HON. YAKUBU ABDULGANIYU KAYODE v. ALL PROGRESSIVE CONGRESS & ORS (2014)

HON. YAKUBU ABDULGANIYU KAYODE v. ALL PROGRESSIVE CONGRESS & ORS

(2014)LCN/7067(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/A/22/2012

RATIO

DUTY OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE FINDINGS OF THE LOWER COURT

It is trite that an appellate court will not interfere with the findings of the lower court where there is sufficient evidence to support the findings and where there is no substantial error apparent on the record of proceedings, such as miscarriage of justice or violation of some principles of law or procedure.
See the case of Ezeonwu vs. Onyechi (1996) 3 NWLR (Pt. 438) 499.
However, the Court of Appeal, as an appellate court, has the power to re-evaluate the findings of the trial court, as well as the evidence placed before it, to ascertain whether such evidence was wrongly rejected or admitted. See the case of Akinfe vs. U.B.A Plc (2007) 10 NWLR (Pt. 1041) 185. PER AMIRU SANUSI, OFR J.C.A.

EVIDENCE: POSITION OF THE LAW WHERE THERE ARE CONFLICTING AFFIDAVITS BEFORE THE COURT

It is trite and well settled law too, that where there are conflicting affidavits evidence before the court, the court is expected to resolve such conflicting evidence by calling oral evidence from the deponents. See the case of Adamu vs. Akukalia (2005) 11 NWLR (Pt. 936) 263.
In the instant case however, which is a case instituted vide originating summons, oral evidence is required to resolve the apparent conflicts in the affidavits. This Court is therefore placed with the onerous burden of drawing its inference from the conduct of the parties, vis-a-vis the documents placed before it.

It is on record before this Court that as adumbrated above per paragraphs 5 and 6 of the Appellant’s further and better affidavit at page 80 of the Records, that on the 18th of January, 2011, he was allegedly informed by the State secretary of the 1st Respondent that the balance of the nomination had been waived for him by the party, which led to the submission of his name to the 2nd Respondent. It is also on Record as per paragraph 21 of the 1st Respondent’s counter affidavit that this deposition by the Appellant is controverted.

There is no doubt that apparently there is conflict between the affidavit supporting the originating summons and the averments in the counter affidavit sworn to by the 1st respondent. It is the settled law that where a court is faced with a situation of this nature, the court has a duty to resolve the conflict in the affidavit by resorting to calling oral evidence. See NEPA vs. Arobieke (2006) 7 NWLR (Pt. 879) 245; 7Up Bottling Company Plc vs. LSIRB (2000) 3 NWLR (Pt. 650) 565; Amaka Community Bank Ltd vs. Olue (2000) 12 NWLR (Pt. 682) 641; Falobi vs. Falobi (1976) 1 NLR 169; Military Administrator FHA vs. Aro (1991) 1 NWLR (Pt. 168) 406; Arjay Ltd vs. Aurhue Management Support Ltd (2000) 8 NWLR (Pt. 670) 636 at 643.
However, it is also the law that a court confronted with such situation can still dispense with calling oral evidence, if such conflict can be resolved by making reference to some documents filed before it which could assist it in resolving such conflict in the affidavits. In that regard, I think such material contradictions in the depositions can be resolve if recourse is made to the exhibits tendered and admitted in this case. I will therefore venture to do just that hereunder. PER AMIRU SANUSI, OFR J.C.A.

Justice

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

OFR Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

HON. YAKUBU ABDULGANIYU KAYODE – Appellant(s)

AND

1. ALL PROGRESSIVE CONGRESS (FORMERLY ALL NIGERIA PEOPLES’ PARTY – ANPP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. AFOLABI OLUYORI SOLOMON – Respondent(s)

AMIRU SANUSI, OFR J.C.A. (Delivering the Leading Judgment): This appeal arose from the decision of Federal High Court, (hereinafter referred to as “the lower court”) sitting at Lokoja, delivered on the 30th of September, 2011.

At the lower court the appellant as Plaintiff, filed the suit by way of Originating summons against the present respondents, as defendants thereat, in which he approached the court to determine the under mentioned questions:
1) Whether by virtue of the provisions of Sections 32 and 33 of the Electoral Act, 2010 as amended, the Plaintiff who contested and won the party’s primary election for Kogi State House of Assembly and was returned as the validly nominated candidate in the said elections and whose name was forwarded by the party to the Independent National Electoral Commission for the purpose of contesting the April, 2011 House of Assembly election, can be replaced or substituted by the 1st and 2nd Respondents.
2) Whether by the provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010 as amended, the 2nd Respondent can validly substitute the name of the Plaintiff who contested and won the party’s primary election for Ijumu Local Government Area Constituency, with the name of the other person (3rd respondent) who never participated in the 1st Respondent’s screening exercise or contested and won the party’s primary election for the purpose of contesting the April 2011 general elections.
3) Whether by the provisions of the Electoral Act 2010, the 2nd Respondent can accept, recognize and maintain on its records, the name of any other person other than the name of the Plaintiff who participated in the party’s primary election, won and was duly nominated by the 1st Respondent for the purpose of contesting the April, 2011 House of Assembly Election for Ijumu Local Government Area Constituency.

The substantive reliefs sought at the lower court by the plaintiff/appellant vide the originating summons, are hereunder reproduced. They read thus:
1. A DECLARATION that the Plaintiff who duly contested, won and was returned by the 1st Respondent in the party’s primary election was validly nominated and returned.
2. A DECLARATION that the purported removal and substitution of the name of the Plaintiff with that of the 3rd Respondent by the 1st and/or 2nd Respondents for the purpose of contesting the April 2011 House of Assembly Election is null and void.
3. AN ORDER of injunction restraining the 1st and 2nd Respondents from recognizing any other person besides the Plaintiff as candidate for the 2011 House of Assembly Election for Ijumu Local Government Area Constituency.

The case of the Appellant is that he is a registered member of the 1st Respondent (ANPP) and that he expressed his interest to contest election into the House of Assembly of Ijumu Constituency under the platform of the 1st Respondent. He complied with the constitution of the 1st Respondent by paying the appropriate fees for nomination, filled the nomination form and was successful in the screening exercise for the primary election. At the primary election, he emerged winner and was returned unopposed. The 1st Respondent upon his emergence as winner forwarded his name to the 2nd Respondent (INEC) by a letter dated January 2011 which was admitted in evidence at the Lower Court as Exhibit A.
The Appellant however avers that after his nomination and despite having his name forwarded to INEC and without the 1st Respondent conducting any other primary election, his name was unlawfully substituted with that of the 3rd Respondent. In support of his case, the Appellant filed a 22 paragraphed affidavit deposed to by himself and to which was attached some exhibits marked Exhibits A, B and C. The Appellant also filed a Further and Better Affidavit of 6 paragraphs, deposed to by him, containing three exhibits; i.e. Exhibits A, B and C.

Conversely, the case of the 1st Respondent is that the Appellant in January 2011 indicated his interest and applied to contest election into Kogi State House of Assembly, Ijumu constituency, but was unable to pay the nomination fee of Two Hundred and Fifty Thousand Naira only. Being the only person as at that time who indicated interest, the 1st Respondent’s National Executive council waived part of the fee for him. He was therefore asked to pay One Hundred and Fifty Thousand Naira only. The Appellant paid Fifty Thousand Naira as part-payment of the waived sum with a promise to pay the balance within seven days.

In furtherance of this, the 1st Respondent averred that the Appellant signed a withdrawal letter which would take effect in case he was unable to pay the agreed balance. The said withdrawal letter was admitted in evidence and marked Exhibit ANPP1. The 1st Respondent further averred that upon the inability of the Appellant to pay the outstanding balance, after letter of demand was served on him by the 1st Respondent, the 1st Respondent acting on the signed withdrawal letter substituted the candidature of the Plaintiff with that of the 3rd Respondent who was able to perfect his nomination process by paying the agreed sum. In support of his case, the 1st Respondent filed a 25 paragraphed counter affidavit deposed to by one Elder Kenneth Elesho, Kogi State Secretary of the 1st Respondent wherein he attached 6 Exhibits, namely Exhibits ANPP 1, ANPP 2, ANPP 3, ANPP 4, ANPP 5 and ANPP 6.

