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ABDULLAHI v. LOKO & ORS (2022)

ABDULLAHI v. LOKO & ORS

(2022)LCN/15948(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, January 07, 2022

CA/ABJ/CV/947/2021

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Between

ABUBAKAR UMAR ABDULLAHI APPELANT(S)

And

1. HON. MUHAMMED ANGULU LOKO 2. ALL PROGRESSIVE CONGRESS 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)

RATIO

THE TEST FOR WHETHER AN APPEAL SHOULD BE FILED BY AN APPELLANT IN A CIVIL MATTER

A careful analysis of the foregoing provision would show that the only test for whether or not an appeal ought to be filed by an Appellant in a civil matter is whether or not he has an interest or is somehow affected by the appeal. See AKANDE V. GENERAL ELECTRIC CO. (1979) 3-4 SC 115; WILLIAMS V. MOKWE (2005) 14 NWLR (PART 945) 249 AND IN RE: MADAKI (1990) 4 NWLR (PART 143) 266. PER DANJUMA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is now settled position of the law that jurisdiction of a Court is a threshold issue upon which the validity or otherwise of any decision and/or proceeding conducted by a Court of law will be determined. This is a way of saying its presence is a sine qua non and its absence has a terminal effect on the decision taken and proceedings conducted no matter how well conducted. In the case of SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1152) PAGE 452, PARAS. A-B the Court held that:
“It is no longer a moot point that the question of jurisdiction is of absolute importance in the adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. MUSTAPHA V. GOV., LAGOS STATE (1987) 2 NWLR (PT. 58) 59, UTIH V. ONOYIVWE (1991) 1 NWLR (PT. 166) 166.”
PER DANJUMA, J.C.A.

THE PROCEDURAL JURISDICTION OF THE COURT WITH RESPECT OF PRE-ELECTION MATTERS

And with respect to pre-election matters, the procedural jurisdiction of any Court is circumscribed by Section 285 (9) of the 1999 Constitution (as amended) which provides that:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”.

In APC VS LERE (2020) 1 NWLR (PT. 1705) Page 254, the Court defines what is to be considered in determining whether an action is statute barred thus:
“To determine whether an action is statute-barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compared it with the dates the originating processes were filed in Court”.
PER DANJUMA, J.C.A.

THE DUTY OF THE TRIAL COURT IN EVALUATION OF EVIDENCE

On the duty of trial Court in evaluation of evidence, this Court held in the case of NAGEBU CO (NIG) LTD V. UNITY BANK PLC (2014) 7 NWLR (PT. 1405) PAGE 42 AT 76-77, PARA E-F Per Abiru JCA thus:
“The duty of a trial Court in evaluation of evidence is first to receive into its records all the relevant evidence, called perception, and to weigh the evidence in the context of the surrounding circumstances, called evaluation. The totality of the testimonies of both parties is placed on an imaginary scale to see which side is heavier, in terms of quality, not quantity. In this regard, it should consider whether the evidence led by a party is relevant, admissible, credible, conclusive and more probable than that adduced by the other party”. PER DANJUMA, J.C.A.

MOHAMMED DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Justice Modupe Osho-Adebiyi of the High Court of the Federal Capital Territory (FCT) delivered on November 12th, 2021. The said judgment can be seen at page 2992 to 3046 of volume 6 of the Records of appeal.

The fact of the case is that the 1st Respondent by originating summons filed on June 9th, 2021, which can be seen at pages 1-170 of the Records claimed to be the lawful winner of the primary election conducted on April 23rd, 2021 by the National Headquarters of 2nd respondent to produce its candidate for chairmanship of Abaji Area Council. The candidate is to be the flag bearer of the 2nd Respondent in the general election billed to hold on February 12th, 2022.

In the said originating summons, the 1st respondent sought declaratory reliefs and other reliefs ancillary to declaratory reliefs. In support of his claim, the 1st Respondent presented EXHIBITS LOKO 1—LOKO 9 all of which can be seen at pages 1951 to 2090 of volume 4 of the Records. The 1st respondent amended his originating summons pursuant to order of Court granted on September 10th, 2021 and the amended process can be seen at pages 1937 to 2096 of the Records. At the trial, the Appellant filed Notice of preliminary objection on July 14th, 2021, can be seen at pages 926 to 965 of volume 2 of the Records and following the amendment by the 1st Respondent, the Appellant filed another notice of preliminary objection which can be seen at pages 2526 to 2623. The Appellant also filed a counter-affidavit, and this can be seen at pages 2479 to 2510 of volume 5 of the Records.

At the hearing of the case, the Appellant withdraw his earlier filed Notice of Preliminary objection and relied on the latter one. On November 12th, 2021 the trial Court delivered its judgment in favour of 1st Respondent. Dissatisfied with the judgment, the Appellant filed this appeal via notice of appeal contain on page 3047 to 3061 stating nine grounds of appeal.

In the Appellant’s Brief of Argument, as settled by his counsel, Abdulghani Rotimi Arobo and filed on 14/12/2021, the following issues were raised for the determination of this appeal.

