MR. JULIUS OGHENEVWEGBA BOBI v. MR. EDOJA RUFUS AKPODIETE & ORS
(2013)LCN/6415(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of July, 2013
CA/B/297/2012
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
MR. JULIUS OGHENEVWEGBA BOBI Appellant(s)
AND
1. MR. EDOJA RUFUS AKPODIETE
2. DEMOCRATIC PEOPLES PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMSSION
4. MR. MATTHIAS OGHENRUME SOBOTIE
5. JENKINS GWEDE Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN IGNORE MINOR INFRACTIONS IN GROUNDS OF APPEAL
There is no doubt that there were repetitions in the particulars of the grounds of appeal which made them prolix and appear argumentative, however, they effectively convey the precise complaint of the appellant against the judgment of the trial court.The attitude of appellate courts now is to ignore minor infractions of the rules of court in order to ensure that the ends of real and substantive rather than technical justice is served. See A.P.C. Ltd. v. NIDC supra and Nwaukoni v. Bielonwu supra.
I must also add that there is nothing wrong in heading a ground of appeal as being an “error in law and/or mixed law and fact”. PER OGUNWUMIJU, J.C.A.
AN APPEAL ON GROUND OF LAW
Where a court fails to apply the facts which it has found correctly to the circumstances of the case before it, and there is an allegation or complaint of misdirection in the exercise of the application by the trial court, such a ground of appeal is one of law and not fact. See Ogbechie v. Onochie (1986) … NWLR Pt. 23 P. 484. An appeal can lie on grounds of misdirection which is a ground of law and it can also lie on a ground of mixed facts and law. In any event Niki Tobi, J.S.C. had put the guide in such matters in Abubakar v. Yar’adua (2008) All FWLR Pt. 404 Pg. 1409 at 1449 as follows:
“As a matter of our adjectival law, and by the state of the non-compliance rules, the courts will regard certain acts or conducts of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as matter of our adjectival law, noncompliance rules in their aggregate content point more to this trend than the position of a punitive nature against the non-complying party. The state of the law is more in favour of forgiving non-compliance with the rules of court, particularly, when such non-compliance, if waived, will be in the interest of justice.
The basic principle of law is that it is the object of the court to decide the rights of the parties and not to punish them for mistakes they make in the litigation process, particularly when the mistakes are really mistakes.” PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal by the plaintiff (now Appellant) against the judgment of the Hon. Justice N. I. Buba of the Federal High Court sitting in Asaba delivered on 27th June 2012 in Suit No. FHC/ASB/CS 32/2011, a pre-election suit commenced vide originating summons on 8th February, 2011 by the Plaintiff against the Defendants now Respondents.
This appeal arose from the primary election of the 2nd respondent, Democratic Peoples Party (DPP), conducted and held on the 13th day of January, 2011, to elect a candidate to contest the main election, which was held and conducted by the 3rd respondent, INEC, on the 26th day of April, 2011, on the platform of the 2nd respondent, in respect of the seat of Ughelli North Constituency II in the Delta State House of Assembly.
In that primary election, the 1st, 4th, 5th respondents and one other person and the appellant were the 5 (five) contestants (candidates). At the end of the primary election, the 1st respondent reportedly scored the majority votes with thirty-three (33) votes. He was declared and returned as the winner of the primary election. The appellant reportedly scored twenty-nine (29) votes, the 4th respondent scored thirty-one (31) votes, while the 5th respondent scored nineteen (19) votes and the other contestant scored eight (8) votes.
By an originating summons filed in the registry of the trial court below on the 8th day of February, 2011, the appellant filed the suit on appeal, contending in the main that the primary election was marred and/or flawed with irregularities and also contending that the 1st respondent, who was declared first in the said primary election and the 4th respondent who was placed 2nd in the primary election, were not qualified to participate in the primary election and therefore he, the appellant who placed 3rd in the primary election be returned as the winner of the primary election that the appellant alleged was flawed and/or marred with gross irregularities.
Based on the application of the appellant, the court below joined the 4th and 5th respondents as parties and the appellant thereafter filed an amended originating summons in which the appellant claimed the following reliefs and formulated the following questions for determination.
(i) A DECLARATION that the 1st and 4th defendants were not eligible to contest the primary election held on the 13th day of January, 2011 for Delta State House of Assembly, Ughelli North Constituency II by the 2nd defendant by virtue of the relevant provisions of the DPP Constitution, the Delta State Public Service Rules, the Electoral Act 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(ii) A DECLARATION that the 1st and 4th Defendants did not win the prescribed majority votes cast in the primary election held on the 13th day of January, 2011 for Delta State House of Assembly, Ughelli North Constituency by the 2no defendant; and that thereby the 1st defendant was not duly returned as the 2nd defendant’s House of Assembly candidate for Delta State House of Assembly, Ughelli North Constituency II in view of non-compliance with the provisions of the DPP Constitution and the Electoral Act 2010 (as amended).
