HON. JOSEPH OJOBO v. PATRICK ABBA MORO & ORS (2019)

HON. JOSEPH OJOBO v. PATRICK ABBA MORO & ORS

(2019)LCN/12932(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/MK/22/2019

RATIO

THE SUBJECT MATTER OF A CLAIM IS DETERMINED BY PLAINTIFF’S CLAIM

It is well settled and also elementary to state that subject matter of a claim before a Court is determined on the plaintiff’s claim per the pleadings filed; Anekwe & Anor v. Nweke (2014) LPELR-22697(SC) Adelusola & Ors v. Akinde & Ors (2004) LPELR-120(SC). As expounded by the Supreme Court, per Adekeye, JSC in Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (2009) LPELR-482(SC) at page 19 of the E-Report:
The claim of a litigant, either the plaintiff or defendant depends on the averments in his pleadings. In our adversary system of the administration of justice, it is the entire pleadings of the parties that are looked into to determine the plaintiff?s case, the reliefs claimed vis-a-vis the jurisdiction of the Court and the defence. Paragraphs of pleadings cannot be relied on in isolation for this purpose. There are deducible from the pleadings principal or main issues and ancillary issues. NDIC v. SBN LTD. (2003) 1 NWLR pt. 801 pg 311 Tukur v. Govt. of Gongola State (1989) 4 NWLR pt. 117 pg 517.”PER ONYEKACHI AJA OTISI, J.C.A.

THE PLAINTIFF’S CLAIM DETERMINES THE JURISDICTION OF THE COURT

A fortiori, it is the plaintiffs claim as set up in the originating summons supported by the affidavit evidence that determines not only the jurisdiction of the Court, but also the relief expected from the Court; Ports and Cargo Handlings Services Co. Ltd & Ors v. Migfo (Nig) Ltd & Anor (2008) LPELR-4862(CA).PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

HON. JOSEPH OJOBO Appellant(s)

AND

1. PATRICK ABBA MORO
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The 2nd Respondent conducted primaries on 4/10/2018 to nominate its candidate for People’s Democratic Party (PDP) Benue South Senatorial District at which the Appellant pulled the majority votes of 264 against the 1st Respondent who had 214 votes and one other candidate who had 159. However, delegates from Okpokwu, Otukpo and Ohimini Local Government Areas (LGAs) did not participate in the said primary election as a result of security challenges. In consequence, the primary election held on 4/10/2013 was declared inconclusive by the Electoral Committee set up by the 2nd Respondent. In order for the party to have a clear winner, a supplementary primary was held on 7/10/2018 to enable delegates from the three LGAs participate in the exercise. At the conclusion of the supplementary primary held on 7/10/2018, the 1st Respondent, who scored 461 votes in the primaries against the Appellant who scored 365 votes, was declared the winner by the returning officer appointed by the 2nd Respondent. The Appellant was aggrieved by the declaration of the 1st Respondent as winner of the

primaries and thereby, the candidate of the 2nd Respondent for Benue South Senatorial District election. Being of the view that he ought to have been returned as candidate of the 2nd Respondent for the said Benue South Senatorial District election, the Appellant filed an Originating Summons, Suit No FHC/MKD/CS/57/2018, at the Federal High Court, Makurdi Division on 19/10/2018 seeking the determination of the following questions:
I. Whether upon a dispassionate construction of the provisions of Section 87(4) (c) (i) of the Electoral Act, 2010 as amended and the Peoples Democratic Party?s Electoral Guidelines for primary elections the plaintiff who contested at the 2nd defendant?s primary election to elect a senatorial candidate for the Benue South Senatorial District which held on the 4th day of October, 2018 and who scored the highest number of votes ought not to have been declared the winner and his name and particulars forwarded to the 3rd defendant as the 2nd Defendant?s Senatorial candidate for the Benue State South senatorial seat.
II. Whether the 2nd defendant?s primaries election which held on the 7th day of October, 2018

for 3(three) Local Government Areas, namely Otukpo, Ohimini and Okpokwu to elect their senatorial candidate for the Benue South senatorial seat for which was conducted and co-ordinated by one Moses Audu, the Benue State People?s Democratic Party organizing secretary is not a nullity.
III. Whether the 2nd defendant?s primary Election which held on the 7th day of October, 2018 for 3(three) Local Government Areas, namely Otukpo, Ohimini and Okpokwu to elect their senatorial candidate for the Benue State South senatorial seat conducted by the Benue State Chapter of the 2nd defendant using a delegate list different from the delegates? list used for the conduct of the Governorship primaries which held on the 30th day of September, 2018 is not a nullity and in violation of both the Electoral Act and PDP Electoral Guidelines for Primary Elections.
IV. Whether by virtue of the decision of the Supreme Court in the case of ODEDO v. OGUEBEGO (2015) NWLR, pt. 1476, P. 229 @PP. 266-267, the Primary Election was conducted by the Benue State Executive Committee of the Peoples Democratic Party is not a nullity.

Upon a resolution of the questions posed for determination, the Appellant sought for the following reliefs:-
(a) A Declaration that the plaintiff having scored the highest number of votes at the special congress to elect the Peoples Democratic Party Senatorial candidate into the Benue South Senatorial seat which held at the Aper Aku Station on the 4th day of October, 2018 is the 2nd defendant?s candidate for the Benue South Senatorial seat.
(b) A Declaration that the primary Election held by the Benue State Chapter of the 2nd defendant for Otukpo, Ohimini and Okpokwu Local Government Area delegates to elect their senatorial candidate on the 7th day of October, 2018 is a nullity.
(c) A Declaration that the use of delegates? list by the state chapter of the 2nd defendant in the conduct of the primary Election into the Benue South Senatorial seat for delegates from 3(three) Local Government Areas, namely Otukpo, Ohimini and Okpokwu which delegates? list is different from that used for the conduct of the primary Election for the Governorship seat is a violation of both the Electoral Act, 2010 (as amended) and the Peoples Democratic Party Electoral

Guidelines for primary Elections and renders the exercise a nullity.
(d) An Order Directing the 3rd defendant to issue a Certificate of return to the plaintiff in the event that the Election into the Nigerian Senate hold before the determination of this suit and the 2nd defendant wins in the Election to the Benue South Senatorial seat.
(e) An Order directing the defendants to recognize and deem the plaintiff as the candidate of the 2nd defendant for the Benue South Senatorial seat in the forthcoming election.

The Appellant filed an affidavit in support. The 1st, 2nd and 3rd Respondents respectively entered Conditional Appearance and filed Counter Affidavits. In response to each Respondent?s Counter Affidavit, the Appellant filed Further Affidavits. On 17/1/2019 the lower Court delivered judgment and dismissed the Appellant?s case. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 30/1/2019 on six grounds of appeal, pages 941 ? 947 of the Record of Appeal.

?The parties exchanged Briefs of Argument, pursuant to the Rules of this Court. The Appellant?s Brief was filed on 20/2/2019.

The 1st Respondent?s Brief was filed on 4/3/2019. The 2nd Respondent?s Brief was filed on 7/3/2019 and the 3rd Respondent?s Brief was filed on 27/2/2019. The Appellant filed a Reply Brief to the 1st Respondent?s Brief on 6/3/2019 and a Reply Brief to the 2nd Respondent?s Brief on 8/3/2019. At the hearing of this appeal on 19/3/2019, the respective Briefs were adopted by Professor Agbo Madaki, with T.D. Pepe, Esq., N.O. Okereke, Esq., Jennifer Adole, Esq., J.V. Ogizi, Esq., and O.N. Nor, Esq. for the Appellant; K.C. Ikonne, Esq. with I.S. Vongjen, Esq., C.C. Umeh, Esq., Joseph Agbo, Esq., and Ajibola Olanrewaju, Esq. for the 1st Respondent; Kenneth Ula, Esq. with A.T. Yainjoh, Esq. for the 2nd Respondent; and N.C. Kumbut, Esq. for the 3rd Respondent.

