ORHENA ADUGU GBILEVE & ANOR V. MRS. NGUNAN ADDINGI & ANOR
(2012)LCN/5233(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of March, 2012
CA/MK/149/2011
RATIO
THE POSITION OF LAW ON THE POINT THAT THE EXCLUSIVE ROLE OF NOMINATION AND SPONSORSHIP OF A CANDIDATE TO CONTEST FOR ANY ELECTION IS THAT OF A POLITICAL PARTY.
I take cognizance of the position of law in a catalogue of cases cited on the point that the exclusive role of nomination and sponsorship of a candidate to contest for any election is that of a political party. It is not in dispute that the Apex court in a number of cases has held that the issue of nomination and sponsorship of an election candidate is within the domestic affairs of the political parties. However it is my respectful view that by the provision of section 87(9) of the Electoral Act as amended the right to question any conduct or act of a political party following primaries or nomination arises once an aspirant complains of non-compliance with the provisions in the Electoral Act and party guideline. The Electoral Act has safeguarded that right in an aggrieved party aspirant. Therefore once a political party decides to adopt the process of nomination of candidates by conduct of election the party must comply with the provisions of the Electoral Act as amended. The acts of political parties which is not in compliance with the provisions of the law cannot be regarded as a domestic affair of the political party any more. Any aspirant in a primary election acquires a justiciable right to approach the federal High Court or High court under section 87(9) of the Electoral Act. The intendment of the provision under section 87(9) supra is to checkmate political parties. In Ezeigwe v. Nwawulu & Ors (2010) 2-3 SC (Pt. 1) Pg the Supreme Court held: “The need to scrutinize how the candidates emerged and especially whether or not the provisions of the constitution of the affected political party were adhered to in the emergence of the candidates was necessitated, a pronouncement has to be made as to which of the two candidates the political party ended up nominating was so nominated by the due process” The Supreme Court in the unreported consolidated appeal No. SC/157/2011 and SC 334/2011 in LADO v. CPC delivered on 15th December, 2011 held that where there are two primaries held by the same political party in respect of same seat the issue of nomination becomes a political party affair and the court has no business choosing a candidate for the party based on the dual primary election. PER. REGINA OBIAGELI NWODO, J.C.A.
EVIDENCE: THE DUTY OF A COURT WHEN FACED WITH AFFIDAVIT EVIDENCE WHICH ARE IRRECONCILABLY IN CONFLICT
The general rule enunciated in Falobi v. Falobi (1976) 9 – 10 SC 1 is that when a court is faced with affidavit evidence which are irreconcilably in conflict the court should hear oral evidence to resolve the conflict. Where proceedings in a court are by affidavit evidence it is important that conflicts in such affidavits are not glossed over. The court is enjoined to look at the nature of the conflict. When facts are deposed in an affidavit the purpose of a counter affidavit is to contradict those facts and not to merely set up a distinct fact as defence. Where the conflict arising from affidavit and counter affidavit depositions are not on material issue, the court calling for oral evidence becomes unnecessary. PER. REGINA OBIAGELI NWODO, J.C.A.
EVIDENCE: THE CONCEPT OF DOCUMENTARY EVIDENCE
Documentary evidence is used as a hanger from which to test the veracity of evidence whether oral or by deposition. It is also settled that it could be used to resolve an issue or conflicting evidence as the court below rightly relied on the documentary evidence to revolve the dispute. Documents speak for themselves. PER. REGINA OBIAGELI NWODO, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. ORHENA ADUGU GBILEVE
2. ACTION CONGRESS OF NIGERIA Appellant(s)
AND
1. MRS. NGUNAN ADDINGI
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): The second Appellant, Action Congress of Nigeria, (ACN) conducted party primaries for nomination into the elective offices for the House of Representatives, Senate, State House of Assembly and Governorship on the 12th of January, 2011. The 1st appellant was declared the winner and the candidate of the 1st Appellant for the House of Assembly Buruku Constituency. The 1st Respondent Mrs. Ngunan Addingi dissatisfied with the declaration commenced an action as the plaintiff in the Federal High Court vide an Originating summons filed on the 14th February, 2011 wherein she claims the following reliefs:
1. A DECLARATION that having conducted a Primary Election in the Buruku Constituency of Benue State on the 12th January 2011, for the purpose of nominating the 1st Defendants candidate for the General Election stated for the 6th April 2011, it is mandatory for the 1st Defendant to nominate the winner of said Primary Election, as the party’s flag bearer for the purpose of participating and contesting in the Buruku constituency of Benue State slated for 6th April 2011, in accordance with the Electoral Act 2010 and the 1st Defendant’s guideline for the nomination of candidates.