(iii) A DECLARATION that the said primary election held on the 13th of January, 2011 for Delta State House of Assembly, Ughelli North Constituency II was marred and tainted with irregularities practiced by and accruing to the 1st and 4th defendants and was thereby illegal, unlawful and unconstitutional as it breached the provisions of the DPP Constitution and the Electoral Act 2010 (as amended).
(iv) A DECLARATION that the 1st and 4th defendants were ascribed 1st and 2nd positions respectively, in the 2nd defendant’s primary election held on the 13th of January, 2011, for Delta State House of Assembly, Ughelli North Constituency II, by virtue of the irregularities and non-compliance with which the primary election was fraught with; and as such the 1st and 2nd positions improperly accrued to the 1st and 4th defendants.
(v) A DECLARATION that the claimant being the person who has the highest votes cast in the primary election held on the 13th of January, 2011 for Ughelli North Constituency II of Delta State – after the deduction of the unlawful votes ascribed to the 1st and 4th defendants, on grounds of non-compliance and irregularity – is the lawful candidate of the 2nd defendant in the General Election held on the 26th of April, 2011 for Delta State House of Assembly, Ughelli North Constituency II and therefore the winner thereof; having satisfied the Electoral and constitutional provisions in that regard and entitled to be recognized and accepted by the 3rd defendant as such.
(vi) A DECLARATION that the purported substitution of the name of the 1st defendant with that of the 5th defendant, by the 2nd defendant to the 3rd defendant, as the 2nd defendant’s candidate for the General Election held on the 26th of April, 2011 for Delta State House of Assembly, Ughelli North Constituency II during the pendency of this suit challenging the primary election is illegal, unlawful, null and void and of no effect whatsoever.
vii. A DECLARATION that by virtue of the lawful votes cast, the claimant is the one entitled to be substituted with the 1st defendant by the 2nd defendant before the 3rd defendant – seeing that the 1st defendant, who purportedly came 1st in the primary election held on the 13th of January, 2011 for Ughelli North Constituency II of Delta State and was thereafter nominated by the 2nd defendant for the General Election held on the 26th of April, 2011 has duly withdrawn his candidacy thereof.
viii. A DECLARATION that the purported substitution of the 5th defendant by the 2nd defendant before the 3rd defendant for the General Election held on the 26th of April, 2011 is illegal, unlawful, null and void and of no effect whatsoever – seeing that the signature of the 5th defendant’s nominators were forged, as well as his Nomination Form was signed by the 20th Nominator, who is a civil servant.
ix. AN ORDER withdrawing the Certificate of Return issued to the 1st defendant by the 3rd defendant, in respect of the said General Election held on the 26th of April, 2011 for Delta State House of Assembly, Ughelli North Constituency II and commanding the 3rd defendant to issue a Certificate of Return to the claimant.
x. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of the case.
BY THIS SUMMONS, THE CLAIMANT seeks the determination of the Honourable Court on the following questions, namely:
1. Whether the non-compliance of the DPP primary election of the 13th day of January, 2011 with the provisions of article 2, 13.2 (ii) 25.3, and 40 of the DPP constitution and the S.31 (5), 87 (1-4,9) and 156 of the Electoral Act, 2010 (as amended) – does not illegitimate the acts of the 2nd defendant in presenting and submitting the 1st defendant’s name to the 3rd defendant as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State and lawful winner of its primary election held on 13th January, 2011?
2. Whether in view of the irregularities in the DPP primary elections of the 13th day of January, 2011, the primary election is voided by virtue of the beach of the provisions of article 13.2(ii), article 28.1(v) and article 25.3 (iii) of the DPP constitution and the sections 31 (5), 87 (1-4, 9) and 156 of the Electoral Act, 2010 (as amended) – such that it is invalid for the 2nd defendant to present or submit the 1st defendant’s name to the 3rd defendant as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State and winner of its primary election held on 13th January, 2011?
3. Whether by the combined provision of the S.31(5), 87 (1-4, 9) and 156 of the Electoral Act, 2010 (as amended); article 28.1(v) of the DPP Constitution; Rules 04421, 04422 and Schedule (8) (ii) (Cap 3) of the Delta State Government (Public Service) Rules; S.107(1)(f) of the 1999 Constitution; and the false declarations in the Affidavit in Support of the 1st defendant’s Nomination Form CF001; his non-payment of the required membership subscription fees as due; as well as the nominations of the 12th and 20th nominators on the 1st defendant’s form CF001 thereto, the 1st defendant was not disqualified and ineligible to contest the DPP primary elections of the 13th day of January 2011 – such that it is not right for the 2nd defendant to present or submit the 1st defendant’s name to the 3rd defendant as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State and winner of its primary election held on 13t January 2011?
4. Whether by the combined provision of the Ss. 31 (5), 87 (1-4, 9) and 156 of the Electoral Act, 2010 (as amended); article 28.1 (v) of the DPP Constitution; Rules 04421, 04422 and Schedule (8) (ii) (Cap 3) of the Delta State Government (Public Service) Rules; S.107 (1)(f) of the 1999 Constitution; and the 4th defendant’s non-payment of the required membership subscription fees as due thereto, the 4th defendant was not disqualified and ineligible to contest the DPP primary elections of the 13th day of January 2011 – such that the 4th defendant cannot legitimately be presented or submitted to the 3rd defendant as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State and winner of its primary election held on 13th January, 2011?