With regard to the 3rd Respondent, his case is that he became aware of the vacancy of the House of Assembly, in Ijumu Constituency sometime in January 2011 and he indicated his interest. He then proceeded to pay the sum of One Hundred and Fifty Naira demanded of him and upon that he was issued the nomination form which he filled and returned. He thereafter underwent a successful screening exercise as a candidate for the 1st Respondent and was also issued with the 2nd Respondent’s Form 001 which he filled and returned and his name was subsequently forwarded to the 2nd Respondent as the nominated candidate of the 1st Respondent. In support of his case, the 3rd Respondent filed a 15 paragraphed counter affidavit, deposed to by the 3rd Respondent himself and containing two exhibits; i.e. Exhibits XX1 and XX2.

The 2nd Respondent filed no counter affidavit at the lower Court. Hearing then commenced at the lower court and at the conclusion of the trial, the learned trial Judge, in a considered judgment dismissed the suit of the Appellant as having not been established and for being lacking in merit.
The Appellant became piqued by this decision and has appealed to this Honourable Court vide a Notice of Appeal filed on the 6th of December, 2011 containing three grounds. With leave of this court the appellant also filed five Additional Grounds of Appeal.

The entire grounds of appeal are hereunder reproduced without their particulars:
ORIGINAL GROUND ONE
The learned trial Judge erred in law when he held that “Exhibit ANPP1 is relevant to establish the fact or otherwise of the withdrawal of the plaintiff’s candidature.
ORIGINAL GROUND TWO
The learned trial Judge erred in law when he held that “apart from Exhibits ANPP 5 and ANPP 6 which the 1st Defendant tendered to confirm the signature of the Plaintiff, all the sworn depositions of the Plaintiff in this matter are endorsed with the same signature as the one in ANPP 1.
ORIGINAL GROUND THREE
The Judgment is against the weight of evidence.
Consequent upon an order of this Honourable Court made on the 7th of May 2012, the Appellant was granted leave to file additional grounds of appeal.

Accordingly the additional grounds of appeal are hereunder reproduced without their particulars:
ADDITIONAL GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when he held that Exhibits ANPP 1 is relevant to establish the fact or otherwise of the withdrawal of the Plaintiff’s candidature.
GROUND TWO
The learned trial Judge erred in law when he held that apart from Exhibits ANPP 5 and ANPP 6 which the 1st Defendants tendered to confirm the signature of the Plaintiff, all the sworn depositions with are the same signature as the one in ANPP 1.
GROUND THREE
The learned trial Judge misdirected himself in law when he held that the evidence of a party primary require concrete proof and oral depositions are incapable of substantiating same.
Exhibits A, B, and C attached to the Affidavits in support of the originating processes are documents which are incapable of proving the facts that primary election was conducted.
GROUND FOUR
The learned trial Judge misdirected himself on the fact and law, when he held that where a primary election of a political party is in issue as in this case the crucial burden to be discharged by the Plaintiff in proving his case is the establishment of the substantial evidence, the facts of his deposition.
GROUND FIVE
The learned trial Judge erred in law when he held that a Plaintiff cannot arrogate the title of ‘nominated candidate’ of a political party to himself merely on the part payment of nomination fee and unsubstantiated evidence on the issue of waiver of the balance thereof.
GROUND SIX
The learned trial Judge erred in law when he held that the interpretation of the caveat on Exhibit B is that One Hundred Thousand Naira is still outstanding and yet to be paid by the Plaintiff and the deposition in the Appellant’s affidavit cannot contradict it.
GROUND SEVEN
The learned trial Judge misdirected himself in law when he held that I have been unable to find reasons for the failure of the Plaintiff to disclose the full facts of this case from onset.
GROUND EIGHT
The Judgment is against the weight of evidence.

In line with the rules and practice of this Court, parties filed and exchanged briefs of argument. In the Appellant’s brief, settled by Gimba Shaba Esq., six issues were distilled for determination in this appeal, namely:
i. Whether Exhibit ANPP 1 is admissible as to enable the trial court utilize it to reach its decision.
ii. Whether primary election of a political party is in issue in this case.
iii. Whether having regard to the documentary evidence before the trial court, the 1st Respondent has not by its conduct waived the balance of the part payment of the nomination fee and the right to substitute the Appellant with the 3rd Respondent.
iv. Whether by the nature of Exhibit B annexed to the Appellant’s affidavit, the explanation offered or reason given by the Appellant as told him by the Secretary of the 1st Respondent on the nonpayment of the balance is contradicting Exhibit B.
v. Whether the finding of the learned trial Judge on the same issue in a single judgment is not contradictory or an attempt to vary or review his earlier finding.
vi. Whether the trial Judge properly assessed and evaluated the evidence before him.

In the 1st Respondent’s brief, settled by Isaac E. Ekpa Esq., the six issues formulated by the Appellant were adopted save for a slight modification of issue one, with the addition of the word ‘relevant’. The 1st Respondent also filed a Notice of Preliminary objection, on the 18th of December, 2012 and incorporated the arguments thereby in his brief.

In the brief of the 2nd Respondent, settled by Zagana S. Gbaje Esq., issues 1, 2, 5 and 6 distilled by the Appellant in his brief were adopted by the 2nd Respondent though renumbered as issues Nos. 1, 2, 3 and 4.
The 3rd Respondent, in his brief settled by O. A. Ola Esq., also adopted the six issues raised in the Appellant’s brief.

On the 10th of December, 2013, this Honourable Court granted leave to the Appellant to substitute the name of the 1st Respondent, All Nigeria Peoples’ Party (ANPP) with All Progressives Congress (APC), hence the change of the original 1st Respondent as shown in the names of parties in this judgment.
At the hearing of this appeal, learned counsel adopted and relied on their various briefs of argument after, of course, the 1st respondent adopted and argued its preliminary objection.

Learned Counsel to the Appellant, Gimba Shaba Esq., then adopted and relied on the Appellant’s brief of Argument dated the 11th of November, 2013, filed on the 12th of November 2013, but deemed properly filed on the 10th of December, 2013. Learned Counsel also adopted and relied on the Appellant’s Reply to the 1st Respondent’s brief filed on the 23rd of December, 2013, Appellant’s Reply to the 2nd Respondent’s brief filed on the 6th of January, 2014, as well as the Appellant’s Reply to the 3rd Respondent’s brief filed on the 19th of December, 2013, were also adopted and he later urged this Court to allow the appeal, set aside the judgment of the trial Court and grant the reliefs sought by the Appellant.

Learned Counsel to the 1st Respondent, Isaac E. Ekpa Esq., adopted and relied on the 1st Respondent’s brief of argument and Notice of Preliminary objection, both dated and filed on the 18th of December, 2013, and he urged this court to dismiss this appeal as lacking in merit.

In the same vein, learned counsel to the 2nd Respondent, Zagana S. Gbaje Esq., adopted and relied on the 2nd Respondent’s Brief of Argument dated and filed on the 20th of December, 2013 and he urged this court to dismiss the appeal on the grounds that the appeal is frivolous, unmeritorious, speculative and vexatious.

Similarly, learned counsel to the 3rd Respondent, O. A. Ola Esq., adopted and relied on the 3rd Respondent’s brief of argument, dated and filed on the 17th of December, 2013 and urged this Court to uphold the decision of the lower court and dismiss the appeal with substantial cost for being devoid of merit.

Before delving into the arguments of Learned Counsel on the issues raised, it will be incumbent on me to dispose of the Preliminary Objection raised by the 1st Respondent, challenging grounds one and two of the original grounds of appeal for being incompetent upon the following grounds:
i. That the said grounds of appeal raise a fresh issue in this appeal
ii. That leave of this Court was not sought and obtained
iii. That leave of this Court is required to make the grounds competent
iv. That the grounds of appeal subject of complaint, is not compatible with the particulars of the grounds.