ISSUES FOR DETERMINATION
i. Whether by the express provisions of Section 285 (9) of the 1999 Constitution (as amended) ​the trial Court was not robbed of the necessary vires/jurisdiction to entertain and/or determine the suit? (This issue is distilled from Ground 1 and 2 of the Notice of Appeal).
ii. Whether or not the trial Court erred by attaching probative value to the 1st Respondent’s further affidavit in support of his amended originating summons and EXHIBIT LOKO 3A attached despite apparent self-contradiction and conflict, in the documents? (This issue is distilled from Ground 4 of the Notice of Appeal).
iii. Whether or not the 1st Respondent who sought declaratory reliefs before the trial Court was obligated to succeed on the strength of his own case and not on the weakness of the case made against his claim? (This issue is distilled from Ground 4 of the Notice of Appeal).
iv. Whether or not the trial Court allowed the 1st Respondent overreach the Appellant by permitting the introduction of both Loko 3 attached to the amended originating summons and Exhibit 3A attached to the 1st Respondent’s further affidavit in support of Amended originating summons. (this issue is distilled from Ground 5 of the Notice of Appeal).
v. Whether or not the judgment of the trial Court was given against the weight of evidence? (This issue is distilled from Grounds 6, 7 and 9 of the Notice of Appeal).
vi. Whether or not the trial Court rightly involved the presumption of regularity in favour of the 1st Respondent suo motu and whether such invocation did not infringe on the appellant’s constitutional right to fair hearing? (This issue is distilled from Ground 8 of the Notice of Appeal).

On issue one, it was argued by the learned counsel to the Appellant that in pre-election matters, the procedural jurisdiction of any Court is circumscribed by Section 285 (9) of the 1999 Constitution (as amended) which provides thus:-
“Notwithstanding anything to the contrary in this constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”.

The Appellant’s counsel said the law is settled that exhibits attached to an affidavit form part of the Affidavit. That a perusal of EXHIBIT LOKO 1 will reveal that it spells out, step-by-step, the activities and timing for the conduct of the said primary election and the very last activity is the election appeal process scheduled to hold on April 24th, 2021. That the 1st Respondent was aware of this and consented to the process. Appellant’s counsel submitted that the 1st Respondent is bound by this deposition and the content of EXHIBIT LOKO 1. It was further submitted that the law is resolved without equivocation that where a political party undertakes an appeal process as part of the conduct of its primaries, the cause of action of any plaintiff disputing the outcome of that primary election would arise from the date of the decision of the appeal panel. He refers to the case of DIAGBON vs A.P.C (2019) 18 NWLR (PT. 1703) PAGE 102, in arguing his point that the cause of action rose on April 24th, 2021.

Further, the Appellant’s counsel stated that contrary to the finding of the trial Court that the 1st Respondent was not aware of the election appeal process (which he himself pleaded) and was not invited to attend, the 1st Respondent was quite aware of the appeal process, participated in it and knew the outcome of the appeal process. He said this attitude of 1st Respondent amount to suppression of facts and the issue ought therefore be resolved against him.

The Appellant’s counsel state that the 1st Respondent reconstituted his case before the trial Court on September 10th, 2021 by introducing a fresh summary result sheet as per EXHIBIT LOKO 3 seen at page 1973 of volume 4 of the Records. Learned counsel said that there exists two separate exhibits and that this gives rise to separate and distinct causes of action. He said that the fresh suit filed on September 10th, 2021, in respect of an election that was held on April 23rd, 2021 is statute-barred and the trial Court lacked jurisdiction to entertain same.

​On issue two, learned counsel to the Appellant began by questioning the probative value of Exhibit Loko 3A. He said a close examination of Exhibit Loko 3A will reveal that it is riddled with irreconcilable discrepancies that render the document worthless. He submitted that on the face of the said Exhibit 3A, in one breath, it recorded the total number of votes as 298 and in another breath on the same document, a summation of the total number of votes allocated therein to each aspirants and the invalid votes (total votes cast) will give a figure of 314. Again, according to him, the total number of valid votes cast as recorded on one part exhibit 3A is 282, whereas, in the same document, a summation of the actual valid votes as distributed among the aspirants amounts to 298. Learned Counsel can not see how these two sets of facts conveyed by EXHIBIT LOKO 3A relied on by the 1st Respondent in his claim to victory at the said primary election can co-exist as the outcome of the same election. He posited that this cannot ground a claim but rather ought to be evaluated as an admission by the 1st Respondent against his own interest which the Court ought to resolve in favour of the Appellant who expressly complained of the said manipulation and that led the appeal panel returning the Appellant as the rightful winner after review of the entire process and documents involved in the election.

The Appellant’s counsel argued further that Exhibit Loko 3A should be discountenanced by this Court in consonance with the established position of the law. He cited the case of ONIGBEDE V BALOGUN (2002) 6 NWLR (Part 762) Page 17-18, Paras. G-A where the Supreme Court held as follows:
“The rule in Kojo V Bonsie (1957) 1 WLR 1223 is not applicable where, as in the instant case, the traditional evidence led by one of the parties is so self-contradictory that no reasonable tribunal will act on it. The appellants’ traditional evidence was rightly rejected as that of the respondents was more acceptable and conclusive in establishing their claim to tittle to the land in dispute”.

On issue three, learned counsel argued that as the party seeking declaratory reliefs before the trial Court, the 1st Respondent was obligated to succeed on the strength of his own case and not on the weakness of the case made against his claim. He averred that the 1st Respondent’s reliefs 1-4 are declaratory reliefs while reliefs 5-11 are ancillary to the declaratory reliefs as seen at pages 1940 to 1941 of volume 4 of the records. That the 1st Respondent was obligated to succeed on the strength of his own case/evidence, and he failed this test. Here, he cited the case of MOHAMMED V Wammako (2018) 7 NWLR (PART 1619) Page 591-591, PARAS G-A where the Supreme Court held thus:
“In a claim for declaratory reliefs, the plaintiff must prove his entitlement thereto, by cogent and credible evidence. He must rely on the strength of his own case and not the weakness of the defense, if any. Indeed, a declaratory relief would not be granted on the basis of an admission by the adverse party. In the instant case, the failure of the 1st respondent to file a counter-affidavit could not ensure in the appellant’s favour”.