5. Whether by virtue of the Article 28.1(v) of the DPP Constitution; Rules 04421 and 04422 of the Civil (Public) Service Rules; S.31(5), 87(1-4, 9) and 156 of the Electoral Act, 2010 (as amended), it is right for the 2nd defendant to present or submit the 1st defendant’s name to the 3rd defendant as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State and winner of its primary election held on 13th January, 2011 when the 2nd defendant had cancelled the said primary election due to fraud and irregularities and fixed a re-run primary election for the 25th day of January, 2011?
6. Whether the 1st defendant, who purportedly came 1st in the primary election held on 13th January, 2011, but subsequently withdrew his candidacy as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State for the General Election held on the 26th of April, 2011- should not be substituted by the more eligible and qualified claimant; having secured and won the simple majority of lawful votes cast at the primary election?
7. Whether by virtue of the article 28.1(v) of the DPP Constitution; S.31(5), 87 (1-4, 9) and 156 of the Electoral Act, 2010 (as amended); the unlawful nomination of the 20th nominator on the 5th defendant’s nomination form; the forged signatures of the nominators on the 5th defendant’s nomination form thereto, his lack of simple majority votes lawfully cast in the primary election held on the 13th January, 2011; in addition to his non-payment of the required and due membership subscription fees – it is legally recognized and legitimate for the 2nd defendant to present or submit the 5th defendant’s name to the 3rd defendant as the 2nd defendant’s House of Assembly candidate for Ughelli North Constituency II of Delta State – during the pendency of this suit”
In response to the Amended Originating Summons, 1st, 2nd, 4th, and 5th defendants (now 1st, 2nd, 4th and 5th Respondents) filed their respective counter-affidavits and written addresses. The 3rd respondent filed no process in this suit.
The appellant, in reply to the 1st, 2nd, 4th and 5th Respondents’ Counter-Affidavits Written Addresses, filed a Reply (headed “Further and Better Affidavit”) and Reply on Points of Law at pg. 1277-1302 of the record. Specifically in response to the 2nd Respondent, Appellant also filed a Reply (headed “Further and Better Affidavit”) and Reply on Points of Law. (See Pg. 1304-1315). Upon engaging an additional counsel on 12th March 2012, the Appellant, with leave of court upon an application that was unopposed by the Respondents, filed a Further Reply on Points of Law to the Written Addresses of 1st, 2nd and 4th respondents on 24th April, 2012. (See Pg. 1455-1458, 1459-1486).
In his reserved judgment on 27th June 2012, the learned trial judge dismissed the Appellant’s suit. Being dissatisfied with the judgment, the appellant has appealed to this court on four (4) grounds of appeal as set out in the Notice of Appeal filed on 19th July 2012 at Pg. 1579-1584 of the records.
In the appellant’s brief settled by Moses O. Ehroma filed on 8/3/2012, learned appellant’s counsel distilled three issues for determination set out below:
(i) Whether the failure of the learned trial judge to give the appellant opportunity to address him on the issue of lack of jurisdiction in the lower court to determine the appellant’s suit after the election raised suo motu by the trial judge in his judgment did not constitute a fundamental breach of the appellant’s tight to fair hearing as to render the judgment incompetent and liable to be set aside? (Ground one)
(ii) Whether the trial court was right to have declined jurisdiction over the appellants’ suit? (Ground Two)
(iii) Whether having regard to the facts and circumstances of this case the appellant who was an aspirant in 2nd respondent’s primaries held on 13th January, 2011 cannot be declared the lawful winner of majority of valid votes cast and lawful candidate of 2nd respondent entitled to a Certificate of Return, 2nd respondent having won the election? (Grounds Three and Four)
The 1st Respondent’s counsel, Chief P. O. Wanogho in the brief filed on 13/5/2012, identified two issues for determination. They are set out below:
Whether from the reliefs sought by the Appellant as a Plaintiff in the court below and in the light of the provisions of S. 87 (10) of the Electoral Act, 2010 (as amended), the court has jurisdiction to grant the reliefs sought by the appellant as a plaintiff in the court below (Grounds 1 and 2).
Whether or not a candidate or person (the appellant in the instant case) by a political party (the 3rd respondent) to contest an election and who not nominated to contest the election nor his nomination papers or forms ever submitted to INEC can be returned as the winner of the election he never participated in.
Learned counsel for the 2nd respondent, Mr. A. E. Icheghe in the brief settled by him identified two issues for determination set out below:
(1) Whether the learned trial judge suo motu raised the issue of and actually decline jurisdiction to entertain the appellant suit he eventually dismissed for lacking merit? (Grounds one and two)
(2) Whether having regard to the facts and circumstances of this case the appellant who was an aspirant in 2nd respondent’s primaries held on 13th January, 2011, which appellant alleged was marred with irregularities can be issued with a certificate of return in the election held on 26th April, 2011 without contesting same or being sponsored by the 2nd respondent? (Grounds three and four).