In arguing the Preliminary Objection, it was submitted for the 1st Respondent from the two grounds of appeal, it could never be discerned that the complaint of the Appellant relates to the admissibility of Exhibit ANPP 1.
It was submitted further that the law is settled that particulars of a ground of appeal must relate to the complaint in the ground and not to go outside it.
Reliance was placed on the case of Stirling Civil Eng Nig. Ltd vs. Yahaya (2002) NWLR (Pt. 750) 1 at 15. He also cited and relied on the case of Maidara vs. Halilu (2000) FWLR (Pt. 19) 433 at 448-449

It is submitted that a look at the particulars to the two grounds of appeal clearly show that they go outside relevancy and power of the court to compare signatures on documents. The particulars thereto, are not related to the grounds of appeal. The effect is that original grounds one and two from which the Appellant formulated his 1st issue are not competent and both grounds and issue one so formulated on them, are liable to be struck out.

It is submitted that Exhibit ANPP 1 was not considered by the trial court and no finding was made thereto. The effect is that the Appellant is raising the issue for the 1st time in this appeal and to competently raise it, it requires obtaining prior leave of this Court which was never sought and obtained.
He cited and relied on the case of Onyemaizu vs. Ojiako (2000) FWLR (Pt. 2) 310 at 319, as well as the case of Joy vs. DOM (1999) 9 NWLR (Pt. 620) 538.

It is further submitted that the two grounds of appeal did not challenge a finding of the lower court and therefore leave of this Court is required.
This Court is therefore urged to sustain the Preliminary Objection and to strike out original grounds 1 and 2 as well as Issue one formulated there for also being incompetent.

In his response to the Preliminary Objection, it was submitted for the Appellant that the particulars of the two grounds do not, relate to the grounds because the particulars highlighted the substantive or procedural law that is affected by the error complained of in the ground of appeal and an attempt to demonstrate the flow in the judgment.
Reliance was placed on the case of Nwaogwugwu vs. President Federal Republic of Nigeria (2007) ALL FWLR (Pt. 358) 1151 at 1163.

It was submitted that the particulars of the two grounds complained of highlighted the provisions of the Electoral Act as well as the Evidence Act affected by the error which are the subject of the Appellant’s complaint in the original ground one. He cited and relied on the case of Diamond Bank Ltd vs. P.I.C. Ltd (2010) ALL FWLR (Pt. 512) 1098 at 1116.
It is submitted also that a ground of appeal and its particulars should be read together to ascertain or appreciate the nature of the complaint. Reliance was placed on the cases of Iwueke vs. Imo Broadcasting Corp. (2005) 9-10 SCNJ 35, Madumere vs. Nwosu (2010) ALL FWLR (Pt. 545) 263 at 281.

It was further argued that grounds one and two in the Original Notice of Appeal, when read together with their particulars will show that they relate to question of relevancy and admissibility of Exhibit ANPP 1 and cannot therefore be said to be incompetent.
It was further contended that an issue can be raised from one or more grounds of appeal and original grounds one and two from which issue one was raised, question the use of inadmissible exhibit i.e. Exhibit ANPP 1.

In reply to the argument that the lower court never made any finding on Exhibit ANPP1, reference was made to page 243 of the Records where the lower court held that Exhibit ANPP1, is relevant to establish the fact or otherwise of the Appellant’s candidature.
It was therefore submitted that grounds one and two of the original grounds of appeal do not raise fresh issues and as such prior leave of this court is not required before raising same. Reliance was placed on the case of BOB vs. Akpan (2010) 17 NWLR (Pt. 1223) 421 at 464-467.

It was submitted also that since the grounds in question raise a question of law, leave of this court is not required. He cited and relied on the case of P.I.P Ltd vs. Trade Bank Nig. Plc (2009) 13 NWLR (Pt. 1159) 577. This court is therefore urged to overrule the Preliminary Objection for lacking in merit.
For purpose of clarity and ease of reference, it is pertinent to reproduce Grounds one and two of the original Grounds of appeal alongside their particulars.

Original Ground one:
The learned trial Judge erred in law when he held that” Exhibit ANPP 1 is relevant to establish the fact or otherwise of the withdrawal of the Plaintiff’s candidature”
Particulars of Error
1) The 2nd Respondent is the custodian of Exhibit ANPP 1 in law by virtue of Section 35 of the Electoral Act as amended
2) Exhibit ANPP 1 is a public document within the purview of Section 109 (b) of the Evidence Act.
3) Exhibit ANPP 1 is a photocopy of a certified true copy of a public document certified by the Kogi State secretary of the 1st Respondent.
4) Only officer of the 2nd Respondent that has the custody of Exhibit ANPP 1 can certify it in accordance with the provisions of Section 111 of the Evidence Act.
5) Inadmissible document is not relevant.
Original Ground Two:
The learned trial Judge erred in law when he held that “apart from Exhibits ANPP 5 and ANPP 6 which the 1st Defendant tendered to confirm the signature of the Plaintiff, all sworn depositions of the Plaintiff in this matter are endorsed with the same signature as the one in ANPP 1.
Particulars of Error
1) Exhibit ANPP 1 being photocopy of a certified true copy of a public document certified by the Kogi State Secretary of the 1st Respondent is inadmissible in law.
2) Inadmissible document is not relevant in law.
3) Only admissible documents with signatures can form the basis of comparison of signatures by court.

Having closely considered the arguments of both Counsel in with regards to this preliminary objection, I find as follows:
On the grounds that the said grounds of appeal raise a fresh issue for which leave of this Court was not sought and obtained, it is my view that the issue of admissibility and relevance of Exhibit ANPP 1, was raised first at the lower court, vide the preliminary objections filed by the Appellant, both dated 21st April, 2011.

For instance, at page 187 of the Records, the learned trial Judge noted that the Preliminary objections were neither moved nor withdrawn and accordingly struck them out for being abandoned.
Thus since the preliminary objection was abandoned and struck out, it cannot be raised here again except by way of appeal against such ruling of the lower court.

Also, at page 189 of the Records, the lower court held:
“In the further written address in support of the further, further and better affidavit to the 1st Respondent’s counter – affidavit of 2nd June 2011, the Plaintiff raised yet another sole issue for determination to wit: “Whether Exhibit ANPP 1 and ANPP 3 annexed to the 1st Respondent’s counter affidavit are admissible in law”

Yet at page 195, the trial Judge held “the next argument of the Plaintiff is that he never signed Exhibit ANPP 1 or in the alternative, the said exhibit is inadmissible in evidence…”

I have painstakingly reproduced the above excerpts in those pages of the records where the issue of the relevancy and/or admissibility of Exhibit ANPP 1 were raised by the Appellant and the pronouncement of the trial court Judge. This being the case, the issue of the admissibility/relevancy of Exhibit ANPP 1 cannot be said to be a fresh issue for which leave of this Court is required. Leave is therefore not required to raise it on appeal. See Nkut vs. NPA (2007) NSCQR 312-426.
Assuming, without conceding that this is the case, the Supreme Court, in Ipinlaiye II vs. Olukotun (1996) 6 NWLR (Pt. 453) 148, held that:
“A party, who fails to object to the admissibility of evidence at the trial court, is at liberty to challenge the admissibility of such evidence on appeal.”
See Nkut v. NPA (supra)
On the ground that the particulars of appeal of original grounds one and two do not flow from the grounds, I hold the view that when the two grounds are read together, one is left in no doubt that the grounds attack the admissibility and therefore relevance of Exhibit ANPP 1, which the learned trial Judge relied on in his findings and from which the Appellant formulated his issue one.

I hold the view therefore that the said original grounds one and two are competent as well as the Appellant’s issue one, arising there from. I therefore hold that the Preliminary Objection lacks merit and is accordingly overruled.
I will now proceed to treat the appeal on the guidance of the issues raised in the Appellant’s Brief and will while doing so, consider them serially.

Issue No. 1
In arguing issue one, that is, ‘whether Exhibit ANPP 1 is admissible as to enable the trial court utilize it to reach its decision.’ It is submitted for the Appellant that the law is trite that a court has no discretion to admit and act upon evidence which is legally inadmissible even with the consent of the parties. He cited and relied on the case of Omega Bank Plc vs. O.B.C. (2005) 1 SCNJ 150.

