DANCHADI & ANOR v. DANCHADI & ANOR
(2022)LCN/16361(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Wednesday, November 16, 2022
CA/S/151/2022
Before Our Lordships:
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. IBRAHIM MUSA DANCHADI 2. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)
And
1. YUSUF MARAFA DANCHADI 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO:
THE COURT MUST EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY WHEN DECIDING WHETHER TO ALLOW AN AMENDMENT
The law is trite that in deciding whether to allow an amendment or not, the Court must exercise its discretion judicially and judiciously. Thus, the primary consideration should always be whether the amendment sought is for the purpose of determining in an existing suit, the real question(s) in controversy between the parties. No matter how negligent or careless the party seeking the amendment may be or how late the proposed amendment, it should be allowed so long as it can be done without prejudice to the other side. In other words, a Court would not refuse an amendment unless it will entail injustice. See OLORO V. FALANA (2011) 17 NWLR (PT. 1275) 207. Furthermore, a Respondent to an application for an amendment has the task to establish prejudice, lack of good faith and irreparable inconvenience. MUHAMMED LAWAL SHUAIBU, J.C.A.
THE IMPORTANT ROLE THE INDEPENDENT NATIONAL ELECTORAL COMMISSION PLAY
In ASOGWA V. PDP (2013) 7 NWLR (PT. 1353) 207 at 25, the Supreme Court has held that the Independent National Electoral Commission has an important role to play in ensuring that party primaries are conducted in accordance with the provisions of the Electoral Act and Guidelines of the party. Its duty is to restore and maintain the sanctity in the electoral process. I am therefore of the view that the purported rescheduled primaries of 9th June, 2022 is deficient and fell short of the required legal efficacy. It is therefore a nullity. Also, in OGWUEGEDE V. ASADU (2018) 10 NWLR (PT. 1628) 460 at 475, it was held that where a political party fails to comply with the provision of the Electoral Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue. Issue four is also resolved against the Appellants. MUHAMMED LAWAL SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, sitting at Sokoto delivered on 8th September, 2022 by Hon. Justice J. K. Omotosho in which judgment was entered in favour of the 1st Respondent.
The 2nd Appellant, All progressives Congress (APC) fixed its primaries for 26th May, 2022. The 1st Appellant and 1st Respondent both members of the APC were interested in representing their party for Bodinga North State Constituency of Sokoto State in the general election slated for 2023. Both of them were cleared by the party to participate in the primaries and both of them participated in the primaries. However, the primaries could not hold as scheduled due to the activities of political thugs who stopped the processes which led to the rescheduling of the primaries to 29th May, 2022. At the conclusion of the rescheduled primaries, the 1st Respondent was declared winner. Subsequent to a petition written in respect of the said primaries, a Committee was set up to investigate and without being availed with the report of the Appeal Committee report, the2nd Appellant nullified the primaries of 29th May, 2022 and conducted another primaries at the APC State Secretarial, No. 34 Sultan Abubakar Road, Sokoto on June 9th, 2022 in which the 2nd Appellant was returned as the winner.
Alarmed, the 1st Respondent filed an Originating Summons on 21/6/2022 asking for the following questions:
1. Whether having regards to the provisions of Section 84 (5) (c) of the Electoral Act, 2022, Article 20.4 (e) and iii of the All Progressive Congress Constitution, 2022 (as amended) and paragraphs 22 and 25 of the All Progressives Congress Guidelines for the Nomination of Candidates for 2023 General Election, the primary election for Bodinga East Constituency of Sokoto State House of Assembly held on the 29th May, 2022 is not valid and subsisting.
2. Whether having regards to the Provisions of Section 84 (5) (c) of the Electoral Act, 2022, Article 2:4 (e) and iii of the All Progressives Congress Guidelines for the Nomination of Candidates for 2023 General election, the purported re-conducted primary election for Bodinga East Constituency of the Sokoto State House of Assembly, held on the 9th June, 2022 is valid and in accordance with due process of law.
3. Whether by the provision of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and paragraph 27 (c) and (d) of the All Progressives Congress Guidelines for the Nomination of Candidates for 2023 General Election, the Plaintiff was accorded fair hearing by the Appeal Committee before the decision (if any) to re-conduct the primary election for Bodinga East Constituency of the Sokoto State House of Assembly, held on the 9th June, 2022 was made.
