HON. OBINNA CHIDOKA v. AMB. JERRY SONNY UGOKWE & ORS
(2019)LCN/12630(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of February, 2019
CA/A/1140/2018
RATIO
EVIDENCE: WHERE THERE IS CONFLICT IN THE COMMISSION OF A CRIME
“It is settled law that where the material conflicts concern the commission of crime as in this case, there is need to call oral evidence to resolve such conflict and determine the issue. See Obasanya v Babafemi (2000) 15 NWLR (Pt. 689) 1 at 17. In ATAGO V. NWUCHE (2013) 3 NWLR (Pt. 1341) 337 @ 354 the apex Court was unanimous on this, with their Lordships Galadima and Ngwuta JJ.S.C saying as follows: Galadima J.S.C. (lead) at p.354 F-H that: ‘The Court below rightly declined to hear the matter because of the conflicting affidavits. Therefore, since the issue in controversy pertains to determination of who was lawfully nominated candidate of the 2nd respondent at the primary of election, the trial Court lacked jurisdiction to entertain the appellant’s claim without pleadings. However, as a trial Court, it has the jurisdiction to convert an originating summons and order pleadings in the matter since the originating summons is found to be an improper procedure of commencing the instant case. The learned trial Judge failed to do exactly that on seeing that the affidavits of the parties are conflicting and irreconcilable.'” PER ADAMU JAURO, J.C.A.
FUNDAMENTAL RIGHT: BREACH OF RIGHT TO FAIR HEARING
“At this juncture, let me consider the effect of this breach of the appellant’s right to fair hearing by the omission or refusal of the trial Court to determine his application before proceeding to decide the merit of the substantive suit. An unending line of judicial authorities such as Odedo V Oguebego (supra), Orugbo v Bulara Una (2002) 9 10 SC 61 and A.G Rivers State v Ude (2006) 6-7 SC. 54, P.A.I. Incorp v S.L. Ltd (2010) 6 NWLR (Pt. 1189) 98, Adigun v A-G Oyo State (1987) 1 NWLR (Pt. 53) 678 and Dingyadi v INEC (No. 2) (2010) 1 NWLR (Pt 1224) 154 restate that such breach nullify the entire proceedings or the part of the proceedings affected by the breach. It is such an error in the proceedings that is generally regarded as nullifying the proceedings.
For the above reasons, the 21-11-2018 judgment of the trial Court on the merits of the substantive suit is hereby declared a nullity and is set aside. Issue No. 1 is resolved in favour of the appellant.” PER ADAMU JAURO, J.C.A.
JUSTCES:
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
HON. OBINNA CHIDOKA – Appellant(s)
AND
1. AMB. JERRY SONNY UGOKWE
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/1140/2018 was commenced when the appellant herein filed a notice of appeal on 22-11-2018 and a second notice of appeal on 4-12-2018 against the judgment of the Federal High Court at Abuja delivered on 21-11-2018 in Suit No. FHC/ABJ/CS/123/2015. The notice of appeal of 22-11-2018 contains five grounds of appeal. The notice of 4-12-2018 contains seven grounds of appeal.
The appellant and 1st respondent filed the following briefs- appellant’s amended brief, 1st respondent’s amended brief and appellant’s reply brief. The appellant in his brief relied on the notice of appeal of 4-12-2018 and thereby abandoned the earlier notice of 22-11-2018. The said first notice of appeal having been abandoned is hereby struck out.
The appellants brief raised the following issues for determination-
1. Whether the learned trial Judge was right when he determined the substantive suit without considering and pronouncing on the Appellant’s motion on Notice dated 31st May, 2018 praying the Court to order pleadings and to direct parties to call oral evidence. (Culled from Ground 1)
2. Whether the learned trial Judge was right when he determined the substantive suit without calling for oral evidence. (Culled from Ground 2).
3. Whether considering the evidence placed before the lower Court by the parties, the learned trial Judge was right in entering Judgment for the 1st Respondent to the effect that the 1st Respondent won the 2nd Respondent’s primary election for Idemili North/South Federal Constituency of Anambra State. (Culled from Grounds 3, 5, 6, 7
4. Whether the learned trial Judge was right when he held that the accounts rendered by the Appellant and the 2nd Respondent as to the proceedings at the primary election were contradictory and that the Court had no option than to reject both accounts. (Culled from Ground 4).
The 1st respondent’s brief raised the following issues for determination-
1. Whether the Learned Trial Judge determined the substantive Suit without considering and pronouncing on the Appellant’s Motion on Notice dated 31st May, 2018, praying the Court to Order pleadings and direct parties to call oral evidence. (Distilled from Ground 1)
2. Whether the Learned Trial Judge was right to determine the substantive Suit without calling oral evidence. (Distilled from Ground 2)
3. Whether the Learned Trial Judge was right in entering judgment for the 1st Respondent considering the Affidavit evidence before the Court. (Distilled from Ground 3, 5, 6 & 7)
4. Whether the Learned Trial Judge was right when he held that there was a material contradiction between the accounts narrated by the 1st and 3rd Defendants with regard to what actually took place on the day of the primary election and thereby rejected both accounts. (Distilled from Ground 4)
I will determine this appeal on the basis of the issues for determination raised in the appellant’s brief.
Let me start by determining Issue No.1.
I have carefully read and considered the arguments of both sides on this issue.
The undisputed facts are that the appellant herein as 3rd defendant by a motion on notice filed on 31-5-2018 applied for an order of the trial Court ordering pleadings and directing the parties to call oral evidence in this case.
On 17-10-2018, during proceedings before the trial Court, Learned Counsel for the appellant informed the trial Court that their said motion had been filed. The trial Court thereupon ordered that- “The Court will want to take the motion dated 31/5/18 seeking order of Court to call oral evidence along with the substantive suit. In doing so, the Court in ruling, will first determine the motion dated 31/5/18 and if the Court is satisfied, it will at that stage order for pleadings, if however, the motion dated 31/5/18 fails, the Court will proceed to determine the substantive suit on the merit since the contending parties have filed their respective processes.”
Thereafter the trial Court ordered thusly- “This matter is adjourned to 30/10/18 for hearing of the 1st Defendant’s motion dated 31/5/18 to order for pleading along with the substantive suit. Hearing notice to issue on the 2nd Defendant”.
On 31-10-2018 hearing of the originating summons and the motions and objections took place. The record of that day’s proceedings reads thusly-
“Parties Absent.
Glory Onen-Zakka Esq. with Omolara Sodeinde Esq. for the Plaintiff.