He submitted that Exhibit ANPP 1 is a public document within the meaning of Section 102 (b) of the Evidence Act and the only admissible secondary evidence of a public document is a certified true copy of the document. Reliance was placed on the case of Alamieyeseigha vs. FRN (2006) 16 NWLR (Pt. 1004) 1.

It is also submitted that Exhibit ANPP 1, not being certified by a duly authorized officer of the 2nd Respondent, is not authentic and is therefore inadmissible. His further view is that an inadmissible document cannot be relevant for the trial Judge to utilize to compare signatures. He cited and relied on the following: G & T Investment Ltd. vs. Witt & Busch (2011) 8 NWLR (Pt. 1250) 500; Fawehinmi vs. IGP (2000) FWLR (Pt. 12) 2015.

It is submitted finally on this issue, that an appellate court can interfere with the findings of the trial court where findings have been made on inadmissible evidence. He relied on the case of INEC vs. OKORO (2010) ALL FWLR (Pt. 516) 448 at 460. And he urged this Court to interfere with the finding and resolve the issue in favour of the Appellant.

Conversely, it is submitted for the 1st Respondent that Exhibit ANPP 1 is a private document and does not fall within the purview of Section 102(b) of the Evidence Act, as submitted by the Appellant.
It is also submitted that there is nothing in Section 35 of the Electoral Act 2010, as amended, imposing a duty on a political party to forward the letter of withdrawal of candidate to INEC. All that is required of the political party is to convey such withdrawal to INEC and therefore the cases of Alamieyeseigha vs. FRN supra and G.T Investment Ltd vs. BURSCH supra, referred to by the Appellant are not relevant to this case, as the letter was addressed to a private person.

It is submitted therefore that Exhibit ANPP 1 is not only admissible but is also relevant and the trial court was right in utilizing same in his findings.
This Court is urged to resolve this issue against the Appellant.

In his reply, it is submitted for the Appellant that the true meaning of the word “convey” can also be ascertained by what precedes it and what follows it.
He relied on the case of Nigerian Army vs. Aminu Kano (2010) ALL FWLR (Pt. 523) 1805 at 1829 and submitted that the case of Alamieyeseigha vs. FRN supra and other cases cited in the Appellant’s brief are relevant and apposite.

Similarly, it was argued for the 2nd Respondent that since the case of the Appellant is one challenging his removal and substitution by the 1st and 2nd Respondent, a document showing that he indeed voluntarily withdrew his candidature in accordance with laid down and recognized procedure of the law is not only relevant but central to the issue in hand.
He placed reliance on the case of Haruna vs. AG. Federation (2012) 3 S.C. (Pt. IV) 40 at 54.

It is also submitted for the 2nd Respondent, that Exhibit ANPP 1 is a private and not a public document as contended by the Appellant and if it was the intendment of the legislature to make the withdrawal notice a public document, it would have been so expressly stated. He relied on the case of Gbagbarigha vs. Toruemi (2013) ALL FWLR (Pt. 670) 1236 at 1245.
It was argued that Exhibit ANPP 1 is a private document, addressed to the 1st Respondent and was properly tendered by him and cannot by any stretch of imagination be called a public document.
This Court is therefore urged to so hold and resolve this issue against the Appellant.

In his reply, it is submitted for the Appellant that the cases cited by the 2nd Respondent further reinforces the Appellant’s submission that Exhibit ANPP 1 must satisfy the test of admissibility in law under Section 102(b) of the Evidence Act.
It is submitted that Section 35 of the Electoral Act 2010 as amended is meant to cure the mischief and to forestall the arbitrariness and lawlessness of political parties who could substitute a candidate with another.

It is submitted that the court will have to take into account how the law previously stood before the introduction of Section 35. Reliance was placed on the case of Ugwu vs. Ararume (2007) 7 MJSC 1 at 28.
This Court is therefore urged to resolve this issue in favour of the Appellant.
On the part of the 3rd Respondent, it was submitted that Exhibit ANPP 1 is relevant and admissible to effectively decide the candidature or otherwise of the Appellant.

It is submitted also that if the law as provided for in Section 35 of the Electoral Act intended that the notice in writing addressed to the sponsor political party by the candidate be forwarded to the Commission by the said sponsor political party, it would have clearly and expressly so stated. He relied on the case of Obusez vs. Obusez (2007) NSCQR 329, and he submitted further that the court has a duty to interpret the provision of statute and constitution in a way that would not lead to absurdity.

It was contended also that the notice of withdrawal being addressed to the 1st Respondent and delivered to it by the Appellant as provided for in Section 35 made the 1st Respondent the custodian of same and is therefore a private document to be tendered without requirement of certification of any kind.

In conclusion, it was argued that this Court should discountenance the Appellant’s arguments and hold that Exhibit ANPP 1 is relevant and admissible to enable the court do substantive justice.

In his reply, it is submitted for the Appellant, that private document, which ought to be in custody of the 2nd Respondent within the meaning of Section 102(b) of the Evidence Act, 2011 is a public document and its admissibility can be raised on appeal, notwithstanding that objection to its admissibility was abandoned at the trial court. The case of Ugwu v. Ararume (2007) 7 MJSC 1 at 41-42 was relied on.

It is submitted also that admissibility and relevancy must coexist and an inadmissible document, though relevant is worthless in the eyes of the law. Reliance was placed on the case of Fawehinmi vs. IGP (2000) 7 NWLR (Pt. 665) 481. This Court has been urged to discountenance the submission of the 3rd Respondent and resolve this issue in favour of the Appellant.

The pith of this issue is the admissibility and/or relevance of Exhibit ANPP1, vis-a-vis Section 35 of the Electoral Act 2010, as amended.
To better appreciate the arguments of learned counsel on both sides in relation to this issue, I find it most expedient to reproduce the relevant sections of the law in controversy.

Section 33 of the Electoral Act 2010 as amended, provides:
“A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act, except in the case of death or withdrawal by the candidate”
Section 35 of the Electoral Act, provides:
“A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to election”

The argument of learned Counsel for the Appellant is that Exhibit ANPP1, which is a letter of withdrawal, purportedly written and signed by the Appellant, is inadmissible in law, because according to him, it is a public document within the meaning of Section 102(b) of the Evidence Act, 2011 in that it was not a certified true copy of same, pursuant to Sections 104 and 105 of the same Act.

The submissions of the various learned counsel to the Respondents are that the said letter was written and addressed to the political party whose only duty, in accordance with the provisions of the Electoral Act, was to convey such withdrawal to the commission i.e. From the wordings of Section 35 of the Electoral Act, as amended as reproduced above I am unable to agree with Learned counsel for the Appellant that the intendment of the legislature which enacted the Act was that the said notice of withdrawal was to be conveyed physically to the commission. Had this been so, the section would have expressly stated so.
To my mind all that is required of a political party is to convey the withdrawal to the Commission. It is trite that in the rules of interpretation, words are to be given their ordinary or literal natural meanings.
The Oxford Advanced Learners’ Dictionary, 6th Edition defines “convey” as “to communicate”
When applied, mutatis mutandis, to the said section, it will be understood that all that a political party is required to do is to communicate or inform the Commission, the fact that a particular candidate has voluntarily withdrawn his candidature. That being so, the said Exhibit in my view, does not fall within the type of document covered by Section 102(b) of the Evidence Act 2011 as a public document for which the only admissible copy, is a Certified True Copy of same. I also find that Exhibit ANPP1, being a private document, requires no certification and it is also admissible and relevant evidence before the trial court in order to prove the withdrawal or otherwise of the candidature of the Appellant. This issue is therefore resolved against the Appellant.

Issue No. 2
In arguing his second issue, to wit, whether the learned trial judge is not making a case for the parties that primary election is in issue in this case, it is submitted for the Appellant that the duty of the trial court is to consider the case before it in the light of the parties’ complaints. The court has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so would result in the denial to one or the other of the parties of his right to fair hearing. He relied on the case of Shasi vs. Smith (2010) ALL FWLR (Pt. 513) 1231 at 1242.

