ALAGA v. JARIGBE & ANOR (2020)

ALAGA v. JARIGBE & ANOR

(2020)LCN/14905(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/A/CV/995/2020

RATIO

ORDER: JUDICIAL POWERS OF APPEAL COURT TO MAKE CONSEQUENTIAL ORDERS

It is trite law that this Court has the inherent judicial powers to make consequential orders upon the determination of any suit before it. But such consequential orders are not made as matter of course, rather upon satisfaction of certain legal requirements.
Indeed, consequential orders are necessary in certain cases in order to give effect to any eventual judgment of the Court so that all issues relating the subject matter will be laid to rest with judicial finality.
Such orders can also be made even where they are not specifically claimed by a party, so long as they are incidental to or arose out of the main suit. See the case of Chiese v. Nicon Hotels Ltd (2007) All FWLR (Part 388) 1152, 1164 the Court of Appeal per Rhodes-Vivour, JSC held that:
“Consequential orders are made to give effect to the judgment delivered by a Court of competent jurisdiction and all Courts have the inherent powers to make such orders, even if they are not claimed by the parties, provided that the order(s) made is/are, incidental to the prayers sought.” PER OLABISI IGE, J.C.A.

JUDGE: CARDINAL DUTIES OF A JUDGE

One of the cardinal duties or functions of a Judge in adjudication is that he must eloquently or adequately evaluate, assess and consider dispassionately all materials placed before the Court in order to arrive at a fair and just decision particularly in a suit or action fought or contested on purely Affidavits evidence with documents or exhibits attached in an action or suit commenced vide Originating Summons or originating motion. The Affidavits, further Affidavits and or Reply to Counter Affidavits must be meticulously examined before arriving at a decision one way or the other as in trial conducted on pleadings in an action initiated by a writ of summons. Where the complaints of an Appellant is that a trial Court failed to carefully examine or evaluate the depositions in Affidavits evidence Exhibits attached and it is shown that it occasioned a miscarriage of justice or a perverse decision to the Appellant, the Appellate Court is also in a good position or stead to intervene and re-evaluate the Affidavits evidence of the parties and Exhibits attached to processes filed by them. See
1. SIMON EZECHUKWU & ANOR V. I.O.C. ONWUKA (2016) 5 NWLR (PART 1506) 579 at 549 C- D per M. D. MUHAMMAD JSC who said:
“The lower Court as well as this Court are eminently qualified to further appraise the affidavit evidence which, not being oral, does not put the credibility of the deponents in issue. It is only where the evidence to be re-appraised is oral and the credibility of the witnesses is in issue that the appellate Court not having seen and assessed the witnesses, is hindered and not as qualified the trial Court in evaluating the evidence. See Soleh Boneh Overseas (Nig.) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549 and Umar v. Bayero University (1988) 4 NWLR (Pt. 86) 85.”
And at page 551 E to H to 552 A – C, His Lordship continues:
“To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. In Mogaji v. Odofin (1978) 4 SC 91 at 94-95, this Court has outlined the proper procedure to be adopted by Courts in the particular task thus: –
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:-
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.
The above procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 at 451.” PER OLABISI IGE, J.C.A.

EVIDENCE: DUTY OF THE CLAIMANT WHERE A DEFENDANT FILES COUNTER AFFIDAVIT AGAINST AFFIDAVIT IN SUPPORT OF SUMMONS OR MOTION CONTAINING MATERIAL FACTS POTENTIALLY CAPABLE OF DESTROYING THE ASSERTIONS CONTAINED IN THE SUPPORTING AFFIDAVIT