The Appellant’s counsel urged the Court to resolve this question in favour of the Appellant and set aside the judgment of the lower Court.

On issue four, he began by stating rightly that it is indeed good law that in an adversarial process, a party will not be allowed to overreach the other. He cited the case ofKODE vs. YUSSUF (2001) 4 NWLR (PART 703) (pp. 415, Para. A; PARAS. C-D. According to the learned counsel, in the instant case, the 1st Respondent first filed his originating summons on June 9th, 2021 and therein he attached a summary result sheet marked as EXHIBIT LOKO 3. That in reaction to this, the Appellant filed a Notice of Preliminary objection on July 14th, 2021, where in the Appellant made the point that the 1st Respondent’s EXHIBIT LOKO 3 could not ground his claim since it contains contradictions. That the Appellant’s Counsel also made submissions on this point during oral submission at the hearing of this matter. That on September 1st, 2021, the 1st Respondent filed a motion on Notice seeking to amend his originating summons with proposed amended originating summons attached without exhibits. He said that motion was granted and upon serving the Appellant with the amended originating summons, the Appellant found that the 1st Respondent had introduced a fresh EXHIBIT LOKO 3 which sought to cure the inconsistencies raised. The Appellant’s counsel argued that with this new Exhibit Loko 3, the 1st Respondent had erected a new claim by it and it was at war with paragraph 11 of his Affidavit in support of originating summons. He averred that matters went worse when the Appellant received a further affidavit from the 1st Respondent to which he now attached another summary result sheet marked as EXHIBIT LOKO 3A whose content was different from EXHIBIT LOKO 3.

Appellant’s counsel further submitted that this act of ‘chopping and changing’ the summary result sheet at EXHIBITS LOKO 3 AND 3A was not inadvertence but clearly a strategy born out of malafide on the part of the 1st Respondent and his counsel. He cited the case of Kotoye vs Saraki (1995) 5 NWLR (Part 395) (p. 264, Paras C-E).

Finally, Appellant’s counsel submitted that the proper thing for the trial Court to do was to have found that EXHIBIT LOKO 3A was an attempt to overreach the Appellant and other Defendants and therefore, reject it. He urged this Court to upturn the decision of the trial Court admitting Exhibit Loko 3A, strike out Exhibit 3 and dismiss the suit of the 1st Respondent pursuant to the statutory powers of this Court.

On issue five, learned counsel to the Appellant averred that the trial Court found in its judgment that EXHIBIT LOKO 3A was uncontroverted by the Appellant and the 2nd Respondent herein and this finding upon review of the entire evidence adduced before the trial Court is devoid of evidence to ground same. On the contrary according to him, because the 1st Respondent introduced EXHIBIT LOKO 3A so late in the day after pleading had closed, none of the Defendants before the trial Court, including the Appellant referred to EXHIBIT LOKO 3 attached to the amended originating summons, which is completely different document that was addressed by parties.

Further, he averred that the trial Court had no facts or evidence before it that gave reason for discountenancing EXHIBIT ABAJI 2 yet attach probative value to EXHIBIT LOKO 2.

It was Appellant counsel’s contention that the trial Court misapplied the law in holding that the 1st Respondent was entitled to additional notice. He said this is despite the fact that the 1st Respondent was the one who presented EXHIBIT LOKO 1 before the trial Court. That the said EXHIBIT stated the date for convening the appeal panel. According to him, the 1st Respondent did not require additional notice to partake in all other activities including the purchase of forms from the 2nd Respondent, the screening exercise and the conduct of primaries. He stated that the 1st Respondent never adduced any evidence of being given additional notice beyond EXHIBIT LOKO 1.

On issue six, learned counsel to the Appellant averred that the trial Court rounded off by invoking, suo motu the presumption of regularity of EXHIBITS LOKO 3A, and that this was done without recourse to the Appellant’s right to fair hearing. He further averred that the first problem the trial Court faces in invoking this presumption is that political parties are voluntary organisations, and their primary election is not an Official Act within the meaning of Section 150 (supra). He said the second problem is that by all the Exhibits attached by the 1st Respondent himself, he has demonstrated that his alleged nomination was fraught with irregularities and that therefore, it cannot be said that the primary election that he claims victory of was conducted in a substantially regular manner. Thirdly, he continued, that members of primary election committee are not public officers and therefore do not act in public capacity when they conduct primary elections. Finally, he submitted that because the presumption of regularity is itself rebuttable, it was obligatory on the trial Court to give Appellant an opportunity to rebut the said presumption. He refers to the case of CITEC INTL ESTATES LTD VS FRANCIS (2014) 8 NWLR (PART 1408) PAGE 169.
He urged this Court to upturn the judgment of the trial Court and allow this appeal.

The 1st Respondent filed his brief of argument on 24th of November, 2021. The following issues for determination were distilled from the grounds of appeal:-
1. “Whether the learned trial Judge rightly held that the claimant/1st Respondent’s suit is not statute barred? (Distilled from Grounds 1 & 2 of the Notice of Appeal)
2. “Whether in view of the affidavit evidence in support of the amended originating summons, the documents placed before the Court and the respective counter-affidavits of all the defendants, the learned trial Judge was right to have found in favour of the claimant/ 1st Respondent and granted all the reliefs sought therein the suit? (distilled from grounds 3, 4, 5, 6, 7, 8 & 9 of the Notice of Appeal)

​In arguing his first issue for the determination of this appeal, learned counsel to the 1st Respondent averred that the Appellant’s argument on the issue of the time the cause of action arose has long been settled and the said argument is outside the contemplation of the law and argued without consideration of the facts in issue. He contended that the unlawful substitution made on 29th day of May, 2021 came to the knowledge of the 1st Respondent on the 31st day of May, 2020 which necessitated the filing of his originating summons on the 9th day of June, 2021, that is 11 days after he got wind of the substitution. This, he said, was clearly within 14 days stipulated under Section 285 (9) of the 1999 Constitution (as amended). The 1st Respondent’s counsel stated that by this, the action cannot be said to be statute barred. He said the cause of action only accrued pursuant to the breach he discovered on the 29th day of May, 2021 when the 2nd Respondent sought to submit the name of the Appellant in place of the 1st Respondent’s. Learned counsel cited the case of APC V. UDUJI (2014) 18 NWLR (PT, 1438) 56.

