ALL PROGRESSIVES GRAND ALLIANCE v. ENGR. (MRS.) ONYEIWU UCHENNA UBAH & ORS (2019)

ALL PROGRESSIVES GRAND ALLIANCE v. ENGR. (MRS.) ONYEIWU UCHENNA UBAH & ORS

(2019)LCN/13099(CA)

In The Court of Appeal of Nigeria

On Saturday, the 13th day of April, 2019

CA/A/251/2019

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

ALL PROGRESSIVES GRAND ALLIANCE Appellant(s)

AND

ENGR. (MRS.) ONYEIWU UCHENNA UBAH & ORS Respondent(s)

RATIO

DEFINITION OF A MISNOMER

It is clearly one of those minor misnomers which should not have warranted the expenditure of the precious time of the Court or parties. It is an inconsequential error, a wrong use of a name of juristic party, which an ordinary or reasonable man would not consider to have any significance. In M.T.N NIGERIA COMMUNICATIONS LTD V. AKINYEMI ALUKO & ANOR (2013) LPELR-20473 (CA),
This Court defined misnomer-
“…where there is a mistake with regard the name of a litigant in an action, such a mistake is described as a misnomer. It simply means a mis-description or wrong use of a name. It is a mistake as to the name and not as to the identity of the particular party to the litigation.” PER YAHAYA, J.C.A.

WHETHER OR NOT IT IS IN EVERY CASE WHERE THERE IS A CONFLICT IN THE AFFIDAVIT OF PARTIES THAT THE COURT WILL CALL ORAL EVIDENCE TO RESOLVE SAME

It is not always the case that when there is a conflict in affidavits of parties, that the Court must in all respect, call oral evidence to resolve same. Where there is a document before the Court that would support one of the affidavits, the Court may utilise it, to resolve the conflict. See OSITA NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS(1990) 1 ALL NLR 379, SHELL TRUSTEES NIGERIA LTD V. IMANI & SONS LTD (2000) 6 NWLR (pt 662) 639 and LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVERNOR NASSARAWA STATE (2012) LPELR-20602 (SC). PER YAHAYA, J.C.A.

WHETHER OR NOT THE PRIMARY DUTY OF THE TRIAL COURT IS TO EVALUATE EVIDENCE LED BEFORE IT

The primary duty of a trial Court is to evaluate the evidence led before it, and make findings of facts. Once it performs that duty creditably, an appellant Court would not interfere, unless there is miscarriage of justice in the sense that inadmissible evidence was admitted and relied upon to arrive at the decision or some relevant evidence is ignored. SALAMI V STATE (2013) LPELR-21112 (CA); WACHUKWU V OWUNWANNE (2011) LPELR-3466 (SC) and CPC V OMBUGADU (2013) LPELR-21007 (SC). PER YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment) This appeal emanated from the judgment of the Federal High Court sitting in Abuja, delivered on the 14th of February 2019 wherein the Court (the trial Court) granted all the reliefs claimed by the appellant, who is the 1st respondent in this appeal.

In the Originating Summons filed by the 1st respondent, the following four questions were paused-
i. Whether, having regards to Sections 221-223 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 85 and 86 of the Electoral Act,2010 as amended), the 1st Defendant is who was screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held by the 1st Defendant on 2nd October 2018 to determine her candidate for Okigwe/Isiala Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election, which primary was witnessed and endorsed by the 3rd Defendant’s designated monitoring team and a certificate of return was issued to the plaintiff.
ii. Whether, having regards to the combined effect

of Section 221-223 of the Constitution of the Federal Republic of Nigeria, 1999 as amended) and Section 87 (4) (c) of the Electoral Act, 2010 as (amended) which among other things guarantee, recognize and prescribe the mode of conducting party primaries only on democratic principles or basis and which enjoins parties to submit to the 3rd Defendant, the name of candidate who emerged winner at primary elections, the 1st Defendant has the power to disqualify or reject the plaintiff’s candidature which was the choice of the delegates at congress of the 1st Defendant and adopt instead by arbitrary, the 2nd Defendant as her candidate for (Okigwe North) Federal Constituency of Imo State in the 2019 general election.
iii. Whether, in view of Sections 33 and 87 (4) of the Electoral Act, 2010 (as amended) and having acquired vested interest in the party ticket as the duly elected candidate of the 1st Defendant in her primary election held on 2nd October 2018, the plaintiff’s candidature can be rejected, disregarded or substituted with the 2nd Defendant for Okigwe/Isiala/ Mbano/Onuimo (Okigwe North ) Federal Constituency of Imo State in the 2019 general election