And claimed as follows:
(a). A declaration that the primary election conducted by the 2nd Defendant for Bodinga East Constituency of the Sokoto State House of Assembly, held on the 29th May, 2022 in which the Plaintiff emerged as the winner and was so declared is valid and subsisting.
(b). A declaration that the purported re–conducted primary election by the 2nd Defendant for Bodinga East Constituency of the Sokoto State House of Assembly held on the 9th June, 2022 in which the 1st Defendant was purportedly declared the winner is invalid, null and void.
(c). A declaration that any name of Candidate submitted bythe 2nd Defendant to the 3rd Defendant not being the Plaintiff’s name for Bodinga East Constituency of the Sokoto State House of Assembly is invalid, null and void.
(d). An order of this Honourable Court affirming and declaring the Plaintiff as the duly elected candidate of the 2nd Defendant for Bodinga East Constituency of Sokoto State House of Assembly.
(e). An order of this Honourable Court setting aside the purported re-conducted primary election by the 2nd Defendant for Bodinga East Constituency of the Sokoto State House of Assembly, held on the 9th June, 2022 in which the 1st Defendant was purportedly declared the winner.
(f). An order of this Honourable Court directing the 2nd Defendant to forward the name of the Plaintiff as the candidate for Bodinga East Constituency for the Sokoto State House of Assembly for the 2023 general election.
(g). An order of this Honourable Court directing the 3rd Defendant to accept and include the name of the plaintiff as the Candidate of the 2nd Defendant for Bodinga East Constituency of the Sokoto State House of Assembly in the 2023 general election.
(h). An order of perpetual injunctionof this Honourable Court restraining the 1st Defendant from parading himself as the Candidate of the 2nd Defendant for Bodinga East Constituency of the Sokoto State House of Assembly for the 2023 general election.
(i). And any other Order(s) as this Honourable Court may deem fit to make in the circumstances.
In support of the Originating Summons, the 1st Respondent deposed to 33 paragraphs affidavit. Annexed to the said affidavit are documents marked as Exhibits YMD 1 – 8 respectively. The 1st Respondent upon realizing the error in the designation of the House of Assembly Constituency seat as ‘Bodinga East” instead of “Bodinga North” in the Originating Summons, he sought and obtained leave for its amendment. The Appellants filed their respective counter-affidavits in opposition to the Amended Originating Summons. Furthermore, the 2nd Appellant filed two different notices of Preliminary Objection respectively filed on 13th July, 2022 and 22nd July, 2022. The 1st Respondent responded by filing a Counter affidavit on 25th July, 2022 and a reply on point of law to issues raised by the Appellants in their respective written addresses in support of the Counter affidavit.
The Preliminary Objections and the substantive suit were contemporaneously heard by the trial Court and in a considered judgment delivered on 8th September, 2022, learned trial Judge found at page 737 of the record as follows:
“Assuming without conceding that the decision of the Appeal Committee calling for a fresh primary election is within its power and made in good faith, the subsequent absence of the 3rd Defendant at the reschedule primary held on 9th June, 2022 renders it a nullity. The effect of this is that the 1st Defendant cannot be the rightful candidate of the 2nd Defendant for the Bodinga North State Constituency for the 2023 general elections. The case for the Plaintiff is meritorious and granted in its entirety.”
Appellants were dissatisfied with the judgment of the trial Court and therefore filed this appeal on 19/09/2022. The notice of appeal located at pages 740 – 747 contains five grounds of appeal.
In this Court, parties exchanged briefs of argument including Appellants’ reply brief. The 1st Respondent who filed a notice of Preliminary Objection on 9/10/2022incorporated argument in respect of same at pages 9 – 12 of his brief of argument.
Five (5) issues were formulated by the Learned Senior Counsel for the Appellants Chief J. E. Ochidi, they are as follows:
1. Whether the originating summons in Suit No. FHC/S/CS/25/2022 was initiated before the Court below by the 1st Respondent against the Appellants and the 2nd Respondent such as to vest jurisdiction in the Court below to hear and determine the said originating summons.
2. Whether the Court below acted judicially and judiciously when it granted leave to the 1st respondent to amend the originating summons in Suit No. FHC/S/CS/25/2022 to alter the constituency in which the primary election in issue was conducted from Bodinga East State Constituency of Sokoto State as expressed in the originating summons to Bodinga North State Constituency as expressed in the amended originating summons despite the objections raised to the amendment by the appellants.