2. A DECLARATION that the Plaintiff having scored the highest number of votes and declared winner by the electoral officer in the 12th January, 2011 Primary Election of the 1st Defendant she is entitled to fly the 1st Defendant’s House of Assembly flag for Bukuru constituency for the 6th April Election in the General Election in Benue State in accordance with Section 87 of the Electoral Act, 2010.
3. A DECLARATION that the refusal of the 1st Defendant to submit the name of the Plaintiff to the 2nd Defendant as the 1st Defendant’s flag bearer for the General Election into the Makurdi South Constituency House of Assembly in Benue State slated for the 6th April, 2011 after winning the Primary Election contrary to the provisions of the Electoral Act, 2010 and the 1st Defendant guidelines for nomination of candidates.
4. A DECLARATION that it is illegal, unlawful and contrary to both the Electoral Act 2010 and the 1st defendant’s guideline for the 1st Defendant to submit the name of the 3rd Defendant to the 2nd Defendant as the House of Assembly candidate for Buruku constituency of Benue Sate in the General Election slated for 6th April 2011, after the Plaintiff emerged as the winner of the House of Assembly Election Primaries of Buruku constituency of Benue State conducted by the 1st Defendant to pick it’s House of Assembly candidate for the said Election.
5. AN ORDER of injunction restraining the 2nd defendant either by itself, officers agents privies, staff of through any person or persons howsoever from recognizing, accepting or dealing with the 3rd defendant as flag bearer of the 1st defendant in the April 6th 2011 General Election having not emerged in accordance with the Electoral Act, 2010.
6. AN ORDER directing the defendants particularly the 2nd Defendant to recognize, accept, and deal with the Plaintiff as the flag bearer of the 1st Defendant in the Buruku House of Assembly constituency of Benue State slated for 6th April 2011 having emerged as the winner of the 1st Defendant’s primary Election held on the 12th day of January, 2011 in accordance with the Electoral Act, 2010.
7. AN ORDER directing the 1st Defendant to submit the name of the Plaintiff who got the highest number of votes at the 1st Defendant’s House of Assembly Primary Election for Buruku constituency of Benue State to the 2nd Defendant as the validly nominated candidate to represent the 1st Defendant at the April 6th 2011 General Election.
The appellants contesting the reliefs sought in the Originating summons filed counter affidavits exhibiting documents. They also raised a preliminary objection. The trial court heard arguments of the respective learned counsel and in a considered Judgment granted the 1st Respondent all the reliefs sought in the summons.
The appellants aggrieved by the decision of the trial court filed a Notice of appeal which was later amended. The amended notice of appeal deemed properly filed on 08/03/2012 contained 7 grounds of appeal as numbered.
In line with the rules of this court parties filed and exchanged briefs of argument. At the hearing of appeal on 08/03/2012, the learned counsel for the appellants Mr. Tambowua adopted the appellants Amended brief of argument filed on 06/06/2012 and deemed filed on 08/03/2012. The learned counsel for the 1st respondent Mr. Hirse adopted the brief of 1st respondent filed on 10/02/2012 and Mr. Ula adopted the 2nd Respondent’s brief filed on 05/03/2012.
The appellants in their brief distilled 3 main issues for determination. They read thus:
“1. Whether the lower court possessed the requisite jurisdiction to:-
a) abridge time for filing the defence of the appellants without affording them a hearing or an opportunity to be heard contrary to S.36(1) of the amended 1999 constitution and in the face of order 13, Rule 35(15) of the Federal High Court (Civil Procedure) Rules 2009 and non-application for the order by any of the parties.
b) adjudicate on the suit before it respecting nomination and sponsorship of candidates by a political party outside the scope and intendment of S. 87(9) of the Electoral Act 2010 (as amended).
c) adjudicate on the suit before it when the subject matter therein could not be embraced under any of the 19 enumerated items specified in Section 251(1) and (4) of the 1999 Constitution (as amended) and in the absence of any substantive and concrete complaint against the 2nd respondent (3rd defendant) in the originating summons. (Grounds 1, 3 and 4 of the appeal)
(2) Whether the lower court acted correctly in law in failing to order pleadings and/or taking oral evidence to resolve the obvious material conflicts in the competing affidavits and counter-affidavits of the parties before proceeding to judgment against the appellants (Ground 2 of the appeal).
