MUHAMMAD v. PDP & ORS
(2022)LCN/17149(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, November 28, 2022
CA/KN/292/2022
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
MUHAMMAD JARMA MUHAMMAD APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY (PDP) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ISA SIDI SULEIMAN (ISA DAN SIDI KAFIN HAUSA) 4. DR. NURADDEEN MUHAMMAD RESPONDENT(S)
RATIO
WHETHER OR NOT ORAL EVIDENCE CAN BE USED TO ALTER, CORRECT OR EXPLAIN A WRITTEN DOCUMENTARY EVIDENCE
In law, oral evidence cannot be used to alter, contradict, correct or explain a written or documentary evidence. See the case of Ayorinde Vs Kuforiji (2022) LPELR – 56600 (SC):
“A reiteration of the law is that when any transaction or contract of any grant or other disposition of property has been reduced to the form of document or series of documents, no oral evidence shall be admissible in order to vary or contradict the contents of such document. The documents speak for themselves. See (38) UNION BANK OF NIGERIA V PROFESSOR OZIGI (1994) 3 S.C.N.J 42 AT 55. ANYAEGBURAM V. OSAKA (2000) 10 WRN 108 At 203 S.C. ADELAJA v. FANOIKI (1990) 21 NSCC PAR 1 PAGE 343. It is settled in law that a written contractional agreement cannot be varied by parole evidence nor altered by oral evidence.” Per PETER-ODILI, JSC. PER MBABA, J.CA.
WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE IN AN ACTION FOR DECLARATORY RELIEF
The law is trite, as rightly held by the learned trial Court, that in a declaratory relief, the Plaintiff must succeed, on the strength of his own case, and not on the weakness of the defence. See the case of Mohammed Vs Wammako & Ors(2017) LPELR – 42667 (SC); Osibe Vs Governing Council Akanu Ibiam Fed Poly Umuahia & Anor (2020) LPELR – 51759 CA; EDOSA & Anor Vs Ogiemwanre (2018) LPELR – 46341 (SC); MTN Vs Corporate Communication Investment (2019) LPELR – 47042 (SC); Ashakacem Plc Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR – 46541 (SC). PER MBABA, J.CA.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal against the decision of the Federal High Court in Suit No. FHC/DT/CS/06/2022, delivered on 24th October, 2022 by Hon. Justice Hassan Dikko, whereof the trial Court dismissed the claim of the Appellant (who was the plaintiff at the lower Court). The trial Court also annulled the primary election that produced the 3rd Respondent, on the ground that the said election was not conducted by the National Working Committee or National Executive Committee of the 1st Respondent and that the 2nd Respondent did not monitor the said conduct of the election.
At the trial Court, Appellant (as Plaintiff) had sought the following Reliefs:
a) A declaration of this honorable Court that the plaintiff having scored the majority of the number of votes cast at the primary election to determine the flag bearer of the 1st defendant to contest for the position of member of House of Representatives Federal Constituency of Hadejia/Auyo/Kafin Hausa, Jigawa State in the 2023 general election, held on the 22nd May, 2022 is hereby declared the winner.
b) A declaration of this honorable Court that the plaintiff is the 1st defendant’s candidate to contest for the position of member House of Representatives in the Federal Constituency of Hadejia/Auyo/Kafin Hausa, Jigawa State in the 2023 general elections.
c) A declaration is the 3rd defendant is not the legal, bonafide and valid candidate of the 1st defendant to contest for the position of member House of Representatives in the Federal Constituency of Hadejia/Auyo/Kafin Hausa, Jigawa State in the 2023 general elections, having scored the minority of votes cast at the primary election held on the 22nd May, 2022.
d) An order setting aside the purported submission of the name of the 3rd defendant to the 2nd defendant by the 1st defendant as PDP candidate for the 2023 general election for the position of member House of Representatives Hadejia/Auyo/Kafin Hausa Federal Constituency, having been done contrary to party guidelines and the Electoral Act.
e) An order compelling the 2nd defendant to recognize the plaintiff as the candidate of the 1st defendant for the position of member of House of Representatives, Hadejia/Auyo/Kafin Hausa constituency into the House of Representatives for the 2023 general elections.
f) An order of perpetual injunction restraining the 3rd defendant from parading himself as the winner of the primary elections into the National Assembly conducted on the 22nd day of May, 2022 for the Hadejia/Auyo/Kafin Hausa Federal Constituency organized by the 1st defendant.
g) Cost of filing and prosecuting this action to the N3,000,000 (Three Million Naira only).
h) Any further order or orders as this Court may deem fit to make in the circumstances of this suit. (See Pages 758 – 759 of the Records)
The gravamen of the Appellant’s contention at the trial is that he is a card-carrying member of the 1st Respondent; that he indicated interest to contest, and contested for the position of flagbearer of the 1st Respondent for the office of House of Representative, representing the Hadejia/Auyo/Kafin Hausa Federal Constituency in Jigawa State, in the forthcoming, 2023 general election; that he (Appellant) and the 3rd Respondent participated in the said primary election conducted on 22nd May, 2022; that in compliance with the Electoral Act, 2022, the 2nd Respondent (INEC), supervised the said primary election; that he (Appellant) was declared the winner of the primary election, with 55 Votes, as against the 44 Votes scored by the 3rd Respondent; that the result was declared, but the necessary forms to that effect were not filled by the 1st Respondent (Political Party), to give effect to the declaration.