The law needs no restatement that where a Defendant filed Counter Affidavit against Affidavit in support of summons or motion containing material facts potentially capable of destroying the assertions contained in the supporting Affidavit as in this case, the claimant is duty bound and under obligation to file a Further Affidavit or Reply to Counter Affidavit to challenge or controvert the facts or averments contained in such a Counter Affidavit otherwise the claimant will be taken to have admitted all the averments or facts deposed to in the Counter Affidavit and the claimant will taken to have no answers to the Defendants/Respondents assertions and facts contained in the Counter Affidavit. And that will be death knell to the claimant’s case.
See:
1. OLUWATOSIN LAWAL V. FRN (2013) 3 NWLR (PART 1342) 451 at 468 B – D per AUGIE JCA now USC.
2. SIMON EZECHUKWU & ANOR VS. I.C.O. ONWUKA (2016) 5 NWLR (PART 1506) 529 at 552 C – H to 553 A per M. D. MUHAMMAD JSC who said:
“In the case at hand, the evaluation of the affidavits of the contending parties done by the trial Court and indeed the re-evaluation of same by the lower Court have clearly shown that the conflict the learned appellants’ counsel ascribes to them is nonexistent. What has emerged from the exercise is the undisputed facts of service of hearing notice, Exhibit R, on the appellants through their counsel, and their being aware of the proceedings against them through the unchallenged and uncontroverted averments in the counter-affidavits filed by the respondent in opposition to appellants’ application. It is elementary principle of law that such unchallenged averments must be acted upon by the Courts as being true.”
3. MR. IRE MATTHEW OWURU & ANOR VS. HON. AGI MICHAEL ADIGWU & ANOR (2018) 1 NWLR (PART 1599) 1 at 24 D – H per ONNOGHEN CJN RTD who said:
“Given the above scenario, it is my view that the 1st respondent shot himself in the foot when he failed to refute or challenge, in a further affidavit in response to the 1st appellants counter affidavit the weighty allegations against his supposed victory at the primary election. It must be noted that an affidavit evidence constitutes evidence and must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. See Ajomale v Yaduat (No.2) (1999) 5 NWLR (Pt.191) E – 266, Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) 287, Henry Stephens Engineering Ltd V. Yakubu. Nig. Ltd (2009) 10 NWLR (Pt.1149) 416 and Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90. The Court below found as a fact that the 1st respondent failed to respond to critical facts or evidence contained in the counter affidavit of the 1st appellant. The lower Court also found as fact that the said failure was fatal to the case of the 1st respondent. However, the Court of Appeal went on to say that the uncontroverted depositions in the appellants’ affidavit were “beside the point.” Reason? Because, the issue before the Court was not to determine who won the election but whose name ought to be forwarded to the 2nd respondent as 2nd appellant’s candidate based on the declaration contained in Exhibits E and F.
In my respectful view, this is where the error was committed by the Court below. “
At pages 27 E – H 28 A – C KEKERE-EKUN, JSC had this to say:
“The suit at the trial Court was instituted by way of originating summons with affidavits in support and in opposition thereto. Documents were attached to the affidavits and marked as exhibits.

In actions commenced by originating summons, the affidavits evidence takes the place of pleadings. The averments are on oath and are of the same evidential value as a witness statement on oath frontloaded in a suit commenced by writ of summons in which pleadings are filed. The counter affidavit serves as a statement of defence. Thus, every material averment in any affidavit filed in respect of an originating summons must be specifically denied by the adverse party, otherwise the averments will stand unchallenged and will be deemed admitted. See: Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427 @ 684 685 H – B; E-G, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 956) 205; Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773.
Similarly, where there are averments in counter affidavit asserting a particular state of affairs which are not challenged by further affidavit, such averments will be deemed admitted.
In the instant case, the 1st respondent, who was the plaintiff at the trial Court failed to contradict serious allegations in the appellants’ counter affidavit of malpractice and irregularity in the conduct of the primary election particularly as it relates to the conduct of the Returning Officer, Barry Ogbaka. The 1st respondent’s case was further compounded by Exhibits 6 and 6A, reports of independent observers (INEC the Police) which supported the averments in the appellant’s counter affidavit.
Contrary to the majority opinion of the lower Court, the failure to controvert crucial averments in the appellant’s counter affidavit was a fundamental omission that was fatal to the 1st respondent’s case. The only way the trial Court could determine whose name ought to have been forwarded to the 2nd respondent was by first determining who won the primary election. In order to do so, the Court was bound to consider the entirety of the evidence before it.
It has been said time and again by this Court that Courts must always strive to do substantial justice and avoid reliance on technicalities to truncate a party’s case.” Underlined mine PER OLABISI IGE, J.C.A.
EVIDENCE: EFFECT OF AN UNCHALLENGED EVIDENCE BEFORE THE COURT