1st Respondent’s counsel submitted that in APC Vs LERE (2020) I NWLR (Pt 1705) Page 256, the Court defines what is to be considered in determining whether an action is statute barred thus:-
“To determine whether an action is statute-barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compared it with the dates the originating processes were filed in Court”.

​According to learned counsel, in order to determine whether a cause of action in originating summons taken out is statute barred as envisaged under Section 285 (9) of the Constitution (as amended) the date of the occurrence of the event and decision or action complained of is, what is to be considered, as it is not the date the result of the primaries or even the date stated in the LOKO 1 stipulating time table and schedule of the elections that ignited the cause of action but the substitution of the 1st Respondent’s name with that of the Appellant that is being complained and challenged by the 1st Respondent. The 1st Respondent’s counsel further, argued that the cause of action could not have arisen on the 24th of April, 2021 as there was no dispute as to who won the primary election at that point and that the 1st Respondent who clearly won the primary election could not have filed a suit against an election he won.

The 1st Respondent’s counsel argued that the Appellant’s contention that the 1st Respondent’s cause of action accrued after the decision of the appeal committee of the 2nd Defendant is not apt and does not represent the position of the law. He maintained that the 1st Respondent was not aware of the existence of any appeal committee and was never invited and did not also know of any decision reached.

It was stated that the argument in paragraph 4.10 at page 11 of the Appellant’s Brief of Argument that the 1st Respondent’s Exhibit Loko 3 attached to the Amended originating summons at page 1973, vol. 4 of the Records of Appeal reconstitutes new case is a misrepresentation of fact, as the 1st Respondent gave a satisfactory explanation of what happened pertaining to both Exhibit 3 and Exhibit 3A. That the 1st Respondent never planned to rely on Exhibit Loko 3 attached to the originating summons but was inadvertently done during collation and never done to introduce a new fact which could not have been viewing the depositions stated earlier that introduced the said paragraph making specific reference to Exhibit Loko 3A. That the Courts in plethora of authorities has decided that a party should not be punished for the genuine inadvertence, more so, the mistake herein is not mala fide as the Appellant was not overreached in any way as the amended originating summons made reference to Exhibit Loko 3A in the supporting affidavit but for the omission. He refers to the case of AKINPELU V. ADEGBORE & ORS (2008) LPELR-354 (SC).

On issue two:
For the determination of this appeal, the learned counsel to the 1st Respondent argued that the argument of the Appellant on issues two and four of his Brief of Argument are centered on the misconceived view that the lower Court ought not to have relied on Exhibit 3A on the alleged grounds it contained some contradictions and ought not to have relied on Exhibit Loko 3A. Learned Counsel argued that there was no contradiction in Exhibit Loko 3A as alleged by the Appellant. That the attachment of Exhibit Loko 3 after amendment was inadvertently done, and that the Appellant failed to show the prejudice he suffered as a result.

​1st Respondent’s counsel submitted that the gamut of the arguments contained under the issues 2-5 of the Appellant’s Brief of Argument is that the Court was wrong to have allowed Exhibit Loko 3 and rely on some in its findings. He stated that no doubt exists that the election and the validity or invalidity of same is what is in contention. He said the substitution is what is really in contention and not the declaration of 1st Respondent as winner as if the result of 24th of April was to be in contention, the trial Court itself would have been statute barred. According to 1st Respondent counsel, the trial Court was not placed to determine the consistency/inconsistency as contained whether in Loko 3 or Loko 3A as the case may be. He averred that the entire argument of the Appellant is misplaced and the Court should refuse the invitation of the Appellant to consider the inconsistencies proceeding from Loko 3 and Loko 3A as that is not the fact in issue. He stated that assuming that the 1st Respondent did not place sufficient evidence to warrant the finding in his favour and the position of the Court in choosing to compare and delineate the Exhibits, the Court would still have been acting within the ambit of law. He averred that the law is that a Court is bound to take notice of its own records in reaching its decision the Judge is enable to make finding with all evidence in his records. 1st Respondent’s counsel submitted further that the learned trial Judge was right when after carefully evaluating the entirety of affidavit evidence and documents placed before the Court by the parties, believed the evidence of the claimant/1st Respondent, found in favour of the claimant and granted the reliefs sought by the claimant.

The 1st Respondent’s counsel posited that the trial Court having discharged its duty as to evaluation of evidence and ascription of probative values to same, it behooves an Appellant challenging evaluation of evidence as done by trial Court to move beyond the allegation of improper evaluation and go further to pinpoint the errors he complains about and convince the appellate Court that if corrections of errors are made, the decision of the trial Court will not stand. He said it cannot be that Appellant’s allegation alone will suffice. He urged this Court to dismiss the appeal and affirm the decision of the trial Court.

The 3rd respondent in his Brief of Argument as settled by its counsel, Bashir Abubakar Esq. chose to maintaining neutrality in this appeal and said also that it shall be bound by whatever order the Court makes.