Appellant said the 2nd Respondent (INEC), on its part, issued a comprehensive report and attached all the necessary forms, to prove that, indeed, it was the Appellant that won the Primary Election of 22/5/2022. Appellant also said that the 1st, 3rd and 4th Respondents had said that the officers appointed by the National Working Committee of the 1st Respondent, conducted the primary election, much later in the day, in the absence of officers of the 2nd Respondent, and that the election was contested by 3 candidates, as opposed to the one, won by the Appellant. Thus, the 1st, 3rd and 4th Respondents were putting up a case of a parallel primary election. Appellant sought the trial Court to determine which of the two primary elections complied with the provisions of the law, and should be recognized.
The 2nd Respondent (INEC) had filed Counter affidavit, to confirm the claims of the Appellant and had identified Exhibits D, D1, D2, and D3 as having been issued by INEC. Thus, 2nd Respondent recognized the election of the Appellant.
After hearing the case and considering the evidence adduced and addresses of Counsel, the trial Court held against the Appellant (as Plaintiff), and said on Page 43 of the judgment (Pages 796 – 797 of the Records), as follows:
(a) “The Court cannot grant the Plaintiff’s prayers on the sole ground that the primary election that he purportedly won, was not conducted by the panel appointed by the National Working Committee of the 1st Defendant, on the strength of the judicial pronouncements I earlier cited.
(b) The 2nd Defendant is hereby ordered to remove, delete, erase or cancel the name of the 3rd Defendant or any other name forwarded to the 2nd Defendant by the 1st Defendant as its candidate for the Federal Constituency of Hadejia/Auyo/Kafin Hausa of Jigawa State.
(c) Consequently, in the interest of justice and fairness, I hereby order for the conduct of a fresh primary by the 1st Defendant, pursuant to the extent law within 14 days”.
Dissatisfied by that decision, Appellant appealed to this Court, and the 1st, 3rd and 4th Respondents Cross appealed, as per the Notices of Appeal and Cross-Appeal on Pages 798 – 807 and 808 – 813, of the Records of Appeal, respectively.
Appellant filed his brief of arguments on 15/11/22 and distilled 5 Issues for the determination of appeal, as follows:
(1) Whether the learned trial Judge (sic) when he ignored the facts and the appellant’s submission to the effect that there was sufficient evidence to establish that the 1st Respondent, was caught by the principle of estoppel by conduct, to disentitle it from denying being the organiser of the election. (Grounds 4 and 6)
(2) Whether the learned trial Judge was right when he held that the appellant failed to prove his case on the balance of probabilities before dismissing his case. (Grounds 5 and 7)
(3) Whether the Learned trial Judge was right when he rejected Exhibit D3 and expunged same from the Record. (Ground 1)
(4) Whether the learned trial Judge was right when he failed to evaluate and ascribe probative value to Exhibits D, D1, and D2 admitted in evidence as well as the oral testimony of DW3 in his judgment. (Grounds 2 and 3)
(5) Whether learned trial Judge was right when having voided the primary election recognizing the 3rd Respondent as the 1st Respondent’s flagbearer, he went ahead to order for the conduct of fresh primaries within 14 days of the judgment. (Ground 8)
The Respondents – 1st, 3rd and 4th, filed a joint Brief on 18/11/2022 and distilled three (3) Issues for the determination of the appeal, as follows:
(1) Considering the evidence adduced by all the parties at the trial Court, whether the learned trial Judge was right when he holds (sic) that the Plaintiff has failed to prove his case and dismissed the Plaintiff’s case (Grounds 4, 5, 6 and 7)
(2) Whether the learned trial Judge had failed to properly evaluate exhibits D, D1, D2 and D3, vis-a-vis, the evidence of DW3. (Grounds 1, 2 and 3)
(3) Whether the learned trial Judge was right when he ordered for the conduct of fresh primary election within 14 days. (Ground 8)
The 1st, 3rd and 4th Respondents also filed a Cross-Appeal (which shall be discussed later).
The 2nd Respondent filed no Brief.
Arguing the appeal, Kabiru Abdulkarim Maude Esq, who settled the Brief, on Issue 1, said there was sufficient evidence to prove that the 1st Respondent had conducted the primary election on 22/5/22. He relied on the oral testimonies of PW1, PW2, PW3 and DW3, to the effect that the primary election was held on the said date – 22/5/22, and the Appellant participated in the election. He referred to page 745 of the Records, where the DW3, under cross-examination, admitted that the 1st Respondent’s party officials organised the election, supervised by him (DW3); that the Plaintiff emerged winner and was, accordingly, returned as the flagbearer of 1st Respondent in the forthcoming 2023 general elections; that exhibit D2 showed the result of the primary election, signed by one Nasiru Sparraw as the Chairman of the Electoral Panel.
Counsel said that, having established by Exhibit J, that the NWC (National Working Committee) of the 1st Respondent appointed the Committee that conducted the election and that the 2nd Respondent’s officials were notified and they graced the occasion, the 1st Respondent was bound by the result, by principles of estoppel. He relied on Section 169 of the Evidence Act and the case of A.G. Rivers State Vs A.G. Akwa Ibom State (2011) ALL FWLR (Pt.579) 1032; Chukwuma Vs Ifeloye (2009) ALL FWLR (Pt.460) 629; Rotimi Vs Faforiji (1999) 6 NWLR (Pt.606) 305.
On Issue 2, whether Appellant had proved his claim, contrary to the holding of the trial Court, Counsel answered in the affirmative. He relied on Sections 131 to 133 of the Evidence Act, 2011, and on some decided cases, on the burden of proof, which he said, Appellant had discharged, to deserve the judgment being given in his favour. Counsel also referred us to the pieces of evidence in favour of the Appellant, which he said the trial Court failed to evaluate properly, including the evidence of INEC (2nd Respondent’s witness), who identified Exhibit D3 and affirmed that Appellant won the primary election, conducted by 1st Respondent on the 22/5/22, and which 2nd Respondent (INEC) monitored. Counsel relied on Sections 82 and 84(1) of the Electoral Act, 2022, on the role of INEC in monitoring primary elections by Political parties.