(3) Was it right for the lower court to refuse, fail or neglect to act on the unchallenged evidence adduced by the appellants and also ignore the oral and documentary evidence presented before it (Grounds 5 and 6 of the appeal)”
The 1st respondents in their brief formulated the following issues for determination:
“1. Whether the lower court had the requisite jurisdiction to adjudicate on this suit (Ground 1 of appeal).
2) Whether the trial court properly evaluated the conflicting affidavit evidence before arriving at the verdict in favour of the 1st respondent (Ground 2 of appeal).”
The 2nd respondent in his brief stated that he has adopted the two issues formulated by the appellants which read thus:
“1) Whether the lower court had the requisite jurisdiction to adjudicate on this suit. (Ground 1 of the appeal).
2) Whether the trial court properly evaluated the conflicting affidavit at the verdict in favour of the 1st respondent, (Ground 2 of the Appeal).”
I must first observe that the Respondents in their respective briefs of argument projects to adopt the issues formulated by the appellants by listing two issues for determination as if they were same as distilled in the appellants brief. The issues formulated by the appellants are 3 in number and differently coached. I note further that the two issues formulated in the distinct briefs of the respondents were tied only to two grounds of appeal when the amended notice of appeal contains 7 grounds of appeal. Therefore to rely on the two issues as formulated by the 1st and 2nd respondents in their respective briefs will mean that some of the grounds of appeal such as grounds 3 to 7 which is not tied to any issue in their briefs will be deemed abandoned. Therefore I will rely on the 3 issues formulated by the appellants and make the necessary observations in relation to issue 1 in their Brief.
The appellants under issue No. 1 formulated 3 sub-issues. An issue for determination must arise from the grounds of appeal. It can only be formulated from a ground or grounds of appeal. The basic requirement when formulating an issue is precision, brevity and clarity. The issue formulated must be precise.
Therefore it is inappropriate and wrong for the appellants to formulate one issue and under that issue raise sub-issues. The three sub-issues have one common feature, which is the Jurisdiction of the trial court to hear the matter. This sub-issue are related to three distinct grounds of appeal. The issue of competence of a court to hear a case is fundamental. Consequently I will either rephrase issue one to incorporate the 3 issues or let it be as set out by the appellants and look at its merits since each sub-issue is tied to a distinct ground of appeal. In effect each sub-issue has a nexus to the ground of appeal.
I will now look at the three arms under issue one. Under sub-issue (a) the question is whether the lower court possessed the requisite jurisdiction to abridge time for filing the defence. The court below made an order for abridgment of time to file processes following an application made exparte by the 1st respondent. The decision of the court below on abridgement of time is not the subject of the present appeal. The appellants cannot file a ground of appeal based on a complaint that is not part of the decision appealed against.
The interlocutory nature of the decision made by the court below on abridgement of time mandates the appellants if aggrieved to appeal within fourteen days to the Court of Appeal. See section 24(1) of the Court of Appeal Act. The appellants did not appeal against the decision on abridgment of time within 14 days nor did they seek and obtain leave to file out of time. Therefore Ground one in the amended notice of appeal wherein the complaint is raised is incompetent and is hereby struck out. What then happens to the rest of issue one which is tied to Ground one of the Notice of appeal struck out?
The position of the law is that issues formulated from incompetent grounds of appeal or from a combination of competent grounds and incompetent grounds of appeal are in themselves not competent and liable to be struck out. See Ogundipe v. Adenuga (2006) all FWLR (330) 205.
The rationale is that the role of the court is not to dissect and sift from the combined submissions under the issue which argument supports a point. See Sehindemi v. Gov. of Lagos State (2006) 10 NWLR 7 (Pt.987) page 1. Ngige v. Obi (2006) 14 NWLR (Pt. 999) page 1. Where this Court held:
“Where on issue formulated from an incompetent ground of appeal is argued in the brief of argument with those from competent ground or grounds of appeal, it is not the duty of the Court to extract argument in respect of the valid grounds from the incompetent ones. Rather, the Court should discountenance the argument in its entirety.”
The appellants formulated issue one from competent grounds and incompetent ground one that has been struck out. Issue one was argued together. The consequence is that the entire argument under issue one is discountenanced. The resultant effect is a strike out. Issue one is hereby struck out.
However, in case I am wrong bearing in mind that the other two arms of issue one touches on Jurisdiction of the court I will proceed to consider the merit of the argument under sub issues (b) and (c). Learned counsel for the appellants submitted that the 1st respondent had not established any breach of the provisions of S.87 of the Electoral Act 2010 (as amended) so as to activate the jurisdictional intervention of the lower court under S.87(9) of the Electoral Act 2010 (as amended). He contended that the 1st respondent had not established before the trial court any infraction of the Guidelines for Primary Elections made by the 2nd appellant (ACN).