The Appellant, in his reply brief to the 1st respondent’s brief of argument. In response to 1st Respondent’s issue one, the Appellant said by the 1st Respondent’s issue one, the Appellant said by the 1st Respondent’s own Exhibit Loko 5, he admitted that his name was never sent to the 3rd Respondent but instead it was the name of the Appellant that was sent and thus, the 1st Respondent did not bring his suit under Section 33 and 35 of the Electoral Act but under Section 87 of the Electoral Act 2010 (as amended) which relates to the conduct of primaries election and nomination of candidate. The conduct of primaries, selection and nomination of candidate. That therefore Exhibit Loko 1 and Exhibit Loko 3 or 3A comes into focus in determining the jurisdiction of the trial Court, and thus the trial Court lack jurisdiction to entertain the suit as the cause of action had expired. On issue two, he said the 1st Respondent is attempting to run away from Exhibit Loko 3A and urged the Court not to allow the 1st Respondent to downplay Exhibit Loko 3A. He urged the Court to carefully examine exhibits Loko 3, Loko 3A, Loko 2 and other exhibits in determining this appeal.

PRELIMINARY OBJECTION
The 1st Respondent filed a Notice of Preliminary objection wherein he raised issues anchored on the following grounds:
1. On the jurisdiction of Court to determine issues bordering on elections into Area Council of the FCT.
2. The appeal being an abuse of Court process
3. On lack of proper service

On the issue of jurisdiction, he posited that where the National Assembly legislates for FCT, it legislates as a State House of Assembly and any law that is made from that process is akin to the law of a State House of Assembly. So, the provisions of Section 7 of the 1999 Constitution rest on the system of Local Government Councils under the purview and control of the states, who are to ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils. According to him, flowing from the above by virtue of Sections 240, 241 and 243 of the 1999 Constitution, the appellate jurisdiction of this Court does not extend to the determination of any question relating to the seat of a local government or Area Council Chairman. He argued that such issues stop at the High Court of the FCT.

On abuse of Court process, learned counsel submitted that the Appellant herein and the 2nd Respondent in this appeal were joint Respondents who has a common interest at the trial Court. That infact, it was the case of the 2nd Respondent that informed the name of the Appellant pursuant to an alleged appeal committee. That the 2nd Respondent is the Appellant in Appeal NO: CA/CV/948/21, they cannot therefore split themselves into two and file separate appeals.

On issue of lack of proper service, he argued that the failure of the Appellants to serve Notice of Appeal on the 1st Respondent personally robs this Court of jurisdiction to entertain this appeal.

In his reply Brief to the 1st Respondent’s Preliminary Objection, the Appellant first posited that this Court has jurisdiction to entertain this appeal. He argued that the relevant portion of the 1999 Constitution to focus on is certainly not the unrelated provisions seen in Sections 299, 240, 241 and 243 of the 1st Respondent’s Brief but indeed part 1 of the First Schedule of the 1999 Constitution (as amended) where the list of all local governments in Nigeria is aptly provided for.

On abuse of Court process alleged by the 1st Respondent, the Appellant submitted that just as several causes of action may emanate from an appeal, so it is trite that several appeals may emanate from the same judgment of a Court.

On whether the 1st Respondent was properly served with originating and other processes in this appeal, Appellant’s contended that the question of service is generally regulated by the Rules of Court except otherwise provided for by statute. He said in this case, the relevant provision is Order 2 Rule 1(a) and (b) of the Court of Appeal Rules 2021, and a careful reading of same would reveal that the test is whether or not the 1st Respondent has notice of this appeal or not, and the answer to that is in the affirmative. He urged the Court to discountenance the preliminary objection.

DECISION ON THE PRELIMINARY OBJECTION
RAISED BY THE 1ST RESPONDENT
I have read carefully and very well understood the arguments put forward by the 1st Respondent’s Counsel in his Notice of Preliminary objection, I will proceed to decide same.

I have thoroughly read the Notice of Appeal by the Appellant and analysed the grounds of appeal therein.

On the question of jurisdiction of this Court to entertain this appeal, let me state clearly from the beginning that the relevant portion of the 1999 Constitution to focus on is not the provision seen in Sections 299, 240, 241 and 243 of the 1st Respondent’s Brief but rather part 1 of the First Schedule of the 1999 Constitution (as amended) where we have the list of all the local governments. Abaji Local Government Council is certainly not among them within the meaning of 1999 Constitution. In part II of the 1999 Constitution, Abaji hold the status of an Area Council and it is defined and constituted separately from the 774 Local Government Areas in the Federal Republic of Nigeria. Consequently, the case of SALISU UBANDOMA & ANOR V. SAFIYANU YAHAYA & 2 ORS (CA/A/260/2020) is of no moment. Magama is, of course, a local government area in Niger State and so the authority does not apply. Unlike all other States in Nigeria which has a State Electoral Body and also constitutes a Local Government Election Tribunal, in the FCT, elections are conducted by the 2nd Respondent who is a national body and there is no Area Council Election Tribunal constituted. So in the respect of appeal arising from Local Government Election Tribunals. It is my conviction that it cannot be good law that a dispute between parties determined solely by one adjudicatory body.

This would of course be unfair. It follows therefore that, the 1st Respondent who did not present his case before an Area Council Election Tribunal cannot now complain that this Court has no appellate jurisdiction in the subject matter of this appeal.