INEC as the 3rd respondent did not file any brief. However, the 5th respondent filed a brief settled by Ikhide Ehighelua wherein he identified 2 issues for determination as follows:
1. WHETHER THE ISSUE OF JURISDICTION OF THE LOWER COURT PROPERLY RAISED AND RESOLVED BY THE LOWER COURT. (GROUNDS 1 AND 2)
2. WHETHER THE APPELLANT WHO CONTESTED AND LOST THE PRIMARY ELECTION OF A POLITICAL PARTY CAN CLAIM A RIGHT TO BE DECLARED A WINNER. (GROUNDS 3 AND 4)
Learned 5th respondent’s counsel raised a preliminary objection to the appeal which was argued at the hearing of the appeal. The preliminary objection was in effect to strike out grounds 1, 2, 3, and 4 of the grounds of appeal and the appeal in its entirety on the grounds that their particulars are prolix, argumentative and tautologies and are not maintainable in law.
I will make quick work of the objection to determine same.
Mr. Ehighelua argued that a ground of appeal cannot allege an “error in law or mixed fact and law” at the same time as such grounds are incompetent as couched and are liable to be struck out. Counsel also complained that grounds 1, 3 and 4 are couched in such a manner that are so misleading that they cannot be comprehended to understand the actual complaints contained in them. He also argued that grounds 2, 3 and 4 are prolix, argumentative which is not allowed by law in accordance with Order 2 Rule (3) and (a) of the Court of Appeal rules. Counsel submitted that where a ground alleges error of law and misdirection at the same time, it is held to be bad in law. He cited Nwadike v. Ibekwe (1987) 3 NWLR Pt. 69 at 718; Ufayo v. Datiri (2008) All FWLR Pt. 421 Pg. 964; Amojaine v. Eguegu (1996) 1 NWLR Pt. 424 Pg. 341 at 349.
In the reply brief filed by the appellant, learned appellant’s counsel responded and stated that nowhere in the grounds of appeal filed were there complaints of error in law and misdirection at the same time. He argued that even if the grounds of appeal were prolix, so long as it serves the purpose of communicating to the respondents the specific complaints against the judgment, the courts have tended to ignore the lengthy particulars so long as it conveys to the respondent the nature of the complaint of the appellant. He cited APC Ltd. v. NIDC (Nig. Universal Bank) Ltd. (2006) All FWLR Pt. 335 Pg. 1 at Pg. 24-25; Nwaukoni v. Bielonwu (2009) 5 NWLR Pt. 1135 Pg. 480 at 497; Atuyeye v. Ashanu (1987) 1 NWLR Pt. 49 Pg. 269 at 283.
I have carefully considered the grounds of appeal filed on 19/7/2012 by the appellant. Let us first consider the issue of proxility in the particulars of the grounds of appeal. Ground 2 has 15 particulars -most of them repetitions. Ground 3 has 10 particulars while ground 4 has 9 particulars. There is no doubt that there were repetitions in the particulars of the grounds of appeal which made them prolix and appear argumentative, however, they effectively convey the precise complaint of the appellant against the judgment of the trial court.
The attitude of appellate courts now is to ignore minor infractions of the rules of court in order to ensure that the ends of real and substantive rather than technical justice is served. See A.P.C. Ltd. v. NIDC supra and Nwaukoni v. Bielonwu supra.
I must also add that there is nothing wrong in heading a ground of appeal as being an “error in law and/or mixed law and fact”.
Where a court fails to apply the facts which it has found correctly to the circumstances of the case before it, and there is an allegation or complaint of misdirection in the exercise of the application by the trial court, such a ground of appeal is one of law and not fact. See Ogbechie v. Onochie (1986) … NWLR Pt. 23 P. 484.
An appeal can lie on grounds of misdirection which is a ground of law and it can also lie on a ground of mixed facts and law. In any event Niki Tobi, J.S.C. had put the guide in such matters in Abubakar v. Yar’adua (2008) All FWLR Pt. 404 Pg. 1409 at 1449 as follows:
“As a matter of our adjectival law, and by the state of the non-compliance rules, the courts will regard certain acts or conducts of non-compliance as mere irregularity which could be waived in the interest of justice. Again, as matter of our adjectival law, noncompliance rules in their aggregate content point more to this trend than the position of a punitive nature against the non-complying party. The state of the law is more in favour of forgiving non-compliance with the rules of court, particularly, when such non-compliance, if waived, will be in the interest of justice.
The basic principle of law is that it is the object of the court to decide the rights of the parties and not to punish them for mistakes they make in the litigation process, particularly when the mistakes are really mistakes.”
In the circumstances, I do not see any substance in the grounds of objection and they are hereby dismissed.
Now to the main issues for determination. Since Issue 1 dovetails into Issue 2, I will consider them together.
ISSUES ONE AND TWO
Learned appellant’s counsel argued that it is manifest from the records that the issue of lack of jurisdiction in the lower court to determine appellant’s suit after the holding of the material election was never laid before the trial court by the parties. It was raised by the learned trial judge in his judgment and, without affording the parties an opportunity to address him on the point, summarily dismissed appellant’s case on the basis of that point.
