JEGA v. APC & ORS
(2022)LCN/16935(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Wednesday, November 16, 2022
CA/S/155/2022
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
MUHAMMED UMAR JEGA APPELANT(S)
And
1. ALL PROGRESSIVES CONGRESS (APC) 2. KABIRU LABBO JEGA 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
WHETEHR OR NOT THE LAW ALLOWS A PARTY TO DIVORCE THE PARTICULARS OF A GROUND FROM THE MAIN GROUND
It is settled law that the particulars are the specific reasoning, findings or observations relating to or projecting the error or misdirection complained of. They are in a sense the itemization of the error or misdirection in the judgment or ruling and they complete the complaint in the ground of appeal. See generally, the cases of GLOBE FISHING IND. LTD VS. COKER (1990) 7 NWLR (PT. 162) 265 SC and AWUSA VS NIGERIAN ARMY (2018) LPELR 44377(SC).
In the case of NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822 (SC), M. D. Muhammad, JSC, made the point that:
“The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its children or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.” PER IDRIS, J.C.A.
WHETHER OR NOT FAILURE TO EXHAUST INTERNAL MECHANISM IS A BAR TO THE INSTITUTION OF A CASE BY AN AGGRIEVED ASPIRANT
Finally, on the argument that the notice to contend the judgment should be affirmed on grounds other than those relied on by the lower Court, it was submitted that the failure to exhaust internal mechanism is not a bar to the institution of a case by an aggrieved aspirant. The cases of NYAKO VS. DR. UMAR ARDO (2013) LPELR – 20848 (CA) and SHEHURI VS. ZULLUM (2019) LPELR – 4776 (CA) were relied on. It was argued further that by the provision of Section 285(9) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the Appellant has 14 days within which to institute this action. And that by the provisions of Section 87 of the extant Electoral Act, the Appellant has been statutorily clothed with the capacity to initiate this suit and the trial Court has been given the jurisdiction to hear the complaint and provide relevant remedy to the Appellant as the circumstances of the case dictates. Reference was made to the cases of PDP VS. SYLVA (2012) 18 NWLR (PT. 1279) AT 147 and MR. JULIUS OGHENEVWEGBA BOBI VS. MR. EDOJA RUFUS AKPODIETE & ORS (2013) LPELR – 21036 (CA). PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an originating summons dated the 29th day of June, 2022 and filed on the same date, the Appellant as Plaintiff at the Court below, sought for the determination of the following questions against the Respondents as defendants thus:
1. Whether having regard to the provision of Section 84(5)(c) of the Electoral Act, 2022 (As amended), Article 20(4) of the Constitution of the All Progressives Congress (APC) and the Guidelines for the nomination of candidates for the 2023 general elections issued by the 1st Defendant, it is lawful for the 1st Defendant not to recognize the Plaintiff who won the Primary Election of the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency as its candidate for the constituency.
2. Whether having regard to the provision of Section 84(5)(c) of the Electoral Act, 2022 (As amended), the 1st Defendant is not under a mandatory duty to forward the name of the Plaintiff as its candidate for Aliero/Gwandu/Jega Federal Constituency to the 3rd Defendant and the 3rd Defendant is not under a duty to accept, accord him recognition and publish his name as candidate for Aliero/Gwandu/Jega Federal Constituency, the Plaintiff having won the Primary election of the 1st Defendant monitored by the 3rd Defendant.
3. Whether in view of the provision of Section 84(5)(c) of the Electoral Act, 2022 (As amended) and having regard to the provisions of Article 20(4) of the Constitution of the ALL PROGRESSIVES CONGRESS (APC) and the guidelines for the nomination of candidates for the 2023 general elections issued by the 1st Defendant, it is lawful for the 1st Defendant to change the name of the Plaintiff who emerged winner at the primary election conducted by the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency.
The Appellant also prayed the Court below for the following reliefs against the Respondents:
1. A Declaration that it is unlawful for the 1st Defendant to recognize the name of the 2nd Defendant or any candidate other than the Plaintiff as its candidate for Aliero/Gwandu/Jega Federal Constituency.
2. A Declaration that it is unlawful for the 1st Defendant to change the name of the Plaintiff with the name of the 2nd Defendant in respect of the Primary election conducted by the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency, in which the Plaintiff emerged winner and was so declared by the 1st Defendant.
3. A Declaration that any name of candidate submitted by the 1st Defendant to the 3rd Defendant not being the name of the Plaintiff for Aliero/Gwandu/Jega Federal Constituency, is unlawful, null and void.
4. An Order of mandatory injunction directing the 1st Defendant to accept and treat the Plaintiff as its candidate for Aliero/Gwandu/Jega Federal Constituency for 2023 Election.
5. An Order of mandatory injunction directing the 3rd Defendant to accept and treat the Plaintiff as the substantive candidate of the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency.
6. An Order of mandatory injunction compelling the 3rd Defendant to recognize and treat the Plaintiff as the substantive candidate of the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency, for 2023 Election.
7. An Order of injunction restraining the 2nd Defendant for Aliero/Gwandu/Jega Federal Constituency, for 2023 Election.
In support of the originating summons, the Appellant filed 8 sets of affidavits and also in support of the originating summons is a written address. Upon being served with the originating summons, the 1st and 2nd Respondents each filed a Notice of Preliminary Objection challenging the jurisdiction of the Court below to determine the Originating Summons.
The parties exchange their respective processes and when the Notice of Preliminary Objection came up for hearing, the learned trial judge held that the two originating processes before the Court ought to be struck out as was argued by the applicants. However, the Court below, in the interest of justice, proceeded to consider the originating summons on the merit. while considering the merits of the case, the learned trial judge first considered the 2nd Respondent’s application seeking for an order of Court to file and exchange pleadings dated the 2nd day of August, 2022 and dismissed same for lacking in merit.
Moving ahead, the Court below considered the substantive originating summons based on the respective affidavit evidence of the parties and dismissed the Appellant’s case.
Dissatisfied with the decision of the Court below per the Honourable Justice B. G. Ashigar, delivered on the 20th day of September, 2022, the Appellant filed a Notice of Appeal dated the 28th day of September, 2022 raising 15 (fifteen) Grounds of Appeal.
In the instant appeal, the 1st and 2nd Respondents’ Counsels has each filed a Motion on Notice on the 18th day of October, 2022 and the 14th day of October, 2022 respectively which I shall determine before I proceed to the consideration of the merit of the instant appeal and the Respondent’s Notice filed by the 2nd Respondent.
The 1st Respondent’s motion was brought pursuant to Order 6 Rule 1, Order 7 Rule 2(3) and (3) of the Court of Appeal Rules, 2021 praying this Court for the following orders:
1. AN ORDER of this Honourable Court striking out grounds 1, 2, 3, 6, 7, 8, 9, 10, 11, 12 of the Appellant’s Notice of Appeal dated 28th September, 2022 for being grossly and irredeemably incompetent.
2. AN ORDER of this Honourable Court striking out the Appellant’s issues for determination numbers 1, 3 and 4 as formulated in the Appellant’s Brief of Argument dated 13th October, 2022 as the issues for determination are derived from grounds of appeal that are wholly incompetent.
AND for such order(s) or further order(s) as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which this application is being brought are:
1. Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Appellant’s Notice of Appeal as presently constituted are incompetent as the grounds are vague, imprecise, argumentative, and does not derive or flow from the various portion of the findings of the Court in contravention of the provisions of Order 7 Rules 2 (3) & 3 of the Court of Appeal Rules 2021 (“the Rules”).
2. Order 7 Rule 3 provides that any ground which is vague or general or discloses no reasonable ground of appeal shall not be permitted and a ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court suo motu or on application by the Respondent.
3. This Honourable Court has the jurisdictional competence and inherent power under Order 7 Rule 3 of the Rules to strike out Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal for being irredeemably incompetent and in contravention of the Order 7 Rules 2 (3) & 3 of the Rules.
The motion was supported by an affidavit of 7 (Seven) paragraphs and attached is a written address wherein a sole issue was formulated for determination as follows:
Whether Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Appellant’s Notice of Appeal and the issues for determination predicated on the aforementioned grounds are irredeemably incompetent and liable to be struck out by this Honourable Court?
In arguing the issue for determination, the 1st Respondent/Applicant submitted that grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal as presently constituted, are incompetent and in gross violation of the express provisions of Order 7 Rule 3 of the Rules and thus this Court is robbed of the requisite jurisdiction to entertain these grounds and the issues formulated from the grounds ought to be struck out. On this point, counsel relied on the case of SOSANYA VS. ONADEKO (2001) 11 NWLR (PT. 677) 34 AT 48 PARAS F.
The 1st Respondent/Applicant’s Counsel also argued that Order 7 Rule 2(3) and 3 of the Rules of this Court is very explicit in stipulating that a ground of appeal shall not contain argument, narratives and must not be vague or contain grounds which discloses no reasonable doubt. It was further submitted that the particulars under Grounds 1, 2, 3, 6 and 7 of the Notice of Appeal are vague, repetitive and therefore incompetent. It was argued that the particulars under Grounds 1 and 2 are vague and relatively argumentative and repetitive and that the particulars do not disclose the error committed by the learned trial judge. It was submitted that the particulars 2 under Ground 1 contain a conclusion which does not derive from the part of the judgment of the Court quoted by the Appellant.
The 1st Respondent/Applicant’s Counsel also argued that the particulars under Grounds 8, 9, 10, 11 and 12 are vague and unconnected with the entire particulars set out under the Grounds. It was submitted further that not only are the particulars under the grounds argumentative, it is also repetitive and that there are several problems with the particulars in the Notice of Appeal and that apart from the particulars being repetitive, it does not state the error of law complained about and thus contravenes the express provisions of the law. And that the constant repetition of the same particulars under several Grounds of Appeal obfuscates the Appellant’s complaints in the grounds under consideration.
In conclusion, the 1st Respondent/Applicant’s Counsel submitted that the issues for determination that were formulated in the Appellant’s Brief of Argument from the defective and incompetent grounds and particulars of appeal are liable to be equally struck out especially issues 1, 3 and 4. On this point, counsel cited the case of NWANKWO & ANOR VS. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U.A. (2007) 5 NWLR (PT. 1027) 377 AT 395 – 396.
In response to the application of the 1st Respondent/Applicant, the Appellant/Respondent filed a 7 (Seven) paragraph counter affidavit on the 21st day of October, 2022 and in support, filed a written address raising one issue for determination thus:
Whether grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal and the issues formulated from the grounds are incompetent.
Before arguing the issue, the Appellant/Respondent argued preliminarily, that this Court should strike out paragraphs 5 and 6 of the affidavit of Charles Banigo for violation of Section 115(1) and (2) of the Evidence Act, 2011 as the said paragraphs are not statements of facts but contain extraneous matters by way of objection, prayer, legal argument or conclusion.
Moving on and in arguing the issue for determination, the Appellant/Respondent submitted that the 1st Respondent/ Applicant did not complain that any of the grounds of appeal is vague and that it is also not its complain that it did not understand the complaint of the Appellant/Respondent in respect of any of the said grounds of appeal and that the complaint of the Appellant/Respondent is against the particulars of the grounds of appeal and not the grounds and that there is no provision in Order 7 Rules 2(3) and 3 on vague, repetitive and unconnected particulars. The Appellant/Respondent’s counsel cited the case of ATUYEYE VS. ASHAMU (1987) 1 NWLR (PT. 491) PAGE 267. It was further submitted that the Rules should not be reduced to a matter of mere technicality, where the Court will look at the form rather than the substance and that when the grounds are not vague or general in term and discloses a reasonable ground of appeal, and gives sufficient notice of the precise nature of the complaint of the Appellant and the issues likely to arise on appeal, such ground of appeal should not be struck out notwithstanding that it did not conform to a particular form. On this point, counsel cited the case of AIGBOBAHI VS. AIFUWA (2006) 6 NWLR (PT. 976) 270 AT 294.
In conclusion, the Appellant/Respondent’s Counsel urged this Court to resolve the sole issue in favour of the Appellant/Respondent and dismiss the application of the 1st Respondent/Applicant.
On the other hand, the 2nd Respondent’s motion was brought pursuant to Section 15 of the Court of Appeal Act Cap C36 Laws of the Federation of Nigeria 2004 and Section 6(6)(A) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) praying this Court for the following orders:
1. AN ORDER of this Honourable Court striking out grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 & 12 contained in the Notice of Appeal filed on the 29th of September 2022 in Appeal No. CA/S/155/2022 pending before this Honourable Court for being incompetent.
2. AND for such order or orders as this Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which this application is being brought are:
1. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal filed on the 29th of September, 2022 in Appeal No. CA/S/155/2022 are vague, nebulous and the particulars supposedly in support thereof are not in any manner explanatory of the vague and nebulous grounds but rather independent of the grounds.
2. Ground 1 of the Notice of Appeal is vague and the particulars in support of the Ground are independent of it. They do not support the ground or compliment the same.
