS/816/2014, found that Ademola, J., did not in the judgment at page 2320 of the Record, state that the three ad hoc delegates elected at the Ward Congress on 1st November, 2014, “were imbued or clothed with special favour to alone vote at the special congress to nominate” the PDP candidate for the House of Representatives for UDI/EZEAGU Federal Constituency for

the 2015 general election; that “they cannot under any guise claim to be the anointed delegates who will all alone nominate the candidate of PDP for UDI/EZEAGU (Federal) Constituency”, and that “the judgment of Hon. Justice Ademola did not decide any such thing beyond mere declaratory judgment that those delegates who were parties in FHC/ABJ/CS/816/2014 were the 3 Ad hoc Delegates elected from Ward Special Congress of PDP on 1/11/2014 and no more”‘ At page 2321 of the Record the Lower Court further held that “the dement (i.e FHC/ABJ/CS/816/2016) so much relied upon the 1st Respondent (the present Appellant herein) is quite unhelpful to his cause and suit. At page 2327 of the Record, the Lower Court further held, quite poignantly, that the judgment of Ademola, J., in FHC/ABJ/CS/816/2014 “which is the fountain of resort for the 1st Respondent (the present Appellant’s) case has been set aside by this Court in the appeal No. CA/A/28/2015” and that the suit of the 1st Respondent (FHC/ABJ/CS/816/2014) had been “submerged and rendered impotent”, its fountain having collapsed and brought to its terminal end. The Lower Court on this issue and others allowed the appeal of the 1st

and 2nd Respondents herein, who were the appellants before it. It is this judgment that agitated the Appellant herein to lodge his two appeals No: SC.292/2017 and SC.293/2017 in this Court.

In the two appeals, Appellant’s issues 3 (SC.292/2017) and 5 (SC.293/2017) are ipssima verba, to wit:
Whether the Court of Appeal was right in holding that its judgment in CA/A/28/2015 in PDP & ORS v BARR. ORJI CHINENYE GODWIN & ORS removed the basis for the questions for determination and reliefs sought in the Originating Summons.

I shall come anon to this issue. Before then, let me consider the preliminary objections of Dr. Ikpeazu, SAN, of counsel to the 2nd and 1st Respondents, respectively, in the appeals SC.292/2017 and SC.293/2017. The learned senior counsel’s objection to grounds 4, 5, 6, 8 and 10 in appeal No. SC.292/2017 and grounds 6, 7, 9, 10 and 12 is predicated on the grounds, each, “challenging the decision of the Court of Appeal overruling the findings of fact made by the trial Judge are grounds of fact/mixed law and fact”. Grounds 4, 5, 6, 8 and 10 in appeal No.SC.292/2017 are identical with grounds 6, 7, 9, 10 and in the appeal

No.293/2017. The five grounds, shorn of their particulars, are herein below reproduced, viz:
1. The learned Justices of the Court of Appeal erred in law when they held that the Appellant had participated in an illegal and unauthorized primary election to nominate PDP candidate for Udi/Ezeagu Federal Constituency on 6th December, 2014, and thereby occasioned a miscarriage of justice.
(Ground 4 in SC.292/2017; Ground 5 in SC.293/2017)
The ground, though ingenuously labelled as an error of law, is a complaint that the Lower Court erred in its finding of fact that “the Appellant participated in illegal and unauthorised primary election to nominate PDP candidate for Udi/Ezeagu Federal Constituency.”
II. The learned Justices of the Court of Appeal erred in law when they held as follows:
(a) Exhibit 10 attached to the affidavit in support of the Originating Summons, which the 1st respondent said is the authentic result of the primary election and which shows that he scored the highest votes, is contradicted by Exhibit DA 6 which is attached to the 2nd respondent’s counter affidavit of 16-2-2015 which shows that the 2nd respondent scored the highest.
(Ground 7 in SC.293/2017)

The ground queries the factual basis for the findings of fact on which the Court of Appeal reversed the learned trial Judge’s judgment. It is not an error of law.
III. The learned Justices of the Court of Appeal erred in law when they held as follows:
Exhibit 10 which is the pivot upon which the Lower Court’s judgment is based is thus moribund and of no evidential value. Exhibit 10 cannot be said to be authentic and is not even capable of conferring on the 1st Respondent the right to be 2nd Respondent’s candidate because it is a product of unlawful or illegal primary. The Appellant has every reason or cause to assert that Exhibit 10 is concocted.
(Ground 5 in SC.292/2017)
The ground deals with the factual basis of the findings of fact made by the Court of Appeal for reversing the judgment of the learned trial Judge. It is not an error of law.
IV.(a) The learned Justices of the Court of Appeal erred in law when they held as follows:
All the documentary evidence and facts on oath showed the 1st Respondent did not participate in any Primary election conducted or organised by its National Executive Council.
(Ground 6 in SC.292/2017)

The ground complains clearly about the finding of fact by the Lower Court that “all the documentary evidence and facts on oath showed (that) the 1st Respondent did not participate in any primary election conducted or organised by “the National Executive Council of the PDP. It is not a complaint founded on any error of law.
(b) The learned Justices of the Court of Appeal erred in law when they held that the 2nd Respondent is the winner of the primary election of the 1st Respondent on 6th December, 2014.
(Ground 8 in SC.292/2017 and Ground 9 in SC.293/2017)
The complaint in this ground is against the finding of fact “that the 2nd Respondent is the winner of the primary election of the 1st Respondents on 6th December, 2014. The particulars of error adumbrating that from the totality of evidence, this Appellant won the primary election and that the Lower Court did not consider the relevant facts disclosed by the affidavits in support of the Originating Summons makes indubitable that the ground is one of facts, and not of law.

The Learned Justices of the Court of Appeal wrongly evaluated the affidavit and the documentary evidence placed before the trial Court by the Parties.
(Ground 10 of SC.292/2017 and Ground 12 of SC.293/2017)
Proper or improper evaluation of evidential materials before a Court comes to a decision that one set of facts has been established, and the other set not established falls within the domain of facts. The complaint in this ground, from the particulars of error, is that some facts favourable to the Appellant were disregarded or not considered even if the complaint is not squarely on facts, it definitely would be of mixed law and facts.I have read the Appellants Reply Briefs particularly replies to Dr. Ikpeazu’s objections to the aforesaid grounds of appeal. The Appellant’s counsel does not seem to think or consider that Dr. Ikpeazu’s objections are material. He joined no issues with him in the Reply Briefs on the incompetency of the aforesaid grounds. Even if he did, the situation will not materially change. I agree with Dr. Ikpeazu, SAN, of counsel to the 2nd Respondent in the appeal No. SC.292/2017 and 1st Respondent in the appeal No. SC.293/2077 that the

grounds of appeal in respect of which he objected to are incompetent. They, not being grounds involving questions of law alone, require leave first sought and obtained before their filing in this Court. Leave of Court first sought and obtained is what validates those grounds of appeal (on facts or mixed law and facts) and issues raised therefrom. The said grounds of appeal and the issues raised therefrom are incompetent without leave first sought and obtained. That is the effect of Section 233(3) of the 1999 Constitution, as amended. The following cases aptly demonstrate what I am saying: KTP LTD v. G & H (NIG) LTD (2005) 13 NWLR (Pt.943) 680 (SC); OJEMEN v. MOMODU (1983) 1 SCNLR 188 at 205; MAIGORO v. GARBA (1999) 10 NWLR (Pt.624) 555 at 568; EKUNOLA v. CBN (2013) 15 NWLR (Pt.1377) 224 at 260.
Appellant’s issues 2 and 4 (Appeal No. SC.292/2017) and 4 (Appeal No. SC.293/2017 affected by the foregoing and being incompetent are hereby struck out like the grounds of appeal from which they were raised.