The lower Court was and is perfectly right in relying on the unchallenged evidence before it showing glaringly that the Appellant has no case against any of the Respondents.
ELIZABETH MABAMIJE V. HANSWOLFGANG OTTO (2016) 13 NWLR (PART 1529) 171 at 203 F – H to 204 A per PETER ODILI JSC. PER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

CHIEF JOHN ALAGA APPELANT(S)

And

1) HON. JARIGBE AGOM JARIGBE 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By his Originating Summons dated 5th October, 2020 against the 1st and 2nd Respondents as 1st and 2nd defendants, the claimant sought for the determination of the following questions:
1. Whether having regard to the provisions of Section 31(5) of the Electoral Act, 2010 (as amended), the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date, whereas he has no such educational qualifications and by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross-River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date?
2. Whether by the provisions of Section 87 of the Electoral Act, 2010 (as amended), the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja,

Cross River State wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety.
3. Whether by the provisions of Section 87 of the Electoral Act, 2010 (as amended), it is the national body of the People’s Democratic party (PDP) that has the power to conduct any primary election held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja, Cross River State for the purposes of nominating its candidate for the Cross River North Senatorial Bye-election and the said primary election purportedly held wherein the 1st Defendant is claiming and parading himself as having been nominated as the candidate of the PDP is invalid, illegal, null and void as a result thereof.
4. Whether by the provisions of Section 87 of the Electoral Act, 2010 (as amended), the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic party (PDP) for the Cross-River North Senatorial bye election

scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with the approved delegate list of the party nor monitored by the 2nd Defendant.

In apparent anticipation of favourable answers to the questions posed for determination, the Claimant asked the lower Court the following reliefs:
a) A DECLARATION that the 1st Defendant gave and/or supplied false information to the 2nd Defendant in his INEC Form CF001 by purporting to have sat for and/or obtained educational qualifications making him eligible to contest for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date, whereas he no such educational qualifications.
b) A DECLARATION that having given and/or supplied false information relating to his educational qualifications in his Statutory Forms to the 2nd Defendant, the 1st Defendant is by virtue of that fact not qualified and/or eligible to contest for, be nominated or elected for the Cross-River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date

c) A DECLARATION that the purported primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja, Cross River State wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date was not conducted with the valid delegate list of the party and therefore null and void in its entirety.
d) A DECLARATION that the primary election of the People’s Democratic Party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja, Cross River State for the purposes of nominating its candidate for the Cross River North Senatorial Bye-election was not conducted by the national body of the party and invalid, illegal, null and void.
e) A DECLARATION that the purported nomination of the 1st Defendant as the Senatorial candidate of the People’s Democratic party (PDP) for the Cross North Senatorial bye election scheduled to hold on 31st October, 2020 or at any other date is illegal, invalid, null and void as the said primary election was not conducted with

the approved delegate list of the Party nor monitored by the 2nd Defendant.
f) ORDER OF INJUNCTION restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as been qualified and/or eligible contest for the Cross River North Senatorial bye-election to hold on 31st October, 2020 or at any other date.
g) AN ORDER OF INJUNCTION restraining the 1st Defendant, by himself, agents, servants, privies or howsoever described from parading himself or in any other manner whatsoever holding out himself as having been nominated as the candidate of the Peoples Democratic Party (PDP) for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date.
h) AN ORDER OF INJUNCTION restraining the 2nd Defendant, by itself, agents, staff, servants, privies or howsoever described from accepting and/or recognising or in any other manner whatsoever according any recognition to the 1st Defendant whether by publication of his name on the Final List of Candidate or listing or including his name on the result sheet,