Professor Madaki urged the Court to allow the appeal, set aside the judgment of the lower Court and enter judgment for the Appellant in terms of the Originating Summons. For the 1st Respondent, Mr. Ikonne urged the Court to discountenance and strike out the Reply Brief to the 1st Respondent?s Brief as new issues were raised therein to

which they were not able to respond. He also urged the Court to dismiss the appeal. Mr. Ula urged the Court to discountenance and strike out the Reply Brief to the 2nd Respondent?s Brief for the same reason that new issues had been raised therein. He urged the Court to dismiss the appeal and affirm the decision of the lower Court. For the 3rd Respondent, Mr. Kumbut urged the Court to dismiss the appeal.

On preliminary scrutiny of the processes before the Court, it was observed that the 3rd Respondent?s Brief was neither signed at the end of the Brief nor was the Nigerian Bar Association (NBA) stamp attached thereon, but rather Mr. Kumbut, learned Counsel for the 3rd Respondent, had signed the beginning of the Brief and affixed his NBA stamp thereon. In response to a query from the Court, Mr. Kumbut described his failure to sign the conclusion of the 3rd Respondent?s Brief as an oversight but affirmed that he had indeed signed the beginning of the Brief and affixed his NBA stamp thereon.
The settled attitude of the Courts is that a process prepared and filed in Court by a legal practitioner must be signed by

the legal practitioner and his NBA stamp validating his professional status affixed thereon. A Court process prepared by a legal practitioner should be properly signed by the legal practitioner in this manner:
(1) The signature of the legal practitioner who issued or signed the process.
(2) The name of the legal practitioner who signed the process.
(3) The party that the legal practitioner represents.
(4) The name and address of the legal firm of the practitioner.
(5) Where more than one legal practitioners are listed on the
process the name of the particular legal practitioner who signed the process must be indicated.
See S.L.B. Consortium Ltd. v N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; F.B.N. Plc. v Maiwada (2013) 5 NWLR (Pt. 1348) 1433.
It is standard practice to sign a document at the end of it, thereby authenticating the contents of the said document. Although it is most unusual to sign a document at the beginning rather than at the end thereof, this Court cannot ignore the fact that Counsel?s signature and stamp were not totally missing from the process. The signature and stamp of Mr. Kumbut was on the process, albeit at the beginning of

the 3rd Respondent?s Brief. His name was clearly ticked as the legal practitioner who signed the process. The party he represents as well as the name and address of the legal firm was stated thereon. Neither the Appellant nor the 1st and 2nd Respondents, respectively, have been misled in any particular as to the competence of the 3rd Respondent?s Brief. As a matter of fact, it was the Court that made the observation and called the attention of Mr. Kumbut to this anomaly. The Court is satisfied that the 3rd Respondent?s Brief was signed and stamped by Mr. Kumbut, a legal practitioner. The 3rd Respondent?s Brief is therefore competent. See also Williams & Anor v. Adold/Stamm Int’l (Nig) Ltd & Anor (2017) LPELR-41559(SC).

Out of six grounds of appeal, the Appellant distilled three issues, as follows:
1. Whether the failure of the lower Court to consider issues that arose in the cause of proceedings and forming part of the case of the plaintiff is not a denial of fair hearing and thus occasioning a miscarriage of justice. (tied to grounds 1, 2 and 3)
2. Whether or not in the face of manifest non-

compliance with the Electoral Act 2011 (as amended) and the Peoples Democratic Party Electoral Guidelines for primary Elections as evidenced in exhibit KC7, KC8 and INEC 1 the trial Court was right in holding that there was accreditation of voters at the Peoples Democratic Party Benue South Senatorial Primary Election of 7th October, 2018. (tied to grounds 4 and 6).
3. Whether or not the trial Judge did not err in law when the lower Court held that exhibit KC8 was a cummulation (sic) of the Primary Election that held on the 4th October, 2018 and 7th October, 2018 contrary to the expressed and or implied content of Exhibits KC8 and INEC 1. (tied to ground 5)

For the 1st Respondent, the issues for determination were framed in this manner:
1. Whether the trial Court failed to consider any issue that arose in the course of the proceedings and forming part of the case of the Plaintiff, and whether such failure (if any) is a denial of fair hearing or occasioned a miscarriage of justice. (Grounds 1, 2 and 3).
2. Whether, having regard to the Electoral Act, 2010 (as amended) and the Peoples Democratic Party Electoral Guidelines for Primary Elections, as well as

Exhibits KC7, KC8 and INEC 1, the trial Court was not right in holding that there was accreditation of delegates at the Peoples Democratic Party Benue South Senatorial Primary Election of 7th October, 2018. (Grounds 4 and 6).
3. Whether or not the trial Court erred in law when it held that Exhibit KC8 was accumulation of the primary election that held on the 4th October, 2018 and 7th October, 2018, having regard to the contents of Exhibit KC8 and INEC 1. (Ground 5).

The 2nd Respondent formulated a sole issue for determination from grounds 1 and 2 of the Appellant?s grounds of appeal as follows:
Whether the Appellant has locus standi to raise the issue of accreditation of delegates for the primary election of the 2nd Respondent which took place on the 7th October, 2018 for Benue South Senatorial District when he did not participate in the said primaries.

For the 3rd Respondent, a sole issue for determination was also distilled as follows:
Whether there was accreditation of delegates and nomination on the 4th and 7th October, 2018 by People’s Democratic Party for Benue South Senatorial seat as monitored by INEC (Distilled from all the appellant grounds of Appeal).

The issues framed for the determination of this appeal by the different parties can be fitted into the issues as formulated by the Appellant. I shall therefore be guided by the issues formulated by the Appellant in the determination of this appeal.

Issue 1
The case of the plaintiff at the lower Court was that he was a candidate at the Peoples Democratic Party (PDP), Benue South Senatorial Primaries Election that held on October 4 and 7, 2018 respectively and that having scored the highest number of lawful votes he ought to have been returned as the 2nd Defendant?s candidate for the Benue South Senatorial Election scheduled for February, 2019. The Appellant also contended that the supplementary primary election conducted by the 2nd Respondent on 7/10/2018 was not done in compliance with the Electoral Act, 2011 (as amended) and the PDP Electoral Guidelines for primary Election and should be declared a nullity. The 1st Respondent, on the other hand, asserted in his Counter Affidavit that he was duly declared elected as the Senatorial Candidate of the 2nd Respondent. He exhibited two

documents; Exhibits KC7 and KC8 in proof of his claim. The 2nd Respondent repeated the same averments in her Counter Affidavit and annexed the same exhibits but marked Exhibits PDP7 and PDP8.