Now, I come back to the issue: Whether the Court of Appeal was right in holding that its judgment in appeal No. CA/A/28/2015: PDP & ORS v. BARR. CHINENYE GODWIN

& ORS, removed the basis for the questions for determination and the reliefs sought in the originating summons. At the heart of this issue is the question whether the Lower Court properly construed the questions for determination raised, and the reliefs sought by the appellant in his Originating Summons at the trial Court. In otherwords, did the Lower Court properly interpret the Originating Summons in the light of the questions for determination and the Reliefs sought by the Appellant at the trial Court when it held that, the judgment of the Court of Appeal in CA/A/28/2015 which set aside the judgment of the trial Court in the suit No.FHC/ABJ/CS/816/2014 and struck out the suit in its entirety, had submerged, collapsed and rendered impotent or brought to its terminal end the cause and the suit of the Appellant, as the plaintiff at the trial Court With all deference to Chief Uche, SAN, it is not correct, as he did submit, that the “gravamen of the questions and reliefs sought by the Appellant in his Originating Summons was mainly complaints against the failure of the 2nd Respondent to honour the decision of the recognized electorate who

voted in their majority in favour of the Appellant in the primary election in issue”. The learned senior counsel was clearly wrong in his submission that “he is the winner of the only primary election conducted for Udi/Ezeagu Federal constituency for the ticket of the 2nd Respondent and for the Court to compel the 2nd Respondent to be bound by the result of the primary election”.

NSCQR 684; PACERS v. DANCING SISTER (2012) 1 SCNJ 1 at 6; ADEOSUN v. EKITI STATE (2012) 1 SCNJ 260. He is not allowed to maintain on appeal a different case from the case he pursued at the trial Court: ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2005) 16 NWLR (Pt. 1006); EMMANUEL v. GOMEZ (2009) 7 NWLR (pt. 1139) 1.

I earlier reproduced in this judgment the three (3) questions for determination posed by the Appellant in his Originating Summons at the trial Court and the nine (9) reliefs he sought of the trial Court in the said Originating Summons. The Appellant, as evinced from paragraphs 2.03 in his Briefs of Argument in both appeals, initiated his suit via the Originating Summons on the fact that –
After declaring the Appellant winner of the primaries, certain persons came to the venue and in an unruly manner sought to repeat the process with another list of delegates, specifically with respect to ad-hoc delegates, which delegates constitute over 90% of the voting power. The “new” list of delegates were not the product of the ward congress earlier held which produced the delegates that participated and voted overwhelmingly in favour of the appellant

which occasioned his return by the Returning officer. The attempt was resisted by the voters present and the security personnel had to disperse the crowd. The Appellant however was informed later that it was the name of the 2nd Respondent (in SC.293/2017 and 1st Respondent in SC.292/2017) that would be submitted as the candidate of the PDP.

This summary of facts from the supporting affidavit provides the ulterior purpose for the Appellant’s suit on the Originating Summons, the aim of which was to discredit and invalidate the delegate list used in the rival or competing subsequent election from which Dennis Amadi (1st and 2nd Respondent respectively in SC.292/2017 and SC.293/2017) emerged as the duly nominated candidate of the PDP for Udi/Ezeagu Federal Constituency. The suit, the subject of the two appeals was contrived by the Appellant to give primacy or supercessionary superiority to the delegate list on which he was allegedly elected that informed his suit. It is apparent from the questions for determination and Reliefs (a) – (d) that they are structured or erected on the validity or subsistence of the judgment in the suit No.FHC/ABJ/CS/816/2014

that purportedly sanctioned, validated and authenticated the delegates list on which he was allegedly elected as the PDP candidate for Udi/Ezeagu Federal Constituency on 6th December, 2014.

The further dismembering of the Appellant’s reliefs and the supporting affidavit evidence in the Originating Summons suggests, unequivocally that –
l. The two primary elections were conducted on 6th December, 2014 to nominate the PDP candidate for Udi/Ezeagu Federal Constituency. That is; the one conducted on the authority of the subsistence of the Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 from which the Appellant emerged as the candidate, and the other; and
II. The Appellant, as the plaintiff, from the questions for determination and the reliefs sought the trial Court to declare against Mr. Dennis Amadi and the PDP that no body, except himself, could be validly elected or returned as the PDP candidate for Udi/Ezeagu Federal Constituency without the participation of the delegates specifically sanctioned or approved in the judgment in the suit No.FHC/ABJ/CS/816/2014, and that those were the delegates entitled to vote, elect and

return the PDP candidate for the said Federal Constituency.

I agree with the respondents’ counsel, particularly Dr. Ikpeazu, SAN, that the basis for the suit, the subject of this appeal, was the judgment of the Federal High Court in the suit no SC. FHC/ABJ/CS/816/2014. The three (3) Questions for determination and the four (4) declaratory reliefs were squarely mounted on that decision of the Federal High Court in the suit No.FHC/ABJ/CS/816/2014, which purportedly approved the delegates who the Appellant claimed, elected him. It follow therefore with the Court of Appeal decision in appeal No.CA/A/28/2018 that set aside the decision and struck out the suit in its entirety, that the suit No. FHC/ABJ/CS/816/2014 and the judgment therein had totally obliterated the foundation of the questions for determination and the reliefs sought in the instant suit, the subject of this appeal. The Court of Appeal, in my firm view, was right in holding that the judgment in the suit No.HC/ABJ/CS/816/2014 was “the sole basis of the questions raised for the determination and the reliefs claimed by the Appellant in his suit No.FHC/ABJ/CS/1026/2014

commenced on 15th December, 2014; and that the decision of the Court of Appeal in CA/A/28/2015 setting aside the said judgment of the Federal High Court in the suit No. FHC/ABJ/CS/816/2014 had “removed the basis for the questions for determination and the reliefs claimed” in the Originating Summons No.FHC/ABJ/CS/1026/2014. I further agree with the learned Justice of the Court of Appeal that the platform on which the case No. FHC/ABJ/CS/1026/2014 “was foisted and projected having been removed, the said case had nothing to stand on and therefore was bound to collapse and it collapsed”. It is both logical and commonsensical that when the basis of a claim or suit fails and ceases to exist, the suit or the claim itself becomes baseless and must fail.