Maxwell Ezumezu Esq. for the 1st Defendant
Tobechukwu Nweke Esq. with N. Obiesie Esq. for the 3rd Defendant
Registrar: No legal representation for the 2nd defendant
Onen-Zakka Esq: The Plaintiff filed originating summons dated 3/1/15 and filed on 13/2/15. It is accompanied with
a) Affidavit in support
b) Further Affidavit
c) Exhibits attached
d) Written address
In addition, the Plaintiff filed the following: –
a) Reply dated and filed 26/9/17 to 1st Defendants counter affidavit.
b) Reply dated and filed on 26/9/17 to the 3rd Defendant’s counter affidavit.
c) Response dated 14/11/17 to the 3rd Defendant preliminary objection
We adopt the above processes and urge the questions for determination in favour of the Plaintiff and also grant all the reliefs sought by the Plaintiff. We also urged the Court to dismiss the preliminary objection raised by the 3rd Defendant and uphold the submission of the Plaintiff.
Ezumezu Esq: On behalf of the 1st Defendant, we filed a counter affidavit on 3/6/15 in opposition to the originating summons. We adopt and rely on all the averment contained in the affidavit. We also filed a written address dated 3/6/15. We adopt the written address as our oral argument in urging the Court to strike out the suit for being incompetent or dismiss same as lacking in merit
Nweke Esq. For 3rd Defendant, we filed the following: –
a. Motion on notice dated and filed on 27/4/18.
The motion seeks to set aside the originating summons for non-compliance with Sections 97 and 99 of the Sheriff and Civil Process Act.
I move in terms of the motion. I refer to the recent case of IZEZE VS. INEC (2018) 1629 in support of the contention that non-compliance with Section 97 of the Sheriffs and Civil Process Act renders the originating process void as it has nothing to do with the service of the process but with the validity of the originating process.
b. Notice of preliminary objection dated 7/11/17 and filed on the same. The objection seeks to strike out this matter for being incompetent. I rely on the objection and the written address in support. I refer to the case of PDP VS. SOPULU (2017) LPELR 42563. I also refer to the unreported case of the Supreme Court in the case of PRINCESS STELLA ODU’A VS. OKADIGBO Appeal No. SC/384/17 delivered on 1/6/18.
c. There is another motion dated 31/5/18 praying the Court to order pleadings for the parties to demonstrate the video recording submitted by the 3rd Defendant and the Plaintiff. this motion is unopposed by any of the parties
d. Counter affidavit filed on 31/3/17 to the Plaintiff’s originating summons. The counter affidavit is accompanied with a written address. I adopt the said addresses.
e. There is a Further counter affidavit filed on 31/5/18. We rely on all the paragraphs of the Further counter affidavit.
f. We have attached an Affidavit tagged Affidavit of Facts and it is titled “Affidavit of Facts” attached to the 3rd Defendant’s. counter affidavit in opposing the originating summon.
I adopt all the above processes and urge the Court to dismiss this suit.
Onen-Zakka Esq. I omitted to mention a process that I filed. It is Plaintiff’s counter affidavit of 26/5/15 to the 3rd Defendant’s motion to set aside the originating summons. There is a written address in support of the counter affidavit. We adopt the said counter affidavit filed on 26/5/15 and the written address.
Court: – This matter is reserved for judgment on 21/11/18.”
On 21-11-2018, the trial Court rendered its judgment.
Before doing so, it first determined the appellant’s objection to the jurisdiction of the trial Court to entertain and determine the suit and decided that the objection failed and dismissed it. It then proceeded to consider the appellant’s motion on notice filed on 27-4-2015 praying for an order to set aside the concurrent originating summons filed in this case on the ground that it was not endorsed for service on the appellant in Anambra State. It held that it was indeed endorsed for service in Anambra State and dismissed the objection.
It then said that “having resolved the preliminary issues raised by the 3rd defendant, let me now consider the substance of the plaintiff’s case on merit”. It then proceeded to determine the merit of the substantive suit without any mention of the uncontested motion on notice filed on 31-5-2018 applying for ordering of pleadings and the calling of oral evidence by the parties which it heard along with the originating summons on 31-10-2018 and reserved judgment.
Learned SAN for the appellant has argued that by failing to consider and pronounce on the motion, the trial Court not only breached the appellants right to fair hearing but appeared to have deliberately avoided the motion in order to hurry in judgment for the 1st respondent who was equally not opposed to that motion, that the trial Court abdicated its duty to hear and pronounce on the motion, that the entire proceedings ought to be nullified, that the trial Court had a duty to consider and decide the application, that it had no power not to consider it, that the approach adopted by the lower Court in ignoring or better still, avoiding the Appellant’s motion which he had adjourned and which was not opposed by the parties and would have afforded the Court the benefit of oral evidence to assist the Court in doing substantial justice, leaves far much more to be desired, that, that approach amounted to denial of fair hearing to the Appellant and renders the entire proceeding and the judgment void, that it is immaterial whether or not the motion would have had merit or not or whether the ultimate judgment of Court on the merit was correct or not; that it is trite that fair hearing lies in the procedure followed in the determination of the case, not in the correctives of the decision.
Learned Counsel for the 1st respondent argued in reply that the decision of the Trial Judge to deliver its substantive judgment on 21st November, 2018 rather than call for pleadings and oral evidence as the Appellant requested, meant that the Appellant’s application had failed as pronounced by the Court on 17th October, 2018 because it also said that if the Motion failed, the Court would proceed to determine the substantive Suit and that was exactly what the Court did to the knowledge of all the parties, that the Learned Trial Judge never abdicated his duties, that the Appellant perhaps misunderstood the procedure adopted by the Trial Judge. which was in accordance with extant constitutional provisions and did not in any way deny, the Appellant fair hearing, that the Trial Court correctly exercised his discretion to occasion good case management given that the tenure of the House of Representatives has a time span which was eroding by each day that there was no breach of fair hearing as alleged by the appellant.
Let me now consider the merits of the arguments of both sides.
I do not agree with the submission of Learned Counsel for the 1st respondent that the delivery of the judgment on 21-11-2018 on the merit of the originating summons meant that the appellants application of 31.5.2018 for the order of pleadings and order of parties to call oral evidence had failed because the trial Court had on 17-10-2018 ordered that it would determine the said application along with the merit of the originating summons and that if the application failed it would proceed to determine the merit of the substantive suit. The delivery of the judgment on the merit of the originating summons without reference to the motion of 31-5-2018 was a complete departure from its direction on 17-10-2018 that “The Court will want to take the motion dated 31/5/18 seeking order of Court to call oral evidence along with the substantive suit. In doing so, the Court in ruling, will first determine the motion dated 31/5/188 and if the Court is satisfied, it will at that stage order for pleadings, if however, the motion dated 31/5/18 fails, the Court will proceed to determine the substantive suit on the merit since the contending parties have filed their respective processes.”