On whether this appeal constitutes an abuse of Court process, that is, if it is an abuse of appeal CA/ABJ/CV/948/2021, I will refer to Section 243 of the 1999 Constitution (as amended) which states as follows:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be:-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed”.
A careful analysis of the foregoing provision would show that the only test for whether or not an appeal ought to be filed by an Appellant in a civil matter is whether or not he has an interest or is somehow affected by the appeal. See AKANDE V. GENERAL ELECTRIC CO. (1979) 3-4 SC 115; WILLIAMS V. MOKWE (2005) 14 NWLR (PART 945) 249 AND IN RE: MADAKI (1990) 4 NWLR (PART 143) 266.

It is trite that just as several causes of action may emanate from a case, so too several appeals may emanate from the same judgment of a Court.

On whether the 1st Respondent was properly served with originating and other processes in this appeal, the 1st Respondent contended that he was not properly served and thus this Court is stripped of jurisdiction to determine this appeal. The question of service is of course generally regulated by the Rules of Court except otherwise provided for by statute. I quite agree with the Appellant that the relevant provision is Order 2 Rule 1 (a) and (b) of the Court of Appeal Rules 2021 which states thus:-
“Order 2 Rule 1 (a) and (b) of the Court of Appeal Rules 2021 which provides as follows:
(a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rule 8, be served on the Respondent personally or by electronic mail to the electronic mail address of the respondent. Provided that if the Court is satisfied that the Notice of Appeal has infact been communicated to the Respondent, no objection to the hearing of the appeal shall be on the ground that the Notice of Appeal was not served in accordance with this Rule.
(b) Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summonses, warrants or other processes of the Courts be served personally”.

Thus, it could be seen that the test is whether or not the 1st Respondent has Notice of this appeal and the answer is in the affirmative. Also relevant is the fact that at the proceedings of December 16th, 2021 the 1st Respondent challenged the order of substituted service and sought to vary same but the Court rejected it. By that decision, this Court has become functus officio and can no longer entertain the matter. So I hold.

​The preliminary objection fails completely and would not terminate the appeal. I will now proceed to determine the substantive appeal.

MAIN JUDGMENT
Having perused carefully the respective briefs filed by the parties to this appeal, I will now proceed to determine same. I will adopt the issues for determination raised by the Appellant.

ISSUE ONE
1. Whether by the express provisions of Section 285 (9) of the 1999 Constitution (as amended) the trial Court was not robbed of the necessary vires/jurisdiction to entertain and/or determine the suit?
It is now settled position of the law that jurisdiction of a Court is a threshold issue upon which the validity or otherwise of any decision and/or proceeding conducted by a Court of law will be determined. This is a way of saying its presence is a sine qua non and its absence has a terminal effect on the decision taken and proceedings conducted no matter how well conducted. In the case of SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1152) PAGE 452, PARAS. A-B the Court held that:
“It is no longer a moot point that the question of jurisdiction is of absolute importance in the adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. MUSTAPHA V. GOV., LAGOS STATE (1987) 2 NWLR (PT. 58) 59, UTIH V. ONOYIVWE (1991) 1 NWLR (PT. 166) 166.”

And with respect to pre-election matters, the procedural jurisdiction of any Court is circumscribed by Section 285 (9) of the 1999 Constitution (as amended) which provides that:
“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”.

In APC VS LERE (2020) 1 NWLR (PT. 1705) Page 254, the Court defines what is to be considered in determining whether an action is statute barred thus:
“To determine whether an action is statute-barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compared it with the dates the originating processes were filed in Court”.

​It could thus be seen that dispensing with all sophistry and technicalities, the Appellant’s arguments in paragraph 4.9 at page 10 of his Brief of Argument that “indeed, his cause of action arose on the 24th April, 2021″ is untenable in law. The principle as to when a cause of action arises in a pre-election matter is not so difficult to comprehend. To determine whether a cause of action in Originating Summons taken out is statute barred as envisaged under Section 285(9) of the Constitution (as amended) the date of the occurrence of the event and decision or action complained is what is to be considered and not the date of the primary election nor the date of the notification or the final decision of the Appeal Committee. It must then be, without doubt, date of the substitution of the 1st Respondent’s name with that of the Appellant that is being complained of and challenged by the 1st Respondent. Or more specifically, the date it was brought to the knowledge of the 1st Respondent that his name had been substituted with that of the Appellant. Thus, in paragraph 11 of his affidavit in support of the amended originating summons in page 1946 vol. 4 of the records of Appeal, the 1st Respondent deposed thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“…the 2nd Defendant on the 29th day of May, 2021 submitted the name of the 3rd Defendant who was the 1st runner up, to the 1st Defendant instead of my name having been declared the winner of the primary Election”.

The cause of action arose not on 24th of April, 2021 but on the 29th day of May, 2021. The action can therefore not be said to be statute barred. If it is not statute barred, then the Court was not robbed of the necessary vires/jurisdiction to entertain the suit in this aspect.

Further, I am not convinced by the argument of the Appellant that the 1st Respondent was aware of the appeal process and even participated actively in it. No one has proof of this and in the absence of any form of proof, the 1st Respondent’s words remain unchallenged. Mere allegations alone will not suffice. It is trite law that in this sort of situations, the burden of proving that the 1st Respondent was aware and did infact participated in the appeal process rests on the Appellant. The Appellant failed to discharge this burden. I hold that the 1st Respondent’s words remained unchallenged.