Chief Uche, SAN, had very ingenuously raised a prevaricatory artifice to reverse out of the case of the Appellant’s case at the trial. I must say, metaphorically, that his “Carmel could not, and would not, pass through the eye of the needle”. He was quite ingenuous. The facts however are resolute against him. The truth, like the turtle shell, remains resolutely not malleable and untwistable.

Since this issue resolves the appeal against the Appellant, I find no further use considering the other issues. The two appeals have no substance. They are accordingly dismissed.

The Respondents have suffered costs in both appeals which the Appellant has to bear in order to have them indemnified. Accordingly, costs at N1,000,000.00 are hereby awarded, in each appeal, in favour of each Respondent to be paid by the Appellant. Appeals dismissed.

WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the benefit of reading in draft, the lead Judgment of my learned brother Eko JSC just delivered in the consolidated appeals and I agree with his reasoning and conclusion that the appeals are devoid of merit and should be dismissed.

The facts relevant to the determination of the issues in the appeals have been stated in detail in the lead Judgment making it unnecessary for me to repeat them herein except to emphasize the point being made.

It is not in doubt that the Judgment of Ademola J., in suit No.FHC/ABJ/CS/816/2014 was struck out after being set aside by the Court of Appeal.

Also not in doubt is the fact that appellant, as plaintiff, sought the determination of the following three questions from the Federal High Court: inter alia: vis
(a) Having regard to the subsisting Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 the ward congress held by the 2nd Defendant in Udi and Ezeagu Local Government Area. As in Enugu State remain the only valid and authentic Ward Congress for the purpose of conducting Primary Election for the selection/nomination of the PDP candidate for the Udi and Ezeagu Federal Constituency.
(b) Whether the selection/nomination of the 2nd Defendant’s candidates for the office of member Federal House of Representatives in the forthcoming General Election can be conducted except by the Ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 in Udi and Ezeagu Local Government Area as per the subsisting Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 afore-said.
(c) Whether the plaintiff having been selected/nominated by the approved and authentic delegate at the primary election held on 6th December, 2014 for the selection of the PDP candidate for Udi and Ezeagu Federal Constituency for

the forthcoming General Elections, his name ought to be submitted to 3rd Defendant as the PDP candidate for the election to the office of the Member Federal House of Representatives for Udi and Ezeagu Federal Constituency.”

The next question is what are the reliefs sought by the plaintiff These are stated inter alia, thus:
“(i) A DECLARATION that by the subsisting trial Judgment in suit No.FHC/ABJ/CS/816/2014, the Ward Congress held by the 2nd Defendant for the Udi and Ezeagu Local Government Area on 1st November, 2014 for the purpose of electing the Ad hoc delegates for the conduct of the Primary Election for Udi and Ezeagu Federal Constituency is valid, authentic and only legitimate Ward Congress for the conduct of the primary election in Udi and Ezeagu Federal Constituency.
(ii) A DECLARATION that this Ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 by the 2nd Defendant as per the subsisting Judgment in suit No.FHC/ABJ/CS/816/2014 are the only valid and legitimate delegates under the PDP Constitution and electoral guidelines 2014 for the purpose of electing/selection/nominating the PDP

Candidate for the election to the office of Member House of Representatives for Udi and Ezeagu Federal Constituency.
(iii) A DECLARATION that the Primary election conducted by the delegates elected at the Ward Congress referred to above and which said primary election was conducted on 6th December, 2014 is valid, legitimate and subsisting.
(iv) A DECLARATION that the plaintiff having been elected/selected/nominated as the Winner of the primary election conducted on 6th December, 2014 is the duly selected/elected candidate of the 2nd Defendant whose names and particulars should be submitted to the 3rd Defendant under the Electoral Act, 2010, as amended. Etc, etc, etc,

From the above, it is very clear that reliefs i – iv are grounded firmly on the existence and validity of the Judgment of the Federal High Court in the said suit No. FHC/ABJ/CS/816/2014 delivered by Ademola J., and which had, as earlier pointed out, been set aside by the Court of Appeal. The effect of the setting aside of the said Judgment is that the questions for determination and reliefs claimed in the suit resulting in this appeal, which had earlier been reproduced in this Judgment, had been

completely overtaken by events as they no longer have any foundation to rest on.

The above being the case, I have no hesitation in coming to the conclusion that the appeals lack merit and should be dismissed and ordered accordingly.

I abide by the consequential order made in the said lead Judgment, including the order as to costs.
Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the benefit of reading before today a draft of the leading judgment delivered by my learned brother, Eko JSC, I am in full agreement with his Lordship’s reasoning and conclusion that there is no merit in the appeals. I too dismiss both appeals, and endorse.

MARY UKAEGO PETER-ODILI, J.S.C.: This is an appeal by the appellant against the decision of the Court of Appeal, Abuja Division or Lower Court or Court below which allowed the appeal filed against the decision of the Federal High Court, Abuja Division and dismissed the appellant’s originating summons.

The facts have already been stated in the lead judgment just delivered by my learned brother, Ejembi Eko JSC and no

useful purpose would be achieved repeating them unless it becomes necessary to make a reference to any part thereof.

At the hearing of this appeal on the 15/5/18, learned counsel for the appellant, Chief Chris Uche SAN adopted the brief of argument filed on 20/6/17 and a reply brief of 2/5/18 and deemed filed on 15/5/18. He distilled six issues for determination which are thus:-
1) Whether the Court of Appeal was right in relying on the incompetent further affidavits and counter affidavits filed by the respondents which were contrary to the specialized provisions on processes to be filed in response to originating summons provided for in the Federal High Court Rules. (Distilled from grounds 1, 2, & 3).
2) Assuming issue one is answered in the affirmative, whether the Court of Appeal having held that the trial Court ought to have relied on all the further affidavits and counter affidavits in the interest of justice were not wrong to have only relied on the extra affidavits of the respondents and discountenanced the extra affidavits of the appellants which had also been struck out by the trial Court. (Distilled from ground 4).

3) Whether upon consideration of the entire pleadings of the appellant, the Court of Appeal was right in holding that the Originating Summons filed was predicated on the appellant’s election by the wards or ad hoc delegates alone. (Distilled from ground 5).
4) Whether the Court of Appeal was right in holding that the 2nd respondent was the winner of the primary election of the 1st respondent held on 6th December, 2014 to nominate the 1st respondent’s candidate for the office of member, House of Representatives for Udi and Ezeagu Federal Constituency (Distilled from grounds 6, 7, 9, 10 and 12).
5) Whether the Court of Appeal was right in holding that its decision reached in CA/A/28/2015 in PDP & 3 Ors v Barr. Orji Chinenye Godwin & 3 Ors removed the basis for the questions for determination and reliefs sought in the originating summons. (Distilled from ground 8).
6) Whether in the light of the circumstances of the suit, the Court of Appeal was right in holding that the trial Court had no power to grant consequential reliefs to the appellant (Distilled from ground 11).