3. Whether on the face of the unresolved conflicting affidavit evidence of the parties before the Court below via oral evidence, the decision of the Court below believing the side of the story of the 1st respondent to the effect that the 1st appellant was duly informed by the 2nd appellant of the venue for the conduct of the primary election held on the 29th May, 2022 but that the 1st appellant willfully decided not to participate in the exercise thereby validating the conduct of the said primary election in which the 1st respondent was declared the winner is not perverse.
4. Whether the Court below is correct in law to have held in its judgment that the failure, neglect or refusal of the 2nd respondent (the Independent National Electoral Commission) to monitor the conduct of 2nd appellant’s rescheduled primary election for Bodinga North State Constituency held on the 9th June, 2022 in which the 1st appellant emerged the winner invalidated the conduct of the said primary election.
5. Whether the 1st Respondent was denied his constitutional right of fair hearing enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by the 2nd Appellant’s Appeal Committee in its deliberation leading to the nullification of the primary election of the 2nd appellant’s primary election for Bodinga North State Constituency of Sokoto State conducted on the 29th of May, 2022.
Learned Counsel for the 1st Respondent Ado M. Ma’aji also formulated five issues and these issues are:
1. Whether the Originating Summons in Suit No. FHC/S/CS/25/2022 and the supporting affidavit were initiated by due process of law, and whether the trial Court rightly exercised its jurisdiction to hear and determine the suit?
2. Whether the exercise of discretion by the trial Court in granting the 1st Respondent’s application for amendment was wrong and should be interfered with?
3. Whether the trial Court needed to call oral evidence in resolution of the conflicting affidavit evidence of the Appellants/1st and 2nd Defendants on one hand and that of the 1st Respondent/Plaintiff on the other, and whether the failure to so call was wrong and has occasioned a miscarriage of justice?
4. Whether the trial Court was right when it held that the absence of the 2nd Respondent/3rd Defendant (INEC) at the purported primary election held on 9th June, 2022 renders it a nullity.
5. Whether in the circumstances of this case, the trial Court was right to hold that the entire proceedings of the Appeal Committee of the 2nd Appellant regarding the 1st Appellant’s petition denied the 1st Respondent fair hearing.
On the part of the 2nd Respondent, Learned Counsel FodiyoSa’idu, Esq adopt issue four of the Appellant that is:
Whether the Court below is correct in law to have held in its judgment that the failure, neglect or refusal of the 2nd respondent (the Independent National Electoral Commission) to monitor the conduct of 2nd appellant’s rescheduled primary election for Bodinga North State Constituency held on the 9th June, 2022 in which the 1st appellant emerged the winner invalidated the conduct of the said primary election.
It is worthy to note that the four issues formulated by the Appellants and the 1st Respondent are seemingly the same except that they are couched differently. I will nonetheless utilize the four issues formulated by the 1st Respondent for their brevity and conciseness. However, before delving into the argument of Counsel on the said formulations, prudence dictates that I, first of all, determine the 1st Respondent’s Notice of Preliminary Objection. The grounds upon which the said Preliminary Objection is predicated are:
1. The 1st Respondent is not in a position to challenge the trial Court’s jurisdiction on the basis of ground one of the notice of appeal, having not filed a memorandum of appearance as required by law.
2. Ground one of the Notice of Appeal filed on 19th September, 2022 did not flow from the decision of the trial Court as no objection was raised on the record challenging the competency of the Originating Summons and supporting affidavit and no declaration or reference was made by the Court in its judgment.
3. Ground two of the Notice of Appeal borders on an interlocutory decision of the trial Court delivered on the 15th day of July, 2022, which decision to date was not appealed against, and in respect of which no leave and extension of the trial Court or this Honourable Court was sought and obtained.
Proffering argument in support of the Preliminary Objection, Learned Counsel for the 1st Respondent submitted that the 1st Appellant having failed to file a memorandum of appearance as required by law, lacked the competence to challenge the jurisdiction of the trial Court, relying on Order 29 of the Federal High Court (Civil Procedure) Rules, 2019. He contended further that even though the 2nd Appellant filed a memorandum of appearance, it did not raise a challenge to the jurisdiction of the trial Court on the basis of the incompetence of the Originating Summons. Thus, the issue in ground one of the notice of appeal not being ex facie apparent from the record, cannot be raised by the 2nd Appellant for the first time on appeal, relying on the authority in the case of JOSEPH & ORS V. JOSEPH & ANR (2016) NG CA 6.
