INEC v. PDP & ORS (2022)

INEC v. PDP & ORS

(2022)LCN/16867(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/ABJ/CV/318/2022

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) APPELANT(S)

And

1. PEOPLES DEMOCRATIC PARTY (PDP) 2. NUHU USMAN 3. ISAAC BMIBMITAWUZA YUSUF RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE PRIMARY DUTY OF THR TRIAL COURT

The evaluation of evidence and ascription of probative value thereto is the primary duty of the Judge at nisi prius. Where the trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. The trial Court considers the evidence adduced, decides which evidence to prefer on the basis of how the evidence preponderates and then makes logical and consequential findings of fact: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and UNITED MICROFINANCE BANK LTD EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43. PER OGAKWU, JCA.

THE POSITION OF LAW ON THE PRESUMPTION THAT THE CONCLUSIONS OF THE TRIAL COURT ON FACTS ARE PRESUMED TO BE CORRECT

The law is that the conclusions of the trial Court on the facts are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66, BAMGBOYE vs. OLAREWAJU (1991) 4 NWLR (PT 184) 132 at 156 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. PER OGAKWU, JCA.

THE POSITION OF LAW WHERE THERE IS A MISCONCEPTION AS TO THE NATURE AND STATE OF FACTS IN CONTENTION BETWEEN PARTIES

It is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature and state of the facts, then in all probability, a wrong contention will invariably be proffered as a result of the said misconception: UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at152, LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT I) 159 at 169, EFCC vs. AFOLABI (2018) LPELR (43565) 1 at 27 and LASTMA vs. OMOSIVWE (2020) LPELR (52129) 1 at 23.

It is premised on the Appellant’s misconception, misapprehension and misunderstanding of the import of the facts deposed to, that it has erroneously contended that the 1st and 2nd Respondents’ affidavits are contradictory. There is no contradiction. In WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28, contradiction was given the following meaning:
“The word ‘contradiction’ is a simple English word. It derives from two Latin words. ‘Contra’ and Deco-ere-dixi-dictum’ meaning ‘to say the opposite’ hence ‘contradictum’: A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains, some minor differences in details.”
See also OGIDI vs. THE STATE (2003) 9 NWLR (PT. 824) 1 at 23-24, MATTHEW vs. OTABOR (2015) 14 NWLR (PT. 1479) 360 at 387, MOHAMMED vs. A-G FEDERATION (2020) LPELR (52526) 1 at 26 andAYIUWA vs. COP(2021) LPELR (56665) 1 at 38-39. PER OGAKWU, JCA.

THE CONCEPT OF ABUSE OF COURT PROCESS

Explicating the concept of cause of action in UWAZURUONYE vs. THE GOVERNOR OF IMO STATE(2012) LPELR (20604) 1 at 32-33, Rhodes-Vivour, JSC intoned:
“A plaintiff has a cause of action when his pleadings reveal that there has been an infraction or trespass to his rights and obligations. That is to say there must be:
(a) a cause of complaint,
(b) a civil right or obligation fit for determination by the Court and,
(c) the issue must be justiciable.
It must be clearly seen in the plaintiff’s pleadings the wrongful act of the defendant, which in effect gives the plaintiff his cause of complaint and the resultant damage from the defendant’s wrongful act.”
It is the plaintiff’s claim that determines the cause of action. See A-G FEDERATION vs. A-G ABIA STATE (2001) LPELR (24862) 1, OWURU vs. ADIGWU (2017) LPELR (42763) 1 and BELLO vs. YUSUF (2019) LPELR (47918) 1 at 10. PER OGAKWU, JCA.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja in SUIT NO. FCT/HC/CV/38/2022 [FCT/HC/FT/01/2022]: PEOPLES DEMOCRATIC PARTY & ANOR vs. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR. The facts which disclose the provenance of the action show that the 1st Respondent, which is one of the registered political parties in Nigeria, desirous of participating in the Federal Capital Territory Area Council Elections which took place on 12th February, 2022, nominated and sponsored the 3rd Respondent as its Councillorship candidate for the Quarters Ward of Gwagwalada Area Council. It duly submitted the name of the 3rd Respondent to the Appellant as its candidate for the said election.

However, before the conduct of the said election, the 3rd Respondent resigned his membership of the 1st Respondent political party and consequently withdrew his candidature for the said Quarters Ward of the Gwagwalada Area Council. In a bid to substitute the 3rd Respondent, the 1st Respondent wrote to the Appellant submitting the name of the 2nd Respondent as its candidate in substitution for the 3rd Respondent who had resigned from the party and withdrawn as 1st Respondent’s candidate. It is the 1st Respondent’s case that upon the submission of the letter of substitution to the Appellant on 21st December 2021, the Appellant’s officers refused to acknowledge receipt of the letter on the ground that the period within which to substitute candidates under the Time Table and Schedule of Activities for 2022 Federal Capital Territory (FCT) Area Councils Election had expired. It is further the 1st Respondent’s case that on 6th January, 2022, the Appellant rejected the substitution of the 3rd Respondent on the basis that the last day for withdrawal by candidates and substitution/replacement of withdrawn candidates was on 26th June 2021.

As a result, the 1st and 2nd Respondents instituted proceedings by Originating Summons filed at the lower Court on 10th January, 2022. The 1st and 2nd Respondents presented the following question for determination in the Originating Summons:
“Whether sequel to 2nd Defendant – ISAAC BMIBMITAWUZA YUSUF resignation as a member of the 1st Claimant and withdrawal as the 1st Claimant’s Councillorship candidate for the Quarters Ward of Gwagwalada Area Council election scheduled for the 12th February, 2022 and pursuant to Sections 33, 35 and 38 Electoral Act, the 1st Claimant is legible [sic] to substitute/replace 2nd Defendant – ISSAC BMIBMITAWUZA YUSUF with the 2nd Claimant – NUHU USMAN as the 1st Claimant’s Councillorship candidate for the Quarters Ward of Gwagwalada Area Council election scheduled by the Defendant for the 12th February 2022.”

Upon the determination of the said question, the following reliefs were claimed:
“1. A Declaration that the 1st Claimant is legible [sic] to substitute/replace 2nd Defendant – ISAAC BMIBMITAWUZA YUSUF with the 2nd Claimant – NUHU USMAN as the 1st Claimant’s Councillorship candidate for the Quarters Ward of Gwagwalada Area Council Federal Capital Territory in the FCT Area Council election scheduled by the 1st Defendant for the 12th February, 2022.
2. An Order on the 1st Defendant to forthwith remove the name of 2nd Defendant – ISAAC BMIBMITAWUZA YUSUF as the 1st Claimant’s Councillorship Candidate for the Quarters Ward of Gwagwalada Area Council Federal Capital Territory Area Council election scheduled by the 1st Defendant for 12th February, 2022 replace the 2nd Defendant – ISAAC BMIBMITAWUZA YUSUF with NUHU USMAN as the 1st Claimant’s Councillorship candidate for the Quarters Ward of Gwagwalada Area Council Federal Capital Territory election.”

The action was heard on the affidavits and processes filed and exchanged between the Appellant and the 1st and 2nd Respondents. The 3rd Respondent did not file any processes at the lower Court and equally did not appear at the hearing. In its judgment which was delivered on 8th February, 2022, the lower Court answered the question for determination in the affirmative and then granted the reliefs claimed and ordered as follows:
“1. A declaration that the 1st claimant is eligible or entitled to substitute/replace 2nd defendant [ISAAC BMIBMITAWUZA YUSUF] with the 2nd claimant [NUHU USMAN] as its Councillorship candidate for the Quarters Ward of Gwagwalada Area Council, Federal Capital Territory in the FCT Area Councils election scheduled by the 1st defendant for the 12th day of February 2022.
2. An order directing the 1st defendant to forthwith remove the name of the 2nd defendant [ISAAC BMIBMITAWUZA YUSUF] as the 1st claimant’s Councillorship candidate for the Quarters Ward of Gwagwalada Area Council, Federal Capital Territory in the FCT Area Councils election scheduled by the 1st defendant for the 12th day of February, 2022 and to replace the 2nd defendant [ISAAC BMIBMITAWUZA YUSUF] with NUHU USMAN [the 2nd claimant] as the 1st claimant’s Councillorship candidate for Quarters Ward of Gwagwalada Area of Gwagwalada Area Council, Federal Capital Territory in the said FCT Area Councils election.”