Learned counsel submitted that even though the court has the powers to raise any issue suo motu particularly one of jurisdiction, the court must give parties the opportunity to address it on the point before a decision is taken. Learned counsel urged the court to set aside the judgment of the trial court which negates the laws of fair hearing. He cited Ojukwu v. Yar’adua (2009) All FWLR Pt. 482 Pg. 1065 at 1143; Schami v. UBA Plc (2010) All FWLR Pt. 520 Pg. 1287 at 1299 and S.36 of the 1999 Constitution; Akere v. Governor, Oyo State (2012) All FWLR Pt. 634 Pg. 53 at 96; Victino Fixed Odds Ltd. v. Ojo (2010) All FWLR Pt. 524 Pg. 25 at 34; NNPC v. Clifco Nig. Ltd. (2011) All FWLR Pt. 583 Pg. 1875 at 1890; Stasi v. Smith (2010) All FWLR Pt.513 Pg. 1231 at 1242; PDP v. Okorocha (2012) All FWLR Pt. 626 Pg. 449 at 471 G-H; Longe v. FBN Plc (2010) All FWLR Pt. 525 Pg. 258 at 277 B-C; Olufeagba v. Adbur-Raheem (2010) All FWLR Pt. 512 Pg. 1033 at 1096 C-D.
On whether the trial court in fact had jurisdiction, learned appellant’s counsel argued that the trial court was vested with the jurisdiction to determine to finality the issue of qualification of a candidate to contest election under the Electoral Act 2010. He cited Dangana v. Usman (2012) All FWLR Pt. 627 Pg. 612 at 648. Counsel further argued that the learned trial judge was wrong to rely on the authority of Ozurumba v. Nwakpa (1999) 4 NWLR Pt. 598 Pg.282 to the effect that the court had no jurisdiction since the case related solely to grounds for bringing an election petition on to the Tribunal.
Counsel further submitted that since the suit challenging the qualification of a candidate was filed at the Federal High Court in this case on 8th of February, 2011, well before the election, the holding of the election on 26/4/2011 cannot oust the jurisdiction of the high court or extinguish the already pending suit. He cited –
(1) Amaechi v. INEC (2008) All FWLR Pt. 407 Pg. 1;
(2) Ucha v. Onwe (2011) All FWLR Pt. 572 Pg. 1637;
(3) Alhassan v. Aliyu (2011) 195 LRCN 109 at 160.
Counsel also submitted that contrary to the decision of the trial court, the appellant was never an aggrieved nominee who questioned the general election held on 26/4/2011.
The case made out by the appellant was a pre-election matter relating to disqualification of candidates and non-compliance with statutory and constitutional stipulations and irregularities vitiating the particularized invalid votes accruing to the 1st and 4th respondents’ as well as the false information and concealment of 1st respondent’s employment status from INEC. He argued that the court by formulating a different case for the parties came to a perverse and wrong conclusion. He cited Obuseh v. Obuseh (2007) All FWLRT Pt. 374 Pg. 227 at 244 Daramola v. Aribisala (2009) All FWLR Pt. 496 Pg. 1965 at 2000-2001; A.G. Leventis Nig. Plc v. Akpu (2007) 17 NWLR Pt. 103 Pg. 416; PDP v. Sylva (2012) All FWLR Pt.637 Pg. 606 at 634; Emenike v. PDP (2012) Vol. 210 LRCN 91 at 119-120; Emeka v. Okadigbo & 4 Ors. (2012) 7 SC (Pt. 1) Pg. 1 at Pg. 43. These issues were countered in Issue 1 as identified by the 1st respondent, 2nd respondent’s issue 1 and issue 1 of the 5th respondent.
The argument of learned counsel for the 1st respondent, in the brief filed by Chief Wanogho is that the specific reliefs v, vi, vii, viii and ix claimed by the appellant were not pre-election reliefs which the trial court had jurisdiction to grant. Counsel pointed out that the said reliefs were brought in by way of amendment to the originating summons after the conduct of the election. He submitted that a party or plaintiff cannot be allowed to bring into his case an entirely fresh cause of action by way of amendment after the action had been started. Counsel argued that the appellant cannot be granted the reliefs claimed as he is only entitled to damages. He cited Tukur v. Uba (2013) 4 NWLR Pt. 1343 Pg. 30 at 163; Gowon v. Ike-Okongwu (2003) 6 NWLR Pt. 815 Pg. 38 at 49.
Mr. A. E. Icheghe for the 2nd respondent on his part argued that the issue of the jurisdiction of the trial court was not raised suo motu by the trial judge. He argued that in the first instance the trial court found that the appellant was not nominated by the 2nd respondent who has as its role to so nominate and sponsor him for the said elections. This being a feature in the case in which issues were joined, it was enough to dismiss the case.