On ground two, Counsel submitted that by the combined reading of Sections 242 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), 24 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004 and Rule 6 of the Election Judicial Proceedings Practice Directions, 2022, all interlocutory appeals must be filed within 14 days from the date of delivery of the ruling by the trial Court. Having failed to appeal against the ruling granting leave to the 1st Respondent to amend the Originating Summons within the 14 days prescribed by law, and in the absence of leave and/or extension of time, ground two is incompetent. He referred to ONYEMA V. EZEIRUKA (2018) LPELR 45018 (CA) and DANGOTE INDUSTRIES LTD & ANOR V. OCEAN BEAN ENT AND LEISURE RESORTS LTD (2021) LPELR – 53464 in urging this Court to strike out grounds one and two of the notice of appeal for being incompetent.
In his response, learned Counsel for the Appellants submitted that where as in this case, a Respondent files a Notice of Preliminary Objection instead of a motion on notice to urge the Court to strike out the perceived offensive ground(s) of appeal, such Notice of Preliminary Objection is incompetent and liable to be struck out. He referred to DADA V. DOSUNMU (2006) LPELR – 909 (SC) to the effect that failure to file motion on notice as required by rules of Court affects the competence of the objection as raised in the Respondent’s brief, Counsel also submitted that a Court of record has inherent jurisdiction to raise objection even for the first time on appeal, so long as same touches on the jurisdiction of the Court. He contend that the said ruling has finally disposed the right of the parties and therefore it is no longer an interlocutory decision.
There are avalanche of Superior Court decisions stating that a Preliminary Objection is the procedure to be adopted where a Respondent opposes the hearing of an appeal. Thus, the purpose of a Preliminary Objection is to terminate the hearing of an appeal in limine either partially or totally. In other words, a successful Preliminary Objection terminates the hearing of an appeal and the procedure is adopted only for the hearing of an appeal and not for any other process. See Order 10 Rules 3 of the Court of Appeal Rules, 2021 and the cases of SPDC (NIG) LTD V. AMADI (2011) 14 NWLR (PT. 1266) 157, CONTRACT RESOURCES (NIG) LTD V. UBA PLC (2011) 16 NWLR (PT. 1274) 592 and ZENITH BANK PLC V. JOHN (2015) 9 NWLR (PT. 1458) 393 at 418 – 419.
The 1st Respondent having adopted a wrong procedure of filing a Preliminary Objection as opposed to a motion on notice to challenge the purported offensive grounds of appeal, cannot be allowed to benefit from his wrongs. In effect, the Preliminary Objection is lacking in competence and it is hereby struck out.
Turning back to the main appeal, Learned Counsel for the Appellants submitted that the concluding part of the Oath subscribed to by the 1st Respondent in the affidavit purporting to support the Originating Summons initiated at the lower Court is at variance with the form of Oath mandatorily prescribed in the First Schedule to the Oaths Act. He referred to NEW NIGERIAN BANK LTD V. IBWA (NIG) (1998) 6 NWLR (PT. 554) 446 to contend that the affidavit is rendered incompetent.
On issue two, Counsel contended that an examination of the record of reveals that all the questions formulated for determination including the reliefs claimed in the 1st Respondent’s Originating Summons relates to the primary conducted by the 2nd Appellant for nomination of its candidate to stand election to the House of Assembly of Sokoto State representing Bodinga East State Constituency of Sokoto State. The said state of affairs according to counsel ought to have terminated the 1st Respondent’s Originating Summons. In spite of the expiration of 14 days period limited to file pre-election matter before the lower Court, leave was granted to the 1st Respondent to amend an incompetent process and thus the lower Court failed to act judicially and judiciously when it granted the 1st Respondent leave to amend the said defective Originating process after the expiration of time constitutionally limited to the 1st Respondent to initiate such an action. He referred to Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration No. 21) Act, 2017 and the cases of HASSAN V. ALIYU (2010) ALL FWLR (PT. 539) 1007 at 1046 and ENYIBROS END PROCESSING CO. NIG. LTD V. N. D. I. C (2021) 16 NWLR (PT. 1800) 559 at 576.