3. Ground 2 of the Notice of Appeal is vague and the particulars in support of the Ground are independent of it.
They do not support the ground nor compliment the same.
4. Grounds 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal are not concise but vague as they are just quotations out of the lower Court’s judgment but was neither articulated, explained nor supported by the particulars which are at large and independent of the grounds.
5. Lack of jurisdiction to entertain the incompetent grounds of The motion was supported by an affidavit of 4 (four) paragraphs with two exhibits marked KOKO 1 and KOKO 2 respectively, and a written address raising a sole issue for determination thus:
Whether Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal of the Appellant/Respondent are competent?
In arguing the issue for determination, the 2nd Respondent/Applicant submitted that Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal filed on the 29th day of September, 2022 in Appeal No. CA/S/155/2022 is not concise but vague, nebulous and the particulars supposedly in support thereof are not in any manner explanatory of the vague and nebulous grounds but rather independent of the grounds and that these grounds offends the provisions of Order 7 Rule 2 (2) and Order 7 Rule 3 of the Rules of this Court, 2021.
The 2nd Respondent/Applicant’s Counsel submitted that the said grounds are just quotations from a passage in the judgment of the Court below but in such a situation, the vagueness can only be cured by the particulars which should be auxiliary to the grounds. The 2nd Respondent/Applicant has argued that the combined effect of the provisions of Order 7 Rule 2(3) and Order 7 Rule 3 of the Court of Appeal Rules 2021 is that the grounds of appeal must be precise, concise and devoid of vagueness. On this point, Counsel cited the case of CBN VS. OKOJIE (2002) 8 NWLR (PT. 768)48 AT 61. Counsel further submitted that the disputed grounds are basically just quotations out of the judgment of the Court below and that the particulars which ought to explain it out just goes to make it more complex as the particulars are rather argumentative, narrative without explaining the ground and they are irrelevant and the particulars in support of the grounds are in direct conflict with Order 7 Rule 2(3) and Order 7 Rule 3 of the Rules of this Court, 2021.
The 2nd Respondent/Applicant also submitted that apart from its vagueness, imprecision and ambiguity, the ground does not have any bearing on the judgment or the ratio decidendi in the case at the Court below where such is the case, the ground cannot be allowed. On this point, counsel cited the case of ELLA VS. AGBO (1998) 8 NWLR (PT. 613) AT 150 and EGBE VS. ALHAJI & ORS (1990) 1 NWLR (PT. 128). Counsel further argued that the particulars that were supposed to articulate the ground are just academic, forensic and hypothetical and that the vague ground is also rendered more complex by the irrelevant particulars in its support. On this point, counsel cited the case of AWOJUGBAGBE LIGHTS INDUSTRY LTD VS. CHINUKWE (1995) NWLR (PT. 390).
It was further argued that the said ground is not related to the ratio decidendi of the judgment of the Court below but what can be regarded as an obiter dictum. In conclusion, learned counsel for the 2nd Respondent/Applicant submitted that since the ground is not against the ratio or reason for the decision, it cannot be a valid ground and that the ground should be struck out for its incompetence.
On the other hand, the Appellant/Respondent’s Counsel filed a 7 (seven) paragraph Counter-Affidavit on the 21st day of October, 2022 in opposition to the 2nd Respondent/Applicant’s Motion on Notice. The said Counter-Affidavit was deposed to by one Abubakar Mohammad and attached is a written address raising one issue for determination as follows:
“Whether Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal of the Appellant/Respondent are competent.”
Before arguing the issue, the Appellant/Respondent submitted preliminarily, that this Court should strike out paragraphs 3d – m of the affidavit in support of the 2nd Respondent/Applicant’s motion deposed to by Halimat Muhammad Rufai for being in contravention of Section 115(1) and (2) of the Evidence Act, 2011 as the said paragraphs are not statements of facts but contain extraneous matters by way of objection, prayers, legal arguments or conclusion.
Moving on, the Appellant/Respondent argued the issue for determination raised. It was submitted that the 2nd Respondent/Applicant has complained that the Grounds of Appeal are quotations from the judgment however, it is his argument that the grounds complained of errors in specific parts of the judgment of the lower Court and the parts complained of are the parts complained of by the Appellant/Respondent in his Notice of Appeal and that the particulars in support of the grounds of appeal shows the complaint of the Appellant/Respondent and the grounds when read along with the particulars.
The Appellant/Respondent’s Counsel also submitted that the 2nd Respondent/Applicant’s claim that Ground 2 of the Notice of Appeal is vague, not emanated from the ratio decidendi in the case and the particulars is not true as the said ground 2 complained of the decision of the Court which is the basis for its conclusion that there was an abuse of process. It was further argued that what is important is if the ground would clearly show what the complaint of the Appellant is and therefore the application of the Rules of this Court should not be subject to a matter of mere technicality. Counsel then cited the case of AIGBOBAHI VS. AIFUWA (2006) 6 NWLR (PT. 976) 270 AT 294 and urged this Court to resolve the sole issue in its favour and dismiss the application of the 2nd Respondent/Applicant.
The 2nd Respondent/Applicant on the 25th day of October, 2022, also filed a reply address on points of law in relation to the motion for striking out the Appellant/Respondent’s grounds of appeal.
The 2nd Respondent/Applicant argued therein that paragraphs 3 (j – p) of the supporting affidavit are statements of facts which are true to the belief of the deponent and never extraneous matters but matters that are germane to the application of the 2nd Respondent/Applicant. The 2nd Respondent/Applicant also submitted that the Appellant/Respondent only made a vague assertion without tying each of the purported paragraphs and showing which one of them is a conclusion, legal argument or extraneous matter in the circumstance.
It was further argued that paragraphs 3(d – m) of the supporting affidavit complained of by the Appellant/Respondent are in the form of evidence which the 2nd Respondent/Applicant may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some facts in dispute and therefore qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. On this point, counsel cited the case of BAMAIYI VS. THE STATE & ORS (2001) LPELR – 731 (SC).
The 2nd Respondent/Applicant also argued that any ground that does not emanate from the ratio decidendi of a judgment connotes no meaningful ground of appeal and it is therefore misleading and thus not one of technical justice but one of jurisdiction.
On this point, counsel cited the case of PETROJESSICA ENTERPRISES LTD & ANOR VS. LEVENTIS TECHNICAL CO. LTD (1992) LPELR – 2915(SC).
In conclusion, this Court was urged to grant the application and decline jurisdiction to entertain the incompetent grounds of appeal of the Appellant/Respondent.
RESOLUTION OF THE 1ST RESPONDENT/APPLICANT’S MOTION ON NOTICE DATED AND FILED ON THE 18TH DAY OF OCTOBER, 2022
In resolving the arguments of the parties, I shall adopt the issues for determination raised by the 1st Respondent/Applicant in their written address. The said issue is reproduced hereunder thus:
Whether grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal and the issues formulated from the grounds are incompetent.
What are the complaints of the 1st Respondent/Applicant as contained in their written address? They are:
a. Ground 1 and 2 are vague and relatively argumentative and repetitive. The particulars do not disclose any error committed by the learned trial judge.
b. The particulars under Grounds 8, 9, 10, 11 and 12 are vague and unconnected with the part of the judgment quoted under the grounds.
Response from the Appellant/Respondent
a. The 1st Respondent/Applicant did not complain that any of the grounds of appeal is vague and neither did it complain that it did not understand the complaint of the Appellant/Respondent in respect of any of the Grounds of Appeal.
Before I proceed, it is important I first address the issue raised by the Appellant/Respondent in its preliminary argument as contained in the argument in support of its counter-affidavit.
The argument as contained in paragraph 2.0 is that this Court strikes out paragraphs 5 and 6 of the affidavit of Charles Banigo who deposed to the affidavit in support of the motion filed by the 1st Respondent/Applicant as same is in violation of Section 115(1) and (2) of the Evidence Act, 2011. The said Section 115(1) and (2) of the Evidence Act, 2011 provides as follows:
“(1) every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
The said paragraph 5 and 6 of the deposition is reproduced hereunder as follows:
“5. I was part of the meeting of counsel representing the Applicant in this Appeal held on 15th October 2022 vide a teleconference medium at about 6:25pm initiated from our offices located at No. 29A Araromi Street Lagos Onikan during which Mr. Habeeb Oredola stated that he believed that:
a. Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal are argumentative, narrative and vague.
b. The particulars set out under each of the grounds of appeal are vague and do not arise from the part of the judgment complained about.
c. Some of the said particulars are manifestly contradictory and contains new issues that were not raised or considered in the Judgment of the lower Court.
6. This Honourable Court has the inherent jurisdictional competence, and it is empowered by the Rules of Court to strike out the grounds of Appeal identified in paragraph 5 above.”
I think the legal position is clear, that in any affidavit used in the Court, the law requires, as provided in Section 115(1) and (2) of the Evidence Act, 2011 that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matters by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be a conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence, while conclusions should not be drawn by witnesses but left for the Court to reach. See generally, the cases of BAMAIYI VS. STATE (2001) LPELR – 731 SC and GENERAL & AVIATION SERVICES LTD VS. THAHAL (2004) LPELR – 1317 SC.
In view of the authority above and examining the contested paragraphs 5 and 6, can this Court say if same is fit only as a submission which counsel ought to urge upon the Court? The answer to this is in the negative as same is purely a statement of fact from information which the deponent believes to be true and which contains no extraneous matters of objection, or prayer, or legal argument or conclusion and thus the contested averments are valid and not liable to be struck out. The argument of the Appellant/Respondent’s Counsel in this regard is thus refused.
Moving on from there, it is clear that the complaint of the 1st Respondent/Applicant is against the particulars of the grounds of appeal and not the grounds itself. The grounds complained of are Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12. Firstly, that the particulars under Grounds 1, 2, 3, 6 and 7 of the Notice of Appeal are vague and repetitive and therefore incompetent and secondly, that Grounds 8, 9, 10, 11 and 12 are incongruous with the entire particulars set out under the grounds and they are as well, argumentative and repetitive. In considering this first aspect of the argument, I will like to address and proceed with the argument of the Appellant/Respondent where it was argued in paragraph 4.4 that the complaint of the 1st Respondent/Applicant is against the particulars and not the grounds of appeal.
It is settled law that the particulars are the specific reasoning, findings or observations relating to or projecting the error or misdirection complained of. They are in a sense the itemization of the error or misdirection in the judgment or ruling and they complete the complaint in the ground of appeal. See generally, the cases of GLOBE FISHING IND. LTD VS. COKER (1990) 7 NWLR (PT. 162) 265 SC and AWUSA VS NIGERIAN ARMY (2018) LPELR 44377(SC).
In the case of NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR – 41822 (SC), M. D. Muhammad, JSC, made the point that:
“The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its children or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.”
Under its general highlight of argument, the contention of the 1st Respondent/Applicant is on the particulars of Grounds 1, 2, 3, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal. The 1st Respondent/Applicant’s counsel went ahead to argue only how Ground 1 particulars 2, Ground 2 particulars 3 and Ground 3 particulars 3 or maybe he is referring to particulars 4, are repetitive but no argument was made on Ground 7. The 1st Respondent/Applicant also went further to argue that the Appellant repeated particulars (2) and (3) under Ground 9 in the other particulars under consideration. However, the law does not allow a party to read the particulars of a ground separately from the main ground of appeal. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the decision appealed. They are specifications of errors or misdirection which show what the complaint against the decision is all about. And, in order to determine whether or not a ground of appeal is relevant to the issue formulated in the appeal, the main ground must be read in conjunction with its particulars to make it a complete ground. See the cases NYAKO VS. A.S.H.A. (2017) 6 NWLR (PT. 1562) 347 AT 362, PETER VS. NNPC (2010) 8 NWLR (PT. 1195) 173, DIAMOND BANK VS. PIC LTD (2009) 18 NWLR (PT. 1172) 67 and IBRAHIM VS. MOHAMMED (2003) 6 NWLR (PT. 817) 615. In the instant case, the complaint of the 1st Respondent/Applicant is hardly properly understood where there is a dichotomy between the main ground and its particulars. Secondly, the 1st Respondent/Applicant in its objection did not complain about how Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 were couched, his complaint was about the particulars being vague, argumentative and repetitive. I have examined the particulars of Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the grounds of appeal and I fail to see the vague, argumentative and repetitive ways they were couched, but they apparently satisfied the purpose for which the grounds of appeal are required to have particulars. Assuming they are argumentative, the 1st Respondent is not misled as to the complaint of the Appellant/Respondent. The fact that the particulars to the said grounds of appeal are argumentative and repetitive is not enough for the Appellate Court to sidestep from doing justice. It will amount to undue technicality as opposed to substantial justice to strike out such grounds of appeal for being incompetent. See the cases of ODONIGI VS. OYELEKE (2001)2 SC 194, AWUSA VS. NIGERIAN ARMY (2018) 12 NWLR (PT. 1634) 421 AT 429, REGISTERED TRUSTEES, C.A.C. VS. DADA (2017) 2 NWLR (PT. 1548) 61 and CHIADI VS. AGGO (2018) 2 NWLR (PT. 1603) 175. Accordingly, I hold that Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12 of the grounds of appeal cannot be struck out as canvassed by the 1st Respondent/Applicant’s counsel.