when the plaintiff being still alive, has not withdrawn her candidature to contest on the platform of the 1st Defendant, nor have any legal impediment.
iv. If question (iii) is answered in the negative, whether having regard to Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiff is in the eyes of the law, the candidate of the 1st Defendant for Okigwe/Isiala Mbano/Onuiomo (Okigwe North) Federal constituency of Imo State in the 2019 and entitled to all the benefit of her candidature as flag bearer of the 1st Defendant
The reliefs sought are for-
a. A DECLARATION that by virtue of Section 221-223 of the Constitution of the Federal Republic of Nigeria, (1999) as amended and Section 85 and 86 of the Electoral Act, 2010 (as amended) which prescribe the mode of conducting party primaries, the 1st Defendant has no power to disqualify or reject the plaintiff, being choice of the delegate at the party’s primary election held on 2nd October 2018, or through any illegal method, adopt the 2nd Defendant as her candidate for Okigwe/Isiala/Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the

2019 general election.
c. A DECLARATION that the 1st Defendant was wrong to have forwarded the name of the 2nd Defendant to the 3rd Defendant as her candidate representing Okigwe/Isiala/Mbano/Onulmo (Okigwe North) Federal Constituency of Imo State in the 2019 general election as against the name of the plaintiff who scored the highest number of votes in the primary election conducted by the 1st Defendant on 2nd October 2018 and was issued a certificate of return to the effect.
d. AN ORDER of this Honourable Court directing the 1st Defendant to take all necessary steps required of under the Electoral Act to ensure that the plaintiff’s name is duly submitted to the 3rd Defendant as her candidate for Okigwe/Isiala/Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election.
e. AN ORDER directing the 3rd Defendant to forthwith remove the name of the 2nd Defendant as the candidate of the 1st Defendant representing Okigwe/Isiala/ Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election and replace same with the name of the plaintiff.
f. Such further other reliefs as may be considered

appropriate in the circumstances of this case.

According to the appellant herein, it conducted a primary election on the 2nd of October 2018, to nominate its Candidature for election into the Okigwe North Federal Constituency. After the votes cast were counted, the 2nd respondent secured the highest votes and was returned elected. He was given a result sheet. The 1st respondent secured zero votes in the primary election. The 2nd respondent was later issued with a certificate of return, and his name submitted to the 3rd respondent as its candidate. The 1st respondent instituted an action at the Federal High Court, saying that she secured the highest votes at the primary election. The trial Court heard the matter and after dismissing the Preliminary Objection filed by the appellant and 2nd respondent, entered judgment for the 1st respondent. Hence this appeal.

In the appellant’s brief filed on the 1st of April 2019, settled by M.S Ibrahim, two Issues were identified for resolution-
1. Whether the trial Court did not occasion a miscarriage of justice when it discountenanced and failed to consider the appellant’s Notice of Preliminary Objection and

assumed jurisdiction to entertain the matter.
2. Whether the trial Court properly considered and evaluated the affidavit and Documentary Evidence before it in resolving the Suit in favour of the 1st respondent.

The 1st respondent’s brief settled by T. ADEBAYO, identified similar issues for determination. I shall utilise the issues raised by the appellant
ISSUE 1
“Whether the lower Court did not occasion a miscarriage of justice when it discountenanced and failed to consider the appellant’s Notice of Preliminary Objection and assumed jurisdiction to entertain the matter”(distilled from ground 7 of the amended notice of appeal).

Learned Counsel for the appellant submitted in the main here, that the Preliminary Objection filed by the appellant on 30th January 2019, challenging the competence of the Suit as the 1st respondent had sued a non-juristic personality- All Progressive Grand Alliance. That being the case, a fundamental defect going to the root of the Suit had been raised and the trial Court ought not to have taken it as a mere misnomer. He place reliance on

ESIRI & ORS V REGISTERED TRUSTEES ANNOINTED WORD BIBLE MINISTRIES & ANOR (2018) LPELR-44 541 (CA), IDANRE LOCAL GOVERNMENT V. GOV. ONDO STATE (2010) 14 NWLR (pt 1214)509 at 525 and USUAH V. G.O.C NIGERIA LTD & ORS (2012) LPELR -7931 (CA).
He contended that the name of All Progressive Grand Alliance ought to have been struck out for being a non-juristic personality.