In further argument, counsel submitted that when the issue of competence of an action and jurisdiction of the Court to entertain such action is raised in any proceedings, the processes filed by the Defendant in defence of the action is of no moment. Rather, it is the Originating process filed by the Plaintiff that is considered, relying on ODUAH V. OKADIGBO (2019) 3 NWLR (PT. 1660) 433 at 461.
The Appellants’ contention on issue three is that on the face of the apparent conflict of affidavit evidence of the parties, the lower Court ought to have call oral evidence to resolve the conflicts instead of believing the side of the story of the 1st Respondent to the effect that the 1st Appellant was duly informed by the 2nd Appellant of the venue for the conduct of the primary election held on the 29th May, 2022 but he wilfully decided not to participate. Counsel highlighted the alleged conflicts in paragraphs 9 – 13 of the affidavit in support of the Originating Summons and Paragraphs 15 – 17 of the counter affidavit of the 1st Appellant on pages 408 – 409 and 481 of the record of appeal. He also referred to AMATONJIE V. CHISCO TRANSPORTING NIG. LTD. (2021) 19 NWLR (PT. 1780) 63 at 86 in arguing that although admissible and credible pieces of documentary evidence can be used by a Court to resolve conflicting affidavit evidence without the necessity of calling oral evidence, he submitted that the documentary evidence being relied on by the lower Court in resolving the conflict is documentary hearsay. Thus; there is no credible evidence before the lower Court to support the findings of the Court to the effect that the 1st Appellant was aware of the venue for the conduct of the said primary election of the 2nd Appellant which took place on 29th May, 2022.
On the Appellants’ issue four, counsel reproduced the averment in paragraph 2 (d) of the counter which merely states that the 2nd Respondent did not monitor the rescheduled primary without stating the reason for its failure to monitor the said rescheduled primary election held on 9th June, 2022. Again, it was contended that in the affidavit evidence of the 2nd Respondent, INEC did not state that the Commission was not put on notice by the 2nd Appellant of the holding of the said rescheduled primary election. Counsel submitted that the issue of notice to the Commission by the 2nd Appellant before the conduct of the rescheduled primary election of the 9th June, 2022 never arose before the lower Court but was raised suomotu by the Court.
Still, in argument, Counsel submitted that a clear interpretation of Section 84 (1) of the Electoral Act, 2022, nowhere is it provided that failure of INEC to monitor the conduct of such primary election renders the exercise invalid. In further argument, he submitted that the default in not monitoring the said rescheduled election of 9th June, 2022 is squarely that of INEC who for no reason defaulted or omitted to carry out its responsibilities and same cannot be attributable to the Appellants. He referred to ADELEKE V. ADISA (2020) 24 WRN 30 at 52 to the effect that a party who never committed any wrong should not be made to suffer any penalty in respect thereof.
Finally, on the Appellants’ issue five, counsel contended that the lower Court closed its eyes to the obvious fact that the petition which the 1st Appellant wrote to the 2nd Appellant’s appeal committee centered on the act of the 2nd Appellant in excluding him from the primary election conducted on the 29th of May, 2022. The petition according to counsel was not a complaint against the 1st Respondent nor was it an allegation of any act of misconduct on the part of the 1st Respondent and thus, it was unnecessary to have served the 1st Respondent with the said petition in the first place. In further contention, Counsel argued that even by 1st Respondent’s own admission, the 2nd Appellant’s appeal Committee gave a hearing to the 1st Respondent before it took the decision to nullify the primary election conducted on the 29th of May, 2022. He submitted that the decision of the lower Court is perverse because the Court closed its eyes to material pieces of evidence which were apparent in the record.
In response to issue one, Counsel to the 1st Respondent referred to Order 3 Rule 9 (2) of the Federal High Court (Civil Procedure) Rules 2019 to contend that the Originating Summons in Suit No. FHC/S/CS/25/2022 and the supporting affidavit having been initiated by due process of the law, the lower Court was cloths with the requisite jurisdiction to hear and determine same.