He argued that the trial Court had a duty to accord respect to the evidence by the 2nd Respondent’s witness, DW3; especially as 2nd Respondent had confirmed the evidence of Appellant, and even issued Exhibits D, D1, D2 and D3, which required no further proof. He relied on the case of VEEPEE IND. LTD Vs COCOA IND. LTD (2008) LPELR – 3461; SOLANA VS OLUSANYA (1975) LPELR – 3097; OKEREKE VS STATE (2016) LPELR-40012; DURU VS DURU (2017) LPELR – 42490 (among other cases) and said that admitted facts by Defendant in a pleading should be regarded as established and constitute the facts that needed no further proof.
Counsel said that, Appellant and the 2nd Respondent had established that, on 22/5/22, the 1st Respondent conducted its primary election for the selection of its candidate for the House Representative, representing Hadejia/Auyo/Kafin Hausa Federal Constituency Jigawa State and the election was monitored by the 2nd Respondent (INEC) as stipulated by Section 84(1) of the Electoral Act, 2022; that Appellant won the election with 55 Votes as against 44 Votes by the 3rd Respondent, who came second.
Counsel said that the PW2 and PW3, both confirmed that the Panel that conducted the primary election, was headed by Nasiru Muhammad (Sparraw) and the same person was admitted by DW1 and DW2, witnesses for 1st, 3rd and 4th Respondents, as being a member of the Panel that conducted the election with the mandate of the 1st Respondent. Counsel said that since all the parties admitted that Nasiru Sparraw’s Panel conducted the primary election, the learned trial Judge should have come to that conclusion that the election was duly conducted by the party (1st Respondent); that the principle of estoppel applied against 1st Respondent, in the circumstances. He relied on the case of Adeosun Vs Gov. of Ekiti State (2012) 4 NWLR (Pt.1289) 602, on the validly of evidence procured under cross-examination:
“… it is settled law that evidence elicited from the cross-examination of a defence witness, which is in line with the facts pleaded by the Plaintiff, forms part of the evidence produced by the Plaintiff in support of facts pleaded in the Statement of Claim and can be relied upon in proof of the facts in dispute between the parties.” Per Onnoghen JSC (as he then was, later CJN).
On Issue 3, whether the trial Judge was right to reject Exhibit D3 and expunge same from the Records, Counsel answered in the negative. Counsel said the Exhibit D3 was the result of the election annexed to Exhibit D (the covering letter of the Electoral Officer forwarding the result). Counsel said that it is true that an unsigned document has no value in law, but that where the authorship of a document is not in doubt, the Court can admit it. He relied on Ashakacem Plc Vs Mubashshurun Inv. Ltd (2018) 77 NSCQR 109.
On Issue 4, whether the trial Court failed to properly evaluate and ascribe probative value to exhibits D, D1 and D2 admitted, as well as the testimony of DW3, in its judgment, Counsel answered in the negative. Counsel asserted that the trial Court, in arriving at its decision, failed to make pronouncement on the Exhibits D, D1 and D2 and on the testimony of the DW3. He said that the trial Court had a duty to evaluate the said evidence. He relied on the case Ishola & Ors Vs Folorunsho & Anor (2010) 10 SCM P.162; Anyegwu & Anor Vs Ouche (2009) 1 NMLR 1; Gbadamosi Vs Dairo (2007) FWLR (Pt.357) 812. He argued that if the trial Court had evaluated the said evidence and ascribed probative value to them, the conclusion it made would have been different. He urged to hold that the decision was perverse by reason of failure to consider the said Exhibits D, D1, D2 and the testimony of DW3. He relied on Olado Vs Josih (2011) ALL FWLR (Pt.573) 1 SC; Magaji Vs Odofin (1978) 4 SC 91; Morenikeji Vs Adegbosin (2003) FWLR (Pt.163) 45; Guardian Newspaper Ltd Vs Ajeh (2011) ALL FWLR (Pt. 584) 1 SC; Fayehun Vs Fadoju (2000) FWLR (Pt.7).
On Issue 5, whether the learned trial Court was right when having voided the primary election recognising the 3rd Respondent as 1st Respondent’s flagbearer, went ahead to order for the conduct of fresh primaries within 14 days, Counsel answered in the negative. He relied on several authorities to say that the Court cannot play the role of a father – Christmas, granting reliefs not sought. He relied on the case of A.G. Abia State Vs A.G. Federation (2006) 16 NWLR (Pt.1005) 265; Agbi Vs Ogbe (2006) 11 NWLR (Pt.990) 65; Shena Security Co. Ltd Vs Afropak Nig. Ltd & Ors (2008) 24 NSCQR (Pt.11) 287; ALH. M.B. Awodi & Anor Vs Mallam Saliu Ajagbe (2014) LPELR- 24219 SC and Goyang Kayili Vs Esly Yilbuk & Ors (2015) LPELR – 24323 (SC). He added that a Court can only grant relief sought, if same is proved on the preponderance of evidence. He argued that the order for fresh primaries was never sought and urged us to set it aside. He relied on the case of Registered Trustees of Winners Chapel Vs Ikenna (2018) LPELR-45767 CA; Somide Vs Oganla: CA/IB/345/2013.
Counsel urged us to resolve the Issues for the Appellant and to allow the appeal.