The objection is therefore refused for the above reasons. The issue for determination is thus resolved against the 1st Respondent/Applicant in favour of the Appellant/Respondent and the Motion on Notice filed by the 1st Respondent/Applicant on the 18th of October, 2022 is accordingly hereby dismissed.
RESOLUTION OF THE 2ND RESPONDENT’S MOTION ON NOTICE DATED 14TH OCTOBER, 2022
In considering the application of the 2nd Respondent/Applicant, I shall adopt the sole issue for determination formulated by the 2nd Respondent/Applicant, and the said issue is reproduced hereunder as follows:
“Whether the grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal of the Appellant/Respondent are competent.”
Just like the 1st Respondent/Applicant, the 2nd Respondent/Applicant has challenged some grounds in the Notice of Appeal but unlike the 1st Respondent/Applicant who challenged Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11 and 12, the 2nd Respondent/Applicant has challenged Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal thereby including Grounds 4 and 5 in its challenge. However, this Court will now examine whether the challenge is based on same grounds, and if not, it will still go ahead to determine the objections not minding its consideration of the challenge to some of these Grounds of Appeal by the 1st Respondent/Applicant.
The complaint of the 2nd Respondent/Applicant is broken down as follows:
a. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 is not concise but vague and nebulous and that the particulars are not in any way explanatory of the vague and nebulous grounds but rather independent of the grounds and thus offends Order 7 Rule 2(2) and Order 7 Rule 3 of the Rules of this Honourable Court 2021.
b. The particulars are rather argumentative, narrative without explaining the ground and they are irrelevant and that Ground 2 is vague and not related to the judgment of the Court below in that it did not emanate from the ratio decidendi in the case and the particulars are clearly irrelevant, academic and hypothetical.
It seems to me that unlike the 1st Respondent/Applicant, the complaint of the 2nd Respondent/Applicant is focused on the Grounds of Appeal and not the particulars alone and thus the 2nd Respondent/Applicant’s complaint comes from a different point of view which now makes this Court to deem it fit to consider all of the Grounds of Appeal as argued by the 2nd Respondent/ Applicant.
Before I proceed, it is important I first address the issue raised by the Appellant/Respondent in his preliminary argument as contained in the written address in support of its counter-affidavit.
The argument as contained in paragraph 2.0 is that this Court should strike out paragraph 3 (d) – (m) of the affidavit of Halimat Muhammad Rufai who deposed to the affidavit in support of the motion filed by the 2nd Respondent/Applicant as same is in contravention of Section 115(1) and (2) of the Evidence Act, 2011. The said Section 115(1) and (2) of the Evidence Act, 2011 provides as follows:
“(1) every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
The said paragraph 3 d – m of the affidavit of Halimat Muhammad Rufai is reproduced hereunder as follows:
“3. That on the 13th of October, 2022 at about 5:00pm and in the course of my duties in chambers, I was informed by Shamsu A. Dauda Esq. of the counsel in our law firm situate at behind Umaru Ali Shinkafi Polytechnic Sokoto and which information I verily believed to be true and correct as follows:
a. That 2nd Respondent /Applicant was a Defendant in Suit No. FHC/KB/CS/22/2022 at the Court below.
b. That on the 20th day of September, 2022, the Federal High Court of Nigeria sitting at Birnin – Kebbi (Court below) delivered a considered judgment in which it dismissed the suit of the Appellant/Respondent.. A copy of the said decision of the Court below is herewith annexed to this affidavit and marked as Exhibit KOKO 1.
c. That peeved by the judgment of the Court below, the Appellant/Respondent filed a Notice of Appeal dated the 28th day of September, 2022 but filed on the 29th of September, 2022. A copy of the Notice of Appeal as filed by the Appellant/Respondent is herewith annexed to this affidavit and marked as Exhibit KOKO 2.
d. That after going through the grounds of appeal filed by the Appellant/Respondent, he discovered grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal filed on the 29th of September 2022 in Appeal No. CA/S/155/2022 are vague, nebulous and the particulars supposedly in support thereof are not in any manner explanatory of the vague and nebulous grounds but rather independent of the grounds.
e. That he discovered that ground 1 of the Notice of Appeal is vague and the particulars in support of the Ground are independent of and did not support of the ground are independent of and did not support the ground nor compliment the same.
f. That he discovered that ground 2 of the Notice of Appeal is not related to a ratio decidendi of the decision of the Court below but orbiter dicta.
g. That he equally discovered upon an in-depth perusal of the grounds of appeal that, grounds 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Appeal are not concise but vague as they are just quotations out of the lower Court’s judgment that were neither articulated, explained nor supported by the particulars that are at large and independent of the grounds.
h. That he verily believes that there is a feature inherent in the contested grounds of appeal which affects the competency of Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal filed on the 29th of September, 2022 in Appeal No. CA/S/155/2022 as well as the jurisdiction of this Honourable Court to entertain same.
i. That there is the need to strike out Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal No. CA/S/155/2022.
j. That if grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal filed on the 29th of September, 2022 in Appeal No. CA/S/155/2022 are struck out for want of competence, there will only be three grounds of appeal left for the Appellant/Respondent to contend with in Appeal No.CA/S/155/2022.
k. That this Honourable Court lacks the requisite jurisdiction to countenance with Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 contained in the Notice of Appeal filed on the 29th September, 2022 in Appeal No. CA/S/155/2022 as presently constituted.
l. That it will be in the best interest of justice to grant the application of the 2nd Respondent/Applicant.
m. That the Respondents shall not be prejudiced by the grant of this application.”
I think the legal position is clear that in any affidavit used in Court, the law requires, as provided in Sections 115(1) and (2) of the Evidence Act, 2011, that it shall contain only a statement of facts and circumstances derived from the personal knowledge of the deponent or from information which he believes to be true, and shall not contain extraneous matters by way of objection, or prayer, or legal argument or conclusion. The problem is sometimes how to discern any particular extraneous matter. The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as a submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument, or it may be a conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach. See the cases of BAMAIYI VS. STATE (2001) LPELR – 731 SC and GENERAL & AVIATION SERVICES LTD VS. THAHAL (2004) LPELR – 1317 SC.
Flowing from the authority above and examining the contested paragraphs 3 d – m, can this Court say if same is fit only as a submission which counsel ought to urge upon the Court? The answer to this is in the negative as same is purely a statement of fact from information which the deponent believes to be true and which contains no extraneous matters of objection, or prayer, or legal argument or conclusion and thus the contested averments are valid and not liable to be struck out.
The argument of the Appellant/Respondent counsel in this regard is thus refused.
Moving on from there and now considering the merits of the application filed by the 2nd Respondent/Applicant, I shall now examine Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 in contention.
Ground 1 was derived from pages 17 and 19 of the judgment of the Court below. The particulars of the ground are also related to the grounds. Ground 2 was derived from page 17 of the judgment of the trial Court and the particulars are also related to this ground. Ground 3 was derived from pages 18, 19 and 20 of the judgment of the trial Court and the particulars are related to the grounds. Ground 4 was derived from page 36 of the judgment of the trial Court and the particulars are related to the grounds. Ground 5 was derived from pages 37 and 38 of the judgment of the trial Court and the particulars are related to the ground. Ground 6 was derived from page 38 of the judgment of the trial Court and the particulars are related to the grounds. Ground 7 was derived from pages 40 and 41 of the judgment of trial Court and the particulars are related to the grounds. Ground 8 was derived from pages 41 and 42 of the judgment of the trial Court and the particulars are related to the grounds. While Ground 9 was derived from page 43 of the judgment of the trial Court and the particulars are also related to the grounds. Ground 10 was derived from page 43 of the judgment and the particulars are related to the grounds. Ground 11 was derived from page 44 of the said judgment and the particulars are related to the grounds. Ground 12 was derived from page 44 of the judgment of the lower Court and the particulars are related to the grounds.
As I have examined the grounds of appeal above, I will now proceed express my opinion on the argument of the 2nd Respondent/Applicant that Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 are vague, and that the particulars are not in any manner explanatory of the vague grounds and that the grounds are just quotations from the judgment and offends the provisions of Order 7 Rule 2(2) and Order 7 Rule 3 of the Rules of this Court. It is important to look at the provisions of Order 7 Rule 2(2) and Order 7 Rule 3 of the Rules of this Court, and see what the meaning of a vague ground of appeal is, and whether the said grounds of appeal are vague and whether the particulars of the said grounds are explanatory of the Grounds of Appeal.
Order 7 Rule 2(2) of the Court of Appeal Rules provides as follows:
“Where a Ground of Appeal alleges misdirection or error in law, the particulars and the entire nature of the misdirection or error shall be clearly stated.”
Order 7 Rule 3 of the Court of Appeal Rules provides as follows:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence. A ground of Appeal or any part thereof which is not permitted under this rule may be struck out by the Court suo motu or on application by the Respondent.”
Vagueness of a Ground of Appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant. See the case of CBN VS. OKOJIE (2002) 8 NWLR (PT. 768) 48.
It follows therefore that where a ground of appeal is confusing and cannot easily be understood by the Court or the Respondent, it is vague. Therefore, an Appellant who files a ground of appeal that is not related to the subject matter of the appeal has only filed a vague ground of appeal.
Also, particulars bring to the fore the real complaint of the Appellant against the judgment appealed against. In no way should the particulars be independent of complaints from the ground of appeal itself but should be auxiliary to it. The particulars of a ground of appeal are intimately related to the ground and cannot be divorced from it.
That having being said, from the examination of the grounds of appeal and the particulars in pari pasu with the judgment at the trial Court and the provisions of Order 7 Rule 2(2) and Order 2 Rule 3 of the Court of Appeal Rules, 2021, it is clear that the grounds of appeal did not only emanate from the judgment of the Court below, this Court is clear as to what the grounds are about and also clear as to the fact that the particulars are related to the grounds and are explanatory of these grounds of appeal. It is thus on this note that I refuse to agree with the submissions of the 2nd Respondent/Applicant that Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 and its particulars are incompetent as from all the findings above, the contrary is the case.
I therefore resolve the sole issue for determination against the 2nd Respondent/Applicant and thus the Motion on Notice of the 2nd Respondent/Applicant filed on the 14th day of October, 2022 is hereby dismissed.
RESOLUTION OF THE APPEAL
The Appellant filed his brief of argument dated the 13th day of October, 2022, settled by Ahmed Mohammed Jega Esq. In the said brief of argument the following 4 (four) issues were formulated for determination:
1. Whether in the circumstance of this case, the trial Court was right when it dismissed the Plaintiff/Appellant’s suit on the ground that the suit constitutes an abuse of Court of process. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal)
2. Whether in the circumstance of this case, the trial Court was right when it conducted investigation, speculated and concluded that Hon. Chamberlain Dunkwu Nnamdi did not appear before the Commissioner for oaths and that his signature was copied or altered and thus not admissible. (Distilled from Ground 5 of the Notice of Appeal)
3. Whether the trial Court was right when it held that there was a conflicting presumption in favour of Exhibit 10 and Exhibit APC 2 which the Court resolved in favour of Exhibit APC 2. (Distilled from Grounds 4 and 6 of the Notice of Appeal)
4. Whether having regards to the facts of this case, the failure by the trial Court to consider relevant evidence placed before it and its reliance on Exhibit APC 2 to dismiss the case of the Plaintiff/Appellant do not occasion serious miscarriage of justice. (Distilled from Grounds 7 to 15 of the Notice of Appeal)
On issue one, the learned counsel for the Appellant submitted that at the trial Court, the 1st Respondent had challenged the competence of the originating summons on the grounds that it is an abuse of Court process. The Appellant’s counsel argued that there must be evidence before the lower Court that the Appellant filed two suits against the same defendants on the same subject matter and both suits are pending before the Court. The Appellant’s counsel further submitted that the purported writ of summons that constituted the abuse was never served on the Respondents and he had withdrawn it, and that the trial Court was wrong to have held that it constituted an abuse of Court process, capable of irritating and annoying the Respondents.
It was further argued that the said writ of summons constituting abuse of Court process has the same suit number with the Originating Summons and was withdrawn and never served on the Respondents and thus, it cannot be an abuse of Court process. The Appellant’s counsel in explaining abuse of Court process relied on the cases of RE: NIMASA (2019) LPELR – 48872; AMAEFULE VS. STATE (1988) 2 NWLR (PT. 75) PAGE 156 SC and OGOEJEOFO VS. OGOEJEOFO (2006) LPELR – 2308.