In reaction to the 1st and 2nd Respondents? Counter-Affidavits, the Appellant filed separate Further Affidavits and contended that from the contents of Exhibits KC7 and KC8, no accreditation was carried out at the congress of 7/10/2018. He argued that the neglect to carry out accreditation on 7/10/2018 robbed the exercise of validity and legitimacy and it was therefore a nullity. Any election proceeded without an accreditation of voters cannot allow for the casting of lawful votes. To this contention, the lower Court held that the Appellant could not set up in his further affidavit and reply a new cause of action, make any allegation of fact or raise any ground of claim which he did not raise in the Originating Summons. It was argued for the Appellant that the issue of accreditation arose in the course of proceedings and was introduced by the Counter-Affidavit of the 1st and 2nd Respondents by Exhibits KC7 and KC8 annexed thereto. Originating Summons are heard

and determined by the consideration of the summons itself, the affidavits in support, as well as any exhibits, relying on Akanmode v FBN (2018) LPELR-44456 (CA); Danladi v Dangiri (2015) NWLR (PT. 1442) 124. The Respondents having introduced the issue of accreditation in their counter-affidavits, the Appellant was entitled, for fair hearing, to file a reply by way of a Further Affidavit. The provisions of Order 13 Rules 36(1) and 35(2) of the Federal High Court (Civil Procedure) Rules 2009 were also relied on. Affidavits in Originating Summons take the place of pleading, relying on NNPC & Ors v. Famfa Oil Ltd (2012) 17 NWLR (pt. 1328) 148 at 189. It was argued that the Appellant was right to have joined issues with the 1st and 2nd Respondents on the issue of accreditation. Reliance was also placed on Odu-Alagbe v Oluwebi (2015) LPELR-25746 (CA). It was further submitted that the Appellant having so joined issues with the Respondents, the lower Court was duty bound to determine the issue of non-accreditation. Failure to do so would lead to a miscarriage of justice, citing authorities including: Okonji & Ors. v. Njokanma & Ors. (1991) LPELR-2476 (SC);

Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 365; Brawal Shipping Nig. Ltd v. F.I. Onwadike Co. Ltd and Anor. (2000) LPELR-802 (SC). The Court was urged to hold that the failure of the lower Court to consider and resolve the issue properly raised amounted to a denial of fair hearing, resulting in a miscarriage of justice.

It was further submitted that even if the issue of accreditation was not originally part of the Appellant?s case, having arisen in the course of the proceedings, the lower Court ought to have resolved it in the interest of justice. Courts are enjoined to do substantial justice, with mere technicality now denounced. In support of this submission, the case of Oloruntoba-Oju & Ors v. Abdul-Raheem & Ors (2009) LPELR-2596 (SC) was cited and relied on.

Learned Counsel for the Appellant further argued that illegality of the primary election held on 7/10/2018 was an issue that arose from the questions for determination as couched in the originating summons, particularly Questions 1 and 3 of the originating summons, in which issues of non-compliance with Section 87(4) of the Electoral Act and the

Guidelines of the 2nd Respondent were raised. The lower Court ought not to have treated the issue of the illegality of the primary election in relation to accreditation as a fresh issue that could not be accommodated in the originating summons. It was submitted, assuming without conceding, that this issue was not specifically raised in the originating summons, it could still be entertained by the lower Court once the illegality was apparent on the face of the record, relying on Ibrahim v. Osim (1988) 3 NWLR (pt. 82) 257; (1988) LPELR-1403 (SC). The Court was urged to resolve this issue in favour of the Appellant.

?In reply, learned Counsel for the 1st Respondent submitted the complaints of the Appellant from his affidavit in support of the Originating summons were:
1. That the senatorial primary of 4th October, 2018, in which the Appellant polled the highest scores, ought not to have been declared inconclusive, but should have been used to return him as the winner of the PDP’s primaries.
2. That the subsequent supplementary senatorial primary that was conducted on 7/10/2018 was a nullity because it was allegedly conducted by one Moses Audu, the Benue

State Organizing Secretary of the PDP, in conjunction with other unauthorized state executives of the party in Benue state, and not by the National Working Committee of the PDP that has the vires to conduct same.
3. That a fake delegates? list, different from the one that was used during the governorship congress of 30/9/2018, was used by the said Moses Audu, to conduct the supplementary primary of 7/10/2018 that eventually produced the 1st Respondent as the candidate of the 2nd Respondent for the senatorial election in the Benue South Senatorial District.

It was submitted that these three substantive complaints were fully considered and resolved by the trial Court in its judgment. Notwithstanding that the holding that the issues of non-accreditation, over-voting and inclusion of Dr. Akwaya in the Electoral panel raised by the Appellant in his further affidavit were new and extraneous to the Originating Summons, the trial Court went ahead to consider the said new issues in its Judgment, and came to the conclusion that the said new issues were not proved. Grounds 4, 5 and 6 of the Appellant?s Notice of Appeal, as well as the Appellant’s

Issues 2 and 3 to which they are tied, arose from the resolution of the lower Court on these new issues. It was submitted that the trial Court having considered every issue raised at the trial, the Appellant did not suffer any denial of fair hearing. No miscarriage of justice was occasioned.

It was further submitted that it was evident from a petition written on the Appellant?s behalf by his Counsel, to the National Chairman of the 2nd Respondent, and attached to the Originating Summons as Exhibit K, the Appellant admitted that accreditation of voters was actually done at the said Special Congress of 7/10/2018. But, when the 1st Respondent filed his Counter-Affidavit to the Originating Summons and annexed Exhibits KC7 and KC8 simply for the purpose of establishing the cumulative votes scored by the respective aspirants at the congresses of the 4th and 7th of October, 2018, the Appellant filed a Further Affidavit alleging for the first time, the new issues of non accreditation and over-voting, from his scrutiny of the annexures and then urged the trial Court to nullify the 1st Respondent’s nomination on these fresh grounds. The Appellant did not at

all amend his Originating Summons to incorporate these new issues. It was argued that the reasoning of the lower Court that the Appellant could not set up in his reply a new cause of action was not assailable. Reliance was placed on the case of Alhaji Usman Sharu Baban-Lungu & Anor v. Alhaji Ahmed Abubakar Zarewa & Ors (2013) LPELR ? 20726. It was further argued that none of the Respondents raised the issue of non-accreditation or over-voting in any of their Counter-Affidavits or Written Addresses. That even if they did, it was irrelevant to the Originating Summons as it would not affect or change the status of the cause of action already raised for determination in the originating summons. It is a plaintiff, and not a defendant, who by his statement of claim, or Originating Summons, nominates issues to be tried in a suit and which he relies on to have the judgment of the Court, relying on National Judicial Council & Ors v. Hon. Justice Jubril Babajide Aladejana & Ors (2014) LPELR – 24134 (CA). It was argued that the Appellant had smuggled in these new issues and then proceeded to unfairly but vigorously re-argue his case in subsequent written

addresses attached to the further affidavits, knowing that the Respondents had no further right of reply on those issues. The case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 200-201 was relied on to submit this was designed to spring a surprise on the Respondents and to defeat the ends of Justice. The Court was urged to resolve this issue against the Appellant.

Resolution
For ease of reference, I shall reproduce once more the questions and reliefs sought by the Appellant as plaintiff before the lower Court:
1. Whether upon a dispassionate construction of the provisions of Section 87(4) (c) (i) of the Electoral Act, 2010 as amended and the Peoples Democratic Party?s Electoral Guidelines for primary elections the plaintiff who contested at the 2nd defendant?s primary election to elect a senatorial candidate for the Benue South Senatorial District which held on the 4th day of October, 2018 and who scored the highest number of votes ought not to have been declared the winner and his name and particulars forwarded to the 3rd defendant as the 2nd Defendant?s Senatorial candidate for the Benue State South senatorial seat.