He added that the 2nd respondent in her address submitted during the trial raised as issue 6 at pg. 1250 of the record the issue of whether by virtue of S.141 of the Electoral Act 2010 the appellant who was not nominated and who did not participate in the election as a candidate can be declared winner and entitled to a certificate of return.
Counsel argued that the appellant’s view that parties were not allowed to address the court before the issue of jurisdiction was decided is misconceived since the opinion of the court on the issue of jurisdiction was mere obiter dictum and not the ratio decidendi of the court and not being so, there was no miscarriage of justice. He cited A.I.C. Ltd. v. NNPC (2005) 1 NWLR Pt. 937 Pg. 563 at 589-590. Counsel argued that the court heard the opinion of all parties in the matter and never declined jurisdiction.
On this issue, learned counsel for the 5th respondent, Mr. Ehighelua argued that the lower court held that the question of nomination and sponsorship of candidates for an election is purely a political question and that the appellant who did not win any primary election cannot claim a right to be sponsored by a political party.
He then insisted that the issue of jurisdiction was raised before the lower court and the court was right in holding that it had no jurisdiction. He referred to portions of the record where the parties had joined issues on jurisdiction.
I have looked at the record. At Pg. 1490 of the record, the 2nd respondent raised the issues of the justiciability of the cause of action and the jurisdiction of the learned trial judge. The 1st respondent in his address at the lower court also raised the issue of jurisdiction at Pg. 1108. The 5th respondent had raised at Pg. 1119 of the record the question whether or not the issues formulated by the appellant for resolution by the trial court was not a mere academic exercise for which the court lacked jurisdiction. Even the appellant had filed a cross process which is on Pg. 1462-1486 where he joined issues with the respondents.
Let us look at the opinion of the learned trial judge as it relates to the issue of jurisdiction or lack of it. The learned trial judge stated thus on Pg. 4-5 of the judgment and Pg. 1572-1573 of the record.
“The court read all the processes filed and the arguments of learned counsel in the instant originating summons. The authorities cited and relied upon. It is trite from Exhibit 1 in the affidavit of Julius Bobi filed on 24th June, 2011. The 1st defendant in form EC 4B(1) did not state whether he worked with DESOPADEC at all let alone resigning to contest Ughelli North II Constituency, yet he was nominated as the candidate of the DPP, the 2nd defendant, it is how the party chose it. The election has since been concluded and he has won the election, there is no rival political party contesting the issue but the same party.
To that extent this court shall be guided by the case of Orurumba v. Nwankpa (1999) 4 NWLR Pt. 598 Pg. 282 at 292-293 paragraphs H-A where the law was stated thus:
“It was further its intention that after the election the responsibility for fishing out those who should not have been allowed to contest but who somehow managed to slip through and win the election, and for nullifying their election, shifts to the tribunals. It carries out this responsibility to the exclusion of any other court or tribunal”.
It is not the business of this court to find out what happened at tribunal with other political party i.e. it is the law that:
“The jurisdiction to determine, after the election, whether a time of his election in fact qualified to contest the election is vested exclusively in the tribunal.”
It is not a matter for this court not questioning the election. This court is to look at aggrieved nominee as per S. 87(10) of the Electoral Act 2011.”
It is clear that the learned trial judge knew that the court was supposed to look at the issue of an aggrieved candidate. What baffles me is that the ten page judgment did not consider the issue as raised by the parties at all.
It seems to me that this was a case in which the learned trial judge completely mistook the case made out by the appellant as plaintiff at the trial court. The appellant was challenging the eligibility of the 1st and 4th respondents to participate in the primaries, the very conduct of the primaries by the political party – DPP, and the substitution of the name of the 1st respondent with that of the 5th respondent by the 2nd respondent.
The learned trial judge decided this case on the basis of the old authorities before the 2010 Electoral Act. These previous authorities had reiterated the position that the political party had the right to nominate any candidate it likes for an election even if the person did not win the primaries, so long as the person originally nominated by the party was not unlawfully substituted. His Lordship cited Ehinlawo v. Oke & 2 Ors. (2008) 165 LRCN 169 at 177-178, Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Pg. 367; PDP v. Sylva; Uzodima v. Izunaso; Amaechi v. INEC; Dapianblong v. Dariye (No) 1 (2007) All FWLR Pt. 373 Pg. 1 at Pg. 45.
His Lordship concluded that since a political party could nominate its own candidate to the 2nd respondent, the questions put to it for determination were academic questions which the court was not bound to answer. As I said earlier, this was more of the case of a judge completely misunderstanding the case made out by the appellant rather one of raising the issue of jurisdiction suo motu. The learned trial judge did not decline jurisdiction to adjudicate on the matter but rather decided the case on a misconception of the claim before the court.
It is clear from the address of counsel at the trial court and indeed in this court that the case of the appellant was brought pursuant to S. 87(9) of the Electoral Act 2010 which provides as follows:
Notwithstanding the provisions of the 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 or the High Court of a State or FCT for redress.