It is submitted that the case of the Appellant at the trial court is that of unlawful substitution and that though a trial court can suo motu raise an issue, it must invite parties to address it on the issue. He relied on the case of Enekwe vs. I.M.B. LTD (2007) 1 MJSC 193 at 209; Alli vs. Alesinloye (2000) 6 NWLR (Pt. 660) 177.

It was submitted that the 1st Respondent admitted that it forwarded the name of the Appellant to the 2nd Respondent. He referred to page 97 of the Record and submitted further, that having so admitted, no further proof was necessary. He relied on Section 75 of the Evidence Act (as amended), as well as the case of Dibia vs. Tubonimi (2010) ALL FWLR (Pt. 546) 583 at 600.

It was submitted that once the 1st Respondent admitted submitting the Appellant’s name to the 2nd Respondent as its candidate for the April 2011 Kogi State House of Assembly election for Ijumu constituency without any of the parties deposing that it was done in error, the issue of primary election of a political party is no longer in issue as to necessitate its proof by tendering or annexing the result of the said primary election. He referred to the case of Ezeigwu vs. Nwalulu (2010) ALL FWLR (Pt. 518) 794.

In conclusion, he submitted that Exhibits A, B and C, annexed to the affidavit in support of the Originating Summons which shows that the 1st Respondent submitted the Appellant’s name to the 2nd Respondent as its candidate for the April 2011 Kogi State House of Assembly election for Ijumu Constituency, had put the issue beyond primary election of the 1st Respondent but the issue of the substitution of the Appellant with the 3rd Respondent and this Court is urged to hold that the findings of the trial court is perverse and to resolve this issue in favour of the Appellant.

Conversely, it was submitted for the 1st Respondent, that a look at the originating summons of the Appellant, at pages 3-4 of the Records would reveal that the Appellant was relying on the primary election conducted by the 1st Respondent, and therefore the issue of primary election was raised by the Appellant.

It was argued that the Appellant having raised the issue of primary election and nomination as a candidate, he was bound to prove same. Therefore the learned trial Judge was not out of order when he held that the Appellant had not sufficiently proved same.

It was further submitted that, where as in the instant case, the withdrawal of a candidate at an election is hinged on a condition to be met, unless the Appellant can show that he had met that condition, he is not entitled to complain against the said withdrawal. He referred to Exhibits ANPP 1 and ANPP 3 and urged this Court to resolve this issue against the Appellant.

In his reply, it was submitted for the Appellant that a look at the 1st Respondent’s paragraph 7 of his Counter Affidavit at page 138 of the Records would reveal that the 1st Respondent admitted that it submitted the Appellant’s name to the 2nd Respondent and the position of the law is that facts admitted need no further proof. He relied on the case of Dibia vs. Tubonimi (2010) ALL FWLR (Pt. 546) 583 at 600. This court is urged to resolve this issue in favour of the Appellant.

The 2nd Respondent on its part reproduced the issues for determination in the Appellant’s originating summons and submitted that having made the primary election a central issue, the Appellant cannot now turn around to accuse the trial court of raising the issue suo motu.

It is further submitted for the 2nd Respondent that it was based on the entire averments and depositions of the Appellant and the three issues formulated by the Appellant in his originating summons that the trial court arrived at its decision.
Reliance was placed on the unreported case of Ahovi vs. INEC & ORS SUIT No. FHC/LKJ/CS/25/2011,
This court is urged to resolve this issue against the Appellant.

In his reply, it is submitted for the Appellant that the instant case is distinguishable from the unreported case of Ahovi vs. INEC & ORS supra and that since cases are decided on their peculiar facts, the above cited case is not applicable in this case.

It is also submitted that having not invited the parties to address it on the issue of primary election, the conduct of the trial court amounted to a denial of fair hearing and where this is the case, the proceedings, no matter how well conducted cannot stand. He relied on the case of OGBORU vs. Uduaghan (2011) ALL FWLR (Pt. 577) 650 AT 676-677. This court is urged to resolve this issue in favour of the Appellant.

The 3rd Respondent aligned himself with the submissions of the 2nd Respondent and submitted further that the Appellant cannot make a case different from the one at the trial court. He referred to Section 87 (4) (c) and (6) of the Electoral Act as well as the case of Osuji vs. Ekeocha (2009) 39 NSCQR 533-535. It was again submitted that the trial court had properly evaluated the evidence placed before it and it was the Appellant that made his primary election an issue at the trial court and so there was no denial of fair hearing. This Court is urged to so hold and resolve this issue against the Appellant.

In reply, it was submitted for the Appellant that Section 87 (4)(c) & (6) of the Electoral Act, when read together with Section 85 of the same Act, as well as Section 168 of the Evidence Act, places a presumption of regularity on the Appellant and the onus is on the respondent is disprove same. He placed reliance on the case of Adeogun vs. Fasogbon (2011) 8 NWLR (Pt. 1250) 453. This Court is urged to discountenance the submissions of the 3rd Respondent and resolve this issue in favour of the Appellant.

The grouse of the Appellant is that having forwarded his name to the commission, i.e. 2nd Respondent, whether or not a primary election held or the date of such primary election, is no longer in issue.

At page 194 of the Records, the learned trial Judge held thus; “where a primary election of a political party is in issue as in this case, the crucial burden to be discharged by the Plaintiff in proving his case is the establishment with substantial evidence of the date and result of a party primary election require concrete proof and oral depositions are incapable of substantiating same…..”
The above stated dictum of the trial court forms the basis of the Appellant’s complaint.

A close look at the questions for determination and the reliefs sought in the Appellant’s originating Summons would show that the Appellant stated that there was a party primary election wherein he emerged winner and his name was forwarded to the Commission.
In some paragraphs of the affidavit in support of his Originating summons, it was stated thus:-
Paragraph 8:
“That I participated in the 1st Respondent’s screening exercise and primary election for nomination and I emerged winner and returned unopposed for the purpose of contesting, for the April 2011 House of Assembly Election”
Paragraph 9:
“That vide the 1st Respondent’s letter dated 24th January, 2011, the list of elected candidates which includes my name for the 2011 General Elections for Kogi State House of Assembly was forwarded by the 1st Respondent to the 2nd Respondent. The letter with the attached list of candidates dated 24/1/2011 is hereby annexed and marked Exhibit A.
Paragraph 10:
“That vide the executive summary of candidates nominated by political parties in Kogi State for the 2011 General Elections signed and dated 30/1/2011, my name was among the list of candidates forwarded by the 2nd Respondent, Kogi office to the 2nd Respondent’s Headquarters in Abuja. The Executive summary of candidates nominated by political parties for the 2011 General Elections dated 30/1/2011 is hereby annexed and marked Exhibit B.”
Paragraph 11:
“That the 2nd Respondent through the 1st Respondent issued me with INEC Form C.F. 001, being affidavit in support of personal particulars of persons seeking election to the office of member, Kogi State House of Assembly representing Ijumu Local Government Area. I duly completed the form and submitted to the 2nd Respondent by the 1st Respondent the said form is hereby annexed and marked Exhibit C.”

From the above paragraphs, it is not in doubt that the Appellant claims that there was a primary election wherein he emerged the winner. I have also read through the Counter Affidavits filed by the 1st and 3rd Respondents. None of the Respondents contradicted the claim by the Appellant that there was a primary election for which he emerged winner.

All that the 1st Respondent stated in its depositions was that the Appellant, being unable to perfect his nomination, withdrew his candidature vide Exhibit ANPP 1 which will be addressed in this judgment later. I am perplexed as to why primary election should be made an issue in this case. It was not controverted by the 1st Respondent that the Appellant was its initial candidate for the 2011 April elections. All that the 1st Respondent deposed to was that by virtue of Exhibit ANPP 1, the Appellant, being unable to pay the balance of the nomination fee was substituted by the 3rd Respondent.

The mere fact that there was a substitution implies that there was, ab initio, a candidate, who was later purportedly substituted. I am therefore unable to align myself with the submissions of learned counsel for the Respondents as well as the learned trial judge that the Appellant did not discharge the burden of proving that there was a primary election for which he emerged the winner.