II. Whether the 2nd defendant?s primaries election which held on the 7th day of October, 2018 for 3(three) Local Government Areas, namely Otukpo, Ohimini and Okpokwu to elect their senatorial candidate for the Benue South senatorial seat for which was conducted and co-ordinated by one Moses Audu, the Benue State People?s Democratic Party organizing secretary is not a nullity.
III. Whether the 2nd defendant?s primary Election which held on the 7th day of October, 2018 for 3(three) Local Government Areas, namely Otukpo, Ohimini and Okpokwu to elect their senatorial candidate for the Benue State South senatorial seat conducted by the Benue State Chapter of the 2nd defendant using a delegate list different from the delegates? list used for the conduct of the Governorship primaries which held on the 30th day of September, 2018 is not a nullity and in violation of both the Electoral Act and PDP Electoral Guidelines for Primary Elections.
IV. Whether by virtue of the decision of the Supreme Court in the case of ODEDO v. OGUEBEGO (2015) NWLR, pt. 1476, P. 229 @PP. 266-267, the Primary Election was conducted

by the Benue State Executive Committee of the Peoples Democratic Party is not a nullity.

Governorship seat is a violation of both the Electoral Act, 2010 (as amended) and the Peoples Democratic Party Electoral Guidelines for primary Elections and renders the exercise a nullity.
(d) An Order Directing the 3rd defendant to issue a Certificate of return to the plaintiff in the event that the Election into the Nigerian Senate hold before the determination of this suit and the 2nd defendant wins in the Election to the Benue South Senatorial seat.
(e) An Order directing the defendants to recognize and deem the plaintiff as the candidate of the 2nd defendant for the Benue South Senatorial seat in the forthcoming election.

The 1st and 2nd Respondents in their respective Counter Affidavits deposed that, contrary to the allegations of the Appellant, the 2nd Respondent had set up another panel to conduct the supplementary senatorial primary of 7/10/2018, the earlier one held on 4/10/2018 being inconclusive. They deposed that the said supplementary senatorial primary was not conducted by Mr. Moses Audu, as alleged by the Appellant, but by the new panel. The 1st and 2nd Respondents also both attached two documents; Exhibits

KC7 was the result of the Senatorial Primary election; and, Exhibit KC8, the Report of the Senate Congress Committee for Benue South Senatorial District. Exhibit KC8 stated that:
The Committee was charged with the responsibility to conclude the Senatorial Primary in three LGAs ? Okpokwu, Otukpo and Ohimini. The primary held earlier on October 4, 2008 in the LGAs ? Ado, Ogbadibo, Oju, Obi, Apa and Agatu.

The result of the primaries, now concluded produced the following result:
1. Comrade Patrick Abba Moro – 461 votes
2. Hon. Joseph Ojobo – 365 votes
3. Chief Mike Okibe Onoja – 165 votes
The said Exhibit KC7 did not fill in any figure for the number of accredited delegates.

In the Appellants Further Affidavits to the respective Counter Affidavits of the 1st and 2nd Respondents, he raised the issue of non-accreditation of delegates before the primary held 7/10/2018 and also implied that there was over-voting at the same exercise, pages 823 ? 824 and pages 831-832 of the Record of Appeal. As is evident from the Originating Summons however, none of the questions sought to be addressed by the lower Court raised

issues relating to accreditation of delegates or over-voting at the supplementary primary held on 7/10/2018. In other words, there was no issue arising there from for which the Appellant sought the determination of the lower Court. On these issues, the learned trial Judge held, pages 933 ? 934 of the Record of Appeal:
It is well settled that a plaintiff cannot set up in his reply a new cause of action which is not raised in his writ or in the statement of claim. In the instant case plaintiff cannot set up in his further affidavit and reply a new cause of action which he did not raise in his Originating Summons since the Plaintiff must not in reply make any allegation of fact, or raise any ground of claim inconsistent with his Originating Summons. Inconsistent for this purpose does not mean mutually exclusive but merely new or different. In other words, further affidavit and reply must address issues raised in the counter affidavit and not contradict or depart from the Originating summons or it will be a ground for striking out of the offending portion of the further affidavit or reply. See Ughutevbe V. Shonowo & Anor (2004) LPELR-3317(SC).?

The Appellant?s Counsel in their Brief admitted that the issue of accreditation of delegates on 7/10/2018 arose in the course of proceedings before the lower Court and was actually introduced in the Counter-Affidavit of the 1st and 2nd Defendants by Exhibits KC7 and KC8. He argued that the Court cannot divorce the Exhibits from the averments in the respective counter-affidavits as Originating Summons are normally heard and determined on affidavit evidence. While this may be the correct position of the law, a relevant question would, however, be: could the averments or depositions of a defendant expand the battlefield for a plaintiff who has not himself made an issue arising there from part of the contest by amending his questions for determination or his claims? I think not.
It is trite that Originating Summons are heard and determined on affidavit evidence; Danladi v. Dangiri & Ors (supra), also reported in (2014) LPELR-24020(SC). Affidavits in originating summons are considered to be pleadings. The plaintiff’s affidavit is taken as the statement of claim. While the defendant’s counter affidavit is taken as

statement of defence. The parties are expected to ventilate all issues therein. It is well settled and also elementary to state that subject matter of a claim before a Court is determined on the plaintiff’s claim per the pleadings filed; Anekwe & Anor v. Nweke (2014) LPELR-22697(SC) Adelusola & Ors v. Akinde & Ors (2004) LPELR-120(SC). As expounded by the Supreme Court, per Adekeye, JSC in Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (2009) LPELR-482(SC) at page 19 of the E-Report:
?The claim of a litigant, either the plaintiff or defendant depends on the averments in his pleadings. In our adversary system of the administration of justice, it is the entire pleadings of the parties that are looked into to determine the plaintiff?s case, the reliefs claimed vis-a-vis the jurisdiction of the Court and the defence. Paragraphs of pleadings cannot be relied on in isolation for this purpose. There are deducible from the pleadings principal or main issues and ancillary issues. NDIC v. SBN LTD. (2003) 1 NWLR pt. 801 pg 311 Tukur v. Govt. of Gongola State (1989) 4 NWLR pt. 117 pg 517.”

A fortiori, it is the plaintiff?s claim as set up in the originating summons supported by the affidavit evidence that determines not only the jurisdiction of the Court, but also the relief expected from the Court; Ports and Cargo Handlings Services Co. Ltd & Ors v. Migfo (Nig) Ltd & Anor (2008) LPELR-4862(CA). The trial Court is guided always by the claims of the plaintiff. The pleadings of a defendant, or his counter affidavit, in the case of an Originating Summons, do not and cannot affect the claims of a plaintiff, except the plaintiff amends his claims to seek determination of any issue raised by the defendant. In Salubi V Nwariaku (2003) LPELR-2998(SC) at page 18 of the E-Report, the Supreme Court, per Ayoola, JSC made this point clear thus:
“Where a party makes averments but such averments do not relate to any relief sought in the case, the Court will not grant a relief which would have followed the averments without an amendment of the claim.?
See also: Ogbebor v. Utagba Rubber Estate Ltd & Anor (2014) LPELR-24476(CA). The averments of a defendant cannot therefore affect the claims of a plaintiff who has not

amended the reliefs he seeks from the Court. In the case of Ughutevbe V. Shonowo & anor (2004) LPELR-3317(SC) relied upon by the learned trial Judge, the Supreme Court, per Ejiwunmi, JSC at page 16 ? 17 of the E-Report, held:
?It seems also clear that the crucial question that fails to be considered where a plaintiff files a reply is, whether the reply so filed is consistent or not with his earlier pleading in his statement of claim. In order to assist in the determination of this question, I would refer to what the learned authors of Bullen & Leake & Jacobs Precedents of Pleading 12th Edition stated at pages 107-108:
‘The plaintiff must not set up in his reply a new cause of action which is not raised either on the writ or in the statement of claim, since the plaintiff must not in his reply make any allegation of fact, or raise any new ground of claim inconsistent with his statement of claim. Inconsistent for this purpose does not mean ?mutually exclusive? but merely new or different. In other words, the reply must not contradict or ?depart? from the statement of claim or it will be a ground for

an application to strike out the reply in which the defect occurs?
inconsistent claims should be pleaded, if at all, alternatively in the statement of claim and the plaintiff may amend, or apply to amend his statement of claim in order to plead such allegations or claims in the alternative.?