​Also, in the Appellant’s Brief of Argument, in paragraph 4.10 at page 11, he alleged that the 1st Respondent’s Exhibit Loko 3 attached to the Amended Originating Summons at page 1973 volume 4 of the Records of Appeal reconstitutes new case. But at paragraph 5 of the further affidavit as seen on the Supplementary Records of Appeal, the 1st Respondent stated that he inadvertently attached LOKO 3 instead of the attached and intended LOKO 3A. The learned counsel to the Appellant had insist that it was not inadvertently done but the reasons he suggested merely raised more questions. And if indeed it was done inadvertently, then the blame lays with his counsel alone. The Courts in plethora of authorities has decided that a party should not be punished for the mistake of his lawyer or for genuine inadvertence, more so if the mistake is not mala fide. The Appellant was not overreached in anyway as the amended originating summons made reference to Exhibit Loko 3A in the supporting affidavit. See AKINPELU V. ADEGBORE & ORS (2008) LPELR – 354 (SC).

So, the trial Court was not robbed of jurisdiction to entertain/determine this case and I so hold.

​ISSUE TWO
2. Whether or not the trial Court erred by attaching probative value to the 1st Respondent’s Further Affidavit in support of his Amended Originating Summons and EXHIBIT LOKO 3A attached, despite apparent self-contradiction and conflicts in the documents?
Here, the Appellant has argued that the Court was wrong in relying on LOKO 3A. He also argued that the said Exhibit LOKO 3A contains contradictions. I have gone through the judgment at the trial Court and saw no reason why the learned trial Judge should not attach any probative value to the Exhibit in question. The Appellant, I would say put forward some strange speculations at page 12 of the Brief or argument — speculations that are bare of any substance. I saw no contradictions in the entry of Exhibit LOKO 3A as to number of delegates and votes cast are intact and accords with logic. It is worthy of note that the Appellant did not lead any evidence at the lower Court to show what amounts to total valid votes. Another problem with Appellant’s averment is that this was clearly not the issue before the lower Court — all parties were satisfied with the content of Exhibit LOKO 3A which explains why the Appellant did not approach the Court after the primaries to challenge the entry. I quite agree with the argument of the 1st Respondent that the Appellant cannot even raise that issue before this Court because as at when the Appellant raised that issue in his counter-affidavit at the trial Court that Court had no jurisdiction to determine the veracity or otherwise of that document, parties were already bound by its content. Consequently, the Court cannot carry out any calculations to determine its correctness or otherwise because 14 days from the date of making that document had long lapsed. I re-iterate that I see no self-contradictions and conflict in the said document. So I hold and resolve this matter in favour of the 1st Respondent.

ISSUE THREE
Whether or not the 1st Respondent who sought declaratory reliefs before the trial Court was obligated to succeed on the strength of his own case and not on the weakness of the case made against his claim.
It is obvious that the Appellant is still on the issue of LOKO 3A and we have early taken note of how this document came about and had held that indeed Exhibit LOKO 3A is of probative value. LOKO 3A was attached to the 1st Respondent has shown from his Further Affidavit at page 2943 of the Records of Appeal that Exhibit 3 was said to be inadvertently attached after amendment but when the 1st Respondent’s attention was drawn to same, he filed a further affidavit and restated Exhibit LOKO 3A relied upon by all parties. The Appellant had suffered no prejudice. Infact, all parties filed their processes based on the said LOKO 3A.

The lower Court was indeed correct as it is settled that a party can use a Further Affidavit to correct an inadvertence or even introduce any relevant evidence. This Court has held that until arguments in a matter fought on affidavit is concluded, a party can use a further affidavit to correct and bring in relevant evidence.

​From my reading and analysis of the Appellant’s Brief of Argument, issues 2, 3, 4, and 5 had Exhibit 3A as theme. It is not in doubt however that the validity or invalidity of the Election is what is in contention. The substitution of the 1st Respondent name with that of the Appellant is what is in contention. The trial Court, to my mind, was not placed to determine the consistency or inconsistency as contained whether in LOKO 3 or LOKO 3A as the case may be. I hold that the entire argument of the Appellant is misplaced and this Court refuse to yield to the invitation of the Appellant to consider the inconsistencies proceeding from LOKO 3 or LOKO 3A as that is not the fact in issue. In OBI V. INEC & ORS (2007) LPELR – 9263 (CA) held thus;
“…This presupposes that the only power given to this Court in respect of appeals is to rehear the matter after having been heard by the lower Court; which no such hearing by that Court could have been valid in the absence of a jurisdiction conferred upon it by statute. More so where grounds of appeal are premised upon the issues joined and argued by the parties in the Court below and upon which the said Court arrives at a decision. Section 16cannot therefore operate independently of the lower Court”. So I hold.

​ISSUE FOUR
4. Whether or not the trial Court allowed the 1st Respondent overreach the Appellant by permitting the introduction of both Exhibits LOKO 3 attached to the Amended Originating summons and Exhibit 3A attached to the 1st Respondent’s Further Affidavit in support of Amended Originating Summons.
I quite agree with the learned counsel to the Appellant that it is indeed good law that in an adversarial process, a party will not be allowed to overreach the other. See KODE VS. YUSSUF (2001) 4 NWLR (PART 703) (PP. 415, PARA. A; 418, PARAS, C-D).
​But the more relevant matter at this particular point is: did the trial Court indeed allow the 1st Respondent overreach the Appellant simply by permitting the introduction of both Exhibit Loko 3 and Exhibit Loko 3A? Of course not. It should be crystal clear by now that the guise of the Appellant is not that Exhibit Loko 3A is the actual result but that it should not have been included in the further affidavit even if it would have helped the Court to adequately decide on the material issues before it which are all founded on the said Exhibit LOKO 3A. This is a wrong approach. The position of law is that even when a matter is slated for judgment or brought lately, a party can bring an application which can enable the Court adjudicate on the issues before it. It should also be borne in mind that Exhibit Loko 3A is not a document alien to the Appellant but was introduced to enable the Court adjudicate on the issue at hand appropriately. In the case of MOBIL PROD. (NIG) UNLTD V. MONOKPO (2003) 18 NWLR (Pt. 852) 356 @ 413 Paras. C- F.
“… Otherwise the Court must set the motion down and hear and determine it one way or another even if it might be of the opinion that the motion was brought late and that what it seeks is downright irregular and frivolous. It has to give the applicant a hearing. It is a basic right. If for any reason the motion was not expeditiously drawn to the attention of the Court by the Court officials who ought to do so, that could be/ no excuse for simply discountenancing it when later the Court came to learn of its existence and instead proceeding to give judgment or make some order, more particularly when a decision on the motion was likely to have had a bearing on the judgment or order. The adversarial system of our justice administration demands no less”.