The Appellant counsel then asked that in view of the provision of Paragraph 4(1) of the Federal High Court (Pre-Election) Practice Direction, 2022, can a writ of summons ignite the jurisdiction of the lower Court in a pre-election matter? He responded NO. Counsel then submitted that it cannot be said that there are multiple actions filed by the Appellant, and that the said writ of summons was not sealed by a Registrar or signed by a judge.
This Court was urged to hold that the investigation by the trial Court was wrongful in law as it was only the originating summons that was before the lower Court.
On issue two, it was submitted that there is no evidence before the lower Court that Hon. Chamberlain Dunkwu Nnamdi did not sign the affidavit in support of the Originating Summons before the Commissioner for Oaths. The Appellant’s counsel submitted that the lower Court held that since there is a dispute as to the signature of the said Hon. Chamberlain Dunkwu Nnamdi, it compared the signature in the said affidavit with the signature on Exhibit 10 and APC 2 and found that the signature was not personally signed by Hon. Chamberlain Dunkwu Nnamdi before the Commissioner for Oath.
It was further submitted that there is no evidence before the lower Court from Hon. Chamberlain Dunkwu Nnamdi, denying signing the said affidavit or from any other person that Hon. Chamberlain Dunkwu Nnamdi did not sign the affidavit. That the affidavit in issue, on the face of it, was sworn to at the Federal High Court Registry, Birnin Kebbi on the 29th day of June, 2022 before the Commissioner for Oaths who affixed his seal, signature and date that the said affidavit was sworn to before him. Thus, there is a presumption that the Affidavit was signed by Hon. Chamberlain Dunkwu Nnamdi personally before the Commissioner for Oaths which can only be rebutted by solid evidence. Section 168 and 133 of the Evidence Act 2011 was cited in support.
It was then submitted that the said evidence of Aliyu Yahaya is inadmissible in that Aliyu Yahaya did not state the basis of his assertion in the counter affidavit, and thus, the learned Appellant’s counsel submitted that by the provision of Section 126 of the Evidence Act 2011, a Court of law can only rely on direct evidence. Reference was made to the cases of JOLAYEMI VS. ALAOYE (2004) ALL FWLR (PT. 217) and BENDEL STATE VS. OMO (1990) 6 NWLR (PT. 157) PAGE 407.
It was also submitted that the lower Court cannot embark on an investigation as to whether the said affidavit was deposed to before the Commissioner for Oaths in the absence of evidence from the 2nd Respondent. Reference was made to the case of DURIMINIYA VS. COMMISSIONER OF POLICE (1961) NRNLR 70.
The learned Appellant’s counsel in his submissions asked if the lower Court can perform the duty of the 2nd Respondent by purportedly comparing signatures to determine whether or not Hon. Chamberlain Dunkwu Nnamdi signed the affidavit before the Commissioner for Oaths. It was submitted that the lower Court cannot embark on investigation of the affidavit with the aim of determining whether or not same was signed before the Commissioner for Oaths.
It was submitted that the 2nd Respondent also deposed in the counter-affidavit of Aliyu Yahaya that the signature of Hon. Chamberlain Dunkwu Nnamdi in the affidavit is forged and is altered. It was submitted further that the 2nd Respondent failed woefully to state the particulars of forgery alleged and that the lower Court held without any iota of evidence that the signature of Hon. Chamberlain Dunkwu Nnamdi was altered.
On issue three, the Appellant’s counsel argued that contrary to the holding of the lower Court, the certification of Exhibit APC 2 by the 1st Respondent being the same party relying on the Exhibit does not confer any value on Exhibit APC 2.
It was submitted that Exhibit APC 2 just as Exhibit 10, the result of the primary election is not a public document and does not require certification. The Appellant’s counsel argued that the lower Court used different scales for the Appellant and the Respondents because while mere denial without deposition of Hon. Hassan Muhammed Shallah is not good enough for the Appellant, statement of Aliyu Yahaya that Hon. Chamberlain Dunkwu Nnamdi did not sign his affidavit personally before the Commissioner of Oaths without deposition by Hon. Chamberlain Dunkwu Nnamdi or the Commissioner for Oaths is perfect for the Respondents.
The learned Appellant’s counsel submitted further that the lower Court on the basis of the fact that Hon. Hassan Muhammed Shallah scored votes in Exhibit 10 while only the Appellant and 2nd Respondent scored votes in Exhibit APC 2 held that Exhibit APC 2 is the result of the primary election in issue.
This Court was urged to hold that Exhibit 10 supported by the affidavit of Hon. Chamberlain Dunkwu Nnamdi, the Chairman of the Election Committee appointed by the National Working Committee of the 1st Defendant who stated that he signed same and the affidavit of Hon. Ikechukwu Offor Vincent, a member of the Election Committee and the Returning Officer appointed by the Election Committee to conduct the Aliero/Gwandu/Jega Federal Constituency Primary Election is the result of the primary election.
On issue four, it was argued that the case of the Appellant at the trial Court was that the National Working Committee of the 1st Defendant appointed a Primary Election Committee to conduct primary election for Kebbi State on the 27th day of May, 2022. That the members of the Primary Election Committee appointed by the National Working Committee of the 1st Defendant comprised of Hon. Chamberlian Dunkwu Nnamani (Chairman), Barr. Yusuf Ibrahim Wukari (Secretary), Hon. Oluwafemi Sanusi, Hon. Ikechukwu Offor Vincent and Hon. Aminu Fari. At the end of the primary election, the Appellant was returned winner by the primary election committee and issued a result sheet marked Exhibit 10.
It was then submitted that the trial Court had a duty to consider Exhibit 10 the affidavit of Hon. Chamberlain Dunkwu Nnamdi, Chairman of the Primary Election Committee, the affidavit of Hon. Ikechukwu Offor Vincent, one of the members of the Primary Election Committee and the returning officer for the election and all the evidence and material facts placed before it by the Appellant before arriving at a conclusion. The case of ANYANWU VS. EZE (2020) 2 NWLR (PT. 1708) PAGE 379 AT 397 PARAS C – F was cited in support.
It was the Appellant’s argument that the affidavits of Hon. Chamberlain Dunkwu Nnamdi and Hon. Ikechukwu Offor Vincent were never controverted by the Respondents and therefore deemed admitted by the Respondents. It was submitted that the two of them were the eyes of the 1st Defendant at the primary election and that their affidavits are conclusive proof of the winner of the Primary Election of the 1st Respondent. It was further submitted that receipt and authentication of Exhibit 10 is not a requirement in the determination of winner of Primary Election under Electoral Act, 2022.
It was further submitted that Exhibit APC 2 is not a product of the primary election conducted by the Election Committee set up by the National Working Committee of the 1st Respondent but a product of the Primary Election conducted. It was argued that a Court of law cannot speculate on the purported authority given to Kebbi State Election Committee in the absence of direct evidence either in writing or oral. Reference was made to the case of S.D.C. CO. (NIG) LTD VS. NAGEL & CO. LTD (2003) 4 NWLR (PT. 811) 611 AT 639.
Finally, it was submitted that from paragraph 45 of the counter-affidavit of Aliyu Yahaya, the Primary Election leading to the production of Exhibit APC2 was conducted by the Election Committee set up by Kebbi State Chapter of the 1st Respondent which is a nullity. Reference was made to the cases of CHIEF IKECHU EMENIKE VS. PEOPLE DEMOCRATIC PARTY & ORS (2012) 12 NWLR (PT. 1315) 566 AT 602, EMEKA VS. OKADIGBO (2012) 18 NWLR (PT. 1315) 55 AT 88 and C.P.C. VS. LADO (2011) 14 NWLR (PT. 1266) 40.
The 1st Respondent on its own part, filed its brief of argument dated the 18th of October, 2022 and settled by Habeeb A. Oredola Esq. In the said brief, the following 4 (four) issues were formulated for determination thus:
1. Whether in view of the facts and evidence before the Court, the learned trial Judge was correct when it reached the conclusion that the Appellant’s action constituted an abuse of Court processes.
2. Whether the findings of the trial Court on the signature of Hon. Chamberlain Dunkwu Nnamdi is right and premised on a correct assessment and evaluation of the evidence before the Court.
3. Whether the trial Court was right when it relied on and ascribed probative value to Exhibit APC-2 the certified result sheet issued by the 1st Respondent rather than Exhibit 10.
4. Whether the learned trial judge considered the totality of the evidence placed before it found that the Appellant was not entitled to the grant of any of the reliefs sought in the Originating Summons and dismissed the Appellant’s action.
On the 1st issue, it was argued that after the trial Court found that the Appellant’s action constituted an abuse of Court process which ought to be dismissed, the lower Court held that it would proceed to determine the entire action on its merits in the interest of justice. On the substantive issue of the abuse of Court process, it was submitted that the Appellant commenced his action at the trial Court by filing a Writ of Summons dated the 29th day of June, 2022 contemporaneously with an Originating Summons also dated the 29th day of June, 2022 filed against the same set of Defendants and sought the same reliefs against the same Defendants which constitutes an abuse of Court process.
The Appellant in justifying its filing of an Originating Summons and Writ of Summons submitted that the Writ of Summons filed was withdrawn and it was not served on the 1st Respondent. However, the 1st Respondent in response to the above argued that there was no evidence of any application for withdrawal at the lower Court upon which the Appellant can validly say they have withdrawn the said Writ of Summons. Order 50, Rules 2(1) and 3(1) of the Federal High Court (Civil Procedure) Rules, 2019 was reproduced and relied on by the 1st Respondent. Drawing from the Order above, it was argued that no notice or application was filed by the Appellant to withdraw the Writ of Summons dated the 29th day of June, 2022. It was further argued that the Writ of Summons, contrary to the Appellant’s claim was validly sealed and issued as it even has a Suit Number FHC/KB/CS/22/2022 as seen on page 782 of the Record of Appeal. Order 3 Rule 12(1) and Rule 13 of the Federal High Court (Civil Procedure) Rules, 2019 was relied on. Additionally, it was submitted that the Courts have held on numerous occasions that a process will be deemed to have been filed upon the payment of the filing fees by the Plaintiff. Reference was made to the case of OGWE VS. I.G.P. (2015) 7 NWLR (PT. 1459) 524.
It was then submitted that the Appellant’s limiting the definition of abuse of Court process to harassment of a party in the suit has deliberately narrowed the scope of what amounts to an abuse of Court process as there is no limit to what constitutes an abuse of Court process. The cases of N.V. SCHEEP VS. SARAZ (2000) 15 NWLR (PT. 619) 664 and AGWASIM VS. OJICHIE (2004) 10 NWLR (PT. 882) 662 were relied on.
In conclusion of the issue, it was argued that having regard to the defects and abuse inherent in the various originating processes filed by the Appellant before the lower Court, the learned trial judge was correct when he found that the Appellant’s action constitutes an abuse of Court process.
On issue two it was submitted that the finding of the trial Court on the signature of Hon. Chamberlain Dunkwu Nnamdi was right as same was premised on a correct assessment of evidence before the Court and in line with the proper procedure in law. It was contended that the Court has a duty to evaluate the evidence before it. The case of ARABAMBI VS. A. B. INDUSTRIES LTD (2006) 8 WRN 1 PAGE 1 (2005) 19 NWLR (PT. 959) 1 was relied on. It was further submitted that the Appellant has conflated the evaluation of evidence by the trial Court as an “investigation” but there is a clear cut dichotomy between investigation and evaluation of evidence. The case of W.A.B. LTD VS. SAVANNAH VENTURES LTD (2002) 10 NWLR (PT. 775) was relied on in distinguishing the two. Counsel then urged the Court to dismiss the Appellant’s argument that the lower Court engaged in an investigation.
It was further argued that contrary to the Appellant’s submissions, the Court have a right and a duty to thoroughly examine all evidence before it and make findings on the issues for determination including issues involving signatures. The cases of GBOKO VS. STATE (2007) 17 NWLR (PT. 1063) 303 – 304 and NGIGE VS. OBI (2006) 14 NWLR (PT. 999) 143 were relied on.
On issues three and four, which were argued together, it was submitted that the trial Court rightly considered all the evidence placed before it. Counsel then submitted that the Appellant failed woefully to establish in any manner that they were entitled to the declaratory reliefs or the other consequential reliefs they sought. The case of OKEDARE VS. ADEBARA & 2 ORS (1994) 6 SCNJ 254 was relied on. It was then submitted that the affidavit evidence relied upon by the Appellant was rightly discountenanced for lacking merit. It was further argued that the lower Court rightly rejected the affidavit evidence of Hon. Ikechukwu Offor Vincent and Hon. Chamberlain Dunkwu Nnamdi as there was clear indication that the said evidence was unreliable and fabricated by the Appellant solely for the purpose of misleading the Court. It was submitted further that the affidavit evidence of Hon. Ikechukwu Offor Vincent and Hon. Chamberlain Dunkwu Nnamdi were keenly challenged and disputed by the 1st Respondent particularly Exhibit APC 1 and APC 2. Counsel then contended that from the record one of the aspirants to the Primary Election Muhammed Hassan Shalla had few days to the election withdrew by virtue of APC 1, however, the affidavit evidence of Hon. Ikechukwu Offor Vincent and Hon. Chamberlain Dunkwu Nnamdi indicates that Muhammed Hassan Shalla participated in the primary election which clearly shows that their evidence lack evidential value and the Court rightly dismissed same.