The appellant was not complaining about the general election but the conduct of the primary election which the 2010 Electoral Act by S. 87(9) gave him the right so to do. In fact the said right to challenge the outcome of primary elections by an aggrieved participant was not available in previous Electoral Acts. Rhodes Vivour JSC put the matter clearly in PDP v. Sylva (2012) All FWLR Pt. 637 Pg. 606 at 634 as follows:
“Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party, and this is so because the sponsorship or nomination of a candidate is a pre-primary election affair of the party. But where the political party conducts its primary and a dissatisfied contestant at the primary complains about the conduct of the primary, the courts have jurisdiction, by virtue of the provisions of S. 87(9) of the Electoral Act, to examine if the conduct of the primary election was in accordance with the party’s constitution and guidelines. This is so because in the conduct of its primaries the courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own constitution.”
There is no doubt that the learned trial judge was wrong in thinking that the appellant wanted an inquiry into the general election which had taken place which led to his perverse conclusion that he could not inquire into the claims of the appellant.
Where a court erred in law by misapprehending the case of a party and such misapprehension causes a miscarriage of justice, the decision is liable to be set aside as perverse. See Adejugbe v. Ologunja (2004) 6 NWLR Pt. 868 Pg. 46; (2004) 2 S.C. Pt. 11 Pg. 44; Akande v. Owero & Anor. (1977) 1 S.C. 46.
Why I cannot agree with learned appellant’s counsel that the trial judge raised the issue of jurisdiction suo motu and based his decision on lack of same is that the learned trial judge albeit briefly touched on some issues in controversy and did not strike out the case for want of jurisdiction but dismissed same after a consideration on the merits. His Lordship might have misunderstood the case made out but he did not in fact decline jurisdiction.
ISSUE THREE
Whether having regard to the facts and circumstances of this case the appellant who was an aspirant in 2nd respondent’s primaries held on 13th January 2011 cannot be declared the lawful winner of majority of valid votes cast and lawful candidate of 2nd respondent entitled to a certificate of return, 2nd respondent having won the election? (Grounds three and four).
On this issue, learned appellant’s counsel wants us to consider the merit of the case made out by him at the trial court and to declare him the winner of the party primaries. His main argument in this regard is that the appellant, by leave of court granted on 22nd June 2011, amended his originating summons whereby the case he carved out respecting the issue of irregularities in the primaries of 13th January 2011 was the effect that non PDP members of a body referred to as “Delta Coalition for Change (DCC)”. He maintained that the DCC is an external and unknown body to the DPP constitution and the Electoral Act, whose members were conscripted and smuggled in, mainly by 1st respondent, to vote illegally as delegates in the sad election wherein only financial members of the DPP were authorized to vote by virtue of Article 28.1(v) of the DPP constitution.
Counsel submitted that were invalid votes are found to have been unlawfully credited to a candidate in an election, it is incumbent upon the court or tribunal to cancel and deduct such invalid votes in order to arrive at the actual result and ascertain the rightful winner of the election.
He cited Amadasun v. Ativie (2010) All FWLR Pt. 505 Pg. 1728 at 1751.
Counsel also argued that the learned trial judge failed to take into account the legal effect of the withdrawal by the appellant of relief (III) in the originating summons which is that the relief ceases to exists having been abandoned by the appellant. He cited Ogunde (2010) All FWLR Pt. 543 Pg. 1897 at 1903; Zakhem Oil Serve Ltd. v. Art-In-Science Ltd. (2010) All FWLR Pt. 547 Pg. 776 at 778.
The 1st, 2nd and 5th respondents all re-echoed the argument that a person, not sponsored by a political party to contest an election and who was not nominated to contest the election nor his nomination papers or forms ever submitted to INEC by a political party, cannot be returned as the winner of the election he never participated in, based on the allegation that the winner of the election was not qualified to contest the primary election and on the ground that the primary election was marred and/or flawed with irregularities and malpractices, and therefore he who came 3rd in the primary election became the candidate in the election and therefore the winner of the election.
They all argued that the question of the nomination and sponsorship of candidates for a political office by a political party is purely within the domestic domain of the political party in respect of which the court cannot adjudicate.
I share the view of the appellant that the appellant having withdrawn the 3rd prayer in the amended originating summons, arguments based on it and any decision based on it go to no issue. The third prayer of the appellant which was abandoned is stated below:
(iii). A DECLARATION that the said primary election held on the 13th of January, 2011 for Delta State house of Assembly, Ughelli North Constitution II was marred and tainted with irregularities practiced by and accruing to the 1st and 4th defendants and was thereby illegal, unlawful and unconstitutional as it breached the provisions of the DPP Constitution and the Electoral Act 2010 (as amended).
On 19/5/2012 at Pg. 1561 of the record, the learned appellant’s counsel withdrew relief 3. The learned trial judge also conceded at Pg. 1595 of the record that prayer 3 had been withdrawn even though issues had been joined in respect of same. It appears to me that the learned trial judge felt that since issues had been joined, even though the appellant had withdrawn the prayer, the court could still consider and make pronouncement on said prayer. That is not the law. In Mangibo v. Ogunde supra at Pg. 1903, it was held as follows:
“That the fact of abandonment amounts to a complete surrender, relinquishment of the claim made by the plaintiff, I cannot but agree more; when a claim or relief is withdrawn or abandoned it means such a claim or relief has ceased to exist and is as though no such claim or relief was made.”