The Record before this court clearly shows that at some point, the Appellant was the candidate of the 1st Respondent for the April 2011 elections into Ijumu Local Government Area of Kogi State. See Exhibits A and B at pages 10 to 13 of the Records. Paragraph 7 of the 1st Respondent’s Counter affidavit to the originating summons which also clearly states that the 1st Respondent forwarded the name of the Appellant to the 2nd Respondent on 24/1/2011, though his candidature was later substituted because he could not meet his obligations. See page 138 of the Records. The combined effect of the above findings puts to rest the issue of whether or not there was a primary election for which the Appellant emerged the winner.

It is trite that facts admitted need no further proof. See the case of CPC vs. Lado (2011) 8 NWLR (Pt. 1266) 40 at 91. Also, by virtue of Section 168(1) of the Evidence Act, 2011, there is a presumption of regularity in favour of the Appellant and therefore, no further proof is required. The learned trial Judge was wrong to have held otherwise. Consequent upon the above, this issue is resolved in favour of the Appellant.

Issue No. 3
In arguing his third issue, that is, whether having regard to the documentary evidence (Exhibits A vis-a-vis Exhibit ANPP1) before the trial court, the 1st Respondent has not waived the balance of the part payment of the nomination fee and the right to substitute the Appellant, with the 3rd Respondent, it was submitted for the Appellant that waiver need not be pleaded. It can be inferred from the conduct of the party. He relied on the case of Maiyegun vs. Governor of Lagos State (2010) ALL FWLR (Pt. 542) 1704 at 1717. He referred to Exhibits ANPP1 and ANPP2 and submitted that having gone ahead to submit the Appellant’s name to the 2nd Respondent, after being aware of the Appellant’s inability to pay within the stipulated period, the 1st Respondent has by its conduct waived the balance of the nomination fee.
He relied on the case of Carribean Trading & Fidelity Corporation vs. NNPC (1992) 7 NWLR (Pt. 252) 161.

It is also submitted that once the 1st Respondent had submitted the Appellant’s name to the 2nd Respondent, it had waived its right to substitute the name of the Appellant and cannot resile from its former position as to do so, would be unconscionable and against the doctrine of estoppels. He relied on the case of Omojuyigbe vs. NIPOST (2010) ALL FWLR (Pt. 543) 1907 at 1970. This Court is urged to resolve this issue in favour of the Appellant.

For the 1st Respondent, it was contended that the 1st Respondent cannot be said to have waived the balance of the nomination fee as the full payment of the fee was part of the condition precedent to the candidature of the Appellant. He relied on Exhibit ANPP 1 and submitted that it was the failure of the Appellant to perfect his candidature that led to the withdrawal of his name. This Court is urged to resolve this issue against the Appellant.

In his reply, learned counsel for the Appellant referred to paragraph 7.1 of the 1st Respondent’s brief and submitted that having admitted waiver by conduct in its Brief, it will be unconscionable to proffer submission or argument to contradict it or resile from the admission as counsel cannot blow hot and cold at the same time. He relied on the case of Okonkwo vs. CCB Nig Ltd (1997) 6 NWLR (Pt. 507) 4 at 69. This Court is urged to resolve this issue in favour of the Appellant.

On its part, it was submitted for the 2nd Respondent that the issue of waiver or non waiver is one to be addressed between the party and her members, thus no further argument is proffered by the 2nd Respondent on this issue.
The 3rd Respondent on the other hand, submitted that the issue of waiver by conduct being canvassed by the Appellant was not initially raised at the trial court by the Appellant. It was only when facts of the outstanding balance were raised by the Respondents that he, the Appellant in a series other averments in his further and better affidavits, struggled in vein to convince the trial court that the balance had been waived. He referred to pages 79 to 82, and 87 to 89 of the Records.

It was argued that the Appellant initially gave the trial court the impression that he had complied with all the requirements for his candidature only to turn around to claim waiver.
It is submitted that the issue of waiver raised by the Appellant should be treated as an afterthought, cooked up by the Appellant to derail the lower court and this Court is urged to resolve this issue against the Appellant.

Consequent upon the above submissions, it is submitted for the Appellant in reply, that a further and better affidavit is likened to an amendment of the statement of claim and therefore within the rights of the Appellant. On this he relied on the case of Ekanem v. Registered Trustees, C.C.G.S. (2012) ALL FWLR (Pt. 637) 776 at 789 and urged this court to hold that the 1st Respondent had by his conduct, waived the balance of the nomination fee for him and resolve the issue in his favour.

The core issue here is whether the 1st Respondent has and could waive the balance of the nomination fee for the Appellant.

At paragraph 5 of the Appellant’s further further and better affidavit at page 80, in answer to the 1st Respondent’s counter affidavit, it is stated thus:
“That in answer to paragraphs 4 and 5 of the counter affidavit, the nomination form fee was N150, 000.00 out of which I paid N50,000.00 at the time of purchase but when I came to pay the balance of N100,000.00 a week after, precisely on the 18th of January, the State Secretary of the 1st Respondent in Kogi State told me in his office at the State Secretariat of the 1st Respondent of their resolve to waive the balance for me as the only candidate of the 1st Respondent for Kogi State House of Assembly, Ijumu Constituency and that it is a way of assisting me in processing my campaign.”
Paragraph 6:
“That it was after the waiver of the balance for me that the 1st Respondent submitted my name to the 2nd Respondent.”

The 1st Respondent, in its counter affidavit in answer to the originating summons, deposed to by the State Secretary had this to say:
Paragraph 21:
“That the Plaintiff after the initial deposit of N50, 000.00 for the party nomination form never came back with the balance of N100,000.00 wherein I told the Plaintiff that the balance has been waived on 1/1/2011 or any date.” See page 96 of the Records.”

Exhibit A, at page 10 of the Records shows clearly that the list of candidates submitted to the State office of the 2nd Respondent was dated the 24th of January, 2011 and signed by the State Chairman of the 1st Respondent.
All the signatures written at the Executive summary of candidates nominated for the 2011 General Elections, tagged Exhibit B at page 13 of the Records were signed on the 30/1/11.
Exhibit ANPP 1, which is the alleged letter of withdrawal, was dated the 20th of January, 2011. See page 105 of the Records.
The 1st Respondent has strenuously argued that based on Exhibit ANPP 1, the Appellant had withdrawn his candidature.

Assuming that this is so, I am unable to appreciate the reason why after the withdrawal letter of the 20th of January, 2011, the 1st Respondent, four days later, still forwarded the name of the Appellant to the 2nd Respondent. All the material dates of the Exhibits were after the purported or alleged withdrawal of the Appellant. One is therefore left to wonder why such fresh steps were taken by the 1st Respondent in spite of the purported or alleged withdrawal by the Appellant.

It has been held in plethora of decided judicial authorities that where a person by words or deeds or by conduct made to another a clear and unequivocal representation of a fact either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself in such a way that another would, as a reasonable man in his full faculties, understand that a certain representation of fact was intended to be acted upon, and that other person in fact acted upon that representation, whereby his position was altered, an estoppel arises against that person who made the representation and he will not be allowed to aver that the representation is not what he presented it to be. See the following: Ude vs. Osuji (1998) 13 NWLR (Pt. 580) 1; Oyerogba vs. Olaopa (1998) 13 NWLR (Pt. 583) 509.
In the instant case, the 1st Respondent, by forwarding the name of the Appellant to the 2nd Respondent, after his (the appellant) purported withdrawal, vide Exhibit ANPP1, has made the Appellant to believe that the balance had indeed been waived for him, it therefore does not lie in the mouth of the 1st Respondent to later say otherwise. It is, by its conduct, deemed to have waived the balance for the Appellant and the said Exhibit ANPP1, is also therefore deemed to have been overtaken by the action of the 1st Respondent.
Also, by forwarding the name of the Appellant to the 2nd Respondent, there is a presumption of regularity in favour of the Appellant by virtue of Section 168(1) of the Evidence Act 2011.

It is therefore my candid view that the 1st Respondent by its conduct is deemed to have waived the balance of the nomination fee for the Appellant and I accordingly so hold. I therefore accordingly resolve this issue in favour of the Appellant.