Learned counsel for the appellant also referred to the Preliminary Objection filed on failure of the 1st respondent to disclose a cause of action against the appellant. He submitted that the 1st respondent did not furnish the Court with the result sheet that was used in the said primary election she said she won, and since ODOM & ORS V. PDP & ORS (2013) LPELR- 21195 has established that a result sheet of a primary election is the prima facie evidence of a conclusive election, its non-production in Court means that there is no cause of action against the appellant and the case ought to have been struck out.

He urged us to resolve this Issue in favour of the appellant.

?In the first Issues for determination identified by the 1st respondent, which is similar to the

issue raised by the appellant, learned counsel for the 1st respondent submitted that the omission of the letter “S” from the word ” Progressives: being the name of the appellant, is only a misnomer which should not affect the Legal right of a parties. He referred BAJOGA V. GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (pt 394) 273 at 311, REGISTERED TRUSTEED OF THE AIRLINE OPERATORS OF NIGERIA V NAMA )2014 (LPELR-22372 (SC); and OKEKE V NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL(2018) LPELR-43781 (CA). Counsel then endorsed the decision of the trial Court in rejecting the Preliminary Objection in that regard.

On cause of action Learned Counsel for the 1st respondent referred to OKAFOR V. BENDE (2017) ALL FWLR (pt 913)917 at 944-945, which also stated what processes a Court would consider, when determining a cause of action. He then referred to paragraph a, b, c, d, e, f, g, h, and i of the affidavit in support of the Origination Summons at pages 3-15 of the record, to submit that the 1st respondent has a cause of action and that the Preliminary Objection was misplaced. He urged us to resolve issue No 1 in favour of the

1st respondent.

The response of the appellant in the Reply brief, to issue No I, is a further elucidation of what was argued in the appellants brief. That should not be, as a Reply brief is not an opportunity to have a second bite at the cherry. It is meant to address new point raised in a respondent’s brief.

Now, it is not controverted, that the name of the appellant, which was the 1st respondent, is “ALL PROGRESSIVES GRAND ALLIANCE.” However, when the 1st respondent as plaintiff filed the Originating Summons, he termed the 1st defendant (the appellant) as “ALL PROGRESSIVE GRAND ALLIANCE.” This means that the letter “s” is missing in “PROGRESSIVE.”
In referring to ABIA STATE UNIVERSITY V. ANYAIBE (1996)3 NWLR (pt 439)649; OKAFOR V. ASOH (1999) 3 NWLR (pt 593)35, GARBA JC,. in FEDERAL UNIVERSITY OF TECHNOLOGY MINNA & ORS V.DR. (MRS) ADAEZE G. N (2011) LPELR-9053 (CA), provided the difinition of a juristic person as enumerated in AKAS V MANAGER (2001)8 NWLR (pt 715) 436 at 444, to be
..either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an

incorporated body and a special artificial being created by legislation and vested with the capacity to sue and be sued.”
The Issue here is not that the “All Progressives Grand Alliance” is not a juristic person. It is. The complaint is that depicting it as All Progressive Grand Alliance” robs if of its juristic personality. I believe that this is taking legalism to a ridiculous extent at the expense of the ordinary affairs of human beings. The parties could not have failed to know who the 1st defendant is when the Originating Summons was filed. It is common for such omission of “s” to be taken as a mistake which is neither fundamental nor deliberate. It is clearly one of those minor misnomers which should not have warranted the expenditure of the precious time of the Court or parties. It is an inconsequential error, a wrong use of a name of juristic party, which an ordinary or reasonable man would not consider to have any significance. In M.T.N NIGERIA COMMUNICATIONS LTD V. AKINYEMI ALUKO & ANOR (2013) LPELR-20473 (CA),
This Court defined misnomer-
“…where there is a mistake with regard the name of a litigant in an action, such a mistake

is described as a misnomer. It simply means a mis-description or wrong use of a name. It is a mistake as to the name and not as to the identity of the particular party to the litigation.”
The appellant’s existence at the material time is not in doubt, and is such that it could have been corrected by the mere additional of the word “s”. It is the consistent position of this Court that it does not interfere with the decision of a trial Court, simply because of technical errors or misnomer, which have not occasioned miscarriage of justice. In the instant appeal, the error is a technical misnomer which has not occasioned any miscarriage of justice. We shall not interfere with the position of the trial Court. So the Objection to the Suit on that ground is misconceived and is discountenanced.

On cause of action, Courts are enjoined to consider the claims of the plaintiff, to see whether there is one. The definition of cause of action provided in OKAFOR V. BENDE (SUPRA) at pages 944-945 Per KEKERE-EKUN JSC is comprehensive and illuminating. He held-
“Cause of action is the fact that gives rise to a right to sue. The right to sue

consist of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent to the wrong act. It is that particular act of the defendant that gives the plaintiff his cause of complaint, every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendant would have the right to traverse.”