The next point argued by Counsel was that Exhibit APC 2 has more probative value than Exhibit 10 and Exhibit PEC. In arguing that Exhibit APC2 was rightly accorded probative value by the learned trial judge, counsel submitted the following reasons:
i) The 1st Respondent is vested with the exclusive preserve of nomination of its candidate for an election.
ii) Exhibit APC 2 reflects the precise number of aspirants who participated in primary election conducted for Aliero/Gwandu/Jega Federal Constituency as opposed to Exhibit 10/PEC 1.
iii) Exhibit APC 2 was duly authenticated and issued by the 1st Respondent as the true representation of the primary election conducted for the Aliero/Gwandu/Jega Federal Constituency.
Another point argued by the 1st Respondent was that it is vested with the exclusive preserve of nomination of its candidate. It was submitted that the aspirant selected at the conclusion of the primaries conducted for the selection of candidates to contest in an election at any given time is the exclusive preserve of the political parties which is outside the province or competence of Court. The cases of AMAECHI VS. INEC (2007) 9 NWLR (PT. 1040) P. 504, AGI VS. PDP (2017) 17 NWLR (PT. 1595) P. 386 and OZIGBO VS. PDP (2010) 9 NWLR (PT. 1200) P. 601 were relied on.
It was then submitted that Exhibit APC 2 reflects the precise number of aspirants who participated in the primary election conducted for Aliero/Gwandu/Jega Constituency as opposed to Exhibit 10/PEC 1. The Court was urged to uphold the findings of the trial Court that Exhibit 10/PEC 1 is incapable of sustaining the Appellant’s claim and that it is also incapable of proving the assertion that the Appellant scored the highest number of votes cast at the primary election.
Finally, it was argued that Exhibit APC 2 was duly authenticated and issued by the 1st Respondent as the true representation of the primary election conducted for the Aliero/Gwandu/Jega Federal Constituency. On the other hand, it was submitted that Exhibit 10/PEC 1 bears no insignia or stamp of the 1st Respondent to affirm its authenticity or genuineness. And that the recognized representatives of the 1st Defendant in Aliero//Gwandu/Jega Federal Constituency have by their respective counter affidavits filed by the 1st Respondent disclaimed Exhibit 10/PEC 1 confirming that the document did not emanate from the 1st Respondent. The cases of IBEZIM VS. ELEBEKE & 3 ORS (2022) 4 NWLR (PT. 1819) P.1 and APC VS. ELEBEKE & 3 ORS (2022) 10 NWLR (PT. 1837) P. 45 were relied on.
The Court was urged to affirm the decision of the trial Court and dismiss the appeal.
Learned Counsel for the Appellant filed a reply on points of law raised in the 1st Respondent’s Brief of Argument which was settled by Abdulwasiu Mohammed Esq. and dated the 20th day of October, 2022.
On the issue of abuse of Court process, it was argued that the provisions of Order 50 Rule 3(1) are applicable where withdrawal or discontinuance is sought more than 14 days after service of defence on the plaintiff. As it relates to Order 3 Rule 12(1) of the Federal High Court Rules 2019, it was submitted that in the Appellant’s case the Registrar of the trial Court re-assigned the number assigned to the writ to the originating summons filed by the Appellant after he withdrew the writ. On the issue of the power of the trial Court to compare signatures, it was submitted that the complaint was that Hon. Chamberlain Dunkwu Nnamdi did not swear himself before a Commissioner for Oaths and as such the power of the trial Court to compare signature can only arise if the allegation was that Hon. Chamberlain Dunkwu Nnamdi did not sign the affidavit. As to the affidavit of Hon. Ikechukwu Offor Vincent it was submitted that the trial Court failed to consider the evidence which goes to the root of fair hearing.
Finally, on the cases of IBEZIM VS. ELEBEKE & 3 ORS (2022) 4 NWLR (PT. 1819) P.1 and APC VS. ELEBEKE & 3 ORS (2022) 10 NWLR (PT. 1837) P. 49, it was submitted that the facts of this case are distinguishable from the facts of the cases above which both arose from the same suit. It was submitted that in the instant suit, Exhibit 10 was issued to the Appellant by the election committee on the letter headed paper of the 1st Respondent and the name and signature of the members of the election committee, while in the two cases mention above there was no evidence that the documents filed in Court were the same submitted to the political party.
The 2nd Respondent filed a Respondent’s notice to contend that the judgment be affirmed on grounds other than those relied on by the lower Court pursuant to Order 9 Rule 2 of the Court of Appeal Rules 2021. The notice which was settled by Shamsu A. Dauda Esq., was dated the 7th day of October, 2022 and relied on the following grounds:
1. Having found out that the originating summons constitutes an abuse of Court process in the face of the writ of summons filed in respect of the same parties, subject matter and claiming similar reliefs, an order of dismissal of Suit No. FHC/KB/CS/22/2022 should have been made out rightly even before consideration of the case of the Appellant on the merits.
2. There is no justification of the lower Court under Section 84(14) of the Electoral Act referred to by the trial judge in the absence of any evidence that the Appellant aggrieved with the nomination and selection process had exhausted all the internal machineries for disputes resolution of the political party (1st Respondent) as enshrined in Articles 21.3 & 21.4 of the 1st Respondent’s Constitution as well as Paragraph 20 (a-e) of the Guidelines of the 1st Respondent’s for conduct of the 1st Respondent’s Primary Election held on the 27th of May, 2022, thereby making the suit of the Appellant premature and incompetent.
3. Section 84 (14) of the Electoral Act 2022 only gives the lower Court jurisdiction over narrow part of the internal affairs of a political party relating to nomination or selection of its candidate for an election and an aspirant like the Appellant cannot exercise that right of action without first exhausting the internal mechanisms for resolving disputes arising from primary elections over nomination or selection of the party’s candidate prescribed in the Guidelines or Constitution of the party as part of its process of selection of its candidates.
4. Exhausting the internal mechanisms for resolving disputes arising from primaries is part of the process for selecting the party’s (1st Respondent) candidates for general elections under Section 84 (14) of the Electoral Act 2022 and which the Appellant never explored; thus robbing the lower Court of the jurisdiction to have entertained the case of the Appellant.
The 2nd Respondent filed his brief of argument dated the 17th day of October, 2022 and settled by Alhaji Dauda Shamsu.
In the said brief, the learned counsel for the 2nd Respondent pointed out the incompetency of issues 1 and 4 formulated by the Appellant in his Appellant’s brief of argument. It was argued that issue one raises the question of whether the dismissal of the Appellant’s case by the Court below on the ground that it is an abuse of Court process was right in law, and this issue was said to have emanated from grounds 1, 2 and 3 of the Appellants grounds of appeal. It was also argued that issue 4 was not captured in grounds 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the grounds of appeal. It was then submitted that the issue of the dismissal of the case for being an abuse of Court process never formed part of the said grounds. It was further argued that it is trite law that for an issue to be competent, it must be predicated on a ground of appeal and where an issue is not in compliance with the foregoing such an issue will be declared incompetent and must be struck out. The case of DEACON J. K. OSHATOBA & ANOR VS. CHIEF JOHNSON OLUJITAN & ANOR (2000) 5 NWLR (PT. 655) PAGE 159 was cited in support.
In the said 2nd Respondent brief of argument, 4 (four) issues for determination were distilled as follows:
(1) Was the Court below correct in law when it held that the two originating process filed by the Appellant in Suit No. FHC/KB/CS/22/2022 was an abuse of Court process? (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal)
(2) Was the Court below correct in law when it compared the signature of Hon Chamberlain Dunkwu Nnamdi as contained in his affidavit, vis a vis his signature in both Exhibits 10 and APC2 for the purposes of determining whether the stipulations under Section 117(4) of the Evidence Act 2011 were met by the deponent? (Distilled from Ground 5 of the Notice of Appeal)
(3) Was the Court below correct in law when in resolving conflicting presumptions, it preferred Exhibit APC2 over Exhibit 10 in coming to the conclusion that 2nd Respondent won the disputed primary election conducted on the 27th of May, 2022 for Aliero/Gwandu/Jega Federal constituency? (Distilled from Grounds 4 and 6 of the Notice of Appeal)
(4) Was the overall decision of the Court below correct in law? (Distilled from Grounds 7 – 15 of the Notice of Appeal)
On issue one, it was submitted that issue one is decoded from grounds 1, 2 and 3 of the Grounds of Appeal of the Appellant and that there remained an undisputed fact that the Appellant has not denied the fact that there are two originating processes that were filed at the Court below namely – a concurrent writ of summons and an originating summons filed on the same day and time against the same parties. It was further contended that the Appellant simply raised the defence that he withdrew the said writ of summons before issuance.
It was submitted that the Appellant knew he filed the concurrent writ of summons simultaneously with the originating summons and the various depositions of the Appellant is an admission against interest which remains binding on him with the consequential burden of proving whatever defence he has withdrawn the filed concurrent writ of summons yet he could not prove that he had withdrawn the concurrent writ of summons. Section 131 of the Evidence Act 2011 was cited.
It was further argued that the Appellant ought to file a Notice of Discontinuance in writing and serve same on all the parties even though he has the right to discontinue the case as of right before the date of hearing. Reference was made to the case of AGHADIUNO VS. ONUBOGU (1998) 5 NWLR (PT. 548) PAGE 16 AT 35 PARA E – H.
The 2nd Respondent’s counsel further submitted that the abuse of Court process arises from the filing of the process and not the service or issuance. Reference was made to the case of OGLI OKO MEMORIAL FARMS LTD VS. NACB LTD (2008) LPELR 2306 SC. It was then submitted that the multiplicity of actions on the same subject matter, between the same parties, even where there exists a right to bring the action, is regarded as an abuse. The case of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) PAGE 156 AT 188 PARAS E – F was cited in support.
On issue two, it was argued that the main contention between the Appellant and the 2nd Respondent was on who won the primary election for Aliero/Gwandu/Jega Federal Constituency. It was held by the Court below that Exhibit 10 and APC2 became the reference point upon which the Court below had to form the opinion as to what it had to decide in the resolution of the thorny issues presented to the Court below. It was argued that Exhibit APC2 was frontloaded by the 1st Respondent in its counter-affidavit and in Exhibit APC2, the signatures of Hon. Chamberlain Dunkwu Nnamdi and Barrister Yusuf Ibrahim as the Chairman and Secretary respectively of the Primary Election Committee of the 1st Respondent was very apparent. It was also submitted that Hon. Chamberlain Dunkwu Nnamdi and Barrister Yusuf Ibrahim as the Chairman and Secretary respectively of the Primary Election Committee of the 1st Respondent never denied the fact that they signed Exhibit APC2. It was then submitted that the Appellant cannot deny what is personal to the duo as it relates to signing Exhibit APC2. It was submitted further that the said paragraph 7 of the Appellant’s further and better affidavit in response to the counter-affidavit of the 1st Respondent was personally depose to by the Appellant himself and not by Hon. Chamberlain Dunkwu Nnamdi nor Barrister Yusuf Ibrahim.
The 2nd Respondent’s counsel submitted that the 2nd Respondent filed a motion at the Court below for pleadings to be filed and exchanged between the parties based on the grounds highlighted in the application of the 2nd Respondent but that the same Appellant opposed the application and filed a counter-affidavit and deposed to the fact that the facts of case at the Court below are not contentious in nature.
It was submitted further that the Appellant had argued at the trial Court that there was no dispute as to who signed Exhibits 10 and APC2 and to the Appellant, the resolution who signed the two election results is not in dispute to justify the calling of oral evidence. The 2nd Respondent’s counsel also submitted that it is surprising that the Appellant who opposed the calling of oral evidence to substantiate some allegations raised by parties can still be the one arguing and or questioning the right of the Court below comparing signatures contained in documents in the resolution of the dispute before it.
The 2nd Respondent’s counsel further submitted that parties are enjoined to be consistent in the matters they pursue and that this include presentation of argument before a Court of law. Reference was made to the cases of AJIDE VS. KELANI (1985) 11 SC 82 and GARUBA VS. OMOKHODION (2011) 14 NWLR (PT. 1269) PAGE 145 was relied on.
It was also submitted that the further and better affidavit filed by the Appellant in response to these depositions did not deny the fact that Chamberlain Dunkwu Nnamdi did not present himself before the Commissioner for Oaths to sign his signature or that the signature appearing in his affidavit truly belongs to him.