Learned counsel for the 1st respondent, Chief Onyechi Ikpeazu SAN adopted the brief of argument filed on 15/3/18 and deemed filed on 15/5/18 in which were crafted four issues for determination, viz:-
1. Whether the Court of Appeal was correct when it set aside the decision of the Federal High Court disregarding the additional affidavit evidence filed by the respondents on the premise that they were filed without the leave of Court and contrary to the prescriptions of the Federal High Court (Civil Procedure) Rules, 2009 with regard to an Originating Summons. Grounds 1, 2, 3 and 4.
2. Whether the Court of Appeal was correct when it held that the decision of Court of Appeal in CA/A/28/2015 setting aside the Judgment of the Federal High Court in FHC/ABJ/CS/816/2014 removed the basis for the questions for determination and reliefs claimed in the Originating Summons and that the trial Court had no right to grant the consequential reliefs. Grounds 8 and 11.
3. Whether the Court of Appeal was correct when it held that the appellant claim being predicted on selection or nomination by the Ward ad-hoc delegates was not grantable in view of the provisions of the 1st respondent’s Electoral Guidelines. Ground 5.

Whether the Court of Appeal was correct when it held that the appellant participated in an illegal primary election and that it was the 2nd respondent who won the authentic primary election conducted by the 1st respondent (PDP) for the Udi/Ezeagu Federal Constituency of the House of Representatives. Grounds 6, 7, 9, 10 and 12.For ease of reference, I shall utilise the issues 2 and 3 as crafted by the 1st respondent being sufficient in the determination of the appeal.
ISSUES 2 AND 3:
2. Whether the Court of Appeal was correct when it held that the decision of Appeal in CA/A/28/2015 setting aside the judgment of the Federal High Court in FHC/ABJ/CS/816/2014 removed the basis for the questions for determination and reliefs claimed in the originating Summons and that the trial Court had no right to grant the consequential reliefs.
3. Whether the Court of Appeal was correct when it held that the appellant’s claim being predicated on selection or nomination by the Ward ad-hoc delegates was not grantable in view of the provisions of the 1st respondent’s Electoral Guidelines.

The learned Senior Advocate for the appellant in advancing the position of the appellants submitted along the lines briefly stated hereunder in a power point fashion thus:-
(1) The extra affidavits filed by all the parties was not in conformity with the special procedure of processes to be filed in an action commenced by Originating Summons under the Federal High Court (Civil Procedure) Rules 2009,
(2) With the existence of Exhibit 6, Exhibit 10, Exhibit 12 and Exhibit 13 (1-84), the documentary evidence and even by the admission of the 1st and 2nd respondents, the appellant participated in the validly conducted primary of 6th December, 2014 from whence he emerged as the 1st respondent’s candidate.
(3) The decision of the Court of Appeal in CA/A/28/2015 in PDP & 3 Ors v Barr. Orji Chinenye Godwin & 3 Ors did not in any way extinguish the right to rely on the votes it secured from delegate who voted in his favour on 6th December, 2014 particularly the ad-hoc delegate whose names are shown in Exhibit 6 and 84 of who deposed to Exhibit 13-91-84, the respondents having failed to present a different list of delegates who voted in the primary election.

(a) The Court of Appeal was not right in declaring the 2nd respondent winner of the primary election of the 1st respondent for the office of member, house of Representatives for Udi Ezeagu Federal Constituency particularly in the face of uncontested Exhibit 6 (ad-hoc delegated list) and Exhibit 12 (Report of the National Assembly Primary Elections Appeal Panel) which revealed that it was the appellant who was elected by majority of lawful votes.
(5) The consequential orders made by the trial Court was not in excess of its jurisdiction having already granted the substantive relief sought by the appellant and the said consequential reliefs being essential to protect the established right on record.

Learned counsel for the appellant cited numerous judicial authorities in support of the points stated above.

In response, Dr, Onyechi Ikpeazu SAN for the respondent asks the Court to dismiss the appeal on following grounds:-
1. The Court of Appeal was correct when it set aside the decision of the Federal high Court disregarding the additional affidavits evidence filed by the respondents on the premise that they were filed without the leave of Court and contrary to the prescription of the Federal

High Court (Civil Procedure) Rules, 2009 within regard top an Originating Summons.
2. The Court of Appeal was correct when it held that the decision in CA/A/23/2015 setting aside the judgment of the Federal High Court in FHC/ABJ/CS/816/2014 removed the basis for the questions for determination and reliefs claimed in the originating Summons and that the trial Court had no right to grant the consequential reliefs.
3. The Court of Appeal was correct when it held that the appellant’s claim being predicated on selection or nomination by the Ward Ad-hoc delegates was not grantable in view of the provisions of the 1st respondent’s Electoral Guidelines.
4. The Court of Appeal was correct when it held that the appellant participated in an illegal primary election and that it was the 2nd respondent who won the authentic primary election conducted by the 1st respondent (PDP) for the Udi/Ezeagu Federal Constituency of the House of Representatives.

For the 1st respondent, many judicial authorities were cited in support of the positions advanced.

To tackle the issues in contention, I shall go back in time to the Originating Summons filed by the appellant

as plaintiff on the 15th December, 2014 at the Federal High Court, Abuja claiming the following reliefs:-
“(a) A declaration that by the subsisting judgment in suit No.FHC/ABJ/CS/816/2014, the Ward Congress held by the 2nd defendant for Udi and Ezeagu LGA on 1st November, 2014 for the purpose of electing the ad-hoc delegates for the conduct of the primary election for Udi and Ezeagu Federal Constituency is valid, authentic and only legitimate Ward Congress for the conduct of primary election in Udi and Ezeagu Federal Constituency.
(b) A declaration that the ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 by the 1st defendant as per the subsisting judgment in suit No.FHC/ABJ/CS/816/2014 are the only valid and legitimate delegates under the Peoples Democratic Party Constitution and Electoral Guidelines 2014 for the purpose of electing/selecting/nominating the Peoples Democratic Party candidate for the election to the office of Member House of Representatives for Udi and Ezeagu Federal Constituency.
(c) A declaration that the primary election conducted by the delegates elected at the Ward Congress

referred to above and which said primary election was conducted on 6th December, 2014 is valid, legitimate and subsisting.
(d) A declaration that the plaintiff having been elected/selected/nominated as the winner of the primary election conducted on 6th December, 2014 is the duly selected/elected candidate of the 2nd defendant whose name and particulars should be submitted to the 3rd defendant under the Electoral Act, 2010 (as amended).
(e) An order of injunction restraining the 2nd defendant by itself, its officers, servants, privies or any organ whatsoever from submitting any other name save the name/particulars of the plaintiff as the 2nd defendant’s candidate for Udi and Ezeagu Federal Constituency election to the office of member, Federal House of Representatives, Udi and Ezeagu Federal Constituency.
(f) An order of injunction restraining the 1st defendant or other person acting for and on his behalf from interfering with the plaintiff’s rights as the elected PDP candidates for the Udi and Ezeagu Constituency for the forthcoming 2015 General Elections.