The learned counsel argued that the 1st respondent’s compliant in the originating summons was limited to nomination and sponsorship of candidates. That it is not a case of substitution which is justiciable under the canopy of S.6 (6) (c) of the amended 1999 Constitution as a pre-election matter: He cited Ucha v. Onwe (2011) 1 SCNJ 233; Dingyadi v. INEC (2011 4 SCNJ 1; Akpan v. Bob (2010 5 SCNJ 141 at 200 -202 (Mohammed JSC); Balonwu v. Ikpeazu (2005) 13 NWLR (Pt.942) 479 at 521 – 522 (F-B), 523 (a-B) Wiki v. Ichionwo (1999 4 NWLR (Pt. 600) 618 and Enemouo v. Duru (2004) 9 NWLR (Pt.877) 310.
It is his further submission that the complaint is bordering on nomination and sponsorship of a fellow aspirant for election by a political party which falls squarely within the jurisdictional domain of the 2nd appellant and is not justiciable by the courts. He cited Balonwu v. Ikpeazu (supra) at pp. 521 – 522 (F-B); 523 (A-B); Ehinlanwo v. Mamman (2003) 14 NWLR (Pt.839) 1; Osom v. Osom (1993) 8 NWLR (pt.314) 678; Ozigbo v. PDP (2010) 9 NWLR (Pt. 1200) 601 at 651 (A-C).
Finally on this issue of jurisdiction, he contends that there being no substantive and concrete grievance against INEC by the 1st respondent, there is nothing to justify the invocation of S.251(1) and (a) of the 1999 constitution (as amended). That the subject matter, the fulcrum of the complaint of 1st respondent cannot justify the invocation of the jurisdiction of the trial court in this matter. The learned counsel for the 1st respondent submitted that it is the Electoral Act which gives foetus to the political parties and it is the Act that empowers Independent National Electoral Commission (INEC) to conduct elections and monitor the activities of political parties. He submits that Section 87(1), (2), (3) and (4) stipulates how aspirants can emerge to be nominated by the party for the General Elections, i.e. by direct or indirect primaries. The 2nd Appellant, in this instance he argued opted for direct primaries, and the 1st Respondent emerged victorious after the successful voting at Buruku House of Assembly Constituency of Benue State, but her name was removed from the list by one Abba Yaro (State Chairman of the 2no Appellant in Benue State) unilaterally and the name of the 1st appellant was submitted in her stead. He urged the court to uphold the decision of the trial court and order the issuance of the certificate of Return to Ngunan Addingi the 1st Respondent.
It is his further submission that once a candidate is not otherwise disqualified and has been screened, cleared to contest as an aspirant and has emerged as the winner in line with the Section 87(1), (2), (3), (4) and (9) of the Electoral Act 2010, the political party no longer has the power to stop; him from contesting the election or removing, or changing his name for another candidate even for one who has not met the constitutional requirements of 6 months membership of 2nd Appellant.
He submits at that stage any dispute or question arising from the sponsorship of a candidate ceases to be within the political domain or authority of the party. It is no longer an intra-party affair. He referred to Wike v. Icheonwo (1994) 4 NWLR (Pt.600) 618.
As such the situation takes the matter out of the political domain and authority of the party as in this case the domain of the 2nd Appellant’s Chairman because he unilaterally removed, changed and or substituted the name of the 1st Respondent Ngunan Addingi and submitted the name of the 1st appellant to the 2nd Respondent (INEC) in flagrant breach of the rules and regulations, guidelines of the Action Congress of Nigeria and the provisions of the Electoral Act 2010 (as amended).
The learned counsel for the 2nd respondent submitted that the court had no jurisdiction to interfere in the internal affairs of political parties in particular in regards to the nomination of candidates for election. He cited Onuoha v. Okafor (1983) 2 SCNLR 244. Bakonwu v. Chinyelu (1991) 4 NWLR (pt. 183) 30. It is the contention of learned counsel for the 2nd respondent that section 87 of the Electoral Act 2010 as amended was not violated or breached. He cited Ehinlanwo v. Oke (2008) All FWLR (Pt.442) 1007.
The appellants under the remaining sub-issues (b) and (c) questioned the jurisdiction of the Federal High Court to hear and determine the Originating Summons filled by the 1st respondent. Whilst the appellants contend that the issue of nomination of a candidate is an intra party affair. The 1st respondent argued that her reliefs fall within section 87(9) of the Electoral Act 2010 as amended.