It is clear from this direction that it prescribed what it must do before it can proceed to determine the merit of the substantive suit. It prescribed that it will first determine the said motion for order of pleadings and that if it fails, then it will proceed to determine the merit of the substantive suit. There is nothing in the record of this appeal that shows or suggests that the trial Court determined the motion and decided that it failed before it proceeded to render its judgment on the merit of the substantive suit.
Where a Court directs that it shall consider a particular application, along with its final decision on the merit of the substantive suit and that it shall determine that application and that if it fails then it would proceed to render its final judgment on the merit of the substantive suit, it must comply with its own directive, by first determining the application and reach a decision that it has failed, before it proceeds to deliver its final judgment on the merit of the substantive suit. The record of the proceedings of the trial Court must show the trial Court’s determination of that application and its decision that it has failed before it rendered its judgment on the merit of the substantive suit.
It is absurd to argue that in the absence of any record of the determination of that application and decision that it has failed, the trial Court’s delivery of the judgment on the merit of the substantive suit meant that the application had failed. What the trial Court did concerning that application is not a fact that can be speculated upon or assumed. It must be obvious from the record of the proceedings of the trial Court. The absence of the record of the determination of that application and the decision that it failed, show that the trial Court should not have proceeded to render judgment on the merit of the substantive suit. Proceeding to decide the merit of the substantive suit without first having to determine the application to order pleadings and oral evidence and decide that the application failed violates both its directive or order of 17-10-2016, and the fundamental requirement of a fair and equal hearing of parties to a case that a Court must hear, try and decide all applications pending before it or all issues raised before it. The right of a party to have his application heard and decided by a Court is part of his fundamental right to fair hearing guaranteed by S.36(1) of the 1999 Constitution.
The failure or omission or refusal of a Court to hear and decide a party’s application or issue raised by him, is a violation of his fundamental right to fair hearing. This is a restatement that the Courts have made in an unending line of cases. In Odedo v Oguebego (2015) 13 NWLR (Pt 1476) 226 at 254 the Supreme Court held that “The general principle of law is trite and well established that all applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either in his favour or against him. This reiterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the election proceedings, as it has been held in the case of ENEBELI V. C.B.N [2006) 9 NWLR (Part 984) 69 at 78. In other words, an application may not necessarily have merit, it may be bogusly and inelegantly framed or may even be frivolous; be that as it may, once it is shown that there is some legal basis for the application, the Court is bound to hear it. It is not optional or discretional”.
In Nwosu v ISESA (1990) 2 NWLR (Pt. 135) 688, the same apex Court held that “It is clearly good sense to hold that failure of the Judge to hear an application or motion properly placed before him is tantamount to a deliberate contrivance to frustrate the same. Be it noted that a Judge has a duty to pronounce specifically on an application or issue properly sought or raised by the parties at the trial. Failure to decide one way or the other is a serious error.”
In Newswatch Communications Ltd v Attah (2006) 12 NWLR (Pt 993) 144 the Supreme Court held that “The state of the law is that a Court must hear a motion or any process before it, however unmeritorious. A Court should not ignore a motion or any process before it and give a decision one way or the other without considering the motion or process”. See also Akpan v Bob & Ors. (2010) LPELR 376 (SC).
At this juncture, let me consider the effect of this breach of the appellant’s right to fair hearing by the omission or refusal of the trial Court to determine his application before proceeding to decide the merit of the substantive suit. An unending line of judicial authorities such as Odedo V Oguebego (supra), Orugbo v Bulara Una (2002) 9 10 SC 61 and A.G Rivers State v Ude (2006) 6-7 SC. 54, P.A.I. Incorp v S.L. Ltd (2010) 6 NWLR (Pt. 1189) 98, Adigun v A-G Oyo State (1987) 1 NWLR (Pt. 53) 678 and Dingyadi v INEC (No. 2) (2010) 1 NWLR (Pt 1224) 154 restate that such breach nullify the entire proceedings or the part of the proceedings affected by the breach. It is such an error in the proceedings that is generally regarded as nullifying the proceedings.
For the above reasons, the 21-11-2018 judgment of the trial Court on the merits of the substantive suit is hereby declared a nullity and is set aside. Issue No. 1 is resolved in favour of the appellant.
Let me now determine issues Nos. 2 and 4 together. Issue No. 2 asks: – “Whether the learned trial Judge was right when he determined the substantive suit without calling for oral evidence”. Issue No. 4 asks
“Whether the learned trial Judge was right when he held that the accounts rendered by the Appellant and the 2nd Respondent as to the proceedings at the primary election were contradictory and that the Court had no option than to reject both accounts”.
Learned SAN for the appellant argued that the affidavits in support of the originating summons and the counter affidavit in opposition to the originating summons are irreconcilable and materially in conflict and therefore would require oral evidence to resolve the conflicts, that the issues for determination in the case are so hostile or contentious that they cannot be determined under the originating summons procedure, and that the pending application for order of pleadings and oral evidence which the trial Court failed to determine was not contested by the 1st respondent and the other parties herein.
Learned Counsel for the 1st respondent argued in reply that the counter affidavit of the appellant told obvious lies as confirmed by the affidavit evidence of the 2nd respondent with respect to material facts, that the trial Court had serious doubts about the reliability of the appellant’s counter affidavit, that where the Court can rely on documents attached to the affidavits to resolve the conflicts between them, there would be no need for oral evidence to resolve such conflict, that originating summons is commonly used in Nigeria to commence pre-election cases, that in the present case, the trial Court evaluated all the documentary evidence before it, found the 1st respondent’s result of the primary election more credible and acceptable than that of the appellant and refused to accept the result of the primary elections attached to the affidavits of the appellant and 2nd respondent, that there is nothing perverse about this, that the law has always been that the trial Court has the exclusive discretion to decide, which between conflicting affidavits it is to believe, that the trial Court has a duty to resolve the conflicts between affidavits by evaluation of the contents of the affidavits and can resort to oral evidence only when it cannot resolve such conflicts, that the facts of this case do not require the calling of oral evidence to resolve the conflicts between the affidavits of both sides, that the only conflicts that existed were between the affidavit of the appellant and the 2nd respondent which discredited their case since they belonged to the same side, that there was no need to call oral evidence to resolve such conflict.
Let me now determine the merit of the above arguments of both sides.
The affidavit in support of the originating summons and the counter affidavits opposing it, conflict on the results of the primary election conducted by the 2nd respondent on 7-12-2014 to nominate its candidate for the general election of the member in the House of Representative for Idemili North and South Federal Constituency, Paragraphs 13, 14, 15, 16, 17, 18, 19 and 20 of the affidavit in support of the originating summons state thusly
“13. I know as a fact that the primary election organized by the 1st Defendant in Idemili North and South Federal Constituency of the Federal House of Representatives (my Constituency) was very credible, peaceful, free and fair with no incident or reported case of irregularity, malpractice or violence.