(g) An order of injunction restraining the 1st defendant by himself or his privies, servants or otherwise whosoever from parading himself as the 2nd defendant’s candidate from Udi and Ezeagu Federal Constituency and/or from presenting himself to any person or authority including the 2nd and 3rd defendants as being the 2nd defendant’s candidate for the Udi Ezeagu Federal Constituency.
(h) An order of injunction restraining the 3rd defendant from accepting the name of the 1st defendant or any other person save the plaintiff as the duly select/elected PDP candidate for Udi and Ezeagu Federal Constituency for the purpose of election of Member of the Federal House of Representatives in the forthcoming 2015 General Elections.
(i) And for such further and/or other orders as the Honourable Court may deem fit to make in the circumstance.”

The resolution herein sought is if the Court of Appeal was correct in deciding in CA/A/28/2015 which set aside a judgment of the Federal High Court in FHC/ABJ/CS/816/2014 removed the basis for the questions for determination and reliefs claimed in the Originating Summons above quoted, wherein the appellate Court held that the trial Court had no right to grant the consequential reliefs.

In the said sister case of FHC/ABJ/CS/816/2014: Chinenye Godwin & Ors v PDP & Ors which the appellant herein claimed to have approved the delegates list used in the case at hand, the following questions were therein asked, viz:-
The three questions for determination are as follows:-
a. Having regard to the subsisting judgment of the Federal High Court in Suit NO.FHC/ABJ/CS/816/2014: BARR. ORJI CHINENYE GODWIN & ORS v PEOPLES DEMOCRATIC PARTY & 4 ORS, the Ward Congress held by the 2nd defendant in Udi and Ezeagu LGAs in Enugu State remain the only valid and authentic Ward Congress for the purpose of conducting primary election for the selection/nomination of the PDP candidate for the Udi and Ezeagu Federal Constituency.
b. Whether the selection/nomination of the 2nd defendant’s candidates for the office of Member Federal House of Representatives in the forthcoming General Election can be conducted except by the Ad-hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 in Udi and Ezeagu LGA as per the subsisting Judgment of the Federal High Court in Suit No. FHC/ABJ/CS/816/2014 aforesaid.

Whether the plaintiff having been elected/nominated by the approved and authentic delegates at the primary election held on 6 December, 2014 for the selection/election of the PDP candidate for Udi and Ezeagu Federal Constituency for the forthcoming General Elections, his name ought to be submitted to the 3rd defendant as the PDP candidate for the election to the office of Member Federal House of Representatives for Udi and Ezeagu Federal Constituency.
(Emphasis supplied).Appellant in his affidavit in support of the Originating Summons averred that he was elected a Candidate for the Constituency by the delegates who went to Court and obtained Judgment in the aforementioned suit. At paragraphs 6, 7, 8, 16 and 17 of the Affidavit in Support of the Originating Summons, appellant deposed thus:-
“6. The Ward Congress was organized by a team sent by the National Working Committee of the PDP which at the end of the exercise submitted its report to the national headquarters of the Party the PDP.
7. Some interest groups who felt that their interests were not represented by and in the result protested against that report.

The matter ended up in the Federal High Court Abuja in Suit No.FHC/ABUCS/816/2014: BARRISTER ORJI CHINENYE GODWIN & 2 ORS V. PEOPLES DEMOCRATIC PARTY & 4 ORS. Judgment was entered by the Court on the 24th day of November, 2014 upholding the Congress and the elected delegates as valid and duly elected.
A copy of the enrolled order of the Court and the list of elected delegates are exhibited hereto as Exhibits 5 and 6 respectively.
9. .
10.
11. .
12.
13.
14.
15.
16. All the delegated protested loudly, including myself but the soldiers drove everybody away from the voting venue and everybody went his way, later it was announced in the media that it was the 1st defendant who won the primary election and not the plaintiff inspite of the scores clearly in the result sheet.
17. By the Constitution of the Peoples Democratic Party Guidelines and the Electoral Act, 2010 as amended; only those delegates elected at the special Congress for the election of the Ad-hoc delegates that can

elect the candidates of the Party in all Gubernatorial, National Assembly and State Assembly Elections.”

The Court of Appeal in the said CA/A/28/2015: PDP v Barrister Chinenye & Ors held as follows:-
“I have therefore no difficulty in view of what I have stated above to hold that the 1st and 3rd respondents suit did not disclose a reasonable cause of action to confer jurisdiction on the trial Court to entertain same, the appeal has merit and it succeeds. It is hereby allowed. The judgment of the Federal High Court Abuja in Suit No.FHC/ABJ/CS/816/2014 delivered on 24/11/2014 is hereby set aside. The Originating Summons of the respondents are struck out.”

Getting back to the case in hand, the Court of Appeal in applying its aforesaid judgment in CA/A/28/2015 against the background of the present appeal held thus:-
“As already held herein, the judgment of the Federal High Court in Suit No.FHC/ABJ/CS/816/2014 delivered on 24/11/2014 is the sole basis of the questions raised for determination and the reliefs claimed for in Suit No. FHC/ABJ/CS/1026/2014 commenced on 15/12/2014.

The appeal against the said judgment in appeal No.CA/A/28/2015 to this Court was decided on 30/4/2015, by this Court. The judgment of the Federal High Court was set aside and the suit struck out on the grounds that it disclosed no cause of action and the subject matter was not within the jurisdiction of the trial Court. But the trial Court, in the suit leading to this appeal, on 10/6/2016 delivered its judgment in the suit granting all the reliefs sought by the plaintiff when the basis of the claim for the reliefs had ceased to exist. The decision of this Court in CA/A/28/2015 setting aside the judgment of the Federal High Court in FHC/ABJ/CS/816/2014 removed the basis for the questions for determination and reliefs claimed for in the Originating Summons. The platform upon which the case was foisted and projected having been removed, the suit had nothing to stand on and therefore was bound to collapse and it collapsed. It is settled law that when the basis of a claim fails or ceases to exist, the claim itself would become baseless and fail. This Court in…………..
The Court below stated on thus:-
“…….On this issue, the learned silk for the appellants submitted that relief 1 sought by the 1st – 3rd

respondents was to impugn the conduct of the appellants for failing to recognize a process but the declaration made is related to affirmation of the 1st – 3rd respondents and those they represent as the persons who emerged from the delegate.
That it is the law a Court cannot grant a relief that was not sought. Also that the Court cannot amend relief 1 without calling the parties to it. The 1st – 3rd respondents argued that the grant of relief 1 was based on the affidavit evidence established before the Court. It is submitted that the trial Court is not bound to grant the relief the way it is couched as long as the Court is within the bounds of the Prayer.
Relief 1 is reproduced as follows:-
“A declaration that by the combined provision of Section 2, 31(2), 50 (1) 2 (b) of the Peoples Democratic Party’s Constitution, 2014 Article A (1), Articles 2 and 3 of the Electoral Guidelines for Primary Election, 2014 of the PDP, Section 85 (1), 85(3), 86(1), and 87(2) of the Electoral Act, 2014 and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 1st – 4th defendants refusing/neglecting to receive and act