The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 21st February, 2022. The scarified judgment of the lower Court is at pages 70-94 of the Records while the Notice of Appeal is at pages 97-103 of the records. In prosecution of the appeal, the Records of Appeal was compiled and transmitted and briefs of argument were filed and exchanged between the Appellant and the 1st and 2nd Respondents. The 3rd Respondent did not file any brief and also did not appear at the hearing even though he was duly served with the Court processes as well as hearing notice of the hearing date.

The Appellant’s brief was filed on 4th April, 2022, while the 1st and 2nd Respondents’ Brief was filed on 8th April, 2022. The 1st and 2nd Respondents equally filed a Notice of Preliminary Objection on 8th April, 2022. The said Notice of Preliminary Objection wherein they challenged the competence of the appeal was argued in their 1st and 2nd Respondents’ brief. In reaction to the 1st and 2nd Respondents’ brief, the Appellant filed a Reply Brief on 12th April, 2022. At the hearing of the appeal on 13th April, 2022, the learned counsel for the Appellant and the 1st and 2nd Respondents urged the Court to uphold their respective submissions in the determination of the appeal. The logical starting point will be to consider the preliminary objection.

THE PRELIMINARY OBJECTION
The 1st and 2nd Respondents predicated their preliminary objection on the following grounds:
“1. By the provisions of Order 7 Rules 2 (1) Court of Appeal Rules, 2021 all appeals shall be by way of rehearing, stating inter alia, the names of all the parties directly affected by the appeal.
2. Appellant’s particulars in support of the grounds of appeal in the Notice and Grounds of Appeal are arguments and conclusions, particularly:
i. Particulars iii, iv, v, vi of Ground 1 of the Notice of Appeal.
ii. Particulars i, ii, iii, iv, vi, vii, viii and x of Ground 2 of the Notice of Appeal.
iii. Particular 2 of Ground 3 of the Notice of Appeal.
iv. Particulars i and ii of Ground 4 of the Notice of Appeal.
3. Ground 4 of the Notice of Appeal is vague.
4. Particulars iii, iv, v, vi of Ground 1 of the Notice of Appeal, Particulars i, ii, iii, iv, vi, vii, viii and x of Ground 2 of the Notice of Appeal, Particular 2 of the Ground 3 of the Notice of Appeal, Particulars I and ii of Ground 4 of the Notice of Appeal and Ground 4 of the Notice of Appeal serves no useful purposes, rendered grounds 1 (one), 2 (two), 3 (three) and 4 (four) of the notice and grounds of appeal incompetent.
5. Grounds 1, 2 and 4 of the Notice of Appeal are of mixed law and facts, requires leave of the Honourable Court. Leave of the Honourable Court was not sought, nor obtained by the Appellant.
6. Grounds 1 and 2 (two) of the Notice of Appeal are new issues without the leave of the Court.
7. Ground 4 of the Notice of Appeal is not part of the judgment of the trial Court.”

The Appellant proffered its submissions in answer to the preliminary objection on pages 1-7 of the reply brief.

Festinately, by Order 10 Rule 1 of the Court of Appeal Rules, 2021, a preliminary objection is filed to the hearing of the appeal. The preliminary objection envisaged by the stipulation is such that where it succeeds, the hearing of the appeal will be scuttled in limine.

I have set out the grounds of the 1st and 2nd Respondent’s preliminary objection. It is as clear as crystal that the preliminary objection only relates to some of the particulars of the grounds of appeal. I will illustrate. The preliminary objection has not challenged particulars i and ii of ground 1 of the grounds of appeal, particulars v and ix of ground 2 of the grounds of appeal and particular 1 of ground 3 of the grounds of appeal. Concomitantly, the 1st and 2nd Respondents concede that the said particulars of the grounds of appeal which they did not challenge are competent. It necessarily follows that even if the 1st and 2nd Respondents are successful in the preliminary objection in respect of the said particulars of the said Grounds they challenged, the said grounds 1, 2 and 3 can still be sustained by the particulars of the grounds that have not been challenged.
Additionally, the 1st and 2nd Respondents contend as a further ground of objection that grounds 1, 2 and 4 of the grounds of appeal are of mixed law and facts and that leave of Court was neither sought nor obtained to appeal on the said grounds. This challenge on the said three grounds of appeal still leaves intact Ground 3 and particular 1 thereof which remains unchallenged and will therefore be sufficient to sustain the appeal. So, whichever way the grounds of the preliminary objection are considered, its success will not scuttle the hearing of the appeal as Ground 3 and particular 1 thereof, which are unchallenged, would serve to sustain the appeal.
It is trite law that where, as in this appeal, a preliminary objection attacks some of the grounds of appeal and there exists a ground of appeal that can sustain the appeal, then a preliminary objection is inappropriate. In the circumstances, the 1st and 2nd Respondents ought to have filed a Motion on Notice to challenge the said particulars of the grounds of appeal which they contest their competence, since the preliminary objection, even if successful, would not scuttle the hearing of the appeal. See GENERAL ELECTRIC CO vs. AKANDE (2011) 4 NSCQR 611. Explaining the legal position in this regard, Rhodes-Vivour, JSC stated as follows in ADEJUMO vs. OLAWAIYE(2014) 12 NWLR (PT 1421) 252 at 265:
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the appeal comes to an end if found to be correct. If sustained, a preliminary objection terminates the hearing of an appeal. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a Motion on Notice filed complaining about a few grounds or defects would suffice.” See also NNPC vs. FAMFA OIL LTD (2012) LPELR (7812) 1 at 32-33, SANI vs. KOGI STATE HOUSE OF ASSEMBLY (2021) LPELR (53067) 1 at 16-17, ISAH vs. INEC (2014) 1-2 SC (PT IV) 101 and ENEYO vs. NGERE (2022) LPELR (56880) 1 at 22-26.

Even so, the essence of grounds of appeal is to give sufficient notice to the adverse party of the nature of the appellant’s complaint, which such adverse party will be confronted with in Court. Where the grounds of appeal serve such notice, then the purpose and essence of a ground of appeal is achieved and the ground will not be defenestrated on any technical grounds. See AIGBOBAHI vs. AIFUWA (2006) LPELR (267) 1 at 17 and F. H. A. vs. OLAYEMI (2017) LPELR (43376) 1 at 21-23. In ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 272, Ayoola, JSC stated:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of the nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.”
The 1st and 2nd Respondents have not complained that they were misled by the way in which the grounds of appeal were framed or that they are in any way confused as to the complaint in the said grounds. In NTA vs. A. I. C. LTD (2018) LPELR (45320) 1 at 6-7, Garba, JCA (now JSC) stated:
“Over time, the attitude of the appellate Courts has been to ignore the technical form in which the grounds of appeal and particulars thereof are couched and concern themselves with the real and substance of the complaint contained in the grounds of which notice is given therein and generally, once the complaint is unambiguous and clear, the grounds would be valid and competent for the purpose of the appeal.”
The 1st and 2nd Respondents replied to the Appellant’s submissions in their brief of argument, showing that the complaints in the grounds of appeal are clear and well understood. See ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 17-18.