The issue of jurisdiction is fundamental as it touches on the competence of the court. It is also trite law that the determinant of jurisdiction is the reliefs sought by the plaintiff in a claim. The nature of a plaintiffs claim determines whether the court is vest with the jurisdiction to determine the case.
I had earlier reproduced the reliefs sought by the 1st respondent in the originating summons and have scrutinized the averments in the supporting affidavits. Under Reliefs 1, 2 3 and 4 the 1st respondent sought a declaration from the Federal High Court on whether the 2nd appellant complied to the provisions of the Electoral Act and the party guideline in the nomination of the party’s candidate for the seat of Buruku constituency for the 5th of April 2011 election.
The other reliefs are consequential to the declaratory reliefs sought. It is the main reliefs that will determine the jurisdiction of the court. Ineffect one is to look at the primary claim. See Oloruntoba-Oju v. Dopamu (2008) 7 NWLR (Pt. 1085) 1 SC. The Federal High Court is a creation of statute and their jurisdiction is confined and circumscribed by the statute creating her and the constitution. In determining the jurisdiction the enabling law vesting jurisdiction in the court has to be examined in the light of the reliefs sought by plaintiff.
It is crystal clear that the primary claim of the 1st respondent is anchored on non compliance to the provisions of section 87(9) of the Electoral Act (as amended) 2010 and the party guideline.
It is the submission of the learned counsel for the appellants that the court below acted outside the scope and intendment of section 87(9) of the 2010 Electoral Act (as amended) and that the 1st respondent did not establish any infraction of the guideline of the party. It is imperative for me to emphasize again that what determines jurisdiction is subject matter in the relief before the court. The 1st respondent need not establish her case first before one can ascertain if the subject matter falls within section 87(9) of the Electoral Act as amended. The court below is to look at the reliefs and once the complaint is anchored on non compliance with the electoral act or party guideline and the supporting facts allege non-compliance the court’s jurisdiction is invoked. The plaintiff need not establish his case first before the court will be said to have jurisdiction to adjudicate over the relief. Once prima facie the reliefs sought by a plaintiff is on subject matters which fall within the scope of a specific law, which vest jurisdiction on a specific court that is sufficient.
The main reliefs sought by the 1st respondent is founded on section 87(9) of the Electoral Act 2010 as amended and Paragraph 21.3(b) of the constitution of the 2nd appellant and section 251(1) and (4) of the 1999 constitution. I will reproduce this sections and paragraph for ease of reference section 87(9) of the Electoral Act (as amended) provides;
“notwithstanding the provision 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 has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress”.
Para 21.3(b) of the 2nd appellant constitution stipulates:
“An aspirant seeking nomination as a National Assembly candidate shall submit himself to election at ward congresses within his constituency specially convened for that purpose. Any aspirant who scores simple majority of the total votes case in more than half of the wards within the constituency shall be considered winner and therefore duly nominated”.
It is settled law that where the words of the provisions of a statute are clear and unambiguous they should be given their plain, ordinary and grammatical meaning without qualification. See Amadi v. NNPC (2006) SC (Pt. 1) 66.
The wordings of section 87(9) (Supra) are clear and it is the duty of this court to so construe that provision according to its expressed intention. Section 87(9) (Supra) confers jurisdiction on the Federal High Court of a state to entertain complaints arising from non compliance with the provisions of the Electoral Act and the guidelines of a political party in the process of selection or nomination of a candidate of a political party. The provision under section 87 (9) supra is special and unique. It underscores the importance attached to the rights of any aspirant to a party primary who feels aggrieved that the provision in the party guideline or party constitution or the Electoral Act has been breached. Therefore pursuant to section 87(9) Supra any aspirant in a political party primary election who feels aggrieved that there is non-compliance with the provisions in the Electoral Act or the political party guideline can approach the High court of the state or federal High Court. It is the complaint that determines which court is vested with jurisdiction.
Having critically looked at supporting facts and read the reliefs in the originating summons under reliefs 1 – 4, wherein the 1st respondent sought declaratory reliefs on non compliance to the provision of the Electoral Act and the 2nd appellants guideline for nomination of candidate, I am of the firm view the court below had the requisite jurisdiction to adjudicate over the case.