on the result of the three (3) Ad hoc delegates election duly conducted by the Electoral committee for the conduct of the ward congress in Enugu State on 1st November, 2014 in accordance with the Constitution and Electoral Guidelines for primary elections 2014 is in violation of the 1st Defendant’s Constitution and Guidelines and the Electoral Act 2010 (as amended).
It is trite law that in our adversary system, a Judge must strictly confine himself to the relief or reliefs in the adjudication process – C. C. B (NIG) Plc v. Ozobu (1998) 3 NWLR (Pt. 514).
A Court of law has no power to grant to a plaintiff a relief not claimed by him. It should always be borne in mind that a Court of law is not a charitable institution. The Court is only to grant a part what was expressly claimed. Clearly in comparing the relief 1 sought by the respondents and in declaration made by the trial Court confirming the respondents and those they represent as delegates elected on 1st November, 2014 and the PDP Ward Congress held for Enugu State, the trial judge went outside the scope of what the respondents asked for.

This is because the respondents never asked to be declared as the elected delegates at the PDP ward congress. The relief asked is fore a declaration that the appellant’s refusal to receive and act on the result of Ad Hoc delegates election contravenes the 1st defendant’s (PDP) Constitution and Guidelines and the Electoral Act, 2010.”

The Court of Appeal stated emphatically on the lack of jurisdiction of the Federal High Court in this way, thus:-
“Another decision by this Court in the said Appeal No.CA/A/28/2015 is that the trial Court lacked the jurisdiction to entertain the suit and decide the questions therein.
That part of the judgment of this Court in that appeal reads thus:
A careful look at the relief 1 sought shows it involves an issue of internal affairs of a political party, the PDP. The respondents alleged fear that their names will be replaced with the names of those who did not participate and win in the delegates election. The conduct of the appellants which the respondents fear has taken away the jurisdiction of the trial Court entertain the matter. A Court has no jurisdiction to adjudicate on the issue of political party officers.

The exercise of this right is the domestic affairs of the party. See Lado v CPC (2011) 12 SCNJ 387, Anyanwu v Ogunewe (2014) NWLR (Pt.1410) 437 at 444.
The relevant Constitution provision is thus:-
Section 287 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides thus:-
‘(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate Jurisdiction to that of the Court of Appeal.”

In the case at hand, there is nothing produced in Court to show that the appellant came within those envisaged under Section 287 (2) CFRN upon which the jurisdiction of the Federal High Court could be agitated for relief in relation to a primary election of a political party. Also the appellant was not in compliance of Section 31 (1) & 2 of the Electoral Act, 2010 (as amended) in relation to being nominated in writing such number of persons whose names appear on the register of voters in the constituency as the Electoral Commission may prescribe.
It is not enough to cry for a remedy when the aggrieved has not qualified to have his shout either heard or noted.

Also going to no issue is citing plethora of judicial authorities which facts are opposite the circumstances prevailing.
Some of such cases as the appellant hung unto and which the trial Court obliged him are stated hereunder with the distinguishing features in tow.
(i) In OBI v INEC (2007) 11 NWLR (Pt. 1046) 645, Mr. Obi was already a serving Governor who despite the fact that his tenure was yet to expire, INEC conducted an election and issued a Certificate of Return to another who was subsequently sworn in as Governor. The Court by a consequential Order restored Mr. Obi to his office.
(ii) In GWEDE v INEC (2014) 18 NWLR (Pt. 1438) 56, the 2nd respondent won the primary election but then withdrew formally in writing. Appellant was substituted by PDP and filed his nomination papers, thereupon INEC published his name. He contested the election but INEC issued the 2nd respondent who did not contest the election with a Certificate of Return. The Supreme Court restored the appellant who was duly nominated and filled all nomination forms and was published a nominated candidate by INEC.

(iii) In GBILEVE v. ADDINGI (2014) 16 NWLR (Pt.1433) 394, the 1st respondent won the primary election conducted by the National Executive of the party and was nominated. The State faction of the party, however, forwarded the name of the appellant who was issued with a Certificate of Return. The Supreme Court restored the candidate sponsored by the national Executive and duly nominated.
(iv) In ODEDO v. INEC (2008) 178 NWLR (Pt. 1117) 554, Chidoka was substituted, contested and won the election. The Supreme Court ruled the substitution unlawful and restored the appellant.
(v) In AMAECHI v INEC (2008) 3 NWLR (Pt.1080) 227, the facts were similar to ODEDO v. INEC (supra).
(vi) In JEV v IYORTYOM (2014) 14 NWLR (Pt. 1483) 484, the eventual winner of the appeal at the Supreme Court was indeed the winner at the primary election but his name was not published by INEC.
I agree with counsel for the 1st respondent that the present case is a total departure from the foregoing cases. I believe the Supreme Court has laid to rest the contention that it is the political party which contests and wins an election.

In C.P.C. v OMBUGADU (2013) 18 NWLR (Pt. 1385), the Court was categorical that individuals as candidates win election and not the political parties.

It is now settled that parties are bound by their pleadings and so the need to see if they tally with the Electoral Guidelines of the 1st respondent. I shall quote salient parts of the supporting affidavit of the appellant in the Originating Summons thus:-
“At this stage, it is necessary to admit the elementary but fundamental rule of pleadings that parties are bound by their pleadings. As was held by this Court in American Cyanamid Company v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt. 171) 15, the purpose of pleading is to reveal to the opposing party, the nature of the case, at the earliest opportunity, he is likely to be confronted with. See also Osho v Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt. 184) 1S7; Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12.
Apart from the fact that parties are bound by pleadings. It is trite that parties cannot be allowed to set out in Court a case at variance with their pleadings. See Ikeanyi v ACB Ltd (1997) 2 NWLR (Pt. 489) 509; Metalimpex v A.G. Leventis & Co. Nig. (1976) 1 All NLR (Pt.1) 94.