It was then submitted that the failure of Chamberlain Dunkwu Nnamdi to deny the fact that he never presented himself before the Commissioner for Oaths to sign his affidavit or that the signature on the said affidavit belongs to him when compare the signatures on the basis of the documentary evidence already before the Court below by virtue of Section 101(1) and (2) of the Evidence Act 2011.
The 2nd Respondent counsel also submitted that a close look at the purported signature on the affidavit of Chamberlain Dunkwu Nnamdi when compared with Exhibits 10 and APC2 would reveal without doubt that it was uttered and or copied. It was contended that the findings of the Court below did not use the word forgery but that the signature in the affidavit was copied and was not personally signed by him before the Commissioner for Oaths.
It was also submitted that the contention of the Appellant that the signature of Chamberlain Dunkwu Nnamdi enjoys the presumption of regularity of official acts under Section 168(1) of the Evidence Act 2011 cannot hold water because the section does not create an irrebuttable presumption of law. Reference was made to the cases of NELSON VS. AKOFIRANMI (1962) VI SCNLR 252 and JOHNSON VS. MOBIL PRODUCING (NIG) UNLTD (2010) 7 NWLR (PT. 1194) PAGE 462 AT 487.
On issue three, the 2nd Respondent’s counsel submitted that the main grudge of the Appellant is that the Court below resolved the conflicting presumptions that were in favour of both Exhibits 10 and APC2. It was also submitted that Exhibits 10 and APC2 were both signed by the same individuals and that this was never challenged by the Appellant through an independent ground of appeal and thus, it remains final and binding on the Appellant.
And that this simply means that there is a presumption that the result sheet of any primary election by a political party is correct and authentic and the burden lies on the party who dispute the correctness and authenticity of the result to lead credible evidence in rebuttal.
It was then submitted that both Exhibits 10 and APC2 raises conflicting presumptions in favour of both parties as it relates to the correctness of the results of the primary election held on the 27th day of May, 2022. The case of AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT. 70) PAGE 325 cited in support. It was submitted further that the factors that the Court below reckoned with in preferring Exhibit APC2 to Exhibit 10 has not been punctured by the Appellant.
On issue four, the 2nd Respondent’s counsel argued that the decision of the Court below was arrived at after painstakingly evaluating all the evidence tendered before it. It was submitted that the results of the primary election annexed to the counter-affidavit of the 1st and 2nd Respondents were more in tune with the actual realities on ground as it has only the names of the actual two contestants that contested in the said elections and which was shown to have been accepted by both the 1st and 3rd Respondents leading to the publication of the name of the 2nd Respondent as the winner of the primary election for the disputed constituency.
It was also argued that the issue of nomination and sponsorship of a candidate is within the exclusive preserve of a political party and the Courts are enjoined not to interfere. The case of MUYIWA VS. MUHAMMED (2022) 9 NWLR (PT. 1836) PAGE 435 AT 470 PARA C was cited in support.
It was submitted further, that the undisputed fact is that Hon. Chamberlain Dunkwu Nnamdi and Barrister Yusuf Ibrahim who were the appointed Chairman and Secretary of the Primary Election Committee of the 1st Respondent signed Exhibit APC2, and that the Appellant had not denied the obvious fact of the powers of the 1st Respondent to conduct primary elections which saw the emergence of the 2nd Respondent as the winner of the said primary elections with 149 votes. That the proper party to say whether or not it was the Appellant that won the election is the 1st Respondent and that the 1st Respondent had not said so. The case of UZODINMA VS. IZUNASO (2011) 17 NWLR (PT. 1275) PAGE 30 AT 61 PARAS A – D was cited in support.
The 2nd Respondent’s counsel also argued that contrary to the Appellant’s contention that there was an admission that Exhibit APC was conducted by the State Electoral Committee of the State party of the 1st Respondent, it is submitted that the Appellant never denied the fact that the Primary Election Committee could not conduct the primary election in all the Federal Constituencies in Kebbi State simultaneously.
It was also submitted that the Primary Election Committee appointed by the 2nd Respondent signed Exhibits 10 and APC2 and that all they did was to solicit the assistance in the conduct of the election owing to shortage of man power. The 2nd Respondent’s counsel went ahead to ask the question that whether the Primary Election Committee acting on behalf of the National Executive Committee of the 1st Respondent carried out its assigned roles in the Primary Election for the disputed Federal constituency. The question was answered in the affirmative.
It was then submitted that the Primary Election Committee of the 1st Respondent is empowered to appoint “Returning officers” and conduct primary elections in areas where they cannot cover. Counsel pointed out that there is no place in the Appellant’s brief where it was stated that throughout the entire length and breadth of the reliefs sought that the Appellant claimed for the setting aside of the primary election that saw the emergence of the 2nd Respondent as the winner of the said primary election.
This Court was then urged to uphold the decision of the Court below.
The learned counsel for the 2nd Respondent also distilled two issues for determination in respect of the 2nd Respondent’s Notice to contend that judgment should be affirmed on grounds other than those relied on by the trial Court. The said issues are:
(1) Whether the Court below is required to make an order of dismissal of the case of the Appellant having found same to be an abuse of Court process before proceeding to entertain the substantive application application of the Appellant on the merit?
(2) Whether the Court below has the jurisdiction to entertain the Appellant’s case by virtue of Section 84(14) of the Electoral Act 2022?
On issue one, it was submitted that Article 21.3 of the 2nd Respondent’s Constitution provides for the Disciplinary Procedure while Article 21.4 provides for appeals, and same with paragraph 20 (a – e) of the Guidelines of the 1st Respondent for the conduct of the 1st Respondent’s primary election. It was submitted that these bodies of domestic remedies are binding on all members of the 1st Respondent. That the Appellant must in the first instance resort to exhaust the domestic remedies before contemplating or filing a suit in Court, failing which the action will be premature and incompetent. The case of EGUAMWENSE VS. AMAGHIZEMWEN (1993) 9 NWLR (PT. 315) PAGE 1 was referred to.
It was argued that there was no evidence on record to show that the Appellant complied with the internal dispute resolution procedure in Articles 21.3 and 21.4 of the 1st Respondent’s Constitution and paragraph 20 (a – e) of the Guidelines of the 1st Respondent for the conduct of the 1st Respondent’s Primary Election before he took grievances arising from the Primary Elections held on the 27th day of May, 2022 to Court, thereby putting the cart before the horse. Also, it was submitted that there was nothing in the originating process of the Appellant to show that the Appellant complied with Articles 21.3 and 21.4 of the 1st Respondent’s Constitution as well as paragraph 20 (a – e) of the Guidelines of the 1st Respondent for the conduct of the 1st Respondent’s primary election.
The 2nd Respondent’s counsel argued further that the internal mechanisms for resolving disputes arising from party primaries are part of the process of selecting the party’s candidates for general elections and that a party must have first exhausted the internal mechanisms for resolving disputes before filing an action. The case of ALIYU VS. APC & ORS (2022) LPELR 57345 was cited in support. It was then submitted that the suit of the Appellant was premature at this stage having not exhausted all internal domestic remedies for the resolution of the purported disputes arising from the primary election.
This Court was urged to hold that the lower Court had no jurisdiction to entertain the claims of the Appellant under Section 84(14) of the Electoral Act 2022. This Court was also urged to strike out the suit of the Appellant at the lower Court and to allow the Respondent’s notice.
The Appellant filed a reply brief dated the 20th day of October, 2022 by Abdulwasiu Mohammed Esq. The Appellant divided the reply brief into 5 (five) issues.
The first issue replied to is the competency of issue 1 formulated by the Appellant. Counsel for the Appellant submitted that the essence of formulating issues for determination in an appeal is to reduce the grounds of appeal into effectively concise formulations which take cognizance and consideration of the same issues involving more than one ground of appeal. It was thereafter submitted that if the grounds upon which an issue is formulated is competent, the issue so formulated cannot as erroneously canvassed by the 2nd Respondent be struck out. It was further submitted that the 2nd Respondent did not point out in the body of the argument in support of issue 1 formulated by the Appellant, that issues other than or outside real issue covered in grounds 1, 2 and 3 of the notice of appeal was argued. And on the second issue of competency of issue 4 formulated by the Appellant, it was argued that issue 4 is properly distilled from grounds 7 – 15 of the grounds of appeal.
In reply to issue 1 argued by the 2nd Respondent, it was submitted that the act of the Registry of the lower Court of giving same suit number to the Originating Summons as that given to the Writ of Summons, the failure of the Registry of the lower Court to serve the said Writ of Summons on any of the Respondents and not giving date for the hearing of the said Writ of Summons is conclusive that the Writ of Summons has indeed been withdrawn before the issuance of same. In reply to issue 2 argued by the 2nd Respondent, it was submitted that by Section 115(1) of the Evidence Act, 2011, for a fact in an affidavit to be admissible, same must be from the personal knowledge of the deponent. It was therefore argued that the 2nd Respondent’s deposition in this regard is inadmissible same not being by ordinary course of things within his personal knowledge. Additionally, it was submitted that the 2nd Respondent relied on Section 101 of the Evidence Act, 2011 to argue that where the signature of a witness is in issue, a Court can compare the signatures on the basis of documents already before the Court. The Appellant’s reply to this was that the lower Court cannot determine whether or not Hon. Chamberlain Dunkwu Nnamdi was at the office of the Commissioner for Oaths.
Finally, on the argument that the notice to contend the judgment should be affirmed on grounds other than those relied on by the lower Court, it was submitted that the failure to exhaust internal mechanism is not a bar to the institution of a case by an aggrieved aspirant. The cases of NYAKO VS. DR. UMAR ARDO (2013) LPELR – 20848 (CA) and SHEHURI VS. ZULLUM (2019) LPELR – 4776 (CA) were relied on. It was argued further that by the provision of Section 285(9) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the Appellant has 14 days within which to institute this action. And that by the provisions of Section 87 of the extant Electoral Act, the Appellant has been statutorily clothed with the capacity to initiate this suit and the trial Court has been given the jurisdiction to hear the complaint and provide relevant remedy to the Appellant as the circumstances of the case dictates. Reference was made to the cases of PDP VS. SYLVA (2012) 18 NWLR (PT. 1279) AT 147 and MR. JULIUS OGHENEVWEGBA BOBI VS. MR. EDOJA RUFUS AKPODIETE & ORS (2013) LPELR – 21036 (CA).
The Court was urged to resolve all the issues against the 2nd Respondent and in favour of the Appellant.
RESOLUTION OF THE APPEAL
I have read carefully and summarized the submissions contained in the brilliant briefs of argument filed by counsel to the parties in the instant appeal. I shall now proceed to determine the appeal and in doing so I will adopt the issues for determination formulated by the Appellant.
ISSUE ONE
Whether in the circumstance of this case, the trial Court was right when it dismissed the Plaintiff/Appellant’s suit on the ground that the suit constitute an abuse of Court of process.
In the case of AFRICAN REINSURANCE CORPORATION VS. JDP CONSTRUCTION NIGERIA LTD (2003) LPELR 215 (SC), the Supreme Court explained what constitutes an abuse of Court process per Tobi, JSC thus:
“Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system.”
In dealing with what constitutes an abuse of judicial process as arising from multiplicity of suits between same parties over same issues, the Supreme Court in CHIEF VICTOR UMEH & ANOR VS. PROF MAURICE IWU & 3 ORS (2008) 2 – 3 S. C. (PT. 1) 135 AT 152 – 153 explaining what constitutes abuse of judicial process, held:
“Therefore, to sustain a charge of abuse of process as in instant suit there must co-exist inter alia:-
(1) a multiplicity of suits
(2) between the same opponents and
(3) on the same subject matter; and (4) on the same issues.
Thus, to constitute an abuse of judicial process by way of multiplicity of actions, the parties in the present suit must be the same as the parties in the previous suit the subject matter must be the same and on the same issues.”
The law on abuse of Court process refer to a variety of situations which may not be fully enumerated or limited, but which always involves the misuse of the process of Court for a purpose that is malafide, aimed at annoying, frustrating or disturbing the party against whom it is used.
The Supreme Court also enunciated in NTUKS VS. NPA (2007) 13 NWLR (PT. 1051) PAGE 392 on the meaning of abuse of Court process and held:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.”
Lastly, the Supreme Court in the case of AG OF LAGOS STATE VS. AG OF THE FEDERATION & ORS (2014) LPELR – 22701 (SC) (P. 89, PARAS. A – E) held per Ngwuta, JSC thus:
“Abuse of process of Court consists of an improper use of the issue of judicial process or process already issued to the irritation or annoyance of the opponent. Multiplicity of actions which involve the same subject matter amount to abuse of Court and the Court has a duty to stop such abuse.”
See OKORODUDU VS. OKOROMADU (1977) 6 NWLR (PT. 2001) 659 AT 681 and SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 188.
The 1st and 2nd Respondents have vehemently, in fact, extensively and exhaustively argued that the suit of the Appellant at the trial Court amounted to an abuse of Court process and thus, should be struck out. They pointed out the fact that the Appellant had filed a writ of summons between the same parties and also went ahead to file an originating summons on the same day with the same suit number and also between the same parties on the same subject matter.