Responding, Counsel for 1st, 3rd and 4th Respondents, Saleh Umar Esq, on their Issue 1, said that, since the main claim of the Appellant was declaratory in nature, he was bound to rely on the strength of his own case to establish same. He relied on Nduul Vs Wayo & Ors (2018) LPELR – 45151 SC.
Counsel argued that the onus of proving that the primary election that produced him was conducted by the 1st Respondent’s appointed Electoral Committee on 22/5/2022, was on the Appellant; that in the attempt to discharge that duty, Appellant had testified as PW1; called PW2 and PW3 and relied on Exhibits A1, A2, A3, B, C, D, D1, D2 and D3. He argued that the said evidence did not aid Appellant; that Appellant had a duty to plead and establish that the said primary election was organised and conducted by the Electoral Officers appointed by the 1st Respondent’s National Working Committee, as provided by Exhibit J – 1st Respondent’s Electoral Guidelines.
Counsel said that the trial Court was right to dismiss Appellant’s claim, as the Panel that conducted the Primaries that produced Appellant did not satisfy the requirements of Exhibit J. He argued that the 4th Respondent was a National Delegate and so potential voter at the Primary election, and so could not have qualified to preside over the Panel that conducted the Primaries; Counsel said it was conflicting, when Appellant also said it was one Nasiru Muhammad Sparraw that presided over the election panel. He added that failure to prove that the National Working Committee of the 1st Respondent was the authority that appointed the Committee that conducted the Primaries that produced Appellant as winner, was fatal to his case. He relied on the case of Etim Vs Akpan (2023) (sic) (2018) LPELR – 44904 (SC), to the effect that only the National Executive Committee or National Working Committee of a Party has the power to conduct primary elections. He also relied on Yar’Adua & Ors Vs Yandoma & Ors (2014) LPELR – 24217 (SC) at 78 – 79. Counsel referred us to the paragraphs of their statement of defence, where they denied the Committee that conducted the primary election that produced the Appellant. Counsel argued that having pleaded and led evidence that 4th Respondent was the one that presided over the Electoral Panel, it became laughable for Appellant to say, under cross-examination, that it was Nasiru Muhaamad Sparraw that presided over the said primary election; he said that that was a contradiction the trial Court was not free to pick and choose which one was correct. He relied on the case of Zakarai Vs Muhammad (2018) ALL FWLR (Pt.964) 1913; Achonu Vs Okuwobi (2017) LPELR – 42102 SC.
Counsel said that the principle of estoppel cannot apply to this case; and that it has never been invoked in pre-election matter, even where it was established that State Chapter of a party conducted a primary election complained of. He relied on Yar’Adua Vs Yandoma (supra); Ogara Vs Asadu & Ors (2014) LPELR – 22862 (CA).
On Issue 2, whether the learned trial Judge had failed to properly evaluate Exhibits D, D1, D2, vis-a-vis, the evidence of DW3, Counsel answered in the negative. Counsel said that the Appellant’s Counsel did not even point out how the trial Court failed to evaluate the said pieces of evidence; and that he merely said that the trial Court ignored Exhibits D, D1, D2 and testimony of the DW3.
Counsel referred us to pages 788 – 789 of the Records of Appeal (judgment) to say that, in view of that, the trial Court did not ignore the said pieces of evidence; that the trial Court had exhaustively considered the same and found that the exhibits were showing contradictory dates of conduct of the primary election the Appellant claimed to have won; that while Exhibits D and D1 showed that the primary election was conducted on 22/5/2022, the Exhibit D2 said it was conducted on 21/5/2022, while Exhibit D3 showed that it was conducted on 23/5/2022!
On the rejection of Exhibit D3, Counsel said the law is trite that any documentary evidence that is not signed is a worthless piece of paper. He relied on Omega Bank (Nig) Plc Vs O.B.C Ltd (2005) LPELR – 2636 (SC); APGA Vs Al-Makura & Ors (2016) LPELR – 47053 (SC); Davidson & Ors Vs INEC (2021) LPELR – 52805 (CA) (among other cases). He added that the case of Ashakacem Plc Vs Mubashshurun Inv. Ltd (supra) is not applicable to this Appeal, as it is distinguishable.
On Issue 3, whether the learned trial Judge was right to order a fresh primary election within 14 days, Counsel agreed with the submission of Appellant, that the Court cannot be a father Christmas, to grant reliefs not sought. But he argued that that principle of law has some exceptions, thus while the Respondents’ Counsel agreed that the trial Court acted as father Christmas to direct that a fresh primary election be held within 14 days, which was not asked for, Counsel however relied on the case of Amaechi Vs INEC & Ors (2008) LPELR – 446 SC, to say that, the Court can, by way of consequential orders, grant what was not specifically asked for. He said that the Courts, in pre-election matters, have power and jurisdiction to grant reliefs, even where such was not specifically prayed for, by the parties, in order to do justice to the case.
Counsel relied on the case of Bauchi State Gov. & Anor Vs Yusgate (Nig) Ltd (2017) LPELR – 43306 CA; Akpanudoedehe & Ors Vs Akpabio & Ors (2011) LPELR-4944 CA; and the case of Global Soap & Detergent Ind. Ltd Vs NAFDAC (2011) LPELR – 4202, where it was held:
“On a Court granting an order that was not solicited for by a litigant before a Court, it is trite that a Court is not a father – Christmas, however a Court, though not a father Christmas, has discretion to grant or make orders that will justify the case before it. Gone are the days when Judges were zombies. A Judge can use his discretion for a good course… A Court of law has the discretion to look at all the documents in its possession to come to a judicious and reasonable conclusion.”