Issue No.4
In arguing the fourth issue, that is to say, whether by the nature of Exhibit B, the explanation or reason given by the Appellant in the further and better affidavit for the non-payment of the balance of the nomination fee contradicts Exhibit B, it was submitted on behalf of the Appellant that Exhibit B, being the same as Exhibit ANPP2 is a receipt in acknowledgment of payment for nomination form for general election of April 2011 into Kogi State House of Assembly Ijumu constituency. It as such does not falls under the category of documents where oral evidence is excluded by virtue of Section 132 of the Evidence Act. He referred to the case of Ezemba vs. Ibeneme & Ors (2004) 10 MJSC 54.

It was also submitted that there is nothing in the further and better affidavit which contradicts Exhibit B. All the averments in the affidavits did, was to give reason for the non-payment of the balance and the Appellant, being the person who went to deliver the balance of the nomination fee can give evidence of what transpired.

It was argued that contradiction can only exist where a piece of evidence is totally opposite and not when there is an excess or addition to such evidence. He relied on the case of Nwankwo vs. Ofomota (2009) 11 NWLR (Pt. 1153) 496 at 515. This Court is therefore urged to resolve this issue in favour of the Appellant.

In its response however, it was contended on behalf of the 1st Respondent that having come by way of Originating Summons, the Appellant cannot lead oral evidence to contradict the clear wordings of Exhibit B and the trial court was right to have held that the evidence of the Appellant was contradictory to the clear wordings of Exhibit B and this Court was urged to so hold and resolve this issue against the Appellant.
The 2nd Respondent did not adopt this issue and proffered no arguments.

On his part, it was submitted for the 3rd Respondent that Exhibit B, is not just a receipt simpliciter, but it also contains information on its face, explaining the inconclusiveness of the transaction commenced by the Appellant with the 1st Respondent.

It was argued that the circumstances of this case puts it squarely within the contemplation of Section 128 (1) of the Evidence Act 2011 and therefore cannot be contradicted by oral evidence and the averments in the Appellant’s Further Further and Better Counter Affidavit are mere afterthoughts, designed to mislead the court and this Court was urged to so hold and resolve this issue against the Appellant.

The crux of this issue is Exhibit B, attached to the Further and Better Affidavit of the Appellant, which is the same as Exhibit ANPP 2, the receipt issued to the Appellant upon the payment of N50, 000.00 to the 1st Respondent. See pages 30 and 106 of the Records.

The position of the law, by virtue of Section 128(1) of the Evidence Act, 2011 is that, where parties have embodied the terms of their agreement or contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See the case of Koiki vs. Magnusson (1999) 8 NWLR (Pt. 615) 492. This is because, documents, when tendered and admitted in court are like words uttered and they do speak for themselves. They are more reliable and authentic than words from the vocal cords of man as they are neither transient nor subject to distortion and misinterpretation but rather, they remain permanent and indelible through the ages. See the case of Aiki vs. Idowu (2006) 9 NWLR (Pt. 984) 50.

Exhibit B, plainly states that the Appellant owed an outstanding N100, 000.00 to the party as balance of his nomination fee.
At paragraph 5 of the Appellant’s Further Further and Better Affidavit on page 80, in answer to the 1st Respondent’s counter affidavit, it was stated thus:
“That in answer to paragraphs 4 and 5 of the Counter affidavit, the nomination form fee was N150,000.00 out of which I paid N50,000.00 at the time of purchase but when I came to pay the balance of N100,000.00 a week after, precisely the 18th of January, the State Secretary of the 1st Respondent in Kogi State told me in his office at the State Secretariat of the 1st Respondent of their resolve to waive the balance for me as the only candidate of the 1st Respondent for Kogi State House of Assembly, Ijumu constituency and that it is a way of assisting me in processing my campaign.”

In paragraph 6 of the affidavit, it was stated as below:
Paragraph 6:
“That it was after the waiver of the balance for me that the 1st Respondent submitted my name to the 2nd Respondent.

The submissions of learned for the Respondents, which is in consonance with the findings of the learned trial Judge, is that by virtue of Section 128(1) of the Evidence Act, 2011, the depositions of the Appellant in his Further and Better Affidavit cannot contradict the contents of Exhibit B.

My attention has however been drawn to proviso
(a) to the said section, which provides:
“Provided that any of the following matters may be proved-
(a) Fraud, intimidation, illegality, want of due execution, the fact that it is wrongly dated, existence or want or failure of consideration, mistake in fact or law want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, which would entitle any person to any judgment, decree, or order relating to it.”

It is trite law that Originating Summons does not require pleading and witnesses are not called. Actions commenced by Originating Summons are decided on affidavit evidence alone. See the case of Balonwu vs. Obi (2007) 5 NWLR (Pt. 1028) 488. The learned trial Judge held that the Appellant did not disclose the fact that he owed an outstanding amount of the nomination fee to the 1st Respondent. It was only after the 1st Respondent had disclose this fact in its counter affidavit that the Appellant now filed the further and better affidavit to challenge the depositions made by the 1st Respondent.

I must say that I entirely agree with the holding of the learned trial Judge that the court is not a circus, or a playground for hide and seek games by the parties. Such conduct is reprehensible and must be condemned or frowned at. It is incumbent upon parties to place before the court, materials which are vital to enable it exercise its duty effectively in the just determination of a case.

This point having been made earlier, it is still the duty of a court to assess and analyse all processes brought before it in arriving at its decision. In the instant case, the Appellant has deposed to a Further and Better Affidavit in response to the depositions made by the 1st Respondent in its counter affidavit.
It is the law that a Further and Better Affidavit provides information not available in the main affidavit. It also provides a reply to a counter affidavit. See the case of SENTINEL ASSOCIATED CO. LTD. vs. S.G.B.N LTD (1992) 2 NWLR (pt. 224) 495.

In the instant case, the Appellant deposed to a further and better affidavit, in answer to the depositions made by the 1st Respondent in relation to Exhibit B. This to my mind, is not contradictory and nor does it vary the contents of the said exhibit. It is only made in further proof of the fact that there was in existence or want or failure of consideration, within the context of proviso (a) of Section 128(1) of the Evidence Act, 2011. I therefore in the light of my discourse above, that the averments by the Appellant in the Further and Better Affidavit supra is apt and that the nomination outstanding balance was indeed waived by the first Respondent herein and as a corollary, I hereby also resolve this issue in favour of the Appellant.

Issue No.5
The fifth issue queries whether the finding of the learned trial judge on the same issue in a single judgment is not contradictory or an attempt to vary or review his earlier finding. It was submitted for the Appellant that, once a court makes a finding on an issue, it becomes functus officio, in respect of that finding and it has no power to review or vary the finding. He relied on the following cases: Oginleye vs. Safejo (2010) ALL FWLR (Pt. 523) 1889 at 1919; Ismaila v. Adamu (2010) ALL FWLR (Pt. 525) 363 at 374; Makinde vs. Adeogun (2010) ALL FWLR (Pt. 522) 1753 at 1765; Olowu vs. Abolore (1993) 5 NWLR (Pt. 293) 255 at 279.

It was submitted that the latter finding of the trial court that on the issue of payment of nomination fee in a single judgment is contradictory.
Reliance was placed on the case of OBU vs. ONIBUDO & CO. LTD (2010) ALL FWLR (pt. 547) 792 at 802.

It is also submitted that a court cannot sit on appeal over its judgment nor review the judgment of a court of co-ordinate jurisdiction. He relied on the case of LSDPC vs. Adeyemo-Bero (2005) 8 NWLR (Pt. 927) 330 at 349-350. This Court is urged to resolve this issue in favour of the Appellant.
In its response, it was submitted for the 1st Respondent, that the judgment of the trial court at page 240 of the Records is that the Appellant must prove payment or otherwise of the nomination form fees. It was after the court considered Exhibit B vis-a-vis the affidavit evidence in paragraphs 5, 6, and 7 of the Further Further and Better affidavit, that the court came to the conclusion that there was insufficient evidence to support the Appellant’s position.

It is contended that the cases cited and relied on by the Appellant are irrelevant to this issue and this Court is urged to hold that the lower court did not sit on appeal on its case, and he urged us to resolve this issue against the Appellant.