ballot paper or any other document or material for the said bye-election as been the lawfully nominated candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date.
i) AND FOR SUCH FURTHER OR ANY OTHER ORDER as this Honourable Court may deem fit to make it the circumstances.

The Originating summons was supported by 29 paragraphs Affidavit with an Exhibit attached and marked Exhibit A. The 1st and 2nd Respondents filed Counter Affidavit against the Originating Summons on 6th October, 2020. No Further Affidavit was filed by the parties.

The Originating Summons was duly heard and a considered judgment was given on the matter on 14th day of November, 2020 wherein the Learned trial Judge held on page record as follows:
“Now, the unassailable deductions to be made from the above are that the 2nd Defendant had requisite notice of the primary election and also monitored same. I so hold.
In the final analyses, I hold that the Claimant has failed to establish his case and therefore not entitled to any relief sought, and in consequence, this

suit is accordingly dismissed.
Now, the 1st Defendant had urged this Court to make certain consequential orders or findings in order to give effect to the judgment hereinabove pronounced.
It is trite law that this Court has the inherent judicial powers to make consequential orders upon the determination of any suit before it. But such consequential orders are not made as matter of course, rather upon satisfaction of certain legal requirements.
Indeed, consequential orders are necessary in certain cases in order to give effect to any eventual judgment of the Court so that all issues relating the subject matter will be laid to rest with judicial finality.
Such orders can also be made even where they are not specifically claimed by a party, so long as they are incidental to or arose out of the main suit. See the case of Chiese v. Nicon Hotels Ltd (2007) All FWLR (Part 388) 1152, 1164 the Court of Appeal per Rhodes-Vivour, JSC held that:
“Consequential orders are made to give effect to the judgment delivered by a Court of competent jurisdiction and all Courts have the inherent powers to make such orders, even if they are not claimed

by the parties, provided that the order(s) made is/are, incidental to the prayers sought.”

And on pages 322 to 324 of the record, the Learned trial Judge also found against the Appellant as follows:-
I have perused the totality of Exhibits A, B Series, C, D and E and the credible material evidence put forward by the 1st Defendant, by which he controverted all the allegations of the Claimant. Having dismissed all the claims or allegations of the Claimant on the merit, the facts asserted against the 1st Defendants are indeed bare. And the copious documentary evidence before this Court shows among other thing that the 1st Defendant indeed did not give any false information to the 2nd Defendant, the authentic and Court-sanctioned delegate list was used in the conduct of the primary election, the requisite 21 days’ notice was issued to the 2nd Defendant who also monitored the primary election. It is therefore imperative to make a consequential pronouncement giving effect to these clear and unassailable findings of Court.
Accordingly, as evident from the claim before this Court, I hereby make the following orders, which are incidental to and

arising from the substantive findings earlier made herein, and hold that:
a. The 1st Defendant did not give or supply any false information in his Nomination Form to the 2nd Defendant and is therefore duly qualified to be nominated and/or stand for the Cross River North Senatorial Bye Election.
b. That the Cross River North Senatorial primary election of the Peoples Democratic Party (PDP) wherein the 1st Defendant was nominated as the Senatorial candidate of the PDP was conducted with the authentic and legitimate Delegate List of the ward and Local Government Areas Executives of the Party as shown by Exhibit B Series and C.
c. The 1st Defendant having won the highest number of valid votes at the said primary election is validly nominated as the candidate of the Peoples Democratic Party for the Cross River North Senatorial Bye Election scheduled to hold on 31st October, 2020 or any other date as clearly shown by Exhibit D.
d. The primary election of the Peoples Democratic Party for the Cross River North Senatorial held on 5th September, 2020 was duly monitored by the 2nd Defendant and therefore valid and in accordance with the law as