He further contend that the affidavit in support of the amended Originating Summons was duly sworn to before the Commissioner for Oaths in substantial compliance with Section 1 and the First Schedule to the Oaths Act. Cap. 01 Laws of the Federation of Nigeria, 2004 and other enabling laws in that respect. He submitted that the failure of the deponent to comply with the format prescribed in the Oaths Act does not render such affidavit incompetent where there is substantial compliance with the provisions of the Oaths Act. He referred to LONE STAR DRILLING NIGERIA LIMITED V. TRIVENI ENGINEERING AND INDUSTRIES & 9 ORS (1999) 1 NWLR (PT.588) 622, OGWUEGBU V. AGOMUO (1999) 1 NWLR (PT. 609) 144 and ADEKANYE V. COMTROLLER OF PRISONS (2000) FWLR (PT. 1258) 1269.
On issue two, Counsel submitted that the jurisdiction of a trial Court to exercise its discretion to grant an amendment can only be interfered with where the Appellants can show that the exercise of such discretion was wrong and that injustice was occasioned to them. He contend that the designation of the Constituency, the subject of the contest between the 1st Respondent and the 1st Appellant as Bodinga East instead of Bodinga North does not change the fact that the election of the 29th May, 2022 and the purported election of the 9th June, 2022 were in respect of the same and existing subject matter (the State House of Assembly seat for the Constituency). He referred to INEC V. YUSUF (2020) 4 NWLR (PT. 1714) 374 to the effect that where an amendment is harmless, not intended to substantially alter the case of the Applicant and is very necessary in order to do substantial justice, it is grantable. He submitted further that once an amendment to a process, such an amendment relates back to the Originating process and the trial Court was right when it granted the relief sought by the 1st Respondent in the amended Originating Summons relying on GREEN FINGERS LTD V. MUSAWA (2017) 5 NWLR (PT. 1558) 308 at 334.
In respect of issue three, Counsel to the 1st Respondent submitted that it is not at all times that a trial Court needs to call oral evidence in resolution of the conflicting affidavit evidence of the parties. Thus, the failure to so call oral evidence in resolution of the conflicting affidavit of the parties in the present case was not wrong and no miscarriage of justice was occasioned.
He submitted that calling oral evidence should not be the first step in resolving conflicting affidavits. And, that oral evidence is callable and allowable only where the conflicts in the affidavit evidence are manifestly irreconcilable and incongruent. Therefore, the trial Court was right when evaluating the affidavit evidence before it in arriving at its decision. He contend that Exhibits INEC 1 attached to the counter affidavit of the 2nd Respondent, which is the monitoring report of Kabiru Sabiu (INEC electoral Officer for Bodinga Local Government Area) are not hearsay within the contemplation of Section 37 and 38 of the Evidence Act, 2011.
On issue four, Counsel submitted that considering the provisions of Section 82 of the Electoral Act, 2022, the absence of the 2nd Respondent (INEC) at the purported rescheduled primary election held on 9th June, 2022, renders it a nullity. He contend that the isolated reading of the provisions of Section 82 (2) of the Electoral Act, 2022 does not have the effect of watering or diluting the mandatory impact of Section 82 of the Electoral Act, 2022. And that by Section 82 (5) of the Electoral Act 2022, non–compliance renders the election invalid. He also referred this Court to paragraphs 3.8 – 3.12 of the 1st Appellant’s written address in support of his counter affidavit in opposition to the Originating Summons as well as paragraphs 3.43–3.47 of the 2nd Appellant’s written address in support of its counter affidavit in opposition of the 1st Respondent’s Originating Summons together with the 1st Respondent’s response on points of law to contend that the issue of non–attendance of the 2nd Respondent at the primary election of 9th June, 2022 was notraised suomotu as alleged by the Appellants. Thus, the resolutions and findings of the lower Court on the issue of monitoring the said purported primary election was justified.
As regards to issue five, Counsel contend that fair hearing is procedural not an event and therefore any gap in the process or procedure renders the entire action taken a nullity. He thus submitted a Court or Tribunal must hear both sides not only in the case but also on all material issues in the case before reaching a decision. In further contention, counsel argued that where as in the instant case, the purported cancellation of the election of 29th May, 2022 and the order to conduct another election affects the rights and obligations of the 1st Respondent, any breach of which renders any proceedings conducted null and void.