The Court of Appeal decided as follows:-
“It is glaring from their wordings that the questions proceed from the assumption that the selection or nomination of the 2nd defendant’s candidate for the office of Member Federal House of Representatives in the then forthcoming general election could be conducted only by the ad-hoc delegates elected/selected at the ward congresses held on the 1st November, 2014 in Udi/Ezeagu Local Government Areas and that the 1st respondent having been elected/nominated by the said ad-hoc delegates at the primary election held on 6th December, 2014 for the selection/election of the PDP candidate for Udi and Ezeagu Federal Constituency for the then forthcoming general elections, his name ought to be submitted to the 3rd defendant as the PDP candidate of the PDP candidate for Udi and Ezeagu Federal Constituency for the then forthcoming general elections, his name ought to be submitted to the 3rd defendant as the PDP candidate for the election to the office of Member Federal House of Representatives for Udi and Ezeagu Federal Constituency. This assumption is wrong because it is contrary to the provisions of the appellant’s Electoral Guidelines for the Primary

Election 2014 which provide as follows:-

The State Chairman; “A Procedure for Nominating Member of House of Representatives.
(i) For the purpose of nominating a House of Representatives Candidate, the party shall hold a Special Congress at a designated Centre of the Federal Constituency of a date approved by the National Executive Committee (INEC).
(ii) The aspirant with highest number of votes at the end of voting, shall emerge as the partys Candidate.
B. DELEGATES to House of Representatives Special Congress.
The delegates to the Special House of Representatives Congress shall be all delegates to the State Congress from the Federal Constituency in question.
The list of delegates to the State Congress can be found on pages 7-8 of the PDP Guidelines aforesaid. They are listed;
(i) The President and Vice president of the Federal Republic of Nigeria, who are Members of the Party from the State;
(ii) The Governor and Deputy Governor of the State, if members of the Party;
(iii) The Gubernatorial Candidate of the party;
(iv) The Members of the Board of Trustees of the State;

(v) The Members of the State Executive Committee;
(vi) All Members of National and Zonal Executive Committees from the State;
(vii) The Members of National Assembly from the State and the members of the State houses of Assembly; who are member of the Party.
(viii) All elected Local Government Council Chairman and Vice Chairman who are Members of the Party;
(ix) All Local Government party Secretariats and Treasurers;
(x) All Local Government Women and Youth Leaders;
(xi) Three delegates per Ward elected at Ward Congress, at least one of whom shall be a woman, all of who shall cease to function at the conclusion of the Congresses for which they were elected;
(vii) Former Members of State Working Committee who are still members of the Party;
(viii) Former Governors and Deputy Governors produced by the party who are still members of the Party; and
(xiv) Former Speakers and Deputy Speakers of State of House of Assembly produced by the Party who are still Members of the Party.”

The ward ad-hoc delegates are just one out of the 14 categories of delegates entitled to participate in the selection of the appellant’s candidate for the forthcoming general

election. So the ward ad-hoc delegates alone cannot select or nominate the appellant’s candidate for the said general election.

Since the reliefs the respondent claimed for in the originating summons were predicated on his said selection or nomination by the said wards ad hoc delegates as appellant’s candidate for the said general election, they were ab initio not grantable in view of the provisions of the appellant’s 2014 Electoral Guidelines reproduced above.

The 1st respondent adduced evidence to show that he was selected or nominated by the ward ad hoc delegates as the appellants candidate for the general election. In view of the provisions of the appellants 2014 Electoral Guidelines reproduced above, trial judge was wrong when he found on the basis of the said evidence adduced by the 1st respondent that it was the 1st respondent and not the 2nd respondent who emerged as candidate from the appellants primary election in compliance with Section 87 of the Electoral Act, 2010 (as amended), the appellants Electoral Guidelines and the Constitution of the appellant.

It needs be reiterated that parties are bound by their pleadings and no party is allowed to make a case different from what it set out from inception and so for the appellant to seek to depart from their pleadings and embark on a fresh or brand new case different from the very beginning is an act in futility. The obvious reason is that a case retains its original nature from commencement and the colour would not change because it is on appeal since an appeal or appeals are merely a continuum of that matter that entered for the very first time at the Court of first instance. It follows that the brilliant address of counsel would not scratch the surface in the apparent quest for a change of nature of the case. See Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (PT. 1213) 106; Alahassan v. Ishaku (supra) at 286 per Ogunbiyi JSC; Ogunsanya v. The State (2011) LPELR 2349 (SC) 44 54 per Rhodes Vivour JSC.

What I see as what the appellant is seeking to push through is for the Court to accept a nomination process which advocated only ad-hoc delegates which went against the Electoral umpire’s guidelines. The case of the appellant being basically declaratory the burden of proof rested solely on him and none on the respondents and the success of the

appellant’s case rested on its strength which as in the case at hand being of a weak nature falls without redemption. It calls to mind the dictum of this Court in the case of Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 451 at 535 wherein this Court held as follows:-
“Both Tribunal and the Court below made much of the fact that witnesses called by the appellant were discredited under cross-examination and therefore their evidence was unreliable, which therefore gave rather impetus to the case of the 1st and 2nd respondents. It will be recalled that the 1st and 2nd respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission.”
(Emphasis supplied).
See also CPC v INEC (2011) 18 NWLR (Pt. 1279) 393 at 560; Vincent I. Bello v Magnus Eweka (1981) 1 SC 101; Motunwase v Sorungbe (1988) 5 NWLR (Pt. 92) 90 at 102.

The Court of Appeal rightly, it is submitted, drew the curtain on this controversy when their Lordships held thus:-<br< p=””

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“In the light of the provisions of the party’s Electoral Guidelines reproduced above, it is glaring that the 1st respondent’s case collapsed before it was filed as the basis for it was the result of a primary election which he said was held by only the ward ad-hoc delegates he said were elected by ward congresses for that purpose. Having determined above that the proceedings and judgment of the trial Court is (sic) nullity for beach of fair hearing and or that the suit ought to have been dismissed, since it collapsed ab initio and the basis of the questions and the claim in the Originating Summons had ceased to exist, there would have been no need to consider the arguments of both sides concerning the findings of facts and decision of the trial Court on the evidence. However, I have decided to do so far completeness and for whatever it is worth.”

There is no basis as I can see from my humble position upon which I can disagree with what the Court of Appeal found and held.

From the foregoing and the better reasoning in the leading judgment, I too see no merit in this appeal which I dismiss.
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I abide by the consequential orders made.
SC.293/2017- I also dismiss this appeal and abide by the consequential orders made in the lead judgment.

AMIRU SANUSI, J.S.C.: I was opportuned to read before now the judgment just delivered by my learned brother Ejembi Eko JSC in these two consolidated appeals. I am in entire agreement with his reasoning and the conclusion he arrived at that both consolidated appeals lack merit and they deserve to be dismissed. I however would like to chip in few comments in support of the leading judgment.

The appellant herein who was the plaintiff at the Federal High Court (the trial Court) (Coram Ademola J) by an originating Summons approached that Court urging it to answer and determine the three questions which are reproduced hereunder:-
a. Having regard to the subsisting judgment of the Federal High Court in suit N o. FHC/ABJ/CS/816/2014 BARR. ORJI CHINENYE GODWIN & ORS V. PEOPLES DEMOCRATIC PARTY & 4 ORS, the ward Congress held by the 2nd Defendant in Udi and Ezeogu LGAs in Enugu State remain the only valid and authentic Ward Congress for the purpose of conducting Primary Election for the selection/nomination

of the PDP candidate for the Udi and Ezeogu Federal Constituency.
b. Whether the selection/nomination of the 2nd Defendants as candidates for the office of Member Federal House of Representative in the forthcoming General Election can be conducted except by the Ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 in Udi and Ezeogu LGA as per the subsisting Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 aforesaid.
c. Whether the Plaintiff having been elected/nominated by the approved and authentic delegates at the primary election held on 6th December, 2014 for the selection/election of the PDP candidate for Udi and Ezeogu Federal Constituency for the forthcoming General Elections, his name ought to be submitted to the 3rd Defendant as the PDP candidate for the election to the office of the Member, Federal House of Representatives for Udi and Ezeogu Federal Constituency.