shown by Exhibit E.
e. The 2nd Defendant is directed to include and publish the name of the 1st Defendant in the List of Candidate for the Cross River North Senatorial Bye election scheduled to hold on 31st October 2020 forthwith within 48 hours.
f. The 2nd Defendant is forthwith ordered to give the 1st Defendant every other rights and privileges pertaining to his lawful qualification and nomination as the candidate of the Peoples Democratic Party (PDP) for the Cross River North Senatorial Bye election scheduled to hold on 31st October, 2020.
The foregoing is necessary for the final resolution of any dispute arising from the subject matter.
I make no order as to costs.”

The Appellant was aggrieved and has by his NOTICE OF APPEAL dated and filed on 12th November, 2020 appealed to this Court on five (5) grounds as follows:
“GROUND ONE (1)
The learned trial Judge erred in law and thereby occasioned miscarriage of justice to the Appellant when he held at page 25 of the judgment that:
“By the material evidence before this Court, the statutory forms which the 1st Defendant submitted to the 2nd Defendant are as shown by

Exhibit A attached to the 1st Defendant’s Counter Affidavit. A deep consideration of the facts or information stated thereon shows clearly that the 1st Defendant supplied information relating to or showing his full compliance or fulfillment of the statutory or constitutional requirements for election into the Cross-River North Senatorial District bye-election.
Sadly enough, the Claimant did not pointedly show, apart from making wide allegations, how this information supplied by the 1st Defendant turned out to be false. And it is not the duty of this Court to go on voyage of discovery to help the Claimant prove its case. The case is more or less built on speculation and wide goose chase…
On the whole, I find and hold that the 1st Defendant did not give or supply any false information to the 2nd Defendant in his nomination form but is duly qualified to be nominated and to contest for the Cross-River North Senatorial Bye Election having met the statutory and constitutional requirements.”
Ground Two (2)
The learned trial Judge erred in law and thereby occasioned miscarriage of justice to the Appellant when he found and held that

the Exhibit B Series is the authentic delegate list for the primary election.
Ground Three (3)
The learned trial Judge erred in law and thereby occasioned miscarriage of justice to the Appellant when he held that the 1st Respondent scored the highest number of valid votes cost at the primary election conducted on 5th September, 2020.
Ground Four (4)
The learned trial Judge erred in law and occasioned a miscarriage of justice to the Appellant when he accepted the fact that the primary election was monitored by the 2nd Respondent and also accorded any legal recognition to the document titled Report on the Conduct of the People’s Democratic Party (PDP) Cross-River North Senatorial Primary Election held on 5th September, 2020, the Ogoja Local Government Secretariat, Ogoja, Cross River.
GROUND FIVE (5)
The Judgment of the learned trial Judge is against the weight of evidence.”

The Appellant’s Brief of Argument dated 23rd day of November, 2020 was filed on the same date while the 1st Respondent’s Brief of Argument dated 27th November, 2020 was filed on the same date. The 2nd Respondent’s Brief of Argument was filed 30th

November, 2020 but dated 26th November, 2020.

The appeal was heard on 4th December, 2020 when Learned Counsel to the parties adopted their Briefs of Argument. The Learned Counsel to the Appellant MARY NNEOMA ELIJAH, Esq., who settled the Appellant’s brief which was adopted and relied upon by Learned Senior Counsel EMEKA OZOANI, SAN who led Appellants Counsel formulated three (3) issues for determination namely:
I. Whether the Honourable Trial Court was not wrong when it fails to consider the affidavit evidence of parties. GROUND 1.
II. Whether the Honourable Court was not wrong when it relied on Exhibit C a judgment of Federal High Court Port Harcourt to validate Exhibit B series as authentic delegates list despite the fact that the Appellant was not a party to the suit and not bound by the decision. GROUND 2.
III. Whether the Court was not wrong in giving the consequential reliefs in pages 323 without Counter Claim from the 1st Respondent.