The Appellant went ahead to admit that indeed he filed the writ of summons and the originating summons but he did not serve the said writ of summons on any of the parties. The Appellant even went ahead to say that the mode of commencing pre-election matters, as directed by the Federal High Court Rules, is by way of originating summons but still the 1st and 2nd Respondents have continued to shout “Crucify Him!! Crucify Him!!!”
I have gone through the record of appeal and I can see on page 926, that the learned trial judge, while delivering his judgment held:
“In the instant case, both the Writ of Summons and the Originating Summons were filed on the same date and both are pending before the Court on the 22nd August, 2022 when this case came up for hearing and no effort was made by the learned senior counsel for the Plaintiff to withdraw any of the two Originating processes in an open Court on the 22nd August, 2022 before parties adopted their processes. In my humble view, the two originating processes ought to be struck out as was argued by the learned counsel for the 1st Defendant.”
From the above cited portion of the judgment, it is clear that the trial Court agreed that it amounted to an abuse of Court process because there was nothing to show on record, especially a Notice of Discontinuance to prove that the Appellant withdrew the said writ of summons. Now, the questions that must be asked before I can agree that indeed the filing of the writ of summons and the originating summons amounted to an abuse of Court process are: did the Respondents prove with sufficient evidence that the Appellant filed the Writ of Summons maliciously with the principal and premeditated aim of annoying, frustrating and irritating them? Did the filing of the Writ of Summons waste the time of the trial Court in anyway? I do not think so.
I can clearly see that the Appellant did not serve the writ of summons on the 1st and 2nd Respondents. How then can an originating process which was never given or served on a party amount to a premeditated act of annoying and frustrating the said party? How did the 1st and 2nd Respondents get to even know about the Writ of Summons when they were not served? They obviously must have found out one way or the other and I do not see any logical reasoning why they are spitting fire and brimstone over it. The 2nd Respondent’s counsel even went ahead to argue in paragraph 4.10 of his brief of argument that the abuse of Court process arises not from service or issuance but from filing of the process and counsel simply cited the case of OPOBIYI & ANOR VS. MUNIRU (2011) LPELR 8232 in support of this assertion without making any efforts to point out the portion of the case that supports his position.
I have gone ahead to read the facts and issues raised and determined in the case of OPOBIYI & ANOR VS. MUNIRU (SUPRA) and I do not see any similarities between the issues canvassed therein and the issues being argued in this instant appeal. The Supreme Court made no reference to the fact that abuse of Court processes arises not from service of the process but from the filing of the process. There is nothing of such on record in the case. The only point that I can see that even helps the case of the Appellant is that the Supreme Court held per Fabiyi, JSC on page 23 of OPOBIYI & ANOR VS. MUNIRU (SUPRA) that:
“The notice of preliminary objection which was not moved at the hearing of the appeal must be deemed as having been abandoned. See Oforkire v. Maduike (2003) 1 SCNJ 440, Tiza v. Begha (2005) 5 SCNJ 168.”
Even though a Notice of Preliminary Objection is totally different from an originating process as it begins the life of a case, the Appellant filed the Writ of Summons and did not serve same on the Respondents but went ahead and served only the Originating Summons, the Appellant had made no effort or moves to pursue the said Writ of Summons, at least from what I can see from the record of appeal, why then didn’t the Respondents and the learned trial judge deem the writ of summons as abandoned as held by the Supreme Court in the aforementioned case? I would never know.
Why did the trial Court seeing that there were 2 initiating processes before it bearing the same suit number not strike out one of the process as stipulated in M/S MARGARET HAUWA MUCHAEL & ANOR VS. MIMA PROJECT VENTURES LTD (2003) FWLR ( PT. 140) 1780?
When a process is filed and nothing is done to pursue it, I do not believe that a notice of discontinuance must be filed in all circumstances. It would no doubt have made the case more tidy if the appellant had formally withdrawn the writ of summons, but I do not see his failure to file a notice of discontinuance an unforgivable oversight worthy of making the Originating summons dismissible.
It is clear that the writ of summons and the Originating summons had the same suit number. How and why did this happen? Was it that the writ was withdrawn before the Originating summons was filed? Or was it a mistake by the registry of the trial Court? Why did the registry not serve the writ of summons on the respondents and give a hearing date, instead, it served the Originating Summons and gave a date for the hearing of same? In my view, it is an anomaly that 2 suits will have the same suit number. Could it then be that the Appellant withdrew the writ as contended, and the Registry of the trial Court reassigned the number on the writ to the Originating Summons? Only the Registry of the trial Court can explain this eccentricity. In the circumstances, I cannot find my way clear in punishing the Appellant for the act of the Court Registry. An act that was clearly wrong and misguided.
I hereby hold that in the peculiar circumstances of this case, that the Writ of Summons filed by the Appellant at the trial Court having not been served or pursued in anyway is deemed abandoned and cannot and never be regarded as an abuse of Court process.
Issue one is therefore resolved in favour of the Appellant.
ISSUE TWO
Whether in the circumstance of this case, the trial Court was right when it conducted investigation, speculated and concluded that Hon. Chamberlain Dunkwu Nnamdi did not appear before the Commissioner for Oaths and that his signature was copied or altered and thus not admissible.
A learned trial judge has the undisputed power to make comparison of signature or handwriting independent of an expert evidence. See the case of ACB PLC VS. NDOMA EGBA (2001) FWLR (PT. 53) 81. The learned trial judge in the matter giving rise to this appeal, had exercised this power and agreed with the 2nd Respondent’s deposition that Hon. Chamberlain Dunkwu Nnamdi never appeared before the Commissioner for Oaths and his signature on the said affidavit was copied. The learned counsel for the Appellant has argued that there is no evidence before the lower Court that Hon. Chamberlain Dunkwu Nnamdi did not sign the affidavit in support of the Originating Summons wherein he deposed to the fact that indeed it was the Appellant that won the primary election.
The 2nd Respondent had deposed in his counter-affidavit in opposition to the Originating Summons that Hon. Chamberlain Dunkwu Nnamdi never presented himself before a Commissioner for Oath to sign the said affidavit. How did the 2nd Respondent arrive at this conclusion? Who informed the 2nd Respondent of this fact? Is there anything before this Court from the said Hon. Chamberlain Dunkwu Nnamdi to confirm this statement? When the learned trial judge went ahead to compare the signatures, what basis did he use in deciding the original signature and the copied signature?
I must confess that all the submissions of the 2nd Respondent’s counsel with regard to the authenticity of the signature of Hon. Chamberlain Dunkwu Nnamdi is baseless because they made no attempt to establish by way of evidence how they got this information. There is nowhere in the said counter-affidavit that the 2nd Respondent stated that the reason why he vehemently argued that Hon. Chamberlain Dunkwu Nnamdi never appeared before a Commissioner for Oath was because he informed him personally or a close ally disclosed the information. I agree with the argument of the Appellant’s counsel in this regard.
Also, I agree that the 2nd Respondent made no attempt to prove the particulars of forgery alleged against the Appellant in respect of the signature of the Hon. Chamberlain Dunkwu Nnamdi. The allegation was made and never proved by any evidence at all. There was no particulars of forgery stated neither were the ingredients of forgery proved at all.
It is trite law that where an allegation of crime is made in an election petition or a pre-election matter, as herein, the person making the allegation must prove same beyond reasonable doubt. See the case of NWOBODO VS. ONOH (1954) NSCC 1 AT 3. Such standard of proof, however, is not one beyond all shadows of doubt. See AKINDIPE VS. THE STATE (2010) 16 NWLR (PT. 813) 340 AT 370.
On this basis, I hold that the lower Court erred when it refused to rely on the said affidavit of Hon. Chamberlain Dunkwu Nnamdi by simply looking at the signature and comparing the signature on Exhibit APC2 and concluding it must have been copied without reaching such conclusion by way of credible evidence.
Issue two is therefore resolved in favour of the Appellant.
ISSUES THREE AND FOUR
Whether the trial Court was right when it held that there was a conflicting presumption in favour of Exhibit 10 and Exhibit APC 2 which the Court resolved in favour of Exhibit apc 2.
AND
Whether having regards to the facts of this case, the failure by the trial Court to consider relevant evidence placed before it and its reliance on Exhibit APC 2 to dismiss the case of the Plaintiff/Appellant do not occasion serious miscarriage of justice.
Even though election petitions and pre-election suits are sui generis and are determined by their own rules and the Electoral Act, the standard of proof is the same as in ordinary civil proceedings which is on the balance of probability and preponderance of evidence. A petitioner succeeds on the strength of his case and not on the weakness of his opponent’s case. See the cases of OGBORU & ANOR VS. UDUAGHAN & ORS (2010) LPELR – 3938 (CA), AREGBESOLA VS. OLAGUNSOYE OYINLOLA (2010) LPELR – 3805 (CA) and GAMBARI VS. INEC (2011) LPELR – 9080 (CA).
In the case of LANLEHIN VS. AKANBI (2015) LPELR – 42147, it was held per Shuaibu, JCA held:
“In the election petition trial, the standard of proof is proof beyond reasonable doubt where the petition is brought on grounds which are criminal in nature. But, where the grounds is civil in nature, the standard of proof is preponderance of evidence and balance of probabilities. Above all, the obligation is discharged only through presentation of credible evidence.”
Before me are two results produced by the Appellant and the 2nd Respondent, each claiming flawless victory over and against the other. Without an iota of doubt, it is very obvious that one is real and the other is fake. I am going to therefore weigh the evidence each of the respective parties have proffered at the lower Court on the imaginary balance of scale the law provides and I will give judgment in favour of who has been able to prove it by credible evidence more than the other.
Let us begin. The Appellant has presented Exhibit 10 which is the result of the primary election declaring him as winner. The 1st and 2nd Respondents have presented Exhibit APC2 which is also a result of the primary election declaring him winner. I have gone ahead to look at both documents and on the face of it, they seem very regular, tricky to the mind to know which is real and which is not. Both results have been signed by the Chairman of the Election Committee, Hon. Chamberlain Dunkwu Nnamdi, showing it is procedurally complied with.
The Appellant has been able to support his claim with the following evidence:
(1) He has gone ahead to get duly deposed affidavits from the Chairman of the Election Committee, Hon. Chamberlain Dunkwu Nnamdi, Hon. Ikechukwu Offor Vincent, a member of the Election Committee and the Returning Officer of the Election Committee that conducted the primary election wherein they deposed to the fact that it was the Appellant that won the election.
(2) Hon. Ikechukwu Offor Vincent had stated that there were 150 delegates present and accredited to cast votes.
(3) Alhaji Bello Maigoro, one of the delegates during the primary election also deposed to an affidavit in support of the originating summons, stating he was present during the primary election and he heard the party officials read out the names of 3 aspirants who contested the primary election. He further stated that it was the Appellant that won the election, specifically stating that the Appellant won by 146 votes, the 2nd Respondent scored 1 vote and the 3rd person Muhammad Hassan Shalla scored 3 votes. He also stated that the Appellant was declared winner by Hon. Ikechukwu Offor.
(4) Another delegate Usman Sadam deposed to an affidavit in support of the originating summons, stating that he was present during the primary election and he heard the party officials read out the names of 3 aspirants who contested the primary election. He further stated that it was the Appellant that won the election, specifically stating that the Appellant won by 146 votes, the 2nd Respondent scored 1 vote and the 3rd person Muhammad Hassan Shalla scored 3 votes. He also stated that the Appellant was declared winner by Hon. Ikechukwu Offor.
(5) Also, Attah B. B. A., a delegate during the primary election deposed to an affidavit in support of the originating summons, stating he was present during the primary election and he heard the party officials read out the names of 3 aspirants who contested the primary election. He further stated that it was the Appellant that won the election, specifically stating that the Appellant won by 146 votes, the 2nd Respondent scored 1 vote and the 3rd person Muhammad Hassan Shalla scored 3 votes. He also stated that the Appellant was declared winner by Hon. Ikechukwu Offor.
(6) Buhari Bkaji Gajiya, a delegate during the primary election deposed to an affidavit in support of the originating summons, stating he was present during the primary election and he heard the party officials read out the names of 3 aspirants who contested the primary election. He further stated that it was the Appellant that won the election, specifically stating that the Appellant won by 146 votes, the 2nd Respondent scored 1 vote and the 3rd person Muhammad Hassan Shalla scored 3 votes. He also stated that the Appellant was declared winner by Hon. Ikechukwu Offor.
The 2nd Respondent on the other hand has provided the following evidence to support his claim that he won the said primary election:
(1) The result bearing his name as the winner of the election was duly certified by the 1st Respondent.
(2) It was signed by Hon. Chamberlain Dunkwu Nnamdi, the Chairman of the Election Committee.