The learned counsel for the appellant had submitted that the failure of the plaintiff to provide the result sheet of the primary election means that there is no cause of action against the appellant. This submission cannot be correct, because the result sheet of the primary election is prima face evidence of a conclusive election. It is the evidence by which the cause of action of a plaintiff would be proved. It is not the cause of action in itself. The cause of action is to be seen from the Originating Summons and the affidavit in Support. The plaintiff averred that as a registered member of the appellant, she participated in the primary election conducted by the appellant to produce a candidate for the Okigwe/Isiala Mbano/ Federal Constituency for the 2019 general election. She

scored the highest votes at the primary election, was declared the winner and was issued with a Certificate of Return by the appellant. Instead of her name being forwarded to the 3rd respondent, the appellant forwarded the name of the 2nd respondent who was not the winner of the primary election. These are the facts she deposed to, which gave her right to sue, for the wrongful act of the appellant. The issue of the result sheet would come in later in trial as the prima facie evidence of the conclusive primary election. Cause of action is not evidence. The Objection on this ground is also misconceived and is discountenanced.

The result is that the trial judge was right in rejecting and dismissing the Preliminary Objection of the appellant on both grounds. Issue No 1 is thus resolved in favour of the 1st respondent.

ISSUE NO 2
“Whether the trial Court properly considered and evaluated the affidavit and documentary evidence before it in resolving the suit in favour of the 1st respondent”
(Distilled from ground, 1,2,3,4,5,& 6 of the amended notice of appeal).”

?It is the contention of the appellant that although it placed before the

trial Court Exhibits TQA1-7 attached to the further affidavit it filed on 30th January 2019, the trial Court failed to consider them in its judgment. Instead, the Court made a blanket finding and termed them unreliable without giving reasons. Counsel referred to the affidavits, the said exhibits and especially the result sheet of the primary election and the Certificate of return issued to the 2nd respondent as proof of the 2nd respondent’s election, which have not been challenged or contradicted. He pointed out that the 1st respondent did not provide any result sheet, which is by ODOM & ORS V. PDP & ORS (SUPRA), prima fade evidence of conclusive election; whereas the 2nd respondent had done so. Further, the Certificate of return issued to the 1st respondent was shown to have been erroneous and phone call was put to her to return it but she refused.

On Exhibit TQA1, the photograph, of the 1st respondent being presented with a Certificate of return by the Chairman of the appellant, counsel argued that it is a computer generated evidence which is inadmissible as it did not comply with Section 84 (4) of the Evidence Act. At any rate he argued,

the exhibit was attacked by paragraph 5k of the further affidavit of the appellant, contrary to the finding of the trial Court at page 378 of the record that the exhibit was never contested. He urged us to resolve the issue in favour of the appellant

Learned counsel for the 1st respondent held the contrary view and submitted that the trial Court properly evaluated the evidence led and arrived at the right conclusion. He attacked the result sheet of the primary election provided by the appellant and also submitted that Exhibit. TQA1 was properly admitted. I have considered all the submission of the parties as contained in their briefs of argument. I have also reviewed the affidavits and documentary evidence led.

The learned counsel to the appellant submitted that the trial Court did not review and evaluate the affidavits and documentary evidence of the appellant, and he simply dismissed all at page 379 of the record. This submission is not borne by the record. For instance, at page 366 of the record, the trial judge reviewed Exhibit. APGA 4 which is the Certificate of return said to have been presented to the 2nd respondent, a document of the

appellant. At page 368, the trial Court recounted the submission of learned Counsel to the 2nd respondent that a look at APGA 3, the result sheet tendered by the 2nd respondent, which is also a document of appellant, would reveal that the 1st respondent scored the least votes-0. The trial judge then went on to consider the counter-affidavit in opposition to the Originating Summons deposed to by MR EDACHE EBUBE for the 2nd respondent, and made a finding thereon, that it shows that the 2nd respondent scored the highest votes and was returned elected. At page 369, the learned trial Judge considered the appellant’s counter- affidavit and made a finding that exhibits APGA A-F, alluded to in the counter-affidavit, and was not infact attached thereto. I have not seen any ground of appeal against this finding. At page 370 of the record, the trial judge considered the further affidavit of the 1st respondent to which exhibits TQA2 were attached. These are the documents which are the subject of the finding of the trial Court at page 379 of the record, which the appellant has attacked.