Consequently, given the settled state of the law and the several decisions of the Apex Court on the issue as well as the attitude of the Courts which I have referred to above, I hereby hold that the 1st and 2nd Respondents preliminary objection which is not a challenge against the hearing of the entire appeal per se, but against some of the particulars of the grounds of appeal is inappropriate in the circumstances to terminate the hearing of the appeal. Accordingly, the said preliminary objection is incompetent and the same is hereby discountenanced. I will therefore proceed to consider the appeal on its merit. See AYORINDE vs. KUFORIJI (2022) LPELR (56600) 1 at 7-8, APC vs. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION (2021) LPELR (55337) 1 at 15-16 and DAEWOO NIG LTD vs. ALAMINA (2022) LPELR (56588) 1 at 14. By the same token, the 1st and 2nd Respondents having replied to the Appellant’s submissions in their brief of argument, clearly portrays and accentuates that the Appellant’s complaints and grievance with the decision of the lower Court are well understood. It therefore behoves the Court to resolve the merits of the grievance that has been presented for resolution.

Before I draw the curtains on the preliminary objection, it is imperative to state that the filing of a preliminary objection to the competence of an appeal, especially in cases that are time-bound, like this pre-election appeal, has to be done with cautious perspicacity. Given the workload on the Courts and the limited period within which to dispose of such matters, a preliminary objection has to be weighty, substantial and well-thought out. It is not to be raised in a slapdash manner.

The judgment of the lower Court appealed against in this matter is a final decision of the High Court of the Federal Capital Territory, Abuja, sitting as a Court of first instance. It is elementary law that Section 241(1)(a) of the 1999 Constitution (as amended) confers a right to appeal as of right against such a decision, irrespective of whether the grounds of appeal are of law, mixed law and facts or indeed facts only. See OKOYEKWU vs. OKOYE (2009) 6 NWLR (PT 1137) 350 at 381, OYEWINLE vs. ARAGBIJI OF IRAGBIJI (2012) LPELR (9328) 1 at 28-31, NUC vs. ALLI (2013) LPELR (21444) 1 at 35-36, NIGERIA CUSTOMS SERVICE BOARD vs. OGUNSINA (2022) LPELR (56415) 1 at 20 and NIGERIA CUSTOMS SERVICE BOARD vs. SUNDAY (2022) LPELR (56417) 1 at 20-21. I find it incredible that in the light of the peculiar facts and circumstances of this matter, the 1st and 2nd Respondents felt comfortable to raise as one of the grounds of the preliminary objection, the contention that grounds 1, 2 and 4 of the grounds of appeal are grounds of mixed law and facts and that leave of Court was neither sought nor obtained to appeal on the said grounds. Absolutely incredulous! I say no more. Now, to the substance of the appeal.

THE APPEAL
The Appellant nominated three issues for determination as follows:
“1. Whether in view of the fact deposed at paragraph 8[iii] – [viii] of the further affidavit in support of the Originating Summons of the 1st and 2nd Respondents vis – a – vis the finding of the trial Court thereon, the case of the 1st and 2nd Respondents is not statute-barred. Distilled from ground 1 of the Notice of Appeal.
2. Whether the trial Court properly evaluated the contradictory affidavit evidence placed before it by the 1st and 2nd Respondents to come to the conclusion that Exhibit 3 was submitted to the 1st defendant on 21/12/2021. Distilled from grounds 2 and 5 of the Notice of Appeal.
3. Whether the learned trial Court was right when in one breath held that Exhibit A has the force of law and in another breath held that Exhibit A contradicts the provision of Section 35 of the Electoral Act, 2010 (as amended) despite the judicial authorities the Court was referred to. Distilled from grounds 3 and 4 of the Notice of Appeal.”

The 1st and 2nd Respondents formulated four issues for determination, scilicet:
“i. Whether the case of the 1st and 2nd Respondent [sic] is statute barred. Ground 1 of the Notice of Appeal.
ii. Whether the Honourable trial Court evaluated the affidavit evidence of the 1st and [sic] Respondents. Grounds 2 and 5 of the Notice of Appeal.
iii. Whether the learned trial Court failed to consider and apply the authorities submitted by the Appellant. Ground 3 of the Notice of Appeal.
iv. Whether Exhibit A is in conflict with Section 35 of the Electoral Act 2010 (as amended). Grounds 3 and 4 of the Ground of Appeal.”

The issues distilled by the parties are the same in their true sense and purport. This remains so, notwithstanding the fact that the Appellant distilled three issues while the 1st and 2nd Respondents formulated four issues. The 1st and 2nd Respondents’ issue numbers three and four, are a splitting into two of the Appellant’s issue number three; so there is no material difference in the issues. Howbeit, it is on the basis of the issues as distilled by the Appellant, which I find apt, that I will consider and resolve this appeal. I will take issue numbers one and two together as the said issues are interwoven and intertwined.

Issue number one interrogates whether the 1st and 2nd Respondents’ action is statute barred. It is hornbook law that in order to ascertain whether an action is statute barred, the date of accrual of the cause of action as averred to in the pleadings is the guidepost. The 1st and 2nd Respondents’ action was commenced by Originating Summons. It is abecedarian law that where an originating summons is the originating process in an action, it serves as the pleadings and it is the affidavit filed alongside the originating summons and the reliefs claimed that have to be examined to ascertain if the action is statute barred. See INAKOJU vs. ADELEKE (2007) 4 NWLR (PT 1020) 427 at 488-489, OLOFU vs. ITODO (2010) 18 NWLR (PT. 1255) 545 at 573, PDP vs. SYLVA (2012) 13 NWLR (PT 1316) 85 at 127 and A-G FEDERATION vs. A-G LAGOS (2017) 8 NWLR (PT 1566) 20 at 46.

In its issue number two, the Appellant contends that the 1st and 2nd Respondents’ affidavit filed in support of the originating summons is contradictory. If the law is that it is the facts deposed to in the affidavit in support of originating summons that will be resorted to in order to ascertain if the action is statute barred, then there is the compelling need to ascertain if the affidavit is contradictory in which case no value can be placed on it in deciding if the action is statute-barred. It is predicated on this settled state of the law that I am of the considered view that issue numbers one and two can conveniently be taken together.

ISSUE NUMBERS ONE AND TWO
Whether in view of the fact deposed at paragraph 8[iii]-[viii] of the Further Affidavit in support of the Originating Summons of the 1st and 2nd Respondents, vis-a-vis the finding of the trial Court thereon, the case of the 1st and 2nd Respondents is not statute-barred.
Whether the trial Court properly evaluated the contradictory affidavit evidence placed before it by the 1st and 2nd Respondents to come to the conclusion that Exhibit 3 was submitted to the 1st defendant on 21/12/2021.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the case of the 1st and 2nd Respondents is a pre-election matter and that by Section 285 (9) of the 1999 Constitution (as amended), they had fourteen (14) days from the accrual of the cause of action to file the case. It was posited that Section 285 (9) is clear and unambiguous and should be given its literal meaning. The cases of LOKPOBIRI vs. APC (2021) 3 NWLR (PT. 1764) 538 and GBENGA vs. APC (2020) 14 NWLR (PT. 1744) 248 at 269 were relied upon.