Counsel also relied on Article 13.3 (A) of the Constitution of the 2nd Appellant as well as its Guidelines for the nomination of candidates for the 2023 general elections, paragraph 20(b), (c) 2022, which makes the National Executive committee of the party as the highest decisions making body of the party and the National Working Committee have the finaldecision on all appeals filed before the appeal Committee by an aspirant. He submitted that the 1st Appellant having not participated in the election of 29th May, 2022 was not an aspirant and therefore lacked the locus standi to petition the appeal Committee.
Learned counsel for the 2nd Respondent who proffered argument only on issue four above submitted that by virtue of Section 82(1) of the Electoral Act, 2022, a registered political party such as the 2nd Appellant is mandated to give to the 2nd Respondent at least 21 days notice of any convention, congress or meetings convened for the purpose of electing members of executive committees or nominating candidates for any of the elective officers specified under the Electoral Act. While the 2nd Respondent was invited by the 2nd Appellant to its primaries in respect of Bodinga North State Constituency which was held on 29th May, 2022 at Mudorawa in Mudorawa/Takatuku ward within Bodinga North Constituency, the 2nd Appellant did not show any evidence of inviting the 2nd Respondent to any subsequent primaries in respect of the same ward. He submitted that the absence of the 2nd Respondent at there scheduled primaries of 9th June, 2022 for the said Constituency renders it a nullity.
RESOLUTION
On issue one, the Appellants questions the validity of the affidavit in support of the Originating Summons contending that the concluding part thereof is at variance with the form mandatorily prescribed in the First Schedule to the Oaths Act. For the avoidance of doubt, the provision of Section 13 of the Oaths Act Cap. 01 Laws of the federation of Nigeria, 2004 provides that:
“It shall be lawful for any Commissioner for Oaths, notary public or any other person authorised in this Act to administer Oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.”
Furthermore, the concluding part of Oath states as follows:
“…I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act.”
In the instant case, the 1st Respondent in paragraph 33 of the affidavit in support of the Originating Summons deposed thus:
“That I deposed to the affidavit in good sound faith believing same to be true and correct to the best of my knowledge and belief and in accordance with the Oaths Act, 2004.”
The above is clearly at variance with the wordings used in the First Schedule to the Oaths Act but the said variation does not affect the validity and/or the legality of the affidavit in issue.
Where a statement such as the 1st Respondent’s statement in the affidavit in support of the Originating Summons was made on Oath and sworn before the Commissioner for Oaths, the absence of declaration prescribed in the Oaths Act to the effect that same was made conscientiously, believing same to be true and correct or like words, become a mere irregularity or defect as to form. Thus, it has no effect on the validity of the Oath and/or the statement on Oath. See ADEJUGBE V. ADULUGU (2022) 3 NWLR (PT. 1816) 137 at 138. This issue is resolved against the Appellants.
Issue two deals with the exercise of discretion by the lower Court in granting the 1st Respondent’s application for amendment. The contention of the Appellants is that the time limit for an amendment of such Originating process has expired.
By virtue of Section 84 (14) of the Electoral Act, 2022, rules of a political party, an aspirant who complains that any of the provisions of the Electoral Act and the Guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress. Furthermore, Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration, No. 21) Act, 2017 provides that such action shall commence within 14 day period.
The issue in contention here is not that the action at the lower Court was not commenced within the 14 days period prescribed by the Constitution aforesaid but that the leave to amend the Originating Summon to reflect the current name of the Constituency was granted after the 14 days period limited to the 1st Respondent to file a pre-election matter. The law is trite that in deciding whether to allow an amendment or not, the Court must exercise its discretion judicially and judiciously. Thus, the primary consideration should always be whether the amendment sought is for the purpose of determining in an existing suit, the real question(s) in controversy between the parties. No matter how negligent or careless the party seeking the amendment may be or how late the proposed amendment, it should be allowed so long as it can be done without prejudice to the other side. In other words, a Court would not refuse an amendment unless it will entail injustice. See OLORO V. FALANA (2011) 17 NWLR (PT. 1275) 207. Furthermore, a Respondent to an application for an amendment has the task to establish prejudice, lack of good faith and irreparable inconvenience.