I take cognizance of the position of law in a catalogue of cases cited on the point that the exclusive role of nomination and sponsorship of a candidate to contest for any election is that of a political party. It is not in dispute that the Apex court in a number of cases has held that the issue of nomination and sponsorship of an election candidate is within the domestic affairs of the political parties. However it is my respectful view that by the provision of section 87(9) of the Electoral Act as amended the right to question any conduct or act of a political party following primaries or nomination arises once an aspirant complains of non-compliance with the provisions in the Electoral Act and party guideline. The Electoral Act has safeguarded that right in an aggrieved party aspirant. Therefore once a political party decides to adopt the process of nomination of candidates by conduct of election the party must comply with the provisions of the Electoral Act as amended. The acts of political parties which is not in compliance with the provisions of the law cannot be regarded as a domestic affair of the political party any more. Any aspirant in a primary election acquires a justiciable right to approach the federal High Court or High court under section 87(9) of the Electoral Act. The intendment of the provision under section 87(9) supra is to checkmate political parties. In Ezeigwe v. Nwawulu & Ors (2010) 2-3 SC (Pt. 1) Pg the Supreme Court held:
“The need to scrutinize how the candidates emerged and especially whether or not the provisions of the constitution of the affected political party were adhered to in the emergence of the candidates was necessitated, a pronouncement has to be made as to which of the two candidates the political party ended up nominating was so nominated by the due process”
The Supreme Court in the unreported consolidated appeal No. SC/157/2011 and SC 334/2011 in LADO v. CPC delivered on 15th December, 2011 held that where there are two primaries held by the same political party in respect of same seat the issue of nomination becomes a political party affair and the court has no business choosing a candidate for the party based on the dual primary election.
Lado case is distinguishable from the instant case. In the present case the relief sought is on whether there was breach of the provision of the Electoral Act or the party guideline.
In respect of the provision under section 251(1) of the 1999 constitution as amended. The 1st respondent in relief 5 in the originating summons sought an injunctive relief against the 2nd respondent, Independent National Electoral Commission (INEC). Relief 5 is for an injunctive order restraining INEC from taking any executive or administrative action. The nature of the prayer falls within section 251(1) (r) of the 1999 constitution. I have no doubt from the forging that the Federal High Court had jurisdiction to adjudicate over the reliefs sought in the originating summons. I resolve issue I as per the two sub-arms (b) and (c) against the appellants.
ISSUE TWO: Whether the lower court acted correctly in law in failing to order pleadings to resolve the obvious material conflicts in the competing affidavits of the parties.
The learned counsel for the appellant contended, that it is clear from the particulars of Ground 2 of this appeal that there were conflicting affidavit on material issues raised by the plaintiff and the 1st, and 2nd and 3rd defendants. Amongst the complaints raised is (a) who between Engr. Mozeh and Tersoo Orpin was the Returning Officer in the Primary election in question. (b) is his contention that they were various conflicting evidence of the results of the primaries as between Exhibits C2 and FA3 of the plaintiff on the one hand and Exhibits B1 – B12, C, and D of 1st defendant and Exhibits 6, 7A-7L, 8, 9 and 10 of 3rd defendant. He argued that the various conflicting assertions by the contending parties were also discernable from the affidavits of plaintiff and those of 1st – 3rd defendants. In the face of all these he submitted that the accepted course established by judicial authorities is to order pleadings to be filed or call for oral evidence from the relevant parties for their resolution, since originating summons is not employed in contentious proceedings or hostile proceedings but writ of summons He cited N.B.N. Ltd. & Anor. V. Alakija & Anor. (1978) 9 & 10 SC 59 at 71-73, 74-75; Alegbe, Speaker Bendel State House of Assembly v. Olayo (1933) 785 at 215 – 216 (Eso JSC); Doherty v. Doherty (1968) NMLR 241; Ejura v. Idris (2005) All FWLR (Pt.318) 646; Ossai v. Wakwah (2006) All FWLR (pt.303) 239 SC; West African Cotton Ltd. v. Yankara (2008) All FWLR (pt.402) 1192 CA; Oyewunmi v. Osunbade (2001) FWLR (Pt.82) 1919; Keyamo v. House of Assembly, Lagos State (2003) FWLR (Pt. 146) 925 SC; Falobi v. Falobi (1976) 9 & 10 SC 1 at 14-15; Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41 at 48; Uku & Ors. v. Okumagbe & Ors. (1974) 3 SC 56, 64 – 65.
It is his further contention that it is manifest from the plethora of documents produced by both sides that the trial Federal High Court did not properly evaluate and give probative value to them. Prominent in this regard are Exhibits 6,7A, – 7L, 8, 9 and 10 of the 2nd appellant and Exhibits A, B, C, D and E of 1st appellant. No weight or sufficient weight or consideration was accorded to the documents authenticated by the ACN such as the Letter of Appointment of the Returning Officer, the results of the election ward by ward and the summary thereof, the certificate of return issued to 1st appellant by 2nd appellant and the list of candidates submitted to INEC by 2nd appellant. He complained that the learned trial judge made no attempt to give probative value to documents amply supported by written statements and depositions of Andrew Onaja or the 1st appellant. He contends this attitude occasioned a miscarriage of justice to the appellants as the trial judge woefully failed to apply the principles guiding evaluation of evidence as enunciated in Buhari v. INEC (2008) 19 NWLR (Pt.1120) 246 at 409-412 (C-B)(per Niki Tobi JSC).”