The Appellant contended that the failure of the trial Court to consider the issues that arose in the cause of proceedings and forming part of the case of the Appellant was a denial of fair hearing and thereby occasioning a miscarriage of justice. Expounding on circumstances that may constitute a miscarriage of justice, Peter-Odili, JSC in Oke & Anor v. Mimiko & Ors (2013) LPELR-21368(SC) held, pages 37b ? 39 of the E-Report:
“On what amounts to miscarriage of justice, this Court has in a long line of judicial authorities set out some definitions on what can in the course of adjudication be termed “miscarriage of justice”. Tobi JSC in Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306 treated it thus:- “Miscarriage of justice connotes decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantiated rights

of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it”.
In Aigbobahi v. Aifuwa (2006) 6 NWLR (pt. 976) 270 at 290 – 291 this Court said:
“…miscarriage of justice can be said to be such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. What constitutes a miscarriage of justice vary, not only in relation to particular facts, but with regard to the jurisdiction invoked by the proceedings in question. It is enough if what is done is not justice according to law”.
The two definitions above say it as it is and in simple term would mean that when in the course of a proceeding the goal post is shifted to the detriment of one of the parties or where it can be said that from what had transpired from the very beginning of the judicial process or at any point during the exercise of the judicial proceedings that the scale of justice had been tilted to favour one party thus jeopardizing the equal right of the other party then a miscarriage has occurred.”

There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It simply means that the Court has failed to do justice; per Rhodes ? Vivour, JSC in Nwankwoala v FRN (2018) LPELR-43891(SC). When there has been a denial of fair hearing, a miscarriage of justice would result. Clarifying on when the principle of fair hearing can be said to have been breached, Tobi, JSC in Ejeka v State (2003) LPELR-1061(SC) said at page 13 of the E-Report:
“The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.”

Thus, fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. In so far as the parties have been given equal opportunity to be heard on the matter submitted to the Court for adjudication, they cannot be heard to complain of breach of the fair hearing principles; INEC v Musa (2003) LPELR-24927(SC); Nwora & Ors v. Nwabueze & Ors (2019) LPELR-46803(SC); Duke v. Government of Cross River State & Ors (2013) LPELR-19887(SC).
The record before the Court demonstrates satisfactorily that the parties were accorded the opportunity to be heard on their respective positions, as had defined the contest between the parties. It cannot therefore amount to a denial of fair hearing leading to a miscarriage of justice where a Court declines to expand the issues for determination already settled by the plaintiff in order to accommodate issues that have been thrown up by depositions in a counter affidavit, without the required amendment by the plaintiff of his claims. The Appellant who failed to amend the questions he sought addressed by the lower Court and

reliefs sought cannot complain of a miscarriage of justice. The Appellant, who set the boundaries of the conflict, was given every opportunity to be heard on his complaint as presented by him to the trial Court. His failure to expand the boundaries cannot be laid at the foot of the trial Court. There was therefore no denial of fair hearing or miscarriage of justice suffered by the Appellant before the lower Court. Issue 1 is resolved against the Appellant.

Issue 2
The lower Court observed as follows, page 934 of the Record of Appeal:
?The issue of non-accreditation was not raised in the Originating Summons and so same was not addressed by the 1st and 2nd Defendants in their counter affidavits. The Learned counsel to the Plaintiff has argued that it was through a document exhibited by the 1st and 2nd Defendants, which did not state the number of people accredited, that the plaintiff suddenly realized that accreditation was not done and he decided to raise it in his further affidavit and address. This argument is not tenable and what the Plaintiff seeks here is off tangent.?

Notwithstanding the fact that the issue of

non-accreditation of voters on 7/10/2018 was not part of the Appellant?s original complaint, the lower Court went ahead to consider the allegation that there was no accreditation of voters on 7/10/2018, which is the reason why it formed part of the Appellant?s grounds of appeal. I would observe, on the flip side, that the 1st and 2nd Respondents could have raised the issue of fair hearing. If it had become an issue addressed in any particular by the lower Court, they ought to have been given an opportunity to be properly heard thereon. This is however not in issue herein.

The 2nd Respondent has contended that the Appellant had no locus standi to raise a complaint on accreditation of delegates at the supplementary election of 7/10/2018 when he did not participate in the said primaries. Mr. Ula for the 2nd Respondent said he had raised this issue from grounds 1 and 2 of the grounds of appeal. The Court has been urged by the Appellant to discountenance this issue as it did not arise from the grounds of appeal.

?It is well settled that Grounds of Appeal arise from the ratio decidendi of the decision appealed against and the issues formulated

for the determination of the appeal arise from the Grounds of Appeal, which emanated from the decision appealed against; Awusa v. Nigerian Army (2018) LPELR-44377(SC). Therefore, any issue raised by a respondent in an appeal must be predicated upon, and be distilled from valid grounds of appeal as filed by the Appellant. A respondent, who has not filed a cross-appeal or a respondent’s notice, is not at liberty to formulate issues distinct from the grounds of appeal; Hon. Minister, Federal Capital Territory v. Mononia Hotel Nigeria Ltd. (2010) LPELR-4257 (CA); Nwobodo v. M. O. Nyiam & Associates (2014) LPELR-22668(CA). Any issue not distilled from such grounds of appeal is incompetent and liable to be discountenanced in the determination of the appeal; Eke v. Ogbonda (2007) 1 MJSC 160, (2006) LPELR-1075(SC); Okafor v. Abumofuani (2016) LPELR-40299(SC).
The issue of locus standi was not raised before the lower Court and certainly did not arise from the judgment of the lower Court on appeal. It was not distilled from the grounds of appeal as formulated by the Appellant. The 2nd Respondent, which did not file a cross appeal or a

respondent?s notice, was therefore not at liberty to raise an issue at large. The sole issue formulated by the 2nd Respondent is incompetent and shall therefore be discountenanced. The 2nd Respondent?s Brief in which this sole incompetent issue was argued has been infected. It is therefore incompetent and is hereby struck out.

The 3rd Respondent contended that the primary of the 2nd Respondent for the Benue South Senatorial District was conducted in line with the 2nd Respondent?s guideline for primary election and in line with the Electoral Act, 2010 (as amended). That there was accreditation of delegates and nomination of candidates on 4/10/2018 at the Special Congress of People’s Democratic Party for Benue South Senatorial District primary, which was inconclusive and yet another accreditation of delegates and nomination of candidates on 7/10/2018 by the delegates of the three (3) LGAs, Okpokwu, Ohimini and Otukpo, who did vote at the inconclusive election on 4/10/2018. The 3rd Respondent was empowered to and did monitor the exercise. Exhibit INEC 1 was a copy of its Report, pages 771-772 of the Record of Appeal.