Furthermore, I refuse to agree with the Appellant that the 1st Respondent sought to take away the power of the trial Court to determine the objection of the Appellant on the merit simply by bringing in EXHIBIT LOKO 3A by means of Further Affidavit filed on September 27th, 2021. I see no merit in this argument whatsoever. Neither did I see any merit in the Appellant’s attack on Exhibit LOKO 3. Needless to repeat here that I made a careful study on the judgment of the trial Court and I quite agree with his decision concerning the Exhibits in question. So I hold.

ISSUE FIVE
Whether or not the judgment of the trial Court was given against the weight of evidence.
A careful study of the argument of parties and documents tendered reveal that the 1st Respondent ably discharged the burden placed on it by law. He effectively and efficiently martial out his contention that Exhibit 3A, main subject of contention, by Respondent being the result of the election is not the concern and contention of the 1st Respondent to warrant its evaluation by the Court as doing so would amount to raising issues that are of no help to the Court or the parties. I think the learned trial Judge was right when after carefully evaluating the entirety of affidavit evidence and documents placed before the Court by the parties he found for the 1st Respondent. The trial Judge averred, and I agree that:-
“In this instant suit, putting the facts as stated on an imaginary scale, the plaintiff’s deposition aptly corroborated by the 1st Defendant and 3rd defendant, weighs more than that of the 2nd Defendant. In this suit, all parties involved witnessed the election and there is a presumption of truth of the facts as deposed in their affidavit save and except same is debunked by credible facts and I am of the view that indeed at the conclusion of voting, the Plaintiff was publicly declared as the winner of the election by the Chairman and Secretary of the Election Committee which culminated into 1st Defendant writing a report stating that Plaintiff won the election”
Enough said.

ISSUE SIX
Whether or not the trial Court rightly invoked the presumption of regularity in favour of the 1st Respondent suo moto and whether such invocation did not infringe on the Appellant’s constitutional right to fair hearing?
Having already decided that there is indeed regularity in Exhibits LOKO 3 and 3A and in their admission by the learned trial Judge and indeed in all other exhibits and statements of the 1st Respondent, the answer here is obvious. We need not belabor ourselves by going over and over again the same fact. Needless to say that the learned trial Judge painstakingly discharged his duty as expected of him under the law by satisfactorily evaluating the evidence placed before the Court with regards to the circumstances of the case. On the duty of trial Court in evaluation of evidence, this Court held in the case of NAGEBU CO (NIG) LTD V. UNITY BANK PLC (2014) 7 NWLR (PT. 1405) PAGE 42 AT 76-77, PARA E-F Per Abiru JCA thus:
“The duty of a trial Court in evaluation of evidence is first to receive into its records all the relevant evidence, called perception, and to weigh the evidence in the context of the surrounding circumstances, called evaluation. The totality of the testimonies of both parties is placed on an imaginary scale to see which side is heavier, in terms of quality, not quantity. In this regard, it should consider whether the evidence led by a party is relevant, admissible, credible, conclusive and more probable than that adduced by the other party”.

This Court, I have decided, will not disturb the evaluation and assessment of evidence as carried out by the learned trial Judge as there exists no need to do that.

Consequently, all the five issues raised for the determination of this appeal are resolved against the Appellant and in favour of the 1st Respondent.

The appeal fails for lacking in merit and is dismissed as such. The judgment of the F.C.T. High Court Abuja delivered by Hon. Justice Modupe R. Osho-Adebiyi on 12th November, 2021 in suit No. FCT/HC/CV/105/2021 is hereby affirmed.
No order as to cost.

​ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft, the lead judgment just delivered by my learned brother Mohammed Danjuma, JCA. I fully agree that all the five issues for determination in the appeal ought to be resolved against the Appellant and in favour of the 1st Respondent. It is very clear from the facts and the circumstances in the instant appeal that the hearing of the complaint of the Appellant before the Appeal Committee of the 2nd Respondent was held behind the back of the 1st Respondent and substantially in violation of his constitutionally guaranteed right to fair hearing. To that extent, the proceedings of the Appeal Committee must remain void and of no effect, thereby paving the way for the said proceedings, if there were any at all, to be set aside.
It is for that reason and the many reasons very ably set out by my learned brother in the lead judgment, which I adopt as mine, to also dismiss this appeal for being devoid of any merit. I abide by all the consequential orders of my learned brother, including the order on costs.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, Mohammed Danjuma, JCA, has before now, made available to me a copy of the judgment prepared by him and just delivered. I agree that this appeal should be dismissed for wanting in merit. I equally dismiss the appeal. I abide by the orders in the lead judgment.

Appearances:

Abdulghani Rotimi Arobo, Esq. For Appellant(s)

Azeez Taiwo Hassan, Esq. – for 1st Respondent

Bashir M. Abubakar, Esq. – for 3rd Respondent. For Respondent(s)