The learned counsel for 1st respondent contends that the trial court properly evaluated the entire affidavit evidence of both parties and gave value or quality to same. He argued the court properly employed a reasoned belief of the evidence of the 1st Respondent and disbelief of the Appellants evidence and concluded by preferring the evidence of the 1st respondent (pp 508-518 of the records). He relied on Oyekola v. Ajiabde (2005) All FWLR (Pt.242) p 436 at 454 para E – F”
The learned counsel for the 2nd respondent submitted that the conflicts in affidavits must be resolved by the court but the court failed to resolve the conflicts by evaluation of the evidence. The general rule enunciated in Falobi v. Falobi (1976) 9 – 10 SC 1 is that when a court is faced with affidavit evidence which are irreconcilably in conflict the court should hear oral evidence to resolve the conflict. Where proceedings in a court are by affidavit evidence it is important that conflicts in such affidavits are not glossed over. The court is enjoined to look at the nature of the conflict. When facts are deposed in an affidavit the purpose of a counter affidavit is to contradict those facts and not to merely set up a distinct fact as defence. Where the conflict arising from affidavit and counter affidavit depositions are not on material issue, the court calling for oral evidence becomes unnecessary.
In effect where the conflicts are not material to the case or where the facts are inadmissible in evidence the court should not be saddled with the responsibility of calling oral evidence to resolve the conflict. See LSDPC v. Adold/Stamm Int. Ltd 7 – 8 SCNJ 525. Therefore, the need to call oral evidence would not arise if the areas of conflict are narrow and not significant. See Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.
Furthermore, where the conflicting evidence can be resolved from the documentary evidence the need to call oral evidence becomes unnecessary. See Fashanu v. Adekayo (1974) 6 SC 83 and Bunge v. Gov. Rivers State (2006) 13 NWLR (pt.995). The question arising is whether any of the above stated exceptions will apply in the instant case on the basis of which the court below would have or did resolve the diverse versions in the affidavits and counter affidavits. The procedure for evaluation of evidence was set out in ODOFIN & ORS 1978 NSCC 275 AT 277 the Supreme Court per fatayi Williams said “In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore in deciding whether a certain set of facts was given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two set of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it.”
In my view the evaluation procedure adopted by the trial court was in consonance with the above principle.
A careful reading of the judgment of the court below shows the learned trial judge relied on both the averments in the affidavits and the documentary evidence. I refer in particular to pages 512 to 517 of the Record of Appeal. The learned trial judge found that the plaintiff had proved his case on credible documents. The court then proceeded to give reasons for preferring the documents he relied upon to arrive at the final decision. The trial court set out in her judgment how she assessed and appraised the facts, he considered the competing evidence of the parties before deciding in whose favour the evidence preponderates. In general an appellate court does not interfere with the findings of fact made by a trial court except in exceptional circumstances such as when the findings are not based on evidence adduced.
It is my firm view that the learned trial judge gave a dispassionate consideration to both the diverse affidavits and counter evidence over the documentary evidence.
Documentary evidence is used as a hanger from which to test the veracity of evidence whether oral or by deposition. It is also settled that it could be used to resolve an issue or conflicting evidence as the court below rightly relied on the documentary evidence to revolve the dispute. Documents speak for themselves.
The appellants noted two areas of evidence as conflicting. One was the issue of who was the returning officer in the primary election. The other one relates to the results of the primaries as between Exhibits C2 and FA 3 of the 1st respondent and Exhibits 6 – 10 of 2nd respondent. The court below on pages 513 – 515 from the record of appeal evaluated the documentary evidence and relied on exhibit C2. The court gave reasons why he preferred some documents to the others exhibited. I cannot fault the entirety of the evidence evaluated.
The court below refused to accept the register of the 2 appellant. Though this point was not specifically appealed against. The learned trial judge then found the votes ascribed to the contesters in the result presented by the appellants were more than the registered members. This finding is in line with the evidence adduced both in the affidavit and documentary evidence before the court and I have no reason to interfere with same. It is instructive to note that under Article 21.3(b) of the Constitution of the 2nd appellant any aspirant that scores simple majority of total vast cast in more than half the wards within the constituency shall be considered the winner. Therefore the number of registered members was then important in the appraisal of compliance to the guideline. The learned trial judge properly weighed the documentary evidence on who is the returning officer in the Primary election. It is my firm view that the court below properly evaluated the totality of the affidavit evidence and documentary evidence and did not need to order for pleadings. I resolve issue 2 against the appellant.