Counsel therefore answered the 3rd Issue in the affirmative and urged us, on the whole, to dismiss the Appeal.
RESOLUTION OF THE ISSUES
I shall collapse the five Issues raised by Appellant into two, namely:
(1) Whether in the light of the evidence before the lower Court, including the Exhibits D, D1, D2 and the testimony of the DW3 (INEC), the trial Court was right to dismiss Appellant’s claim, that it won the primary election conducted by 1st Respondent on 22/5/2022?
(2) Whether, after dismissing the case of Appellant and holding that the 3rd Respondent was not validly elected as the flag bearer of the 1st Respondent, the trial Court was right to Order for fresh primaries to select the candidate of 1st Respondent, within 14 days?
A brief facts of this case at the lower Court, shows that both the Appellant and the 3rd Respondent had contested for the primaries election of the 1st Respondent, on 22/5/2022, to select its candidate for the forthcoming 2023 general elections, for the House of Representative, representing the Hadejia/Auyo/Kafin/Hausa Federal Constituency of Jigawa State. Apparently, parallel primaries were conducted by the two factions of the 1st Respondent in the State. While Appellant won the primaries conducted by one Nasiru Muhammad Sparraw, said to be the head of the Electoral Committee, set up by the National Working Committee of the 1st Respondent, and the election was monitored by INEC, another group conducted the same Primaries (after the one monitored by INEC had concluded its work).
Ostensibly, a section of 1st Respondent favoured the 2nd primary election that produced the 3rd Respondent, and that led to a stalemate, as the 1st Respondent failed to forward the name of the Appellant to INEC (2nd Respondent). The Appellant also made unpardonable error by pleading that 4th Respondent was the person who presided over the Panel that conducted the primaries that produced him as winner!
The trial Judge held on Pages 788 – 790 of the Records, as follows:
“On the question of whether or not the primary Election for Hadejia/Auyo/Kafin/Hausa Federal Constituency of Jigawa State was held on the 21st, 22nd or 23rd of May, 2022, it is not in doubt that there are exhibits before me, indicating diverse dates on which the Primary Election was purportedly held. Exhibits C, D, D1 and G all demonstrates that the Election took place on the 22nd day of May, 2022. Exhibit D2 on the other hand shows that the same Primary Election was held on the 21st May, 2022, while Exhibit D3 mentioned 23rd May, 2022. I will discountenance the Plaintiff’s reliance on Section 132 of the Evidence Act to argue that the dates have been reconciled by the PW3. I agree with the 1st, 3rd and 4th Defendants, that it is not these documents that are wrongly dated to be subjected to correction by oral testimony, it is the date of the activity that documents are produced in respect of, that have been purportedly wrongly stated, and this cannot be cured with oral evidence.
In my humble view, the relevant documents to prove date of the primary election is the result of the election and before me are two results of the Election in Exhibits D3 and G from the 2nd and 1st Defendants, respectively. An examination of the exhibits revealed that, while Exhibit D3 has 23rd May, 2022 as the day of the Election, Exhibit G indicates that it was held on the 22nd May, 2022. Now a close examination of Exhibit D3 shows that it is neither signed nor dated and that it is settled law that unsigned document is a worthless document, without any evidential value. See Davidson & Ors Vs INEC (2021) LPELR – 5280 CA…
I consider Exhibit D3 inadmissible for reasons advanced earlier, and it is hereby expunged from evidence… Having so settled, I hold that the Primary Election in issue held on the 22nd day of May, 2022, as captured on Exhibit G…
On the effect of evidence elicited during cross-examination. It is trite law, that evidence elicited during cross-examination, if it relates to a fact in issue, has the same probative value, and is as valid and authentic, as evidence elicited during examination-in-chief. See Otuu Vs Agha & Ors (2020) LPELR – 51941 (CA). The Plaintiff argued that evidence is elicited from DW1 and DW2, where the witnesses answered that Nasiru Muhammad headed the election panel in corroboration of the evidence of PW2 and PW3. I do not see how the Plaintiff intends to utilize the purported elicited evidence in his favour, having stated in his entire statement of claim that the primary election was headed by the 4th Respondent. Flowing from this, even if the evidence elicited were to count in favour of the Plaintiff, it will directly contradict the pleadings of the Plaintiff. Evidence of the adverse party can only work for a party where it supports that party’s case, not where it states to the contrary. See Kwara Co-operative Federation & Ors Vs Yusuf (2014) LPELR – 23793 CA…”
I think the above findings and holding of the trial Court was an excellent appraisal of the evidence and application of the law, in the circumstances of the case.
Though the facts cannot be disputed that the 2nd Respondent (INEC) monitored the Primary Election conducted by the Panel said to have been headed by the said Nasiru Muhammad (Sparraw), which was the authentic Electoral Committee, set up by the 1st Respondent for the election, the documentation exhibited by INEC to support the said primary election (Exhibit D3) was not signed, nor dated, but had alleged date of activity (stated by whoever filled it) as “23rd May, 2022” See Page 601 of the Records of Appeal. And to compound Appellant’s problems, his pleading had slated, consistently, that the person who headed the Panel that conducted the primaries that produced him (Appellant) as the Winner of the primary election on 22/5/2022, was the 4th Respondent! See Paragraphs 5, 11 and 21 of the Statement of claim (Pages 7 – 10 of the Records of Appeal), and paragraphs 8 and 18 of Appellant’s Statement on Oath (Pages 17 and 19 of the Records of Appeal). Such blunders in the pleading and the conflicts in the dates on the documents, were fatal.