A copy of the 2nd Respondent?s Guidelines for Primary Elections was annexed as Exhibit C by the Appellant at pages 20 ? 38 of the Record of Appeal and as Exhibit PDP 6 by the 2nd Respondent at pages 617 ? 695 of the Record of Appeal. Paragraph 19 of the said Guideline provides as follows:
a. Accreditation shall be done by the Returning Officer of the party and such other persons as may be appointed by the Electoral Panel.
b. Accreditation shall be the first item on the agenda and shall be undertake between 8am and 12noon. Any delegate, aspirant or aspirant?s agent who arrives after the commencement of the voting shall not be accredited or allowed to vote.
c. The number of delegates accredited shall be publicly announced and entered on the appropriate form designed for that purpose before the commencement of the election.

It must be noted that the appropriate form designed for it was not specified.

?I agree with the learned trial Judge who held that the mere fact that the number of delegates accredited was not stated on the Result of the Senatorial Primary Election Code PD004/NA 00117, Exhibit KC7 attached to 1st Respondent?s

Counter Affidavit and Exhibit PDP 7 attached to the 2nd Respondent?s Counter Affidavit, at pages 488 and 752 of the Record of Appeal, without more, was not enough to prove that accreditation was not done. In paragraph 11 of the 3rd Respondent?s Counter Affidavit, page 762 of the Record of Appeal, it was deposed as follows:
11. That the 3rd Defendant denied paragraphs 21, 22, 23 and 24 of the Plaintiff?s affidavit in support of the Originating Summons.
(a.) that, further response to paragraphs 21, 22, 23, and 24 of the Plaintiff?s affidavits, the 3rd Defendant states that the number of delegates accredited for the entire primary election is 993 for Benue South PDP Congress.
(a). That the 1st Defendant scored 461 and was announced the winner of the election on the 7th day of October, 2018.
(b). That the Plaintiff scored 365 as the person who came second.
(c). that one Mike Okibe Onoja scored 165 as the third candidate. Attached hereto and marked Exhibit ?INEC 1? is the Certified True Copy of the PDP Zone C (Benue South) Senatorial primary election report concluded and announced on the 7th day of

October, 2018 as monitored by the 3rd Defendant.
(d). That the total numbers of valid votes cast at the Zone C senatorial primary election is 991 while the total number of accredited delegates is 993 according the 3rd Defendant monitoring report.

Annexed to the 3rd Respondent?s Counter Affidavit is Exhibit INEC 1, which is the Report on the Conduct of the Peoples Democratic Party (PDP) Benue South Senatorial District Primary Election, page 771 ? 772 of the Record of Appeal. The said Report stated:
Delegates/Contestants
A total of nine hundred and ninety three (993) delegates were accredited for this primary election. The figure reflects all delegates from the nine Local Government areas which make up the senatorial district.

One cannot read into this document what was not contained therein. Exhibit INEC 1 did not state that 993 delegates were accredited on 7/10/2018 only but that 993 delegates were accredited for the primary exercise and that the figure comprised of delegates from the nine LGAs involved. What can clearly be extrapolated from the affidavit evidence of the 3rd Respondent and its annexure is that a

total of 993 delegates from the nine LGAs, including the three LGAs which were unable to cast their votes at the primary exercise held on 4/10/2018, were accredited for the entire primary election for Benue South Senatorial District PDP Congress. Out of this number, 991 delegates in all voted in the exercise which took place on 4/10/2018 and on 7/10/2018.

In response to this deposition, the Appellant in a Further Affidavit, page 839 of the Record of Appeal, had simply stated:
1. That I know as of fact that paragraph 11 & 12 of the 3rd Defendant?s counter affidavit are false.
2. That in further answer to paragraph 11 & 12 of the 3rd Defendant?s counter affidavit I hereby state that no accreditation whatsoever took place at the senatorial primary election of 7th October, 2018.

These are general denials. However, as rightly noted by the lower Court, there were material contradictions with the position of the Appellant. The Appellant stated in the Further Affidavit, that he knows as a fact that there was no accreditation. Since he did not name any informant that ought to mean that he was present during the exercise.<br< p=””

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However, in paragraph 42 of the affidavit in support of the Originating Summons, the Appellant deposed that he was at the 2nd Respondent?s National Headquarters in Abuja on 7/10/2018 at about 12 noon. In the Petition written by the Appellant?s Counsel to the 2nd Respondent on 9/10/2018, attached as Exhibit K, pages 100 ? 103 of the Record of Appeal, it was stated that on 7/10/2018, the Appellant was away with other PDP stalwarts in Port Harcourt Rivers State for the Party?s Presidential Primary when the Special Congress took place on 7/10/2018. In short, whether he was at Abuja or he was at Port Harcourt, the bottom line is that by these depositions, the Appellant stated that he was not present in the Special Congress Primary of 7/10/2018. But the 1st and 2nd Respondents affirm otherwise.

In paragraph 11 (d) and (e) of the 1st Respondent?s Counter Affidavit, page 338 of the Record of Appeal, it was stated that:
(d) The Plaintiff was physically present at the said supplementary Congress held on the 7th of October, 2018, and fully participated in the said supplementary election; and lost.

(e) The proceedings of the said supplementary Congress were videotaped for record purposes, and the said recording shows the Plaintiff fully participating in the supplementary Congress. Attached and marked Exhibit ?KC3? is a copy of the electronic disc of the said video recording.?

In paragraph 11 (d) and (e) of the 2nd Respondent?s Counter Affidavit, page 575 of the Record of Appeal, it was stated that:
“(d) The Plaintiff was physically present at the said supplementary Congress held on the 7th of October, 2018 and fully participated in the said supplementary election; and lost.
(e) The proceedings of the said supplementary Congress were videotaped for record purposes, and the said recording shows the Plaintiff fully participating in the supplementary Congress. Attached and marked Exhibit ?PDP3? is a copy of the electronic disc of the said video recording.?

In his Further Affidavits to the Counter affidavits of both the 1st and 2nd Respondents, the Appellant simply denied paragraph 11(e). See pages 823 and 831 of the Record of Appeal. In other words, he did not deny that he was physically present and indeed fully

participated in said supplementary Congress of 7/10/2018.

The argument by Appellant?s Counsel that Exhibits KC2 and KC3 were not tendered in evidence or demonstrated before the lower Court and that this amounted to withholding evidence, contrary to the provisions of Section 167(d) of the Evidence Act, 2011, does not advance the case of the Appellant. Exhibit KC2 was said to be a copy of the electronic disc of the broadcast on Joy FM to show that notice was published of the date of supplementary primary election on 5th, 6th and 7th October, 2018. The fact that there was a supplementary primary election held on 7/10/2018 during which delegates from the three LGAs who failed to exercise their franchise on 4/10/2018 is not at all in issue. The video recording in Exhibit KC3 was to prove that the Appellant was physically present at the supplementary primary of 7/10/2018. The Appellant as found above did not categorically deny this fact in his Further Affidavits. Any failure by the 1st and 2nd Respondents to actually tender the discs or demonstrate them before the lower Court does not assist or advance the case of the Appellant. A plaintiff

must prove his entitlement to declaratory reliefs by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence; I.B.N. v. Atlantic iles Manufacturing Co. Ltd (1996) LPELR-1518(SC).