It was contended that computation of time starts from the date of the accrual of the cause of action vide LOKPOBIRI vs. APC (supra) at 545, 546-547 and 549, GBENGA vs. APC (supra) at 269 and BELLO vs. YUSUF (2019) 15 NWLR (PT 1695) 250 at 280, 283 and 288. It was opined that the lower Court made a finding at page 83 of the records, which shows that the 1st and 2nd Respondents’ cause of action arose on 21st December, 2021 when their letter of substitution was allegedly submitted to the Appellant and rejected. It was asserted that the action filed on 10th January, 2022 was filed outside the fourteen (14) days stipulated in Section 285 (9) of the 1999 Constitution (as amended), thereby making the action statute barred and therefore the lower Court had no jurisdiction to entertain the action. The cases of SYLVA vs. INEC (2015) 16 NWLR (PT 1480) 57, IBRAHIM vs. LAWAL (2015) 17 NWLR (PT 1489) 490 at 523, BUREMOH vs. AKANDE (2017) 7 NWLR (PT 1563) 74 at 107, PDP vs. EZEONWUKA (2018) 3 NWLR (PT. 1606) 187, LOKPOBIRI vs. APC (supra), GBENGA vs. APC (supra) and BELLO vs. YUSUF (supra) were referred to. The Appellant’s contention on its second issue is that the lower Court failed to properly evaluate the affidavit of the 1st and 2nd Respondents which was contradictory as to the date when the letter of substitution was submitted and rejected, the 1st and 2nd Respondents having stated two different dates of 21st December, 2021 and 6th January, 2022. It was stated that evaluation of evidence is the primary duty of the trial Court and that where the trial Court fails to properly evaluate the evidence, then the decision will be set aside on appeal. The cases of MOGAJI vs. ODOFIN (1978) 4 SC 198, OGIDA vs. OLIHA (1986) 1 NWLR (PT 19) 786, OLOWOLAGBA vs. BAKARE (1998) 3 NWLR (PT 543) 528 at 534 and ONIFADE vs. OLAYIWOLA (1990) 7 NWLR [no part stated] 130 at 165 were called in aid.

It was asserted that the content of an affidavit is sacrosanct and that even where no counter-affidavit has been filed, the Court must still evaluate the affidavit and ascribe probative value thereto. The case of OKOYE vs. CPMB LTD (2008) 15 NWLR (PT 1110) 335 at 362 was cited in support. It was maintained that the 1st and 2nd Respondents sought declaratory reliefs and therefore were to succeed on the strength of their case and not on any perceived weakness in the case of the Appellant. The cases of NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 214 and ADAMA vs. KSHA (2019) 16 NWLR (PT 1699) 501 at 518-519 were relied upon.

It was conclusively submitted that there is nothing indicating that the letter of substitution was ever submitted to the Appellant on 21st December, 2021 and that the nomination process for a candidate is complete when the Appellant receives the necessary documents effecting the nomination from the political party. The cases of PDM vs. INEC (2020) 17 NWLR (PT 1753) 303 at 331, WALI vs. APC (2020) 16 NWLR (PT 1749) 82 at 98-99 and APPEAL NO. CA/YL/EPT/GM/REP/83/2016: HASSAN vs. ALI-KUMO (unreported) delivered on 4th August 2016 were referred to.

SUBMISSIONS OF THE 1ST AND 2ND RESPONDENTS’ COUNSEL
It was submitted that the 1st and 2nd Respondents’ action is not statute barred. It was stated that the Appellant rejected the 1st and 2nd Respondent’s request for substitution of the 3rd Respondent on 6th January, 2022 and not on 21st December, 2021 as contended by the Appellant. Paragraph 10 iv of the supporting affidavit, paragraph 8 (iii)-(viii) of the Further Affidavit and the case of EGBELE vs. POSTMASTER GENERAL NIPOST (2009) LPELR-8870 (CA) were referred to on when the cause of action accrued. It was asserted that the Originating Summons, which was filed on 10th January, 2022, four (4) days after the rejection of the substitution on 6th January, 2022 was filed within fourteen (14) days of the accrual of the cause of action.

The 1st and 2nd Respondents’ contention on their second issue is that a critical examination of the decision of the lower Court will disclose that the lower Court carefully evaluated the affidavit evidence and that no miscarriage of justice was occasioned. The case of OMAJALI vs. DAVID (2019) LPELR-49381 (SC) was called in aid on the evaluation of affidavit evidence; and it was opined that where there has been no evaluation of evidence, the duty of the appellate Court will be to evaluate the evidence, but that in this case the lower Court rightly evaluated the affidavit evidence before arriving at its judgment.

It was maintained that paragraphs 9 iv [sic] (9 vii) and 10 iv of the supporting affidavit and paragraphs 8 iii-viii of the Further Affidavit were neither in conflict nor contradictory. It was posited that paragraphs iii-viii of the Further Affidavit are on the failure of the Appellant to acknowledge in writing the letter of substitution submitted to it on 21st December 2021, while paragraphs 9 iv [sic] (9 vii) and 10 iv of the supporting affidavit are on facts intimating the 1st and 2nd Respondents of the rejection of their request for substitution on 6th January, 2022.

APPELLANT’S REPLY ON LAW
The Appellant submits that a party has to be consistent in stating his case vide IKEMBA vs. PYRAMMIDT COMPANY NIG. LTD (2021) LPELR-56145 CA. It was posited that it was never the case of the 1st and 2nd Respondents at the lower Court that the Appellant rejected the substitution of their candidate in writing, and so they cannot now so contend on appeal.

It was further opined that the question of evaluation of evidence is the duty of the trial Court and so the argument on appeal that the lower Court failed in its duty to evaluate the two contradictory affidavits of the 1st and 2nd Respondents is not raising a fresh issue on appeal.

RESOLUTION OF ISSUES NUMBERS ONE AND TWO
The evaluation of evidence and ascription of probative value thereto is the primary duty of the Judge at nisi prius. Where the trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. The trial Court considers the evidence adduced, decides which evidence to prefer on the basis of how the evidence preponderates and then makes logical and consequential findings of fact: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and UNITED MICROFINANCE BANK LTD EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43.

Where the findings of facts made by the trial Court flow from the evidence and were judicially and judiciously arrived at, then there is no basis for an appellate Court to interfere vide OWIE vs. IGHIWI (2005) 5 NWLR (PT. 917) 184 at 217-218. Now, has the Appellant been able to displace the presumption that the findings of facts made by the lower Court are correct? We will find out anon.

In considering whether the 1st and 2nd Respondents proved that the letter of substitution was submitted to the Appellant, the lower Court in evaluation of the affidavit evidence and ascription of probative value thereto, reasoned and held as follows at pages 83-85 of the Records:
“In the affidavit in support of the Originating Summons, Bako Angulu stated that he was informed by Jafaru Sadiq [a staff of the 1st claimant at its National Secretariat] that he submitted Exhibit 3 i.e. the letter titled: Withdrawal of PDP Councillorship Candidate and Replacement Pursuant to Sections 33 and 35 of the Electoral Act 2010 [as amended] and the attached documents to the office of the 1st defendant’s Chairman on 21/12/2021. In the counter-affidavit, Hussaini Abdullahi stated that Exhibit 3 was never submitted to the 1st defendant.
In paragraph 8[iii]-[viii] of the further affidavit, Bako Angulu stated the information he got from Jafaru Sadiq on how he submitted Exhibit 3, which he verily believed. The said depositions have been set out earlier. However, for emphasis, the depositions are that on 21/12/2021, Jafaru Sadiq went to the office of the Chairman of the 1st defendant where he submitted/handed over Exhibit 3 to one of the officers/staff of the 1st defendant. That staff put a call to Mr. Buhari [also a staff of the defendant]. After speaking with Mr. Buhari, the staff handed over the phone to him [Jafaru Sadiq] and he spoke with Mr. Buhari. Mr. Buhari then told him [Jafaru Sadiq] that the time for substitution of candidates lapsed on 26/6/2021; that the letter for substitution/replacement is belated sequel to the 1st defendant’s timetable and that they will not acknowledge the letter. The 1st defendant refused to acknowledge receipt of Exhibit 3 in writing.
There can be no doubt that the further affidavit introduced fresh or new facts, which are vital or material to the question whether the 1st claimant submitted Exhibit 3 to the 1st defendant. The 1st defendant did not respond or react to the above depositions by filing a further counter-affidavit. The position of the law is that where facts in respect of anything deposed to in a counter-affidavit or further affidavit are not met or addressed by the other party in a further and better affidavit, the proper conclusion to reach is that the facts stated in the counter-affidavit or in the further affidavit remain unchallenged. See the cases of Uzodinma v. Izunaso & Ors. [2011] LPELR-20027 [CA] and F.B.N Plc. v. Ndarake & Sons Nig. Ltd. [2009] 15 NWLR [Pt. 1164] 406.
The Court holds the considered view that the above principle is applicable to the instant case. The effect is that the facts stated in the further affidavit were unchallenged and uncontroverted. The Court is legally bound to accept and act on them.
… The 1st defendant had a duty to file a reaction to the said depositions if it intended to challenge them.
In the light of the foregoing, the Court’s answer to the question under focus is in the affirmative. The Court holds that from the facts before it, the claimants have proved that the letter titled: Withdrawal of PDP Councillorship Candidate and Replacement Pursuant to Sections 33 and 35 of the Electoral Act, 2010 [as amended] i.e. Exhibit 3 was submitted to the 1st defendant on 21/12/2021.”