14. I know as a fact that in all, five candidates, including myself contested the primary elections for the Idemili North and South Federal Constituency of the Federal House of Representatives. The candidates and their scores all described by the 1st Defendant are-
1. Hon. Charles Odedo 14 votes
2. Hon. Obinna Chidoka 9 votes
3. Chief Okey Muoaroh 7 votes
4. Amb. Jerry Ugokwe 38 votes
5. Ken Obi 4 votes
15. I also know as a fact that the primary election for Idemili North and South Federal Constituency of the Federal House of Representatives held at Ogidi, Idemili North LGA in the presence of all the candidates and other critical stakeholders, including the 2nd Defendant.
16. I know as a fact that at the end of voting, I pooled the highest votes and the 1st Defendant openly and in the presence of all present announced and declared me as the winner of the election and, therefore the candidate of the 1st Defendant in the February now rescheduled to March, 2015 general election into the Idemili North and South Federal Constituency of the Federal House of Representatives. Now shown to me, attached herewith and marked as EXHIBIT 8 is a copy of the officially declared/released result by the 1st Defendant at the election venue.
17. I also know as a fact that Exhibit 8 was prepared in the presence of all the contestants and copies were given to them immediately.
18. As a contestant, I know as a fact that the election was monitored by the 2nd Defendant and it made no objection as to the conduct of the election after the said conduct and announcement of result.
19. As a contestant, I know as a fact that the majority of the delegates who voted at the election voted for me and I was duly returned as elected having scored and polled the highest number of votes during the election.
20. I also know that since the primary election mentioned above, I have commenced extensive and expansive campaign throughout the nook and corners of the Idemili North and South Federal Constituency canvassing for votes, etc.”
Paragraphs 8 to 22 of the appellants counter affidavit in opposition of the originating summons state thusly
“8. Paragraph 11, 12 and 13 of the Affidavit are not disputed.
9. Paragraph 14 of the affidavit is false and denied as the scores set out therein do not represent the result of the election but were merely concocted by the Plaintiff to lend credence to this spurious suit.
10. Further to paragraph (9) above, the primary election conducted by the National Executive Committee of the 1st Defendant through its Electoral Committee for Idemili North and South Federal Constituency of Anambra State on 7th December, 2014 ended with the following result-
1. Hon. Charles Odedo 9 votes
2. Hon. Obinna Chidoka 55 votes
3. Chief Okey Muoaroh 3 votes
4. Ambassador Jerry Ugokwe 1 vote
5. Ken Obi 4 votes
11. I emerged as the winner of the primary election having scored majority of the votes. The plaintiff though absent at the primary election scored one vote. A copy of the result sheet is hereto delivered as EXHIBIT C1
12. Paragraph 15 and 16 of the Affidavit are also false. The Returning officer who conducted the primary election on behalf of the Electoral Committee of the 1st Defendant was Igbokwe Nnadozie whose name equally appeared in the result sheet concocted by the Plaintiff and attached as EXHIBIT
13. On 22nd March, 2017, I met with the said Igbokwe Nnadozie at Transcorp Hilton, Maitama Abuja and he informed me at about 3:30pm and I verily believe him as follows:
i. That he has also seen the result sheet being paraded by the Plaintiff as Exhibit 8 to the Plaintiff’s affidavit and irked by the presence of his name and an imitation of his signature thereon, he deposed to an Affidavit of Facts in this suit stating the true result of the election and stating clearly that he did not sign the said result sheet. A copy of the Affidavit of Facts shown to me is hereto delivered as EXHIBIT C2
ii. That a look at the signature on the Plaintiff’s fake result sheet will readily reveals when compared with his signature on EXHIBITS C1 and C2 herein, that the Plaintiff and his cohorts forged his signature though incorrectly.
iii. That he did not make any entries on the result sheet of the Plaintiff neither did the result sheet emanate from the 1st Defendant’s primary election.
iv. That he was shocked when he looked at the Plaintiff’s result sheet and realized that the Plaintiff also printed or caused to be printed on his fake result, the same code number PD004/NA/2014 and Serial No. 0000337 as those on the authentic result sheet which is EXHIBIT C1 herein.
v. That for the purpose of the primary election he was given only one result sheet by Electoral Committee of the 1st Defendant original form with ‘duplicate copies which he filed and signed and that same is EXHIBIT C1 herein which he also attached to his affidavit as EXHIBIT C1.
14. I am aware that National Executive of the 1st Defendant had set up a five (5) man Electoral Committee to conduct the 1st Defendant’s primaries across the State headed by Mr. Alaye Tremie as Chairman and Engr. Rodney Ambaiowei as Secretary. The committee then appointed Returning Officer and Electoral Officer for each constituency.
15. I am aware that after the primary elections, the Electoral Committee after gathering the results of the primary election prepared a report of the primary election in Anambra State which also corroborated the content of my result sheet, Exhibit C1 under the Caption “REPORT BY THE FIVE (5) MAN ELECTORAL COMMITTEE ASSIGNED TO CONDUCT THE PDP NATIONAL ASSEMBLY PRIMARY ELECTIONS IN ANAMBRA STATE” with specific reference to Idemili North/South Federal Constituency”. A copy of the report is hereto delivered and marked EXHIBIT C3
16. Based on the submission of the aforesaid Report and Result sheet for my Constituency to the National Headquarters of the 1st Defendant, my name was forwarded to the 2nd Defendant by the 1st Defendant.
17. I am also aware that the 1st Defendant set up an Appeal panel to entertain petitions from dissatisfied aspirants at the primary election and the panel received petitions from aggrieved aspirants, deliberated on the petitions and made recommendations to the 1st Defendant. The Plaintiff being satisfied that he lost at the primary election did not present any petition or appeal to the Appeal panel of the 1st Defendant. A copy of the Report of the Appeal Panel is hereto delivered as EXHIBIT C4
18. I won the primary election landslide and everybody was satisfied that I duly won the election until I was confronted with this suit. The Plaintiff rather than petition the appeal panel if he was dissatisfied embarked on the fabrication of the result sheet and thereon in order to mislead this Honourable Court.
19. Paragraph 17 of the Plaintiff’s affidavit is false, as the Plaintiff’s Exhibit 8 is an afterthought, a fake result sheet which was procured by the Plaintiff after the victory of the 3rd Defendant at the primary election.
20. Exhibit C1 herein is the result officially declared and announced at the conclusion of the primary election. It was filled in the presence of all participants at the primary election which was caught on video camera and copies were delivered to the aspirants present.