It is important to note that the Appellant did not categorically challenge the authenticity of the claims in Exhibit INEC 1 that there was accreditation of voters. The Appellant also did not deny the fact that the 3rd Respondent monitored the primaries held on 4/10/2018 and on 7/10/2018. In paragraph 7B of the 3rd Respondent?s Counter affidavit it was deposed that there was no accreditation of delegates from Otukpo, Okpokwu and Ohimini LGAs on 4/10/2018 as they were unable to participate or vote in the primary conducted on that date. In this light, I find very revealing the fact that the Petition written by the Appellant?s Counsel to the 2nd Respondent, Exhibit K at page 102 of the Record of Appeal, gave the third ground of the Petition for seeking to have the Congress of 7/10/2018 discountenanced as follows:
?The so called accreditation of delegates was carried out without the physical presence of the

affected Local Government Party Chairmen and the State Chairman (all were away to Port Harcourt for the Presidential Primary). The Local Government Party Chairmen are the only party executives capacitated to recognize and identify their delegates.?
(Emphasis mine)
Implied herein is the fact that there was indeed accreditation of the delegates on 7/10/2018 but it was alleged to have been carried out without the physical presence of the affected Local Government Party Chairmen and the State Chairman. It is important to note that this petition was written before the Counter Affidavits of the 1st and 2nd Respondents, which the Appellant alleged threw up the fact that there was no accreditation of delegates on 7/10/2018. The Appellant cannot approbate and reprobate; Nwosu v. PDP & Ors (2018) LPELR-44386(SC); Fidelity Bank v. The M.T. Tabora & Ors (2018) LPELR-44504(SC). He cannot admit by his petition written on 9/10/2018 there was accreditation of voters on 7/10/2018 though not before the affected Local Government Party Chairmen and the State Chairman, then by three different Further Affidavits all filed on

7/12/2018 now deny that there was any accreditation of the delegates on 7/10/2018. In my considered view, the statement of the 3rd Respondent that there was no accreditation of delegates from the three affected LGAs on 4/10/2018 was corroborated by the Appellant?s Petition of 9/10/2018. The delegates of the three LGAs who were not accredited on 4/10/2018 with the prevailing security challenges, were accredited on 7/10/2018 before the voting exercise, as stated in Exhibit INEC 1. This evidence was not at all dislodged by the Appellant.
The point has repeatedly been made that these Originating Summons proceedings were fought on affidavit evidence. The Appellant was required to provide his evidence to counter the affidavit evidence of the Respondents, and not simply give a general denial. A party who fails to adduce evidence in challenge of the adverse party?s evidence is deemed to have admitted the facts notwithstanding his general traverse; Ibeanu & Anor v. Ogbeide & Anor (1998) LPELR-1387(SC). The Court can accept and act on any unchallenged depositions in a counter affidavit; Ogoejeofo v. Ogoejeofo (2006) LPELR-2308(SC); Inegbedion v. Selo-Ojemen & Anor (2013) LPELR-19769(SC).

The Appellant therefore failed to prove that there was no accreditation of voters at the exercise conducted on 7/10/2018, in which he fully participated. Issue 2 is thus resolved against the Appellant.

Issue 3
The Appellant contended that the learned trial Judge was wrong to have held that Exhibit KC8 represented the cumulative result of the primary election that held on 4/10/2018 and on 7/10/2018, contrary to the expressed and or implied content of Exhibits KC8 and INEC 1.

The 1st Respondent had stated in paragraph 17(c) of his Counter Affidavit, as follows:
?I polled a cumulative total of 461 votes, reckoning with the 214 votes I had secured from the inconclusive primary of 4th October, 2018, and the 247 votes I polled in the supplementary primary of 7th October, 2018 for the delegates from Otukpo, Okpokwu and Ohimini. A copy of the final Result of the Senatorial Primary Election on the statutory Form Code PD004/NA, declaring me elected as Senatorial candidate, was issued to me, signed by the Returning Officer and Chairman of the Senatorial District Special Electoral Committee, signifying my victory.

A copy of the said Result is hereto attached and marked Exhibit ?KC7?.

Exhibit KC7 was a copy of the final Result of the Senatorial Primary Election on the statutory Form Code PD004/NA issued to the 1st Respondent. Exhibit KC8 was the Report of the 2nd Respondent?s Senate Congress Committee for Benue South Senatorial District. Exhibit INEC 1 was the 3rd Respondent?s Report on the Conduct of the 2nd Respondent?s Benue South Senatorial District Primary Election, pages 771 ? 772 of the Record of Appeal. Exhibits KC8 and INEC 1 speak for themselves.

Exhibit KC8 annexed to the Counter Affidavit of the 1st Respondent, pages 490-491 of the Record of Appeal, stated:
The Committee was charged with the responsibility to conclude the Senatorial Primary in three LGAs ? Okpokwu, Otukpo and Ohimini. The primary held earlier on October 4, 2008 in the LGAs ? Ado, Ogbadibo, Oju, Obi, Apa and Agatu.

I have highlighted the word conclude. Exhibit KC8 further stated that the primaries, now concluded, produced the following result:
1. Comrade Patrick Abba Moro – 461 votes

2. Hon. Joseph Ojobo – 365 votes
3. Chief Mike Okibe Onoja – 165 votes

Exhibit INEC 1 unambiguously reported that the primary held on 4/10/2018 was discontinued due to violence but was concluded on 7/10/2018 before a winner emerged. The implied and expressed intent of Exhibit KC8 and of Exhibit INEC 1 was to give the report of the conduct and result of the Benue South Senatorial District Primary Election, which was conducted on two different dates, 4/10/2018 and on 7/10/2018. The concluded result produced the 1st Respondent as the winner of the primary election. The result of the election could only have been given upon the concluded exercise.
Learned Counsel for the Appellant argued that the 2nd Respondent?s Guidelines provided for a run-off election and not a supplementary election. The 2nd Respondent?s Guidelines for Primary Elections immediately below paragraph (e) provides:
Where at the end of the first ballot no winner emerges, by reason of a tie, there shall be a run-off election between aspirants whose votes tie and the aspirant with a simple majority of votes cast during the run-off election shall be returned elected.

These provisions make it clear that the issue of a run-off will take effect where there has been a tie in the election. The unchallenged facts of this case show that there was no tie at the primary election of 4/10/2018 but an inconclusive election. Delegates from three LGAs, Otukpo, Okpokwu and Ohimini, did not vote as a result of prevailing security challenges. The Report on the Special Congress by the Committee of the 2nd Respondent, annexure JO2 of the Appellant?s affidavit, pages 105 ? 109 of the Record of Appeal, made it clear that a winner was not declared as a result of the inconclusive election. There was therefore no tie at the primary and in consequence, no requirement for a run-off election.
The provisions of Section 87(4)(c) (i) and (ii) of the Electoral Act, 2010, as amended, are relevant herein, as follows:
(c) in the case of nominations to the position of a Senatorial Candidate, House of Representatives and State House of Assembly a political party shall, where it intends to sponsor candidates-
(i) hold special congresses in the senatorial district, federal constituency and the state assembly

constituency respectively, with delegates voting for each of the aspirants in designated centre or centres on specified dates.
(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 Independent National Electoral Commission as the candidate of the party.
(Emphasis mine)
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 his name forwarded to 3rd Respondent as the candidate of the party. This was exactly what transpired herein. The end of voting could only have been after the supplementary election of 7/10/2018. In other words, the winner of the election would be the person who scored the highest number of votes at both the primary election held on 4/10/2018 by six LGAs and on 7/10/2018 by the remaining three LGAs. Therefore as rightly held by the learned trial Judge, the Appellant could not have been validly declared winner of the primary held on 4/10/2018 as the voting did not come to an end on that day. The Appellant’s name could not

have been forwarded to the 3rd Respondent based on a primary election that, the Appellant has not disputed, was declared to have been inconclusive.
The conclusion of the learned trial Judge that Exhibit KC7 was the result of the two primary elections held in respect of the Benue South Senatorial District cannot be faulted. Exhibit KC8 therefore reflected a cumulative result of the Primary Election held on both 4/10/2018 and on 7/10/2010 as corroborated by Exhibit INEC 1. Issue 3 is therefore resolved against the Appellant.