ISSUE 3
The appellants contend that the trial judge refused to act on unchallenged evidence adduced by the appellants. It appears from the submission of counsel under this issue that the appellants are fishing for a case. This is because appellants had argued that the evidence before the court was in conflict yet in another breath they contend there evidence is unchallenged. From the totality of the evidence adduced before the court below I will not subscribe to his submission that the appellant’s oral and documentary evidence were unchallenged. The learned trial judge considered all the documentary and oral evidence as evident in her judgment. I therefore resolve issue 3 against the appellants. In the final analysis that all issues are resolved against the appellants. This appeal is devoid of merit and is hereby dismissed. The judgment of the Federal High Court delivered on the 9th of June 2011 in FHC/MKD/CS/24/2011 is hereby affirmed. Each party to bear its own cost.
M.B. DONGBAN-MENSEM, J.C.A: It is curious and smacks of mischief for the learned Counsel to have formulated issue no. 3 which I hereby reproduce for the ease of reference:
ISSUE 3:
“Was it right for the lower Court to refuse, fail or neglect to act on the unchallenged evidence adduced by the Appellant and also ignore the oral and documentary evidence presented before it (Grounds 5-6)”.
A close perusal of the records for this appeal at pages 502, 505, 515 and 516, respectively show a detailed and competent evaluation of the alleged “unchallenged evidence adduced by the Appellants” with the reasons for their being discountenanced by the learned trial Judge. On Exhibit B1-B12 which bear the votes cast the Appellant as 3rd Defendant scores 9,880 votes while the Plaintiff scored 1,729 – the Court found that no agent signed the said Exhibit and the Court held at pages 502 and 505 that the register which was disputed was not genuine. No ground of appeal challenged this finding of the trial Court.
The Court also found and held at page 575 that the Plaintiff’s name was 3rd on Exhibit C2 being the list of successful candidates duly signed by the Benue State Electoral Committee Chairman. The allegation that Exhibit C2 and E reflect anomalities of the report which support the plaintiff’s case stood solo without corroborating evidence. The learned trial Judge found at page 516 that Exhibit ACN4 of Comrade Onoja which could have corroborated the case of the Appellants as Defendants was not attached. The Court was therefore denied of the opportunity of comparing Exhibit C2 with the said Exhibit ACN4. In the circumstance, his lordship invoked the provisions of Section 149 (d) of the Evidence Act (now 167 (d) of the Evidence Act of 2011) and discountenanced the complaint. Equally unsubstantiated were the reference to Exhibit E anchored on the unproduced Exhibit ACN4 and Exhibit 10 which the learned trial Judge said were none-existant since only Exhibits 7-8 were produced.
These analysis of the learned trial Judge disclose clearly that there was no evidence of worth to be responded to. In the case of Buhari V. Obasanjo (2005)7 NWLR pt.910 pg.247 at 435, it was held that a Judge is entitled to expunge or discountence worthless evidence without requiring such to be confronted/challenged by the other party.
The question raised in issue 3 is whether the trial court neglected/refused to act on the uncontradicted evidence of the Appellant as Defendants.
The learned trial Judge found those evidence as concocted evidence and specially cooked up for the purpose of defeating the case of the Plaintiff/Respondent. In other words, the alleged ignored/uncontroverted evidence of the Appellants as Defendants run contrary to the provisions of the Evidence Act of 2011 and is therefore worthy only of discountenance. That is exactly what the Plaintiff/Respondents did and the learned trial Court concurred. (See generally, Section 83(3) and 167(d) of the Evidence Act of 2011.
I find no good reason to differ from this sound decision of the learned trial Judge. With this little addition; I agree with and hereby adopt the lead Judgment prepared by my learned brother Nwodo JCA, in dismissing the appeal as lacking any iota of merit.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading before now, the leading judgment of my learned brother, R.O. Nwodo, J.C.A., and, typically, she considered all the issues distilled by the parties in the appeal. I entirely agree with her reasoning and conclusion reached therein. I, too, find no merit in this appeal. Accordingly, I dismiss the same, and abide by the orders made in the leading judgment.
Appearances
T. A TambowuaFor Appellant
AND
M. Hirse
Mr. Kenneth UlaFor Respondent