In accentuation of its contention that the lower Court did not properly evaluate the affidavit evidence, the Appellant argued that the depositions in paragraphs 9 vii and 10 iv of the supporting affidavit and paragraph 8 (iii)-(viii) of the 1st and 2nd Respondents’ Further Affidavit are contradictory on the date when the letter of substitution was submitted and rejected. For good measure, it was further argued that the lower Court made a finding at page 83 of the Records, that the letter of substitution was allegedly submitted and rejected on 21st December, 2021 and so the cause of action arose on 21st December, 2021. I will set out verbatim ac literatim the depositions in the said paragraphs of the affidavits in order to ascertain if there is any merit in the Appellant’s contention in this regard. In paragraphs 9 (vii) and 10 (iv) of the affidavit in support of the Originating Summons which is at pages 4 and 5 of the records, it is deposed thus:
“9 (vii) The 1st Claimant on the 21st December, 2021 vide Exhibit 3 wrote and submitted to the 1st Defendant of the withdrawal of the 2nd Defendant as the 1st Claimant’s Councillorship candidate for the Quarters Ward Gwagwalada Area Council, Federal Capital Territory Abuja Area Council election and the replacement of the 2nd Defendant with the 2nd Claimant.“
10 iv. He submitted a copy of Exhibit 3 to the office of the Chairman of the 1st Defendant, but that on the 6th January, 2022 the 1st Defendant, rejected Exhibit 3 on the excuse that by the 1st Defendant’s time table and schedule of activities for 2022 Federal Capital Territory (FCT) Area Councils Election the last day for withdrawal by candidate(s)/replacement of withdrawn candidate(s) by Political Parties ended on the 26th June, 2021. The 1st Defendant’s timetable is here marked as ‘Exhibit A’.”

Then in paragraphs 8 (iii)-(viii) of the Further Affidavit which is at page 57 of the records, the 1st and 2nd Respondents deposed as follows:
“iii. He duly submitted Exhibits 2 and 3 to the office of the Chairman of the 1st Defendant on behalf of the 1st Claimant.
iv. Exhibit 2 is part of Exhibit 3 submitted to the 1st Defendant by the 1st Claimant.
v. At the office of the 1st Defendant’s Chairman situated at the 1st Defendants National Headquarters No. 16 Zambezi Crescent, Maitama Federal Capital Territory, Abuja on the 21st December, 2021 where he submitted Exhibit 3 he met some officers/staff of the 1st Defendant handed over Exhibit 3 to one of them.
vi. Having received Exhibit 3 from him, the officer/staff put a call to Mr. Buhari also a staff of the 1st Defendant, spoke with Mr. Buhari and handed over the phone to him to speak with said Mr. Buhari.
vii. Mr. Buhari intimated him that time for substitution lapsed 26th June, 2021 and that the letter for substitution or replacement of candidate is belated sequel to the 1st Defendant’s timetable and that they will not acknowledge the receipt of the letter.
viii. 1st Defendant refused to acknowledge in writing the receipt of Exhibit 3 after the submission by the 1st Claimant.”

Let me reiterate that in actions commenced by Originating Summons, it is the affidavits filed that constitute the pleadings: PDP vs. SYLVA (supra) and INAKOJU vs. ADELEKE (supra). It is trite law that in construing pleadings, the averments are considered as a whole in order to gather the collective import of the pleaded facts. The pleadings are considered in their totality and not in watertight compartments. The paragraphs are considered as a whole and not each paragraph in isolation. See AZUBOGU vs. ORANEZI (2017) LPELR (42669) 1 at 19-20, FADLALLAH vs. AREWA TEXTILES LTD (1997) LPELR (1225) 1 at 25, UMA vs. KOFANA SECURITIES AND INVESTMENT LTD (2021) LPELR (55197) 1 at 46-47 and SPDC vs. PESSU (2014) LPELR (23325) 1 at 67-68.

An integral construction of the 1st and 2nd Respondents’ affidavits makes it limpid that the collective facts deposed to are that they submitted the letter of substitution to the Appellant on 21st December, 2021, but that the Appellant’s officers refused to acknowledge receipt of the letter (see paragraph 9 vii of the supporting affidavit and paragraph 8 (v)-(viii) of the Further Affidavit). So, the facts deposed to on the events of 21st December, 2021 were submission of letter of substitution, receipt of the same (paragraph 8 vi of the Further Affidavit) and a refusal to acknowledge receipt of the letter. It was then deposed in paragraph 10 iv of the supporting affidavit as to what happened on 6th January, 2022, id est, rejection of the substitution conveyed in the letter of substitution which was submitted on 21st December, 2021. In précis, the facts deposed to are that on 21st December, 2021 the letter of substitution was submitted. It was received by the Appellant, but it refused to formally acknowledge receipt of the letter. Then on 6th January, 2022 the substitution was rejected. It is imperative to underscore that in the facts deposed to in the paragraphs in issue, the word rejection was only employed in paragraph 10 iv of the supporting affidavit with respect to what happened on 6th January, 2022. The deposition as to what transpired on 21st December, 2021 employed the word or phrase refuse or refused to acknowledge receipt.

It is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature and state of the facts, then in all probability, a wrong contention will invariably be proffered as a result of the said misconception: UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 152, LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT I) 159 at 169, EFCC vs. AFOLABI (2018) LPELR (43565) 1 at 27 and LASTMA vs. OMOSIVWE (2020) LPELR (52129) 1 at 23.

It is premised on the Appellant’s misconception, misapprehension and misunderstanding of the import of the facts deposed to, that it has erroneously contended that the 1st and 2nd Respondents’ affidavits are contradictory. There is no contradiction. In WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28, contradiction was given the following meaning:
“The word ‘contradiction’ is a simple English word. It derives from two Latin words. ‘Contra’ and Deco-ere-dixi-dictum’ meaning ‘to say the opposite’ hence ‘contradictum’: A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains, some minor differences in details.”
See also OGIDI vs. THE STATE (2003) 9 NWLR (PT. 824) 1 at 23-24, MATTHEW vs. OTABOR (2015) 14 NWLR (PT. 1479) 360 at 387, MOHAMMED vs. A-G FEDERATION (2020) LPELR (52526) 1 at 26 andAYIUWA vs. COP(2021) LPELR (56665) 1 at 38-39.