The appellant also urged the trial Court to grant him the following nine reliefs, namely:-
i. A DECLARATION that by the subsisting final judgment in suit No.FHC/ABJ/CS/816/2014, the Ward Congress held by

the 2nd Defendant for the Udi and Ezeogu LGA on 1st November, 2014 for the purpose of electing the Ad hoc delegates for the conduct of the Primary Election for Udi and Ezeogu Federal Constituency is valid, authentic and only legitimate Ward Congress for the conduct of primary election in Udi and Ezeogu Federal Constituency.
ii. A DECLARATION that the Ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 by the 2nd Defendant as per the subsisting Judgment in suit No.FHC/ABJ/CS/816/2014 are the only valid and legitimate delegates under the PDP Constitution and electoral Guidelines 2014 for the purpose of electing/selection/nominating the PDP candidate for the election to the office of Member House of Representatives for Udi and Ezeagu Federal Constituency.
iii. A DECLARATION that the primary election conducted by the delegates elected at the Ward Congress referred to above and which said primary election was conducted on 6th December, 2014 is valid, legitimate and subsisting.
iv. A DECLARATION that the plaintiff having been elected/selected/nominated as the winner of the primary election conducted on 6th December, 2014 is the

duly selected/elected candidate of the 2nd Defendant whose names and particulars should be submitted to the 3rd Defendant under the Electoral Act, 2010, as amended.
v. AN ORDER OF INJUNCTION restraining the 2nd Defendant by itself, its officers, servants, privies or any organ whatsoever, from submitting any other name save the names/particulars of the plaintiff as the 2nd Defendant’s candidate for Udi and Ezeagu Federal Constituency (election to the office of Member, Federal House of Representatives, Udi and Ezeagu Federal Constituency).
vi. AN ORDER OF INJUNCTION restraining the 1st Defendant or any other person acting for and in his behalf from interfering with the Plaintiff’s right as the elected PDP candidate for Udi and Ezeagu Federal Constituency for the forthcoming 2015 General elections.
vii. AN ORDER OF INJUNCTION restraining the 1st Defendant by himself or his privies, servants or otherwise as the 2nd Defendant’s candidate for Udi and Ezeagu Federal Constituency and or from presenting himself to any person or authority including the 2nd Defendant as being the 2nd Defendant’s candidate for the Udi and Ezeagu Federal Constituency.

viii. AN ORDER OF INJUNCTION restraining the 3rd Defendant from accepting the name of the 1st Defendant or any other person save the plaintiff as the duly selected/elected PDP candidate for Udi and Ezeagu Federal Constituency for the purpose of election of Member of the Federal House of Representatives in the forthcoming 2015 General Election.
ix. And for such further and or other orders as the Honourable Court may deem fit to make in the circumstances.

Now looking closely at Reliefs Nos. 5 to 8, one can rightly conclude that those reliefs are somehow tied to the first four reliefs sought, namely reliefs Nos. 1 to 4 which said latter reliefs, heavily relied on the validity of the judgment of the trial Court in Suit No.FHC/ABJ/CS/816/2014. It is worthy of note, that the trial Court’s judgment in Suit No.FHC/ABJ/CS/816/2014 to which the appellant/plaintiff heavily relied on, was tested on appeal before the Court of Appeal, Abuja division (“the Lower Court” for short), in appeal No.CA/A/28/2015 wherein, the Lower Court, inter alia, held thus:-

“The appeal has merit and it succeeds. It is hereby allowed. The judgment of the Federal High Court in Suit No.FHC/ABJ/CS/816/2014 delivered on 24/11/2014 is hereby set aside. The Originating Summons of the Respondents ore struck out

None of the learned counsel for the parties has informed this Court that the said judgment of the Lower Court was appealed against and upturned by this Court. Therefore, the said judgment of the Lower Court setting aside the decision of the trial Court in Suit.No.FHC/ABJ/CS/816/2014 remains valid and subsisting. It can therefore be said that the plaintiff/appellant herein, is relying on a non subsisting or a judgment of trial Court which had already been set aside. It goes without saying therefore, that since the judgment of trial Court heavily relied on by the 1st respondent for the grant of the reliefs sought by him supra, those reliefs he sought to be granted to him are no longer tenable or grantable by this Court too. The reliefs sought can no longer stand on any solid pedestal and ought to be refused.

As a corollary, while agreeing entirely with the reasoning and the conclusion reached in the lead judgment, I also, having not seen any substance in these appeals, hereby dismiss the two consolidated appeals for being lacking of merit.

I abide by the consequential order made in the leading judgment and also endorse the order on costs made therein.

Appearances:

Chief Chris Uche, SAN, Gordy Uche, Esq., SAN with Emeka Okoro, Esq., Prisca Ozolesike, Esq., and Emmanuel Okorie, Esq,, For Appellant(s)

Ogochukwu Onyekwuluje, Esq., with Ikechukwu Onuama, Esq., for 1st Respondent in SC.292/2017 and 2nd Respondent in SC.293/2017.

Dr. Onyechi Ikpeazu, OON, SAN with Alex Ejesieme, Esq., Obinna Onya, Esq., Julius Mba, Esq., and Nwamaka Ofoegbu, Esq., for the 2nd Respondent in SC.292/2017 and 1st Respondent in SC.293/2017.

Abdul Mohammed, Esq., with M. D. Acho, Esq., A. M. Saleh, Esq., and C. N. Onyia, Esq., for the 3rd Respondent in both Appeals. For Respondent(s)

Appearances

Chief Chris Uche, SAN, Gordy Uche, Esq., SAN with Emeka Okoro, Esq., Prisca Ozolesike, Esq., and Emmanuel Okorie, Esq,, For Appellant

AND

Ogochukwu Onyekwuluje, Esq., with Ikechukwu Onuama, Esq., for 1st Respondent in SC.292/2017 and 2nd Respondent in SC.293/2017.

Dr. Onyechi Ikpeazu, OON, SAN with Alex Ejesieme, Esq., Obinna Onya, Esq., Julius Mba, Esq., and Nwamaka Ofoegbu, Esq., for the 2nd Respondent in SC.292/2017 and 1st Respondent in SC.293/2017.

Abdul Mohammed, Esq., with M. D. Acho, Esq., A. M. Saleh, Esq., and C. N. Onyia, Esq., for the 3rd Respondent in both Appeals. For Respondent