21. Paragraph 18 of the affidavit is incorrect as the 2nd Defendant proceeded based on a misquoted Order of Court to monitor the primary election conducted by Ejike Oguebego State Executive of Anambra
22. Paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 29 of the Plaintiff’s Affidavit are false and denied. In answer thereto, I repeat the averments made in paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 above and further depose as follows:
i. The plaintiff though absent at the venue of the election scored only one vote while the 3rd Defendant polled 55 votes
ii. Plaintiff did not embark on any campaign after losing out at the primary election but merely surreptitiously engaged himself in the act of forgery of the result sheet and signatures in order to unduly oust me from the office.
iii. Nobody substituted the Plaintiff as he never won any primary election of the 1st Defendant in my Constituency.
iv. The allegations of the plaintiff are a chronicle of fictitious events and tales treacherously designed to aid the plaintiff’s illicit desire to reap where he did not sow”.
Paragraphs 5 (c) to (j) of the 2nd respondents counter Affidavit state thusly-
“c. Paragraphs 2-13 of the Affidavit are true
d. Paragraph 14 of the Affidavit is true to the extent that there were 5 (five) Aspirants in the extant primary election. The Plaintiff polled one vote at the exercise Annexed as Exhibit ME1 is a copy of the result of the primary election.
e. Paragraph 15 of the Affidavit is true
f. Paragraph 16 of the Affidavit is false. The Plaintiff polled one vote and was not announced and declared as the winner of the primary election for Idemili North/South Federal Constituency Federal House of Representatives. Exhibit 8 presented by the Plaintiff is not a copy of the officially declared/released result of the primary election.
g. Paragraph 17 of the Affidavit is false. The document exhibited by the Plaintiff as Exhibit 8 is a document he made up himself and is unknown to the 1st Defendant.
h. Paragraph 18 of the Affidavit is true
i. Paragraph 19 of the Affidavit is false. The Plaintiff polled (1) one vote at the excise and same was the least vote polled by any Aspirant at the primary election
j. Paragraphs 20 and 21 of the Affidavit are false. The Plaintiff did not and has no basis to campaign for votes as he knows that he is not the Candidate of the 1st Defendant.”
The 1st respondent attached the result sheet of the primary election as exhibit 8 to his affidavit in support of the originating summons. The appellant attached it to his counter affidavit as exhibit C1. The 2nd respondent, who conducted the primary election, attached the result to its counter affidavit as exhibit ME1.
Exhibit 8 attached to the affidavit in support of the originating summons show inter alia that the 1st respondent had 38 votes as the majority of the votes and won the primary election. Exhibit C1 attached to appellant’s counter affidavit and exhibit ME1 attached to the 2nd respondent’s counter affidavit contain the same result and shows inter alia that the appellant scored 55 votes as the highest number of votes and won the primary election. The scores of each candidate in exhibit 8 are different from the scores of each candidate in exhibits C1 and ME1. The three result sheets bear the names of Igbokwe Nnadozie and Ndibe Chukwudi C as returning officer and electoral officer respectively. The three results bear their signatures and those of other national officers of the 2 respondents. However, in exhibit C2, the returning officer denied the signature stated in exhibit 8 to be this.
The 1st respondent in his reply affidavit to the 2nd respondents counter affidavit stated inter alia that all the documents attached to 2nd respondent’s counter affidavit, exhibits ME1 to ME8 are false. These include exhibit ME1 (the result of the primary election) and exhibit ME2 (the 2nd respondent’s report of the primary election showing that appellant won the primary election). The 1st respondents reply affidavit to the counter affidavit of the appellant equally stated that exhibit C1 (the result of the primary election attached to the appellant’s counter affidavit), exhibit C3 (the report of the election by the National Electoral Committee that conducted the election) and exhibit C4,
Appeal (the 2nd respondent’s National Appeal Panel Report) were false.
The appellant’s further counter affidavit in opposition to the originating summons state that the signature of the returning officer as shown in exhibit 8 attached to the affidavit in support of the originating summons is not the authentic signature of the said officer and that exhibit 8 is false.
The appellant and the 1st respondent also produced conflicting video records of the proceedings of the primary election. The appellant’s video record contained in a disc is exhibit C5a and C5b attached to his counter affidavit. The 1st respondent’s video record contained in a disc is exhibit Su3a and Su3b attached to his affidavit in reply to the counter affidavit of the appellant.
The 1st respondent in his said affidavit in reply to the 1st respondent’s counter affidavit also stated that exhibit C2 (the affidavit of the returning officer confirming the contents of the primary election results in exhibit C1 and ME1) is false. The 1st respondent produced a video record of a conversation between him and the said returning officer in disc attached to his affidavit in reply to the counter affidavit of the appellant as exhibits Su2a and Su2b to show that the affidavit is false.
In the face of these irreconcilably conflicting allegations and counter allegations of forgeries and fabrications of the primary election results and other documents attached to the respective. affidavits, the trial Court decided the matter thusly “the gravamen of the Plaintiff’s complaint in this case is that he scored the highest votes at the primary election conducted by the 1st Defendant in Idemili North/South Federal Constituency for Federal House of Representatives, but the 1st Defendant refused to forward his name to the 2nd Defendant as the candidate of the party. The Plaintiff attached exhibit 8 to the affidavit in support of the originating summons, which is the Result Sheet on Form PD004/NA/2014. Exhibit 8 showed the aspirants and the number of votes obtained by each of them at the primary election conducted on 7/12/14 for Idemili North/South Federal constituency for Federal House of Representatives. The Plaintiff was shown to have obtained 38 votes at the primary election, which according to exhibit 8 is the highest votes obtained, yet his name was substituted with the name of the 3rd Defendant herein, who by exhibit 8, is shown to have polled 9 votes.
The contention of the 1st Defendant is that the plaintiff was absent at the primary election and only got 1 vote cast for him in his absence. The 1st Defendant further contended that the Result sheet, that is, exhibit 8 attached to the Plaintiffs originating summons was concocted by the Plaintiff and not issued by the 1st Defendant. An affidavit said to be deposed to by the returning officer for the primary election was filed denying that he issued exhibit 8.
The contention of the 3rd Defendant is to the effect that the plaintiff did not participate in the primary election conducted by the National Assembly panel set up by the 1st Defendant but attended a primary election conducted by the factional state committee headed by Ejike Oguebego. The 3rd Defendant also contended that exhibit 8 attached by the Plaintiff was a concocted document. The 3rd Defendant then attached a Result sheet to his counter affidavit as exhibit ME1, showing that the 3rd Defendant got 55 votes while the Plaintiff got 1 vote.
It can clearly be seen that there is a material contradiction’ between the accounts narrated by the 1st and 3rd Defendants with regard to what actually took place on the day of the primary election but got 1 vote, the 3rd Defendant’s account is that the plaintiff did not participate at the primary election conducted by the National Assembly Panel of the 1st Defendant, but chose to participate in the primary election conducted by a factional state panel headed by one Ejike Oguebego.