In the light of the meaning of a contradiction in law, the dates in the 1st and 2nd Respondents’ affidavits, which the Appellant has latched on to, do not affirm the opposite of each other. They are not in themselves inconsistent. On 21st December, 2021, the letter of substitution was submitted. The Appellant received the same but refused to acknowledge receipt. On 6th January, 2022, the Appellant rejected the substitution which was communicated in the letter which was submitted to it and which it received on 21st December 2021. The facts do not bear out the Appellant’s contention that the letter of substitution was submitted and that the substitution was rejected on 21st December, 2021.

Furthermore, it is not correct as contended by the Appellant that the lower Court made a finding of fact that the letter of substitution was rejected on 21st December, 2021. I have already set out the evaluation of the affidavit evidence by the lower Court; nonetheless, for the purposes of emphasis, this is what the lower Court, inter alia, concluded at page 83 of the records on what transpired when the letter of substitution was submitted to the Appellant (who was the 1st Defendant at the lower Court) on 21st December 2021:
“The 1st defendant refused to acknowledge receipt of Exhibit 3 [the letter of substitution] in writing.”

In a summation, the lower Court properly evaluated the affidavit evidence. Having made the correct findings of facts judicially and judiciously, there is no need for this Court to interfere. The Appellant has therefore failed to dislodge the presumption that the findings of facts made by the lower Court are correct.

Against the background of the finding that the letter of substitution was submitted on 21st December, 2021 when the Appellant refused to acknowledge receipt of the letter in writing, while the substitution communicated in the said letter was rejected on 6th January, 2022, is the 1st and 2nd Respondents’ action which was filed on 10th January, 2022 statute barred? Put differently, when did the 1st and 2nd Respondents’ cause of action arise; 21st December, 2021 when the Appellant refused to acknowledge receipt of the letter or 6th January, 2022 when it is deposed that the Appellant rejected the substitution?

It is agreed on all sides that the action which spawned this appeal is a pre-election matter. By Section 285 (14) (b) and (c) of the 1999 Constitution (as amended), a pre-election matter means:
“(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”

It is lucent that refusing to acknowledge receipt of a letter submitted to it does not come within the constitutional meaning of a pre-election matter. Clearly, therefore no cause of action can be founded on the refusal to acknowledge receipt of the letter of substitution on 21st December, 2021. However, the rejection of the substitution by the Appellant on 6th January, 2022 clearly falls within the meaning of a pre-election matter as the said action of the Appellant was in respect of the participation of the 1st and 2nd Respondents in the Quarters Ward Councillorship election of Gwagwalada Area Council and the nomination of the candidate of the 1st Respondent for the said election.

Explicating the concept of cause of action in UWAZURUONYE vs. THE GOVERNOR OF IMO STATE (2012) LPELR (20604) 1 at 32-33, Rhodes-Vivour, JSC intoned:
“A plaintiff has a cause of action when his pleadings reveal that there has been an infraction or trespass to his rights and obligations. That is to say there must be:
(a) a cause of complaint,
(b) a civil right or obligation fit for determination by the Court and,
(c) the issue must be justiciable.
It must be clearly seen in the plaintiff’s pleadings the wrongful act of the defendant, which in effect gives the plaintiff his cause of complaint and the resultant damage from the defendant’s wrongful act.”
It is the plaintiff’s claim that determines the cause of action. See A-G FEDERATION vs. A-G ABIA STATE (2001) LPELR (24862) 1, OWURU vs. ADIGWU (2017) LPELR (42763) 1 and BELLO vs. YUSUF (2019) LPELR (47918) 1 at 10.

Forgive me for being circular and repetitive, but repetition helps to drive home the point. Besides, I have heard it said that repetition is the daughter of learning. So, though it may be prolix, I iterate that the 1st and 2nd Respondents’ case as to what happened on 21st December, 2021 is submission of letter to the Appellant, receipt of the same by the Appellant and a refusal to acknowledge receipt of the letter. For there to be a cause of action, there has to be a justiciable civil right or obligation fit for determination by a Court. The refusal to acknowledge receipt of a letter is not a justiciable civil right or obligation fit for determination by a Court. Therefore, the events of 21st December, 2021 could not have given rise to any cause of action.

It is effulgent that the 1st and 2nd Respondents’ cause of complaint and the wrongful act occasioning the resultant damage is the rejection of the substitution of the 3rd Respondent with the 2nd Respondent. From the facts deposed to by the 1st and 2nd Respondents, which are the only facts I am enjoined to consider in order to ascertain if there is a cause of action, the said wrongful act of the Appellant complained about took place on 6th January, 2022.

At the outset, I set out the sole question which the 1st and 2nd Respondents presented for determination in their Originating Summons and the reliefs claimed pursuant thereto. It is translucent from the said question and reliefs that occurrence of the event, decision or action complained of is the rejection on 6th January 2022 of the substitution of the 3rd Respondent with the 2nd Respondent. Section 285 (9) of the 1999 Constitution as amended provides as follows:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
Having established that the 1st and 2nd Respondents’ cause of action accrued on 6th January, 2022, their action which was instituted on 10th January, 2022 was commenced within the fourteen (14) day limitation period provided for in Section 285 (9) of the 1999 Constitution. Consequently, the action is not statute-barred. See FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 49-51, ADEOSUN vs. AFOLABI (2018) LPELR (46115) 1 at 26-28, AMOPE vs. GAMBARI (2013) LPELR (22096) 1 at 11-12 and THE ADMINISTRATORS & EXECUTORS OF THE ESTATE OF ABACHA (DECEASED) vs. EKE-SPIFF (2009) LPELR (3152) 1 at 44-45. The concatenation of the foregoing is that these issue numbers one and two must ineluctably be resolved against the Appellant. The 1st and 2nd Respondents’ action is not statute-barred and the lower Court properly evaluated the affidavit evidence, which affidavit evidence was not contradictory.

ISSUE NUMBER THREE
Whether the learned trial Court was right when in one breath it held that Exhibit A has the force of law and in another breath, it held that Exhibit A contradicts the provision of Section 35 of the Electoral Act, 2010 (as amended) despite the judicial authorities the Court was referred to.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant states that the timetable and schedule of activities for the Federal Capital Territory Area Council Elections (hereinafter the Timetable) stipulated 26th June, 2021 as the last day for withdrawal of candidates/replacement of withdrawn candidates. It was contended that the lower Court having held that the timetable had force of law, was wrong to conclude that the substitution done by the 1st Respondent was done within the time allowed by the Electoral Act. It was asserted that political parties must abide by the timetable as it has force of law vide NDP vs. INEC (2013) 6 NWLR (PT 1350) 392 at 439. It was opined that by the decision in NDP vs. INEC (supra), that for the purpose of withdrawal and replacement of candidates, the limited time fixed by the Appellant cannot go outside or beyond the 45 days to the election but that it can be earlier. The cases of PDP vs. SYLVA (supra) at 122-123 and FALEKE vs. INEC (2016) 18 NWLR (PT. 1543) 61 at 156-157 were referred to. It was asserted that since the timetable was guidelines which had the force of law, that the stipulation must be complied with. The cases of NDP vs. INEC (2012) 14 NWLR (PT. 1319) 176 at 197, PDP vs. INEC (2015) LPELR-25669 (CA) at 69-70, ACTION ALLIANCE vs. INEC (2019) LPELR-49364 (CA) at 38-41 and APPEAL NO. CA/ABJ/CV/91/2021: ACTION PEOPLES PARTY (APP) vs. INEC (unreported) delivered on 18th March, 2021 were cited in support.