Thus, the evidence elicited, under cross-examination, which would have eloquently accrued to the benefit of the Appellant, lapsed into insignificance as those admission by the Respondents rather conflicted the particulars of the primary election that produced Appellant as the winner. Since there was no evidence to show that the 4th Respondent, touted by the Appellant in his pleadings as the head of the Panel that conducted the election, was the authentic Committee set up by the National Working Committee of the 1st Respondent, Appellant had therefore, sabotaged his own case/interest with such pleading, and evidence, and he could, therefore, not take advantage of the generous admissions by the 1st, 3rd and 4th Respondents, and the evidence of DW3!
In law, oral evidence cannot be used to alter, contradict, correct or explain a written or documentary evidence. See the case of Ayorinde Vs Kuforiji (2022) LPELR – 56600 (SC):
“A reiteration of the law is that when any transaction or contract of any grant or other disposition of property has been reduced to the form of document or series of documents, no oral evidence shall be admissible in order to vary or contradict the contents of such document. The documents speak for themselves. See (38) UNION BANK OF NIGERIA V PROFESSOR OZIGI (1994) 3 S.C.N.J 42 AT 55. ANYAEGBURAM V. OSAKA (2000) 10 WRN 108 At 203 S.C. ADELAJA v. FANOIKI (1990) 21 NSCC PAR 1 PAGE 343. It is settled in law that a written contractional agreement cannot be varied by parole evidence nor altered by oral evidence.” Per PETER-ODILI, JSC.
The law is trite, as rightly held by the learned trial Court, that in a declaratory relief, the Plaintiff must succeed, on the strength of his own case, and not on the weakness of the defence. See the case of Mohammed Vs Wammako & Ors(2017) LPELR – 42667 (SC); Osibe Vs Governing Council Akanu Ibiam Fed Poly Umuahia & Anor (2020) LPELR – 51759 CA; EDOSA & Anor Vs Ogiemwanre (2018) LPELR – 46341 (SC); MTN Vs Corporate Communication Investment (2019) LPELR – 47042 (SC); Ashakacem Plc Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR – 46541 (SC).
It was Appellant’s duty to plead and lead evidence to establish that the panel that conducted the election that produced him on 22/5/22 was set up by the National Working Committee of the 1st Respondent, headed by Nasiru Muhammad Sparraw (not by the 4th Respondent). The law is well settled to that effect. See the case of Mbata Vs Umezurike & Ors (2019) LPELR- ; Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556; and Eze Vs PDP & Ors (2018) LPELR – 44907 (SC), where, my Lord Eko JSC, said:
“… the only legitimate or valid primary election of a political party is the primary election conducted by the electoral panel constituted by either the National Working Committee (NWC) or the National Executive Committee (NEC) of the political party.”
See also Yar’Adua & Ors Vs Yandoma & Ors (2014) LPELR – 24217 (SC), where the Supreme Court held:
“… primary election conducted by the State Executive Committee of a Political party is not recognized by the Electoral Act, 2010 (as amended). Section 87(4) of the Act vests that power on the National Executive Committee of the party. A primary election conducted by the State Executive Committee of a political party is illegal.” Per Peter-Odili JSC.
I think the trial Court had evaluated the evidence, properly, before coming to its conclusion, as it did. I therefore resolve Issue 1 against the Appellant, unfortunately, due to the flaws in the pleading and conflicts of dates in the documents of the primary election.
Was it proper to order for fresh primary election, in the circumstances, when the trial Court found that the primary election that produced the 3rd Respondent was equally faulty? Appellant’s Counsel had argued that there was no relief sought for conduct of fresh primaries, and that the Court not being a father Christmas that dishes out gifts, unsolicited, cannot grant any relief not prayed for or sought by the parties. While the Respondents’ Counsel agreed with this legal principle, Counsel for 1st, 3rd and 4th Respondents, however, said that the Court can make consequential orders, where necessary, in the interest of justice. He relied on the case of Amaechi Vs INEC & Ors (2008) LPELR-446 SC and Global Soap & Detergent Ind. Ltd Vs NAFDAC (2011) LPELR – 4202 (CA) (among other cases).
Though Respondents’ Counsel did not say that the order to conduct fresh primary election, within 14 days, was a consequential order, in the circumstances of this case, I cannot see how a Political Party that failed to comply with the mandatory provision of the Electoral Act, to select its flagbearer, because of in-fighting by its leaders, and sabotage of the process, as result of intrigues and moves to impose candidate that did not win the primaries conducted by authentic Panel (led by Nasiru Muhmmad Sparraw), can deserve a second chance, to conduct a fresh primary election, after the deadline given by INEC to do so has lapsed. See Section 84(13) of the Electoral Act, 2022 says:
“Where a Political Party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”
Section 84(5) (c)(i) (ii) of the Electoral Act states:
“A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined:
(c) in the case of nominations to the position of a Senatorial Candidate, a Member of the House of Representative and a Member of a State House of Assembly, where it intends to sponsor candidates:-
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for aspirants of their choice in designated centres on specified dates, and
(ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirants’ name shall be forwarded to the Commission as the candidate of the party.”
Of course, the facts of this case, show that the 1st Respondent had bungled the conduct of the said primaries election, as earlier stated in this judgment, and so failed to comply with the provisions of Section 84(13) of the Electoral Act. The 1st Respondent had therefore used up, its chance to produce any credible candidate to stand election for it to the said election to the House of Representative for Hadejia/Auyo/Kafin/Hausa Federal Constituency of Jigawa State, having failed to conduct acceptable primary election at the time stipulated and/or transmit the name of the winner of that election to the 2nd Respondent (INEC). The 1st Respondent cannot therefore be rewarded for its intransigence by way of time to conduct fresh primary election, as the order of the learned trial Judge would appear to imply, in my opinion.