The question is, how can the Plaintiff be absent in a primary election, where all aspirants are expected to be present or their representatives and still got 1 vote? Secondly, how can the Plaintiff be attending another primary not organised by the 1st Defendant’s panel and attended a different primary election held by another faction of the 1st Defendant and still got 1 vote?
I asked the above questions to bring to fore the contradictory nature of the accounts given by the 1st and 3rd Defendants on what transpired on the date of the primary election. The question is, which of the two accounts given by the 1st and 3rd Defendants should be believed by the Court? In a situation like this, the Law is settled that where there is material contradiction in the case presented by parties, the Court cannot pick and choose for the said parties. The only logical and fair course to take in the circumstance is to reject both accounts. This Court have no option than to reject the contradictory account given by the 1st and 3rd Defendants with regard to what transpired on the day of the primary election for Idemili North/South Federal Constituency.
On the 1st and 3rd Defendants’ contention that exhibit 8 attached to the plaintiff’s originating summons, was concocted, let me observe that exhibit 8, was shown to have been signed by the following officers of the 1st Defendant:
1. Signature of Returning officer
2. Ahmadu Adamu Mu’azu National Chairman
3. Prof. Adewale Oladipo National Secretary
4. Alhaji Abubakr Mustapha National Organizing Secretary
5. Signature of Electoral officer
Now, with the names and signatures of the National Chairman, National Secretary and National Organising Secretary of the 1st Defendant, does it lie in anybody’s mouth like the deponent of the 1st Defendant’s counter affidavit and the 3rd Defendant to say that exhibit 8 is concocted or forged? Is it not the National Chairman, National Secretary, the National Organising Secretary and the Electoral officer to deny the signatures in exhibit 8 as being their own? This is even so when neither the deponent to the 1st Defendant’s counter affidavit and the 3rd Defendant have shown that they are familiar with the signatures of the National officers of the 1st Defendant who have been shown to have signed exhibit 8.
In the absence of any denial by the National Chairman, National Secretary, National Organising Secretary that the signatures shown in exhibit 8 were not their own, this Court is entitled to presume that the signatures on exhibit 8 was actually made by them.
To make matter worse, I have attempted to even read 3rd Defendant’s exhibit ME1, another Result sheet, but the document is not legible particularly as to who and who signed the document. I therefore have no difficulty in arriving at the conclusion that exhibit 8 attached to the plaintiff’s affidavit in support of the originating summons is the valid and authentic Result of the 1st Defendant’s primary election conducted by the 1st Defendant for Idemili North/South Federal constituency for Federal House of Representatives, which showed that it was the Plaintiff that was declared the winner of the said primary election.
On the whole, the plaintiff’s case has succeed.”
It is obvious from this judgment, that the trial Court did not even acknowledge that any material conflict existed between the affidavits of the 1st respondent as plaintiff and those of the appellant and 2nd respondent as defendants. It simply held that the affidavits of the appellant and the 2nd respondent who were co-defendants contradicted each other on whether the 1st respondent was present in the primary election conducted by the National Assembly Electoral Panel of the 2nd respondent. On the basis of this holding, it rejected the affidavit evidence of the appellant and 2nd respondent on what transpired during the primary election. I agree with the argument of Learned SAN in the appellant’s reply brief that there was no contradiction between the affidavits of the appellant and 2nd respondent concerning the presence or absence of the 1st respondent in the primary election conducted by the National Assembly Electoral Panel or on what transpired thereat.
Both affidavits state that the 1st respondent was absent from the primary election conducted by the National Assembly Electoral Panel and still had one vote and thereby corroborate each other. There was clearly no basis for the holding of the trial Court that “there is a material contradiction between the accounts narrated by the 1st and 3rd defendants with regard to what actually took place on the day of the primary election.” Its rejection of their evidence is therefore wrongful and cannot be sustained.
The decision of the trial Court that only the signatories of exhibit 8 that can deny the signatures thereon as theirs and assert that the result is concocted or forged and that in the absence of such denial by the said signatories, the trial Court was entitled to presume that the signatures on exhibit 8 were actually made by them, is not valid and cannot be sustained because exhibit C1 (the result sheet attached to the appellant’s counter affidavit) and exhibit ME1 (result sheet attached to the 2nd respondent’s counter affidavit) bear the same names and signatures as those on exhibit 8 and the signatories have not denied those signatures as theirs. One of the signatories, the returning officer deposed to an affidavit (exhibit C2 attached to the appellants counter affidavit) wherein he denied signing the signature ascribed to him on exhibit 8 and accepted signing the signature ascribed to him on exhibits C1 and ME1.
The trial Court relied on the ineligibility of exhibit ME1 on the names of the signatories to hold that exhibit 8 is the valid and authentic result of the primary election. It disregarded the fact that exhibit C1 attached to the appellant’s counter affidavit was glaringly very legible on the names and offices of the signatories and the entire content as a whole. It also disregarded exhibit C2 (the returning officer’s affidavit attached to the appellant’s counter affidavit) in which the returning officer denied that he signed the signature on exhibit 8 and accepted signing the signature in the result showing the appellant as the winner of the primary election.
It also disregarded and said nothing about exhibits ME2 (attached to 2nd respondent’s counter affidavit) and exhibit C3 (attached to appellant’s counter affidavit). These are copies of (the National Assembly Electoral Committee report on all National Assembly elections in Anambra State) which contradict the result in exhibit 8.
It is obvious that the trial Court avoided the evaluation of the huge volume of affidavit evidence and documents adduced by the plaintiff and 1st and 2nd defendants. It just picked its way through that gamut of evidence in a one sided manner to arrive at its decision. Its decision is not the result of a proper evaluation of the totality of the affidavit evidence and documents of the parties before it. If it had done such evaluation, it would have seen that the affidavits of the plaintiff (1st respondent) are materially and irreconcilably in conflict with the affidavits and documents of the 1st and 3rd defendants (appellant and 2nd respondent herein) and that there was acute need for the parties to call oral evidence to resolve these conflicting assertions so as to determine which result and documents are authentic and which deposition of facts is true.
It is noteworthy that the 1st respondent did not contest the applicant’s 31-5-2018 application for an order to call oral evidence on the ground that the affidavits of both sides are materially in conflict. Falsification or forgery or fabrication of documents is a crime, whose commission must be proved beyond reasonable doubt by virtue of S.135(1) of the Evidence Act 2011. It is not obvious from the conflicting affidavits and documents which result is forged. There is therefore need for oral evidence to prove the alleged forgeries or falsity of the results and other documents.