In all, I see no merit in this appeal. It fails and is hereby dismissed. The decision of the lower Court delivered in Suit No FHC/MKD/CS/57/2018 on 17/1/2019 is hereby affirmed.
Parties are to bear their costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in draft the leading Judgment of my lord, Onyekachi A. Otisi, J.C.A.

In my considered view, his lordship has dealt incisively with the three issues that call for determination in the Appeal, and I am in agreement with the reasoning and conclusions thereon.

?A thorough examination of the initiating processes filed by

the Appellant, to wit: the claim in the Originating Summons and affidavit in support, discloses that the twin issues of non-accreditation of delegates and over-voting at the Primary election of the Party on 07-10-18 were not raised at all. Instead, as rightly found by the trial Judge, the Appellant drew his conclusions on this issue from the contents of the exhibits annexed to the counter affidavits of the 2nd and 3rd Respondents respectively, i.e. Exhibits KC7 and KC8 on the one hand and Exhibit INEC 1. These documents were to buttress the Respondents contentions that Primary Election indeed took place in the three Local Governments in question on 07-10-18, contrary to the submissions of the Appellant
The Appellant simply took advantage of the contents of these documents to proceed in his further affidavit to open a new vista on his case or make a new case for himself which he did not originally make in his Originating Summons. Certainly, he cannot do that. See Ughutevbe V Shonowo LPELR-3317(SC) per Ejiwumi, JSC. It is a fundamental principle of law that a Plaintiff’s claim is as in his Writ of Summons and Statement of Claim or Originating Summons and supporting affidavit, as

the Case may be. Thus, where there is a dispute, it is from these processes that a trial Court will decipher the nature Of a Plaintiff/Applicant’s claim.
In the instant case, the Appellant’s claim in his Originating Summons in conjunction with the affidavit in was simply as follows:
1. That the Senatorial Primary Election of 4th October, 2018 in which the highest scores, ought not to have been declared inconclusive, but should have been used to return him as the winner of the PDP Primaries.
2. That the subsequent supplementary Senatorial Primary that was conducted on 07-10-18 was a nullity because it was allegedly conducted by one Moses Audu, the Benue State Organizing of the PDP, in conjunction with unauthorized State Executives of the Party in Benue State, and not the National Working Committee of the PDP that has the vires to conduct same.
3. That a fake List, different from the one that was used during the Governorship Congress of 30-09-18, was used by the said Moses Audu, to conduct the Supplementary Primary of 07-10-18 that eventually the 1st Respondent as the candidate of the 2nd Respondent for the Senatorial Election in the Benue South Senatorial District. ?

These issues were ventilated, fully considered by the lower Court and duly pronounced upon in the Judgment. Thus, the attempt by the Appellant to take advantage of information contained in the said documents exhibited by the Respondents to puncture his case as well as to set up their defence to the claim is totally unwarranted. The Appellant is not to expand his claim by raising new issues in his further affidavit which were not initially part of his claim without having amended his claim. In addition, since by his Originating Summons, parties and the Court only rely on only affidavit evidence in the determination of the claim as ordinarily, Oral evidence is not involved, the Appellant, by raising new issues in his further affidavit, would have prejudiced the rights of the Respondents who would have been the denied the opportunity to controvert those new facts as they have no further right to respond. See Salubi V Nwariaku (2003) LPELR-2998(SC) 18; Ogbebor V Utagba Rubber Estate Ltd (2014) LPELR-24476(CA); & Zenith Bank Plc V Bankolans Investments Ltd (2011) 41, A-C. Therefore, it is plain from the proceedings in the Record of

Appeal that the Appellant was fully heard and thus he cannot be heard to complain of a lack of fair hearing.

In respect of issues two and three for determination, I adopt the findings in the lead Judgment as mine as any attempt to take up the issues already dealt with therein will amount to nothing but a rehash of the findings.

In the circumstances, I also find the Appeal to be lacking in merit and I accordingly dismiss same. I endorse the consequential order made in the lead Judgment, inclusive of the order as to the costs of the Appeal.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in draft the judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein. I will however add a word or two of mine.

Issues in a case are circumscribed by the claims before the Court as by the prayers. Furthermore issues to be tried in a suit are primarily nominated by the plaintiff in his statement of claim or originating summons as in this instance. Issues for trial are not drawn from or inspired by the defendant’s pleading or counter ? affidavit as the case may

be. See Longe v First Bank (Nig) Plc (2010) 6 NWLR (Pt. 1189) 1 and Salami v Wema Bank (Nig) Plc (2010) 6 NWLR (Pt. 1190) 341. A plaintiff is not permitted in his reply or further affidavit to set up a new case in addition to the one set up in the statement of claim or originating summons. He can only amend his statement of claim or originating summons if he intends to do so. See Salubi v Nwariaku (2003) LPELR ? 2998 (SC) 18. It flows from the above that the new case that the appellant sought to make out from the counter ? affidavits of the 1st and 2nd respondents and his further affidavits to the effect that no accreditation was carried out at the congress of 7/10/2018; that there was over ? voting at the said congress and the question about the inclusion of Dr. Akwaya in the electoral panel, was outside the field of contest between the parties. The trial Court was therefore right in so holding.

Section 87 (4) (c) (ii) of the Electoral Act, 2010 (as amended) provides in respect of nomination of a party’s candidate, that
“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 National Commission as the candidate of the party.”
In the instant matter, voting would not have ended with the exercise on 4/10/2018 as the exercise was inconclusive due to the fact that delegates of Otukpo, Ohimini and Okpokwu Local Government Areas could not vote as a result of violence. It was voting at the supplementary election of 7/10/2018 which accommodated from those local government areas that marked the end of voting. The result of the whole exercise, viz; the voting on 4/10/2018 and 7/10/2018 shows that the 1st respondent polled the highest number of votes and therefore was rightly declared to the winner of the primary election of the 2nd respondent. He was therefore the candidate of the 2nd respondent for the Benue South Senatorial election. The counter ? affidavits of the respondents vindicate this position especially so the counter ? affidavit of the 3rd respondent and Exhibit INEC 1 attached to it.
?It is for the above reasons and the more comprehensive reasons marshaled in the lead judgment of my learned brother that I also see no merit in this appeal. I accordingly dismiss the same and affirm the judgment of the lower Court.

Appearances:

Professor Agbo Madaki with him, T. D. Pepe, Esq., N. O. Okereke, Esq., Jennifer Adole, Esq., J. V. Ogizi, Esq. and O. N. Nor, Esq.For Appellant(s)

K. C. Ikonne, Esq. with him, I. S. Vongjen, Esq., C. C. Umeh, Esq., Joseph Agbo, Esq. and Ajibola Olanrewaju, Esq. for the 1st Respondent.

Kenneth Ula, Esq. with him, A. T. Yainjoh, Esq. for the 2nd Respondent.

N.C. Kumbut, Esq. for the 3rd RespondentFor Respondent(s)

Appearances

Professor Agbo Madaki with him, T. D. Pepe, Esq., N. O. Okereke, Esq., Jennifer Adole, Esq., J. V. Ogizi, Esq. and O. N. Nor, Esq.For Appellant

AND

K. C. Ikonne, Esq. with him, I. S. Vongjen, Esq., C. C. Umeh, Esq., Joseph Agbo, Esq. and Ajibola Olanrewaju, Esq. for the 1st Respondent.

Kenneth Ula, Esq. with him, A. T. Yainjoh, Esq. for the 2nd Respondent.

N.C. Kumbut, Esq. for the 3rd RespondentFor Respondent

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