In the circumstances, all arguments with regard to the prayer for the declaration of the primary election as being illegal, unlawful and unconstitutional must be deemed abandoned and it was wrong of the learned trial judge to consider same.
The main thrust of the case of the appellant at the trial court and in this court is that some votes were cast by some illegal DCC delegates at the primaries and said votes be declared as invalid votes, and upon the deduction of the invalid votes from the total votes wrongfully credited respectively to the 1st and 4th respondents, he the appellant is the returnable lawful winner of majority of valid votes cast at the primaries, by virtue of S.87(4)(c)(ii) of the Electoral Act 2010 (as amended).
The appellant’s counsel complained that the learned trial judge did not appraise and evaluate the evidence of the parties in that regard and urged this court to activate our powers under S.15 of the Court of Appeal Act and to resolve the issue in his favour.
I am in complete agreement with learned counsel that indeed where a trial court fails to evaluate all the evidence placed before it as in this case, the appellate court can evaluate same and make appropriate orders pursuant to S.15 of the Court of Appeal Act.
Let us look at the records and the documentary evidence before the lower court in order to determine whether we can in fact make any of the orders sought by the appellant.
It is trite law that it was the duty of the plaintiff at the trial to prove his case and all the allegations contained in his affidavit with preponderance of evidence and thus on the balance of probabilities in order to convince the court. The appellant did not descend into particulars in the brief. However in the brief filed by the 2nd respondent’s counsel copious references were made to the relevant portions of the exhibits filed by both sides in relation to the issue of fact of whether the primaries was conducted regularly or not. At Pg. 836-837 of the record, the appellant attached Exhibit 5 to his amended originating summons which is a list of the delegates whom he claimed voted. Exhibit 5 is dated 12/1/2011 but was not authored by anyone as it was not signed. Appellant also exhibited Exhibit 4A-4H at Pg. 819-835 of the record as the authentic list of the delegates who voted at the primaries. This was challenged by the party – 2nd respondent in Exhibit B at pages 1173-1182 of the record wherein they submitted the list from the party which was endorsed by the State Secretariat of the party.
The 2nd respondent exhibited the list of the delegates to the counter-affidavit at pages 1179-1181 of the records. Roman figure I for constituency 1 and Roman figure II for constituency ll. It is clearly indicated on the document marked as exhibit B at page 1182 of the records. Also at page 1166 of the records, 2nd respondent deposed at paragraph 9 and 10 of the counter-affidavit that 121 delegates voted at the primary election which is an internal affair of the 2nd respondent. The appellant scored 29 votes, 4th respondent scored 31 votes, the 5th respondent scored 19 votes, the 1st respondent scored 33 votes and one Mr. Onass Olori scored 8 votes. The result of the primary election is at page 1171 of the records. It was signed by the Returning Officers, Messrs Emaniru Sonnie and Avwarosuo Ogbebor on 13/1/2011. The list of delegates at pages 1173 to 1181 was compiled by the 2nd respondent’s officers employed in the primary elections without objection from the appellant or any of the other aspirants.
I have looked at all the exhibits with keen interest. If authentic members of DPP who were also members of DCC voted at the primaries, how can that be faulted? How could the appellant prove which delegate voted for whom? In any event, the issue here remains the fact that the organization of primaries remains the exclusive preserve of the political party. At each step, the allegation that non members voted at the primaries was countered by the party. I am personally a passionate advocate of democracy within the party. I cannot find any clear evidence not to talk of preponderant evidence that the party primaries complained about was not properly conducted. That raving and ranting by the appellant in all the affidavit about the primaries not having been properly conducted is not based on solid facts.
In the circumstances, I am of the view that the appellant did not make a good case at the trial court to enable this court activate S.15 of the Court of Appeal Act in his favour.
The prayers contained in the originating summons cannot be granted to the appellant and thus the appeal has to fail. Appeal Dismissed. Costs of N30,000.00 each to the 1st and 5th Respondents.
SIDI DAUDA BAGE, J.C.A.: I had the honour of reading in draft the leading Judgment of my learned brother, H. M. Ogunwumiju, J.C.A., I am in complete agreement with. I too hold that the prayers contained in the Originating Summons cannot be granted to the Appellant. The appeal has failed and thus also dismissed by me.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has dealt incisively with the Issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add to the Judgment. Indeed I hereby adopt the lucid lead Judgment as mine.
Accordingly, I too, resolve the Issues in the appeal in the same manner they have been resolved in the lead Judgment and dismiss the appeal. I abide by the order as to costs made in the lead Judgment.
Appearances
Moses O. Ehroma Esq. with him Henry ObafemiFor Appellant
AND
Chief P. O. Wanogho with him M. E. Oruma for 1st Respondent
A. E. Icheghe for 2nd Respondent
Ayo Asala for the 3rd Respondent
Ikhide Ehighelua Esq. with him A. E. Alagun for 5th respondentFor Respondent