I agree with the submission of Learned Counsel for the 1st respondent that if the material conflicts between the affidavits can be resolved by reference to the documents attached to them, then the Court can resolve the conflict without calling oral evidence. But where such conflict cannot be so resolved as in this case, where even the documents themselves materially contradict each other, oral evidence should be called to resolve the material conflicts.
S.116 of the Evidence Act 2011 provides that “where there are before a Court, affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called the parties.”
There is an unending line of judicial decision restating and applying this principle. Example include Falobi v Falobi (1976) 9-10 SC (Reprint) 1 Re. Otuedon (1995) LPELR 1506 (SC), Bob v Akpan (supra). In NNSC Ltd v Alhaji Hamajoda Sabana & Co. Ltd. & Ors (1988) LPELR 2025 SC the Supreme Court held that “it is settled that the Court cannot resolve such conflict in affidavit except by taking oral evidence.” In Eimskip Limited V Exquisite Industries (Nig) Ltd (2003) 1 SC (Pt. ii) 94 the Supreme Court held that “where affidavit evidence are in conflict, oral evidence should be led to reconcile the conflict, unless there is documentary evidence which can tilt the contradictory or ‘quarreling’ evidence one way or the other. In Chief Atanda v. Olanrewaju (1988) 10-11 S.C.1; (1988) 4 NWLR (Pt. 89) 394, this Court held that where depositions in affidavits of contesting parties conflict, the Court is not allowed to prefer one deposition to the other. In cases of such conflict, the only course open to the Court in order to resolve the conflict is to hear oral evidence. See also Military Administrator, Federal Housing Authority v. Aro (1991) 1 NWLR (Pt. 168); Okere v Nlem (1992) 4 NWLR (Pt. 234) 123; Momah v. Vab Petroleum Inc. (2000) 2 S.C. 142; (2000) 4 NWLR (Pt. 654) 534.”
It is settled law that where the material conflicts concern the commission of crime as in this case, there is need to call oral evidence to resolve such conflict and determine the issue. See Obasanya v Babafemi (2000) 15 NWLR (Pt. 689) 1 at 17. In ATAGO V. NWUCHE (2013) 3 NWLR (Pt. 1341) 337 @ 354 the apex Court was unanimous on this, with their Lordships Galadima and Ngwuta JJ.S.C saying as follows:
Galadima J.S.C. (lead) at p.354 F-H that:
“The Court below rightly declined to hear the matter because of the conflicting affidavits. Therefore, since the issue in controversy pertains to determination of who was lawfully nominated candidate of the 2nd respondent at the primary of election, the trial Court lacked jurisdiction to entertain the appellant’s claim without pleadings. However, as a trial Court, it has the jurisdiction to convert an originating summons and order pleadings in the matter since the originating summons is found to be an improper procedure of commencing the instant case. The learned trial Judge failed to do exactly that on seeing that the affidavits of the parties are conflicting and irreconcilable.”
With his brother Ngwuta J.S.C. adding at p. 359 C-D that:
“Issues arising from questioned nomination of candidates for an election by a political party are usually not devoid of hostilities. This case is no exception. The affidavits show contention facts and the trial Court was right to have held that the matter cannot be resolved on affidavit. The lower Court rightly endorsed the said decision.”
The apex Court reconfirmed this position in OLLEY V. Tunji (2013) 10 NWLR (Part 1362) 275, with Onnoghen (J.S.C., as he then was) saying at p. 327 that:
“From the reliefs claimed it is very clear that the 1st Respondent seeks to be declared the winner of the primary election instead of the appellant…
“However, the issue is which of the processes is most suitable to the resolution of the issues presented in this case?
Is it an ordinary writ of summons or originating summons? We have already noted the proceedings in which originating summons is most suited which includes the facts leading to the instant case. It follows that the procedure best designed for the resolution of the 1st Respondent’s dispute in this case is that of writ of summons where pleadings are filed and witnesses called and examined to enable the Court watch their demeanour and decide on the principle of balance of probability.”
With his brother Ngwuta J.S.C again holding, this time in lead judgment, at p. 323 G-H thus:
“The affidavit evidence based on which the trial Court made the finding of fact which was affirmed by the Court below is riddled with irreconcilable conflicts and contradictions on material facts. This was not denied by the 1st respondent who merely urged the Court to treat the matter as mere technicality. The matter is too serious for the two Courts below to found a decision on a choice made by the 1st Respondent between the two sets of figures he stated in his submissions- one by voters who voted for 1st Respondent and the other by INEC’s officials who observed the primaries.
“Having resolved the two threshold issues against the 1st respondent as 1st Respondent, I declare that the originating summons was dead on arrival on the facts presented before us, 1st respondent cannot resort to originating summons to seek redress pursuant to Section 87(9) of the Electoral Act 2010 (as amended). The lower Court should have converted the process to a writ of summons for the parties to file and exchange pleadings.”
See also Philip v Akinola (CA/A/316/2016 delivered on 20-3-2018).
For the above reasons, I hold that the judgment of the trial court cannot stand. It is set aside.
Issues No. 2 and 4 are resolved in favour of the appellant.
Let me now determine Issue No.3 which asks- “Whether considering the evidence placed before the lower Court by the parties, the learned trial Judge was right in entering Judgment for the 1st Respondent to the effect that the 1st Respondent won the 2nd Respondent’s primary election for Idemili North/South Federal Constituency of Anambra State.”
I have carefully read and considered the arguments of both sides on this issue, I agree with the Learned SAN for the appellant that by virtue of Ss.131(1), 132 and 133(1), the 1st respondent as the plaintiff had the burden to prove the case he brought to Court. This is because it is he who desired the Court to give him judgment to enforce his legal right to be presented as the 2nd respondents candidate for the said general election on the basis of his assertion that he won the 2nd respondent’s primary election of its candidate for the said general election and it is his case that would fail if no evidence is given on either side.
The appellant by his affidavit in support of the originating summons, particularly exhibit 8, attached thereto established that he secured the highest number of votes (38 votes) in the primary election and won the said election and therefore was entitled to be presented by the 2nd respondent to the 3rd respondent as its candidate for the 2015 general election of member Idemili North and South Federal Constituency in the House of Representatives. Having established by exhibit 8 that he won the 7-12-2014 primary election, the evidential burden shifted to the defendants, particularly 1st and 3rd defendants by virtue of S.133(2) of the Evidence Act, to adduce evidence to rebut or disprove the case established by the plaintiff.
The appellant (as 3rd defendant) and the 2nd respondent as 1st defendant) by their counter affidavits adduced evidence that rebutted or disproved the case established by the plaintiff by showing that it is rather the appellant who secured the highest votes in the primary election and won the primary election and was therefore entitled to be presented by the 2nd respondent to the 3rd respondent as the party’s candidate for the election.