?From all of the above therefore, it cannot be correct, as submitted by counsel to

the appellant that this Court will arrive at
“The conclusion that NONE of the documentary evidence of the Appellant was considered by the trial court” and that he only “glossed” over them. Further, the trial Judge at page 374 of the record, said
“I have carefully perused all the processes filed by all the parties….. ”
I have found this to be so.
The trial Judge also gave reasons as to why he did not place reliance on the affidavits of the appellant and 2nd respondent, which deposed that the Certificate of Return issued to the 1st respondent, was issued in error, as there was a document-Exhibit TQA1 that gave the lie to the deposition.

The 1st and 2nd respondents deposed to facts that they were each issued with a Certificate of Return. They tendered them. The question that arises is which is the authentic Certificate of return? The appellants considered that a certificate of return was issued to the 1st respondent but that it was issued in error, that when this when was realised, a phone call was put to the 1st respondent to return it. Since the Certificate of return is an important document and had been issued and presented, retrieving it should not be a verbal and carefree endeavour. A reasonable man would expect that a letter would be

written to the 1st respondent informing her of the error, and requesting her to return same, or a letter should have been written, to her, saying that the Certificate of return had been cancelled and a reason stated. To ask the 1st respondent by a phone call (there is no evidence of it apart from the deposition of the affidavit) to return the Certificate, does not convey the seriousness the situation warranted. It required a documentary formality to retrieve it. This was not done, and the deposition is not convincing.

On the other hand, the 1st respondent did not only provide the Certificate of return issued to her. She tendered a picture of the chairman of the appellant presenting her with the certificate of return. Neither the appellant nor the 2nd respondent contested or attacked the pictorial evidence as found by the trial Court. At page 23 of the appellant’s brief, paragraphs 4.65 thereof, Counsel referred to paragraph 5k of the further affidavit of the appellant, sworn to on 30/1/19 and submitted that the appellant attacked the photograph?.”. This is not correct for, paragraph 5 (k) of the further affidavit, to be found at

page 203 of the record only deposed-
“Paragraph 5k of the plaintiff’s further (sic) is misrepresentation of facts based on the false information relayed by the plaintiff and her cronies and that he has since called her to return the Certificate issued to her in error.”

As can be seen, this deposition did not at all mention, not to talk of attacking the photograph. The result is that the trial judge was right in utilising exhibit TQA1 to resolve the differences in the affidavits and to rely on it as evidencing the authenticity of the Certificate of return, issued to the 1st respondent. There was proper evaluation of the evidence led before the trial Judge and we see no ground for upsetting it, especially as the result sheet, upon which the appellant has placed a lot of emphasis, has no worth. It is at page 291, and since this Court is in a good position as the trial Court to assess documentary evidence, we looked at it. The document was not signed by anybody. It has not been authenticated, since nobody took responsibility for its authorship. We do not give it any probative value and it is a big surprise that a certificate of return could be issued to

2nd respondent taking this document into consideration. The case of OLLY V TUNJI referred to by the appellant is not relevant here.

The appellant has also submitted that exhibit TQA1, is not admissible. I agree with the submission of the Learned counsel to the 1st respondent in the brief, at pages 19-21 of the brief, to the effect that exhibit TQA1 has satisfied the requirements of the Section 84 (4) of the Evidence Act, Since the further affidavit has identified the picture, has given the particulars of the device involved in producing it-Samsung S8 phone using Hp computer CN-13433ph4 and printed with HP Laser Jet CP1515n Printer.

The trial Judge had the evidence upon which he based his decision. He has arrived at the correct decision. We cannot interfere. Issues No 2 is resolved in favour of the 1st respondent.

This appeal has no merit. It fails. I dismiss it and affirm the decision of the trial Court delivered on the 14th February 2019. In Suit No FHC/AB3/CS/1320/ 2018. No Order as to Costs.

PETER OLABISI IGE, J.C.A.:I agree.

MOHAMMED BABA IDRIS, J.C.A.:I have read the lead judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA. I agree with his reasoning and conclusion in dismissing the appeal. I, too, dismiss the appeal.

Appearances:

M.S Ibrahim with him, A.S Elukpo and O.R. AdajaFor Appellant(s)

Isaac Nwachukwu with him, Tairu AdesanyoFor Respondent(s)

Appearances

M.S Ibrahim with him, A.S Elukpo and O.R. AdajaFor Appellant

AND

Isaac Nwachukwu with him, Tairu AdesanyoFor Respondent