Going by the provision of Section 33 of the Electoral Act, it would appear that the only circumstance in which a political party can be allowed to conduct a fresh primary to select a candidate to stand election is in the case of withdrawal or death of candidate. See the proviso to that Section 33 of the Electoral Act, which says:
“In the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the commission for the election concerned.”
That suggests also that a Political Party that failed to conduct credible primaries to select its candidate, at the time allowed all the Political Parties to do so, has forfeited its chance, and cannot complain! And when the window for withdrawal of candidates has expired, there cannot be any withdrawal or substitution of candidate, or room to conduct fresh primaries to fill an office, except in the occurrence of death, before the general election, planned. See again Sections 33 and 34 of the Electoral Act, 2022.
That means, the order for conduct of fresh primary election by the 1st Respondent, as ordered by the trial Court, does not appear to situate properly in the new Electoral Act, 2022, as that would tend to give the 1st Respondent undue advantage and or pampering.
I therefore set aside that order to conduct fresh primary election, especially as there was no relief sought to accommodate that, and it cannot be a consequential order, in the circumstances.
This appeal therefore succeeds, in part, with respect to the order for conduct of fresh Primary Election, within 14 days, which is hereby set aside. On the whole, the appeal fails and is hereby dismissed, while also setting aside the order for fresh primary election.
Parties to bear their respective costs.
CROSS APPEAL
The Cross-Appellants filed their Notice of Cross-Appeal on 8/11/22, as seen on Pages 808 to 813 of the Records of Appeal. They filed their Cross Appellants’ Brief on 14/11/2022 and distilled 2 (two) Issues for the determination of the Cross Appeal, as follows:
(1) Whether the learned trial Judge was right when he dismissed the preliminary objection of the Cross Appellants (Grounds 2, 3 and 4)
(2) Whether the learned trial Judge was right when he cancelled and annulled the 1st Cross Appellant’s primary election that produced the 3rd Cross Appellant as their party’s candidate for Hadejia/Auyo/Kafin/Hausa Federal Constituency in the forthcoming 2023 General Election. (Ground 5)
The Cross Respondent filed his Brief of arguments on 21/11/2022 and adopted the Issues as distilled by the Cross Appellants, but with slight modifications.
Again, the 2nd Respondent filed no Brief.
On Issue 1, the Cross Appellants’ Counsel, Saleh Umar, Esq, said the trial Court was wrong to dismiss the preliminary objection raised by the Cross Appellants at the lower Court, challenging the competence of the suit, as the Plaintiff did not exhaust the internal dispute resolution mechanism of the 1st Defendant before filing the suit.
The trial Court had held that “the precondition for instituting a suit in the 1st Defendant’s Guidelines cannot stand in the Plaintiff’s way to seek redress in the Court of law.”
Counsel argued that it is trite that each and every member of a political party is bound by the provisions of the party’s Constitutions, Regulations and Guidelines, which were made pursuant to the said Party’s Constitution; that the party member is not allowed, with impunity, to disregard such provisions of the party’s Constitution, Regulations and Guidelines. He relied on Gana Vs SDP & Ors (2019) LPELR – 47153 (SC); PDP & Ors Vs NWEBONYI & Ors (2022 LPELR – 57144 (CA).
Counsel referred us to Paragraph 4(d) of part VII of the 1st Cross Appellant’s Electoral Guidelines for Primary Election, 2022, which states:
“Any complaint, disputes or Petitions arising from the screening or elections or other conduct, shall be submitted to the Election Appeal Panel at the appropriate levels in writing within 24 hours of completion of the Primary Elections.”
Of course, Cross Appellants’ Counsel appeared to have repeated the same arguments raised at the trial Court, which the trial Court ruled on, that the provisions of the party’s guidelines cannot override the Plaintiff’s constitutional right to seek redress in Court.
The Cross Appellants’ Counsel had also relied on the case of Aliyu Vs APC & Ors (2022) LPELR – 57345 (SC), which he quoted, extensively.
Arguing that Issue, the learned Counsel for Cross Respondent, K.A. Maude Esq, observed that the 1st Cross-Appellant had refused to issue the necessary form PD004HR, to effectively complete the primary election process, conducted on 22/5/2022, as required by its Electoral Guidelines, which would have mandated the Cross Respondent to file a complaint, within 24 hours. Thus, he said that there was no basis upon which to expect the Plaintiff to even file the complaint! Counsel said the 1st Cross Appellant’s officers had refused to fill and submit the requisite forms, after declaring the Cross Respondent winner; that upon failing to issue the prescribed forms to Cross Respondent (who won the primary election and could not have been a complainant), the Cross Respondent could not have filed any complaint to the same 1st Cross-Appellant, who appeared bent on frustrating the said primary election; he said that the 1st Cross-Appellant had therefore attempted to manipulate the elections, which attempt was resisted by the 2nd Respondent (INEC) which monitored the election and had the credible result.
RESOLUTION OF THE ISSUE ONE
It is rather interesting to note that the Cross-Appellants are those raising the Issue of failure of the Cross Respondent to comply with the provisions of the Party Constitution and Guidelines on the need to explore and satisfy the internal disputes resolution mechanism of the party, before resorting to seeking Court remedy, and relying on Paragraph 4(d) of Part VII of the said 1st Cross Appellant’s Guidelines.