Attached to the appellant’s counter affidavit is exhibit C1 the result sheet that shows that appellant had the highest vote, exhibit C2 the affidavit of the returning officer of the said primary election confirming the content of exhibit C1, accepting as true and valid and stating that he did not sign his alleged signature on exhibit 8 and that the content of exhibit 8 is false, exhibit C3 the report of the National Assembly Electoral Committee of the 2nd respondent on the National Assembly primary elections in Anambra State, exhibit C4, its Appeal Panel report and exhibit C5a and C5b video record of primary election proceedings. Exhibit C2 has a copy of the primary election result attached to it, which result is exactly the same as exhibit C1 and is confirmed by the returning officer as the authentic primary election result.
Attached to the 2nd respondent’s counter affidavit are exhibit ME1, the primary election result sheet that is exactly the same in content with exhibit C1 and the result attached to exhibit C2, exhibit ME2, the Report of the National Assembly Electoral Committee on National Assembly Primary elections in Anambra State and exhibit ME3 the Primary Election Appeal Panel Report.
All these counter affidavits and the exhibits attached to them proved that the appellant won the primary election. It is noteworthy that the 2nd respondent who conducted the primary election confirmed exhibits C1 and ME1 as the authentic primary election result, confirmed that it was the appellant that won its primary election and therefore submitted his name as its candidate for the general election.
The said counter affidavits and accompanying exhibits successfully rebutted or disproved the case made out by the 1st respondent in the affidavit in support of the originating summons and shifted back the evidential burden on the 1st respondent to elicit further evidence to establish his case by preponderance of evidence or elicit evidence to disprove the presumption of correctness that enures in favour of the results and proceedings of the 2nd respondent and its organs. The 1st respondent did file affidavits in reply to the counter affidavits of the appellant and 2nd respondent in which he asserted without more that exhibits C1, C2, C3, C4 and C5a and C5b and ME1 to ME8 are false and fabricated. It did not adduce any documentary evidence to prove this assertion of forgery of those exhibits. It produced a video record of primary election proceedings in exhibit Su3a and Su3b to contradict exhibits C5a and C5b, the appellant’s video record of the same event. The trial Court did not consider any of the said video records in reaching its decision. It ignored them. The 1st respondent also produced exhibits Su2a and Su2b video record of his conversation with the returning officer of the primary election to contradict exhibit C2, the returning officers affidavit denying his signature on exhibit 8 and denying the authenticity of exhibit 8. The trial Court did not refer to any of these exhibits in its decision.
As I have held herein, there is need for oral evidence to be elicited to prove the allegations of forgeries. It is the 1st respondent’s case that would fail if no oral evidence is adduced to prove the falsity of exhibits C1, C2, C3, C4 and exhibits ME1, ME2 and ME3.
Exhibits ME1, ME2 and ME3 being from the 2nd respondent that conducted the primary election must be presumed correct and authentic until the contrary is proved by the 1st respondent who is challenging their correctness and authenticity. Exhibit C2 sworn to by the returning officer in the said primary election confirms the correctness and authenticity of the primary election results in exhibit C1 and ME1.
It is clear from the foregoing that, without calling oral evidence to prove his assertion that exhibits C1, C2, C3, C4, ME1, ME2 and ME3 were forged, the 1st respondent failed to prove that the said documents were forged. In any case the best evidence of the records of the primary election conducted by the 2nd respondent is a record of the result of the election coming from the custody of the 2nd respondent and confirmed by it as its document.
In the light of the foregoing, I hold that the trial Court was wrong in entering judgment granting the reliefs claimed by the 1st respondent, when it failed to prove the falsity of exhibits C1, C2, C3, C4, ME1, ME2 and ME3 that show that the appellant won the primary election and that the 2nd respondent acted rightly in presenting his name to the 3rd respondent as its candidate for the General election in keeping with S. 87(4)(c) (ii) of the Electoral Act 2010 as amended which provides that-
“(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.”
Issue No. 3 is hereby resolved in favour of the appellant.
On the whole this appeal succeeds as it has merit. It is accordingly allowed. The judgment of the Federal High Court at Abuja delivered on 21-11-2018 in Suit No. FHC/ABJ/CS/123/2015 by A.R. Mohammed J is hereby set aside. Rather it is hereby adjudged that the plaintiff failed to prove his claim in Suit No. FHC/ABJ/CS/123/2015. The said claim is hereby dismissed.
The 1st respondent shall pay costs of N400,000.00 to the appellant.
ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother ADAMU JAURO, JCA. I agree that the appeal is meritorious and should be allowed.
The facts that led to the appeal and the reliefs sought by the parties are well spelt out in the lead judgment and I will not repeat same.
My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. However, and just for purpose of emphasis, I will put in one or two words of mine in respect of the duty of Court to hear and determine all applications before it.
There is bounden duty on the Court to hear all applications pending before it whether they be frivolous or even an outright abuse of the process of Court. It is by hearing the parties that the Court will be in position to determine the nature of application in question. It is not within the jurisdiction, discretion or competence of a Court to refuse to take a pending process before it.
See DASOFUNJO v. AJIBOYE (2017) LPELR 42354 (CA)
In the case of ABAH v. MONDAY & ORS (2015) LPELR 24712 (SC), the apex Court, when faced with a similar situation, held as follows:
“The general principle of law is trite and well established that all applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either in his favour or against him. This re-iterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the proceedings, as it has been held in the case of Enebeli V. C.B.N. (2006) 9 NWLR (Pt. 984) 69 at 78. In other words, an application may not necessarily have merit, it may be bogusly and inelegantly framed or may even be frivolous; be that as it may, once it is shown that there is some legal basis for the application, the Court is bound to hear it. It is not optional or discretional.”
In the appeal under consideration, the Appellant has rightly pointed out that the failure of the Trial Court to hear and decide on the motion filed 31/5/78, is a violation of his fundamental right to fair hearing. That is the position of the law, and the only option open to this Court in such a case of any breach of the principle of fair hearing, is to automatically nullify the proceedings.
Consequently, the proceedings of the Trial Court on the 21st of November 2018; is declared a nullity and it is hereby set aside.
It is for this reason and the more detailed reasons given by my Learned Brother ADAMU JAURO, JCA that I also find that this appeal is meritorious and ought to be allowed. It is hereby allowed by me.
I also abide by the consequential order contained in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Dr. Onyechi Ikpeazu OON, SAN, FCArb with him, Tobechukwu Nweke MCArb, Obinna Onya, Esq., Melvin Oputa, Esq. and Nkemakonam Obiesie, Esq. For Appellant(s)
Dr. Ehiogie WEST-Idahosa, with him, D. O Irabor, Esq., Glory Onen-Zakka, Esq., Chisimdi M. Chima, Esq. and Onifade Taiwo, Esq. for the 1st Respondent For Respondent(s)