SUBMISSIONS OF THE 1ST AND 2ND RESPONDENTS’ COUNSEL
The 1st and 2nd Respondents argued this issue as their issue numbers three and four. It is the submission of the 1st and 2nd Respondents that the lower Court at pages 88-92 of the records, duly considered and distinguished the cases cited by the Appellant from the instant case. It was further contended that the Appellant’s Time Table and Schedule of Activities for 2022 Federal Capital Territory Area Councils Election stipulates the last day for withdrawal/replacement of candidates as 26th June, 2021, while Section 35 of the Electoral Act, 2010 (as amended) provides for not later than 45 days before the election. It was asserted that as held by the lower Court, relying on Section 153 of the Electoral Act, 2010 (as amended), the provision in the Appellant’s timetable and schedule of activities was clearly subverting, undermining and disregarding the provisions of Section 35 of the Electoral Act, 2010 (as amended). It was conclusively submitted that the instant case is exceptional because the 3rd Respondent withdrew from his membership of the 1st Respondent on 2nd December, 2022.

RESOLUTION OF ISSUE NUMBER THREE
In the prolegomenon, I redacted the facts of this matter stating that the substitution of its candidate which the 1st Respondent sought to effect by the letter of substitution submitted to the Appellant on 21st December, 2021, which is about fifty-two (52) days to the date of the election, was rejected by the Appellant on the grounds that by the timetable and guidelines, the window for withdrawal, substitution and replacement of candidates closed on 26th June, 2021, which is about two hundred and forty-two (242) days to the date of the Area Council election that was fixed for, and held on 12th February, 2022. The Appellant’s grouch in this issue is that the lower Court having held that the timetable had the force of law was wrong to hold that the provision of the Timetable on the last date for withdrawal, substitution and replacement of candidates contradicts the provision of Section 35 of the Electoral Act (as amended). Apropos of this grouch, I will set out the reasoning and conclusion of the lower Court at pages 86-88 of the records. Hear the lower Court:
“By virtue of Section 33 of the Electoral Act, 2010 [as amended], the 1st claimant is entitled to change or substitute the 2nd defendant as its candidate for the Quarters Ward for the said Area Council election. Since, as I had found, the 1st claimant submitted Exhibit 3 to the 1st defendant on 21/12/2021 and the FCT Area Council election is scheduled to hold on 12/2/2022, it means that Exhibit 3 was submitted to the 1st defendant about 52 days to the date of the election.
Now, did the 1st claimant comply with the requirement for substitution or replacement of the 2nd defendant as its candidate when it submitted Exhibit 3 about 52 days to the date of the election? …
I had earlier set out the provision of Section 35 of the Electoral Act. Since it is crucial or central to the question under consideration, I will quote it again, thus:
A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission and which shall only be allowed not later than 45 days to the election.
In my view, the above provision is very clear and unambiguous. By the rules of interpretation, where words used in a statute are clear, they must be given their plain and ordinary meaning…
This Court holds that the clear provision of Section 35 of the Electoral Act requires a political party that nominated the candidate who withdrew his candidature for the election to ‘convey such withdrawal to the Commission and which shall only be allowed not later than 45 days to the election.’ Therefore, the submission of Exhibit 3 by the 1st claimant to 1st defendant on 21/12/2021 was in compliance with the time prescribed by Section 35 of the Electoral Act, 2010 [as amended] as it was done ‘not later than 45 days to the election’.”

The lower Court continued after a detailed consideration of the judicial authorities relied on by the Appellant and then conclusively held that the Timetable cannot supersede or override the provisions of Section 35 of the Electoral Act, 2010 (as amended) and that any regulation or guideline issued by the Appellant will not be valid if it is issued to subvert, undermine or disregard any provision of the Electoral Act, 2010 (as amended).

The stipulations of Sections 33, 35 and 153 of the Electoral Act, 2010 (as amended) which was applicable at all times material to the action are crucial. They provide:
“33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the case of death or withdrawal by the candidate.”
“35. A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election.”
“153. The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.”
By the canons of interpretation of statutes, it is a cardinal principle that, where the ordinary and plain meaning of the words used are clear and unambiguous, effect must be given to those words in their natural and ordinary meaning or literal sense, without resorting to any intrinsic or external aids. In aliis verbis, in interpreting a statute, where the words used are clear, plain and univocal, there is no need to give them any other meaning than their ordinary, natural and grammatical meaning would permit, except where it would lead to absurdity. See ADETAYO vs. ADEMOLA (2010) 15 NWLR (PT 1215) 169 at 205, OKOTIE-EBOH vs. MANAGER (2004) LPELR (2502) 1 at 30 and NWOBIKE vs. FRN (2021) LPELR (56670) 1 at 25.
The words employed in Sections 33, 35 and 153 of the Electoral Act, 2010 (as amended) which I have reproduced above are clear, plain and unambiguous; effect must therefore be given to the literal, ordinary and plain meaning of the words used, more so when doing so would not lead to any absurdity. By Section 33, a political party shall be allowed to change or substitute its candidate whose name has been submitted to the Appellant where such a candidate dies or withdraws his candidacy. From the attachments to the letter of substitution, the 3rd Respondent withdrew his candidature for the 1st Respondent. So, the 1st Respondent had the legal right under Section 33 to change or substitute him. But the right is not unbridled. There is a time limit provided by law within which a candidate can withdraw. This brings into play, Section 35 which stipulates that the notice of withdrawal of a candidate shall be conveyed to the Appellant not later than forty-five (45) days to the election. As rightly held by the lower Court, the 1st and 2nd Respondents conveyed the withdrawal of the 3rd Respondent and his substitution with the 2nd Respondent to the Appellant fifty-two (52) days to the election. This is in strict compliance with the provisions of Sections 33 and 35 of the Electoral Act, 2010 (as amended).
By all odds, the Appellant’s timetable has the force of law. It is made pursuant to Section 153 of the Electoral Act. It is however important to underscore that the said enabling provision on which the Appellant made the Timetable is made subject to the provisions of the Electoral Act. Now, the Appellant’s Timetable provides that the last date for withdrawal of candidature and substitution in replacement for the Area Council Elections which held on 12th February, 2022 was 26th June, 2021. This is a whopping two hundred and forty-two (242) days to the election. This is in contradistinction to the provision of the principal enactment in Section 35 which provides for withdrawal and substitution not later than forty-five (45) days to the election. In as much as the timetable has the force of law, can it override and supersede a stipulation in the principal enactment which it has been subjected to?
In NYESOM vs. PETERSIDE (2016) LPELR (40036) 1 at 63, the apex Court held that the directives, guidelines and manual issued by the Appellant cannot be elevated above the provisions of the Act. See also OKEREKE vs. UMAHI (2016) LPELR (40035) 1 and NKWONTA vs. INEC (2019) LPELR (49542) 1 at 40-43. The legal position was even more forcefully stated by Agim, JCA (now JSC) in SATUMARI vs. NDUME (2019) LPELR (48875) 1 at 32. Hear His Lordship:
“S. 153 of the Electoral Act that enables the 3rd Respondent to issue regulations, guidelines and manuals for elections states clearly that the issue of such regulations, guidelines and manuals is subject to the Electoral Act. Any instruction, guideline or procedure … that is contrary to the provision of the Act is illegal and void.”
See also SHELL NIGERIA EXPLORATION AND PRODUCTION CO LTD vs. NOSDRA (2021) LPELR (53068) 1 at 41-43, DIN vs. A-G FEDERATION (1988) 4 NWLR (PT 87) 147 and MOBIL PRODUCING (NIG) UNLTD vs. JOHNSON (2018) 14 NWLR (PT. 1633) 329.
It seems to me that irrespective of the fact that the Timetable has the force of law, it cannot supersede an express provision of the Electoral Act, and where it conflicts with the stipulation in the Electoral Act, the Electoral Act provision which it is made subject to will take precedence. The phrase “subject to the provisions of this Act” which is employed in Section 153 of the Electoral Act, 2010 (as amended), is an expression of limitation which shall govern, control and prevail over what follows in the section of the enactment. See TEXACO PANAMA INCORPORATION vs. SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIG. LTD (2002) LPELR (3146) 1 at 10-11, KAYCEE (NIG) LTD vs. PROMPT SHIPPING CORPORATION (1986) LPELR (1680) 1 at 14-15 and INEC vs. DPP (2014) LPELR (22809) 1 at 24. Concomitantly, the provisions of the Electoral Act, 2010 (as amended), [in the circumstances of this matter, particularly Section 35 thereof] will govern, control and prevail over the stipulations of the timetable on the deadline for the withdrawal and substitution of candidates. The lower Court was therefore correct in its decision that the stipulations of the timetable on the last date for withdrawal and substitution of candidates is in conflict with the time stated in Section 35 of the Electoral Act, 2010 (as amended); and that a regulation or guideline issued by the Appellant will not be valid if it subverts, undermines or disregards any provision of the Electoral Act, 2010 (as amended).