But I think the Cross-Appellants were quite hypocritical and mischievous in raising that preliminary objection, when they (particularly 1st Cross-Appellant) were the very persons doing everything, strangely, to sabotage their said Constitution and Guidelines, doing this to ensure that the result of the primary election, said to be in favour of the Cross Respondent, was manipulated and aborted. They failed to fill and issue the necessary form PD004/HR to acknowledge the victory of Cross Respondent.
Of course, the Cross Respondent who had been declared the winner of the primary election, could not have anticipated that he would be the complainant about the election he won, to warrant filing complaint within 24 hours of the election!
And after tactfully, failing to issue the requisite form, and ensuring that the 24 hours (after the election on 22/5/22) had lapsed, how and when could the Cross Respondent have complied with the said appeal for the resolution of the purported dispute, before filing his action in Court, pursuant to Section 84(14) of the Electoral Act, 2022?
And to think that the 1st Cross-Appellant, who orchestrated all the frustration of the Cross Respondent, was the one to be appealed to, with complaint for post-election dispute resolution, would make the thought of it quite sickening, in the circumstances! It is like being asked to embrace the same person who is responsible for your suffering and appeal to him to solve your problem!
Certainly, such dispute resolution mechanism was not available or applicable in this case, to override the provisions of Section 84(14) of the Electoral Act, 2022, and the Constitutional provision of Section 285(9) of the 1999 Constitution (as amended) to seek redress.
By the Section 84(14) of the Electoral Act:
“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 political 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.”
And the Plaintiff was allowed only 14 days, from the date of the accrual of the cause of action (usually the date of the event – conduct of the election) to file the suit. See Section 285(9) of the 1999 Constitution, as amended.
The case of Aliyu & Ors Vs APC & Ors (Supra) cited and relied upon by Cross-Appellants, says:
“I agree with the sound restatement of my learned brother that political parties and their members should have faith in the internal dispute resolution mechanisms prescribed in their party constitution. A member of a political party has by his membership of that party agreed to be bound by the Constitution of the political party and the majority decision of the party. Having subscribed to the membership of the political party he has agreed to be bound by the Constitution and the decision of the party contained in its guidelines and other of its documents. So that he must comply with the provisions of the party Constitution on how disputes over the internal affairs of the party can be resolved in keeping with the legal doctrine that the internal affairs of a political party are non-justiciable and therefore not subject to the judicial powers of Courts. Even where a statute expressly confers on him a right of action in Court over any aspect of the internal affairs of the party, he cannot exercise that right without first invoking and exhausting the internal dispute resolution mechanisms of the party prescribed in the political party Constitution. With respect to elections under the Electoral Act, Section 87 (9) of the Electoral Act 2010 (now Section 84 (14) of the Electoral Act 2022) gives an aspirant in a primary election of the candidate of a party, the right of action in Court to complain that the Constitution or Guidelines of the political party was not followed in selecting or nominating his co-aspirant as candidate of the party for a general election and gives the Court jurisdiction over a very narrow part of the internal affairs of a political party relating to nomination or selection of its candidate for an election. An aspirant 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. This is because the internal mechanisms for resolving disputes arising from party primaries is part of the process of selecting the party’s candidates for general elections.” Per AGIM, JSC
The above is a good law on the need to explore and exhaust all the available disputes resolution mechanisms of a party, before resorting to Court action. But that case is not applicable to this matter, as earlier stated, for the reasons also stated above. I therefore resolve the said Issue 1 against the Cross-Appellants.
On Issue 2, whether the trial Court was right when it cancelled and annulled the 1st Cross Appellant’s primary election that produced the 3rd Cross-Appellant as their party’s candidate for the said election, Counsel had answered in the negative.
Of course, the Cross Respondent’s Counsel had agreed with the position of the learned trial Court on the Issue.
RESOLUTION OF ISSUE 2
The parties’ submissions on this Issue remained as canvassed in the main appeal, whereof I had earlier ruled, that the learned trial Judge was right when it held that the purported primary election that produced the 3rd Cross Respondent was not monitored by the 2nd Respondent (INEC) as required by Section 84(1) of the Electoral Act, 2022; thus invoking the provisions of Section 84(13) of the Electoral Act, to nullify the alleged election. Section 84(13) of the Act, says:
“Where a Political Party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in Issue.”
The trial Court had held:
“The 1st Defendant’s Primary election for the Federal Constituency of Hadejia/Auyo/Kafin/Hausa is hereby declared null and void for noncompliance with Section 84(1) of the Electoral Act, 2022 and the 1st Defendant’s Guidelines for the Conduct of Primary Election.”
The 2nd Defendant is hereby ordered to remove, delete, erase or cancel the name of the 3rd Defendant or any other name forwarded to the 2nd Defendant by the 1st Defendant as its candidate for the Federal Constituency of Hadejia/Auyo/Kafin Hausa of Jigawa State forthwith.” (See Pages 796 – 797 of the Records of Appeal).
I cannot fault that sound holding, and the same is hereby affirmed. This Cross-Appeal is, therefore, dismissed for lacking in merit.
The Cross-Appellants shall pay cost of this Cross Appeal assessed at N500,000.00 (Five Hundred Thousand Naira) only to the Cross Respondent.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother ITA G. MBABA, J. C, A. I am in complete agreement with his reasoning and conclusion on both appeal and cross-appeal. I also fail to see merit in them and accordingly hereby dismiss them.
I abide by all the consequential orders of his Lordship, including as to costs.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother ITA G. MBABA, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.
Appearances:
KABIRU ABDULKARIM MAUDE, ESQ. with him, SHAMSI UBALE JIBRIL, ESQ. For Appellant(s)
SALEH UMAR, ESQ. – for 1ST, 3RD AND 4TH RESPONDENTS/CROSS APPELLANTS. For Respondent(s)