In the instant case, the Appellants did not demonstrate bad faith or irreparable inconvenience and therefore, there was no indiscretion in granting the amendment to the 1st Respondent by amending Bodinga East instead of Bodinga North to properly identify the Constituency in issue. I totally agree that the amendment sought and granted by the lower Court was designed to correct a misnomer and thus incapable of prejudicing the Appellants. Issue two is resolved against the Appellants.
Issue three is on the desirability or otherwise of calling oral evidence by the lower Court to resolve the perceived conflicts in the evidence to the parties. The evidence been alluded to by the Appellants relates to the 1st Appellant’s prior knowledge to the change of venue for the conduct of primary election to Modurawa primary school in Takakutu/Modarawa ward of Bodinga Local Government. The trial Judge did not find any difficulty in preferring the version of the 1st Respondent which was corroborated by the Counter affidavit of the 2nd Respondent.
It was rightly submitted that oral evidence should not be the first step in resolving conflicting affidavit. The lower Court was therefore right in relying on Exhibit INEC 1 attached to the Counter affidavit of the 2nd Respondent which is the monitoring report by the Electoral Officer for Bodinga Local Government Area at pages 687 – 689 on the record to resolve the seamless conflict. I unhesitantly resolved issue three against the Appellants.
As a follow-up to the above, issue four is on the effect of absence of the 2nd Respondent at the primary election of 9th June, 2022. The provision of Section 84 (1) of the Electoral Act, 2022 provides that a political party seeking to nominate candidate for electionunder the Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission (INEC). Parties in the instant case are ad idem that the commission did not monitor the primaries that produced the 1st Appellant on 9th June, 2022 and thus the said rescheduled primaries was not in conformity with the law. In ASOGWA V. PDP (2013) 7 NWLR (PT. 1353) 207 at 25, the Supreme Court has held that the Independent National Electoral Commission has an important role to play in ensuring that party primaries are conducted in accordance with the provisions of the Electoral Act and Guidelines of the party. Its duty is to restore and maintain the sanctity in the electoral process. I am therefore of the view that the purported rescheduled primaries of 9th June, 2022 is deficient and fell short of the required legal efficacy. It is therefore a nullity. Also, in OGWUEGEDE V. ASADU (2018) 10 NWLR (PT. 1628) 460 at 475, it was held that where a political party fails to comply with the provision of the Electoral Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue. Issue four is also resolved against the Appellants.
Finally, issue five deals with the proceedings of the 2nd Appellant’s Appeal Committee. In other words, whether or not the 1st Respondent was given fair hearing by the said Appeal Committee of the 2nd Appellant during the nullification of the primaries conducted on 29th May, 2022 where he emerged victorious.
By virtue of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in the determination of his Civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to ensure its independence and impartially. Implicitly, the principle of fairness is sacrosanct in our judicial or quasi-judicial system and must as a matter of Constitutional obligation be observed by a judicial or quasi–judicial umpire.
It is an understatement that the rights and obligations of the 1st Respondent who participated and won the primaries of 29th May, 2022 will not be affected by the nullification by the Committee constituted by the 2nd Appellant. Thus, whatever decision taken in respect of the said primaries will fundamentally affects his rights and obligation. And having not engage the 1st Respondent in the proceedings of the appeal committee undoubtedly renders the proceedings null and void. The 1st Respondent’s right to fair hearing was also premised on the failure to inform him of the decision taken resulting to the nullification of the primaries of 29th May, 2022 and also the failure to notify the Commission of the purported rescheduled primaries held on 9th June, 2022. Again, issue five is resolved against the Appellants.
Having resolved all five issues against the Appellants and in favour of the Respondents, it necessarily means this appeal fails being unmeritorious. It is accordingly dismissed and the judgment of the lower Court is hereby affirmed. I make no order as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft, from the leading judgment of my learned brother MOHAMMED L. SHUAIBU, J. C. A. He had earlier given me his leading judgment in draft form to read. I am in agreement with His Lordship on his reasoning and conclusion. I also see no merit in the appeal and hereby dismiss it.
I also make no order as to costs.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Muhammed L. Shuaibu, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Chief J. E. Ochidi, SAN with him, B. M. Jodi, Esq. F. J. Anene, Esq. and N. I. Usman, Esq. For Appellant(s)
A. M. Ma’aji with him Aliyu Annas for 1st Respondent
FodiyoSaidu, with him, M. H. Hassan, and M. S. Muhammed for 2nd Respondent. For Respondent(s)