This is now the opportune time to state that I duly considered the unreported decision of this Court in APPEAL NO. CA/ABJ/CV/91/2021: ACTION PEOPLES PARTY (APP) vs. INEC delivered on 18th March, 2021 relied on by the Appellant. It is embryonic law that this Court is bound by its previous decisions based on the doctrine of stare decisis. The legal position in this regard was authoritatively stated by Ogundare, JSC in the following words in the case of USMAN vs. UMARU (1992) LPELR (3432) 1 at 21:
“It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the Court below it and this Court as the final appellate Court, is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 300, that is;
(a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow;
(b) it will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of this Court; and
(c) it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam. See Osumanu v. Amadu (1949) 12 WACA 437 and Davis v. Johnson (1978) 1 All E.R 1132.”
It is therefore cardinal, based on the rule in YOUNG vs. BRISTOL AEROPLANE CO. LTD (supra), that this Court is bound by its previous decision except where the circumstances specified in YOUNG v. BRISTOL AEROPLANE CO. LTD (supra) are applicable. See OKEKE vs. THE STATE (1995) 4 NWLR (PT 392) 676 and APARI vs. HOSE (1999) LPELR (6650) 1 at 8 (CA). The said circumstances are present in the context of this matter, against the background of the earlier decisions of this Court in SATUMARI vs. NDUME (supra) and NKWONTA vs. INEC (supra) and the decision of the Apex Court in NYESOM vs. PETERSIDE (supra), where it was expressly held that the directives, guidelines and manual issued by the Appellant cannot be elevated above the provisions of the Act. The legal principle remains constant, irrespective of whether the disceptation is between card reader and voters register, or as in this case, the time limited for withdrawal/substitution of candidates. The provisions of the Electoral Act will take precedence. The said unreported decision of this Court goes against the grain of the settled principle of law in this regard, as it elevates the provisions of the guidelines over and above the express provision of the Electoral Act which it is made subject to and which it conflicts with. Accordingly, I am unable to follow the said unreported decision of this Court in APPEAL NO. CA/ABJ/CV/91/2021: ACTION PEOPLES PARTY vs. INEC (supra) as it is in conflict with the earlier decisions of this Court in SATUMARI vs. NDUME (supra) and NKWONTA vs. INEC (supra), which earlier decisions, I prefer to follow as they more accurately restate the legal position with regard to regulations and guidelines made subject to the provisions of an enactment. Furthermore, I do not think that the said decision can stand in the light of the decision of the Apex Court in NYESOM vs. PETERSIDE (supra).

I am not oblivious of the Appellant’s contention on the judicial authorities it cited before the lower Court. Without a doubt, by the time-honoured principle of stare decisis or the doctrine of binding judicial precedent, a Court is bound to follow the decisions of Courts higher than it in the hierarchy of Courts. Explaining the concept of judicial precedent in ONYEMAIZU vs. OJIAKO (2000) LPELR (10373) 1 at 36, Tobi, JCA (as he then was) stated as follows:
“Nigerian Courts, operating the Common Law, religiously follow the doctrine of precedent in the enforcement of the judicial process. As a matter of law and tradition, they adore the doctrine. Under the doctrine, decisions of superior Courts are binding on the inferior Courts. Put in another language, decision of a higher Court is binding on a lower Court. Thus, decisions of the Supreme Court are binding on the Court of Appeal and all other Courts below it. Decisions of the Court of Appeal are binding on the High Courts and all other Courts below. Decisions of the High Courts are generally binding on Magistrates Courts and other inferior Courts.”
See also NIGERIA ARAB BANK LTD vs. BARRI ENGINEERING LTD (1995) 8 NWLR (PT 413) 257, NIGERIAN AIRPORTS AUTHORITY vs. OKORO (1995) 2 SCNJ 1, PDP vs. ORANEZI (2017) LPELR (43471) 1 at 9-10, DAIRO vs. UNION BANK (2007) ALL FWLR (PT 392) 1846 at 1990 or (2007) (LPELR) 913 and ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 28-33.
The only basis upon which a Court will not follow the decision of a superior Court is where the facts are distinguishable. The principle laid down in the decisions of superior Courts will only be applicable, and the inferior Courts must kowtow, where the diacritical facts of the matter before them are the same as the facts that induced the decision in the said cases. Hear Oputa, JSC in FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT. 105) 558 at 650 or (1989) LPELR (1259) 1 at 139:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and from the common law) the formulation of general principles has not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even then, as a guide to the decision in another case. What the former decision establishes is only a principle not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
Facts are the fountainhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of context and giving it a general application if it is sought to apply the decision to totally different facts. As stated by Oputa, JSC in ADEGOKE MOTORS LTD vs. ADESANYA (1989) 5 SC 92 at 100:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.
… Court’s decisions and pronouncement derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented.”
The lower Court gave due consideration to the judicial authorities which the Appellant referred to. It went to town at pages 88-92 of the records to redact the facts and issues in the said cases and distinguished the principle in the decisions. I echo the words of Oputa, JSC, that the decisions establish a principle not a rule. Where on the peculiar facts of a matter the principle does not apply and the circumstances are distinguishable, then an inferior Court is not obligated to follow the decision of the superior Court, as facts remain the fountainhead of the law.

In splice, this issue number three is resolved in favour of the Respondents. The lower Court was right to hold that irrespective of the fact that the Timetable has the force of law, that its stipulation on the last date for withdrawal and replacement of withdrawn candidates is in conflict with Section 35 of the Electoral Act, 2010 (as amended), and in that respect, the said stipulation is not valid.

The three issues for determination have all been resolved against the Appellant. This signposts that the appeal is devoid of any merit whatsoever. Indubitably, the appeal fails and it is hereby dismissed. The decision of the lower Court, Coram Judice: Oriji, J., is hereby affirmed. The parties shall bear their respective costs of this appeal.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advanced, the draft of the judgment delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA.

My learned brother has extensively and comprehensively considered both the Preliminary Objection, and the issues that called for the consideration of this Court. Clearly, the “Preliminary Objection” purportedly raised by the 1st and 2nd Respondents does not qualify as a Preliminary Objection as envisaged by the law. The success of the objection will not have the effect of terminating the hearing of the substantive appeal. As a “Preliminary Objection”, it is incompetent. Being an incompetent process, it is hereby struck out.

On that note, I agree with the reasoning and conclusion reached by my learned brother on the substantive appeal. This appeal has no merit. It is hereby dismissed. I abide by the consequential order(s) made in the lead judgment including the order on costs.

BATURE ISAH GAFI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother Ogakwu, JCA. I am in agreement with the impeccable reasonings expressed by my Lord in the lead judgment as well as the conclusion he arrived at on this appeal. I adopt those reasonings as mine, by which I too resolve the three issues considered in the lead judgment against the Appellant. In consequence, the appeal is dismissed by me too.