(3) The result contained the names of only two contestants, the Appellant and the 2nd Respondent because the 3rd Contestant, Hon. Hassan Muhammed Shallah had withdrawn from participating in the primary election and had sent a letter to the 1st Respondent, notifying it of his withdrawal three days before the primary election took place.
(4) The number of the delegates were 155 as against 150 stated by Exhibit 10.
Who has been able to prove his case on the balance of probability, on the preponderance of evidence?
In the Supreme Court case of PORTS AND CARGO HANDLINGS SERVICES COMPANY LTD & ORS VS. MIGFO NIGERIA LTD & ANOR (2012) 18 NWLR (PT. 1333) 555 AT 609, it was held per Ariwoola, JSC, as follows:
“Surely, the deposition and averments in an affidavit in support of an originating summons are like the averments contained in the statement of claim or pleadings in support of a general writ of summons in an action commenced by such writ of summons.”
Also, in the case of N.N.P.C. & ORS VS. FAMFA OIL LTD (2012) 17 NWLR (PT. 1328) 148 AT 189, the apex Court held in the lead judgment by Rhodes-Vivour, JSC, inter alia that:
“When an originating process (as in this case) is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter affidavits serve as statement of defence. The affidavits are the pleadings for the case.”
Each affidavit deposed to by the Chairman of the Election Committee which I have held to be duly attested to before a Commissioner for Oath, the Returning Officer, three delegates and agents of the Appellant are all individual bundle of facts proving that it was the Appellant that won the primary election.
They have all deposed to the fact that indeed, it was three people that contested at the primary election. They have stated that it was 150 delegates that casted votes. They had stated that the Appellant had won by scoring 146 votes, the 2nd Respondent scored 1 vote and the 3rd Contestant scored 3 votes.
I agree with the submission of counsel to the Appellant that the result of the primary election does not fall under the documents that need to be certified as a prerequisite for its validity and authenticity. It is not a public document as provided for under Section 102 of the Evidence Act.
Public documents are defined under Section 102 of the Evidence Act 2011 (as amended) as follows:
The following documents are public documents:
(a) Documents forming the official acts or record of the official acts of:- (i) the sovereign authority; (ii) official bodies and Tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and (b) Public records kept in Nigeria of private documents.” Section 103 of the Evidence Act clearly states “all documents other than public documents are private documents.” Section 104 of the Evidence Act 2011 (as amended) demands all copies of public documents to be certified.”
In the case of STURIA VS. PRECIA (1880) A. C. 623, Lord Blackburn defined a public document as one made by a Public Officer for the purpose of the public making use of it and being able to refer to it especially where there is a judicial or quasi-judicial duty to inquire into it. See also the cases of NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 104) 373 AT 404 and C.C.B. (NIG.) LTD VS. ODOGWU (1990) 3 NWLR (PT. 140) 646.
Evidently, the result of the primary election of a political party does not qualify as a public document and thus, its authenticity and validity cannot be objected to on the basis of non-certification. It is enough that Exhibit 10 was signed by the Chairman of Election Committee.
Also, the 1st and 2nd Respondents have produced a letter stating that the 3rd Contestant formally by way of letter, withdrew from participating in the primary election. I cannot accept this letter and close my eyes to the depositions of 8 separate individuals who have gone an extra mile to depose to affidavits, stating that the party officials had called out three contestants and delegates have casted votes in respect of the three contestants.
I am surprised that the 2nd Respondent has vehemently argued that the affidavit deposed to by Hon. Chamberlain Dunkwu Nnamdi was not proper as he was not present before the Commissioner of Oaths and yet he did nothing to establish reasons for their belief. I am very surprised at the reasoning of the learned trial judge contained on page 944 of the Record of Appeal wherein he stated:
“Assuming without conceding that Hon. Chamberlain Dunkwu Nnamdi presented himself before the Commissioner for Oath as the Learned Senior Counsel for the Plaintiff wants this Court to believe, it is my considered position that from the Affidavit of Hon. Chamberlain Dunkwu Nnamdi, it is very obvious that Hon. Chamberlain Dunkwu Nnamdi was not physically present at the venue where the Primary Election, for Aliero/Gwandu/Jega was conducted on the 27th May, 2022.
If I may add, the fact that Hon. Chamberlain Dunkwu Nnamdi stated in paragraph 7 of his Affidavit that he signed Exhibit 10 does not automatically mean that he denied signing Exhibit APC 2 especially when Exhibit APC2 was certified by the 1st Defendant as the Result Sheet received from Election Committee headed by Hon. Chamberlain Dunkwu Nnamdi which was appointed by National Working Committee of the 1st Defendant. In the absence of any direct evidence from Hon. Chamberlain Dunkwu Nnamdi, showing that he did not sign Exhibit APC 2, I cannot agree with the submission of the Learned Senior Counsel for the Plaintiff that Affidavit of Hon. Chamberlain Dunkwu Nnamdi plays cogent role in determining which of the two Exhibits (Exhibit 10 and Exhibit APC 2) is genuine and authentic.”
I am flabbergasted at the reasoning of the learned trial judge. Firstly, if the learned trial judge is going to disbelieve and disregard the affidavit of the Chairman of the Election Committee and his signature on Exhibit 10 on the grounds that he was not present at the primary election, why then would he hold that the same Chairman qualified to sign Exhibit APC2? What has the presence or absence of the Chairman at the Primary Election got to do with the validity of his signature on Exhibit 10 or him deposing to facts within his knowledge in the affidavit in support of the Originating Summons?
Also, since a party must win on the strength of his case and not on the weakness of the other party’s case, why does the trial Court want to saddle the Appellant with the responsibility of proving whether or not it was Hon. Chamberlain Dunkwu Nnamdi that signed Exhibit APC2, a document produced by the 2nd Respondent? The Appellant has proved by way of affidavit evidence wherein Hon. Chamberlain Dunkwu Nnamdi himself stated that he signed Exhibit 10 which is the result sheet declaring the Appellant winner of the primary election. The onus lies on the 2nd Respondent alone to prove that Exhibit APC2, a result declaring him winner of the primary election was duly signed by Hon. Chamberlain Dunkwu Nnamdi. The learned trial judge was very wrong to have assumed and then state that the Appellant ought to have carried the burden of proving the validity of Exhibit APC2.
I totally disagree with the argument of the 2nd Respondent’s counsel that the proper party to say whether or not it was the Appellant that won the election is the 1st Respondent and it is clear that the 2nd Respondent is the person “recognized” as the winner of the primary election. I am appalled at the choice of words used by the 2nd Respondent as he reduced the process of primary election of a political party to a “game of pick and choose”.
The 1st Respondent, in fact no political party has the right to recognize anybody as winner of a primary election except the person declared to be the winner of the primary election. The 1st Respondent had set up the Election Committee to be the body that will conduct the primary election on its behalf. The 1st Respondent can only recognize the declared winner of the primary election. The 1st Respondent is forbidden by law to “recognise” the 2nd Respondent as winner unless and until it is proven that he won the primary election. The 1st Respondent appointed a “Returning Officer” in the person of Hon. Ikechukwu Offor Vincent who had gone an extra mile to depose to an affidavit to prove that it was the Appellant that won the primary election. Thus, the person that won the election is the only person that can be presented by the political party.
Issues three and four are hereby resolved in favour of the Appellant.
RESOLUTION OF THE RESPONDENT’S NOTICE
The 2nd Respondent in his Respondent’s notice raised two issues thus:
1. Whether the Court below is required to make an order of dismissal of the case of the Appellant having found same to be an abuse of Court process before proceeding to entertain the substantive application of the Appellant on merit?
2. Whether the Court below has jurisdiction to entertain the Appellant’s case by virtue of Section 84(14) of the Electoral Act?
On the first issue formulated by the 2nd Respondent relating to the abuse of Court process, it has already been determined in the main appeal. To my mind, the issue has been adequately addressed and to consider it again would be over-flogging the issue.
Moving on to the next issue, the 2nd Respondent has argued that beyond the Court’s interpretation of Section 84(14) of the Electoral Act, before the Appellant can invoke the jurisdiction of this Court under Section 84(14) of the Electoral Act 2022, it must be shown that the Appellant is aggrieved in the nomination and selection process and by doing so have exhausted all the internal machineries for dispute resolution of his political party. It was further argued that the Articles 21.3 of the 1st Respondent’s Constitution provides for appeals, same with paragraph 20 (a – e) of the Guidelines of the Primary Election and the Appellant must in the first instant resort to/exhaust the domestic remedies before filing a suit in Court. While the Appellant on his part argued that failure to exhaust internal party mechanism is not a bar to institution of a case by an aggrieved aspirant. Additionally, it was submitted that by Section 285(9) of Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Appellant has 14 days within which to institute this action. Section 84(14) of the Electoral Act 2022 provides:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a party have 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.”
I cannot help but agree with the argument of the Appellant. Looking at the chronological order of events in this case the primary election was held on the 27th day of May, 2022, and the Appeal Committee Report was submitted on the 31st day of May, 2022 and the 3rd Respondent’s publication was on the 25th day of June, 2022. Paragraph 18 of the Appellant’s Affidavit in Support of his Originating Summons on page 172 states thus:
“18. I was surprised when I discovered on the 25th of June, 2022 from the list published by the 3rd Defendant that the 1st Defendant forwarded the name of Kabiru Labbo Jega instead of my name as the Candidate for Aliero/Gwandu/Jega Federal Constituency of Kebbi State.”
It is clear from this piece of evidence that the Appellant only became aware on the 25th day of June, 2022, that the 1st Respondent did not submit his name as the winner of the primary election. By Section 285(9) of the 1999 Constitution, the Appellant has 14 days from the date of the 3rd Respondent’s publication of the 2nd Respondent as the Candidate for the Aliero/Gwandu/Jega Federal Constituency of Kebbi State. Looking at the time limit given by the Constitution the 2nd Respondent’s argument cannot fly. How is the Appellant expected to exhaust all internal dispute resolution mechanisms with a 14-day time limit? Additionally, by Section 84(14) of the Electoral Act 2022 the Appellant who is an aspirant has the right to redress notwithstanding the provisions of this Act or Rules of a political party. Section 84 therefore puts a hammer on the nail. The 2nd Respondent’s argument is of no moment and thus the Respondent’s Notice is dismissed.
In the final result, this Court finds merit in this appeal based upon all the findings and considerations made herein. The appeal is allowed and an order is hereby made setting aside the decision of the trial Court which dismissed the Appellant’s Originating Summons. An order is hereby made granting all the reliefs sought in the Originating Summons as follows:
1. It is declared that it is unlawful for the 1st Defendant to recognize the name of the 2nd Defendant or any candidate other than the Plaintiff as its candidate for Aliero/Gwandu/Jega Federal Constituency.
2. It is declared that it is unlawful for the 1st Defendant to change the name of the Plaintiff with the name of the 2nd Defendant in respect of the Primary election conducted by the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency, in which the Plaintiff emerged winner and was so declared by the 1st Defendant.
3. It is declared that any name of candidate submitted by the 1st Defendant to the 3rd Defendant not being the name of the Plaintiff for Aliero/Gwandu/Jega Federal Constituency, is unlawful, null and void.
4. An Order of mandatory injunction is made directing the 1st Defendant to accept and treat the Plaintiff as its candidate for Aliero/Gwandu/Jega Federal Constituency for 2023 Election.
5. An Order of mandatory injunction is made directing the 3rd Defendant to accept and treat the Plaintiff as the substantive candidate of the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency.
6. An Order of mandatory injunction is made compelling the 3rd Defendant to recognize and treat the Plaintiff as the substantive candidate of the 1st Defendant for Aliero/Gwandu/Jega Federal Constituency, for 2023 Election.
7. An Order of injunction is made restraining the 2nd Defendant for Aliero/Gwandu/Jega Federal Constituency, for 2023 Election.
8. There is no order as to cost.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the lead judgment delivered by my learned brother, Mohammed B. Idris, JCA. He decisively dealt with all the issues raised and canvassed in this appeal. I agree entirely with the reasoning and conclusion that the appeal is meritorious and should be allowed. I too allow the appeal and abide by all the consequential orders contained in the lead judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: My learned brother MOHAMMED BABA IDRIS, JCA availed me in advance his leading judgment. I am in agreement with his reasoning and conclusion on all the issues canvassed by parties in the appeal. Like my brother, I also see merit in the appeal, according I allow it and set aside the decision of the lower Court.
I abide by all the consequential orders contained in the leading judgment including as to costs.
Appearances:
S. Yusuf, Esq. with him, A. M. Jega, Esq. N. Sahabi, Esq. and A. Mohammed, Esq. For Appellant(s)
H. A. Oredola, Esq. with him, S. A. Gene, Esq. and A. Jega, Esq. – for 1st Respondent
I. Abdullahi, SAN, with him, S. Binji, Esq. S. A. Dauda, Esq. and O. Abdulrahman, Esq. – for 2nd Respondent For Respondent(s)