On behalf of the 2nd Respondent, it was argued that there was nothing contradictory in the findings of the trial court and that the Appellant misconceived the facts and the findings of the trial court and all the authorities cited by the Appellant have no relevance to this issue. This Court is therefore urged to so hold and resolve this issue against the Appellant.

Similarly, it was submitted on behalf of the 3rd Respondent that a close look at the findings of the trial court at pages 239 to 241 of the Record would reveal that there is nothing contradictory in the findings of the lower court. Rather, the findings are not only complimentary of each other but also explanatory of each other and this Court was urged to so hold and resolve this issue against the Appellant.

On this issue, I am inclined to agree with the submissions of learned counsel to the Respondents that there is nothing contradictory in the findings of the learned trial Judge.

The lower court Judge gave his opinion on the issue of the part payment of the nomination fee and concluded by saying that he is unable to find cogent reasons why the Appellant did not make full disclosure from the onset. This to my mind, does not amount to varying its judgment. It is only an expatiation of same and expression of the lower court’s opinion simpliciter.

On the issue of whether the trial court properly assessed and evaluated the evidence before it, it was submitted for the Appellant that the assessment and evaluation of evidence and ascription of value to the evidence, especially Exhibit ANPP 1, was erroneous, perverse, misconceived and against the weight of evidence which misled the trial court to arrive at a wrong decision which has occasioned a miscarriage of justice.

It is further submitted that since the findings of the trial court was not based on the credibility and demeanor of a witness, the appellate court is at an advantage position as the lower court, to reassess and reevaluate evidence where the trial court fails to attach probative value to them or otherwise. This court is urged to interfere with the finding of the trial court and resolve this issue in favour of the Appellant.

In conclusion, this court is urged to allow the appeal, set aside the judgment of the trial court and grant the reliefs sought by the Appellant.
Conversely, it was submitted for the 1st Respondent that the trial court weighed the evidence adduced by all the parties and held that the Appellant had failed to prove his case.

It is submitted that the trial court considered the entire evidence before it and ascribed necessary probative values, before reaching its conclusion. It was submitted therefore, that the decision of the trial court is very reasonable and warranted and in line with the evidence adduced. This Court is therefore urged to resolve this issue against the Appellant and dismiss the appeal for lacking in merit.

In the same vein, it was the contention of the 2nd Respondent’s counsel that when a matter is commenced by Originating Summons, only affidavit evidence is required and the Appellant therefore misconceived the case and the findings of the trial court.
It is also submitted that the learned trial Judge based his evaluation of the evidence before him on the documentary evidence placed before him from both sides. Reliance was placed on the following cases: Afolabi & 6 Ors vs. Western Steel Works Ltd. & 2 Ors (2012) 7 S.C. (Pt. III) 64; Odinaka vs. Muoghalu (1992) 4 NWLR (Pt. 233) 1; Olanrewaju vs. Gov. of Oyo State (1992) 9 NWLR (Pt. 265) 335.

The further submission of learned counsel to the 2nd Respondent was that the learned trial Judge after careful analysis and evaluation of the evidence before him, arrived at his conclusion and this court is urged to resolve this issue against the Appellant and dismiss the appeal for being frivolous and unmeritorious.

Similarly, it is submitted on behalf of the 3rd Respondent that the learned trial Judge thoroughly and properly considered and evaluated all the evidence led by each of the parties and had placed the required probative values on them before reaching its conclusion and this Court is therefore urged to resolve this issue against the Appellant, dismiss the appeal, and uphold the judgment of the trial court.

Having resolved issues 2, 3, and 4 in favour of the Appellant, it naturally follows that the view of this court is that the learned trial Judge did not properly assess and evaluate the documentary evidence placed before him at the trial.
It is trite that an appellate court will not interfere with the findings of the lower court where there is sufficient evidence to support the findings and where there is no substantial error apparent on the record of proceedings, such as miscarriage of justice or violation of some principles of law or procedure.
See the case of Ezeonwu vs. Onyechi (1996) 3 NWLR (Pt. 438) 499.
However, the Court of Appeal, as an appellate court, has the power to re-evaluate the findings of the trial court, as well as the evidence placed before it, to ascertain whether such evidence was wrongly rejected or admitted. See the case of Akinfe vs. U.B.A Plc (2007) 10 NWLR (Pt. 1041) 185.

In the instant case, I hold the view that the trial court failed to properly evaluate the documentary evidence placed before it in arriving at its decision and this has certainly occasioned a miscarriage of justice.
I therefore resolve this issue partly in favour of the Appellant and partly in favour of the respondents.

My Lords permit me to say a word or two in the issue of primary elections which in my view had been canvassed by the parties and which I feel is relevant in final determination of this appeal.

It would seem to me that the present appellant had averred that he participated in the primary elections organised and conducted by his party, the 1st respondent and had won same. By the provisions of Section 87(a) (b) and (c) (ii) of Electoral Act 2010, as amended, once an aspirant emerges as winner by getting the highest number of votes at the primary election, then, he must be declared winner of the primaries and his name must be submitted to INEC as the candidate of that political party. See the case of Senator Yakubu Lado vs. CPC & Ors (2011) 48 NSCQR 501.
In this instant case, evidence abound that the 3rd respondent had never participated in any primary election conducted by the 1st respondent, his party. His name was simply submitted to 2nd respondent without him taking part in the election. He therefore is not an aspirant within the meaning of Section 187(1) of the Electoral Act as amended. It is only a contestant or an aspirant in an election who had participated in the party’s primaries election, who can contest the general election. Otherwise, he lacks the locus standi, to contest such election or maintain an action in an election matter. See PDP vs. Sylva (2012) 13 NWLR (Pt. 1316) 865.

Therefore, since the 3rd respondent had never taken any step in election e.g. participating in the primary election which would perhaps qualify him as an aspirant, his party the 1st respondent was wrong to have substituted the name of the appellant for his 3rd respondent who had duly taken steps by participating in the primary election and won that election with that of 3rd respondent who never took any step. As I stated supra, the alleged non-payment of balance of registration or nomination fees had been waived by the 1st respondent by the submission of his name to INEC (2nd respondent) earlier before the purported and wrong substitution.

On the whole, this appeal has merit and it is therefore accordingly allowed. The judgment of the trial Court delivered on the 30th of September, 2011 is hereby set aside.
It is therefore ordered as below:
1. That the Appellant is the validly nominated candidate of the 1st Respondent for the Kogi State House of Assembly Elections for Ijumu Local Government Area in the April 2011 general elections.
2. That the purported removal or substitution of the name of the Appellant with that of the 3rd Respondent by the 1st and/or 2nd Respondents for the purpose of contesting the April 2011 House of Assembly Election is null, void and of no effect whatsoever.
3. The 1st and 2nd Respondents are hereby restrained from recognizing any other person beside the Appellant as the candidate of the 1st respondent for the 2011 House of Assembly Election for Ijumu local Government Area Constituency and the appellant should immediately take his position as the duly elected candidate of the first respondent in the Kogi State House of Assembly for his Constituency.
4. The 2nd respondent (INEC) should pursuant to the above orders, withdraw the Certificate of Return earlier issued to the 3rd respondent and issue a fresh one to the appellant being the duly elected member of House of Assembly representing the affected Constituency.
I make no order as to costs, so each party should bear his or its own costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the advantage of seeing in draft, the judgment of my learned brother Sanusi JCA, just delivered. I agree that this appeal has merit and it is allowed. I abide by the Orders made in the lead judgment.

MOORE A. A. ADUMEIN, J.C.A.: I read in draft of the judgment just delivered by my learned brother, Amiru Sanusi, JCA, OFR. His Lordship has comprehensively and elaborately addressed the issues in this appeal. For the reasons given by my learned brother, I also find this appeal to be meritorious and I hereby allow it.

I abide by all the orders in the judgment of my learned brother.

Appearances

Gimba Shaba with O. Z. MusaFor Appellant

AND

Isaac Ekpa for the 1st respondent (APC)
Zagana S. Gbaje SLO/INEC for 2nd respondent
O. A. Ola with S.A. Ajayi for 3rd respondentFor Respondent