The 1st Respondent’s Learned Counsel, CHARLES CHINWEIKE UDEH, ESQ., distilled two issues for resolution of the appeal viz:
i. Whether the lower Court was wrong in finding that 1st Respondent

did not give or supply false information to the 2nd Respondent in his nomination form and therefore qualified to be nominated and contest for the Cross Rivers North Senatorial Bye Election. (This Issue is culled from Ground 1 of the Notice of Appeal).
ii. Whether the lower Court was wrong when it found, from the evidence before it, inter alia that the delegate list used in the primary election was the valid and authentic list of delegates; that the 1st Respondent was duly nominated as the candidate of his party having won the highest number of valid votes casts and that primary election was duly monitored by the 2nd Respondent. (The issue is culled from Grounds 2, 3, 4 and 5 of the Notice of Appeal).

The Learned Counsel to the 2nd Respondent formulated two issues also which are:-
“4.1 Whether, in the circumstance of this case, the Honourable trial Court did not properly evaluate the affidavit evidence of all the Parties. (Distilled from Ground 1 of the Notice of Appeal)
4.2 Whether the trial Court was wrong when it upheld the nomination of the 1st Respondent having won the highest number of valid votes casted and the election duly

monitored by the 2nd Respondent herein placing reliance on Exhibit C. (Distilled from grounds 2, 3, 4 and 5 of the Notice of Appeal).”

I am of the solemn view that the issues nominated by the Learned Counsel to the Appellant will suffice for consideration of this appeal. I will take the issues at one fell swoop.
I. Whether the Honourable Trial Court was not wrong when it fails to consider the affidavit evidence of parties. GROUND 1.
II. Whether the Honourable Court was not wrong when it relied on Exhibit C, a judgment of Federal High Court Port Harcourt to validate Exhibit B series as authentic delegates list despite the fact that the Appellant was not a party to the suit and not bound by the decision. GROUND 2.
III. Whether the Court was not wrong in giving the consequential reliefs in pages 323 without Counter Claim from the 1st Respondent.

Under issue one as to whether the trial Judge failed to consider the Affidavit evidence of the parties, the Learned Counsel to the Appellant submitted that the Learned trial Judge failed to properly consider the Affidavit evidence of the Appellant before arriving at the judgment being

challenged in this appeal. He stated that judgment given without evaluation of the evidence goes to no issue and bound to “crash on appeal”. He relied on following cases:
1. IHEAKAM V. FB (2017) LPELR 43545 (CA) and
2. PDP V. RAHEEM & ORS (2019) LPELR 48747 CA.

He submitted that once the trial Court failed in evaluation of oral and documentary evidence before it, the judgment will be set aside on appeal. He stated that the judgment was contrary to the fact deposed to in paragraphs 6 and 9 of the Appellant’s Affidavit to the effect that the list relied upon by 1st Respondent was doctored and not sanctioned by 2nd Respondent but that the Court failed in its duty and held that the delegates list used by the 1st Respondent is the authentic list of delegates. That based on the preponderance of evidence, the Appellant has discharged the evidential burden imposed on him. He relied on the case of EKWEOZOR & ORS V. REG TRUSTEES OF THE SAVIOUR APOSTOLIC CHURCH NIGERIA (2020) LPELR 49568 (SC) per PETER ODILI-JSC.

He urged the Court to resolve issue 1 in Appellant’s favour.

On issue 2 as to whether the Court was wrong in relying on

Exhibit C, a judgment of Federal High Court to validate Exhibit B series as authentic delegate list because Appellant was not a party to it, Learned Counsel submitted that Exhibit C which was relied upon by the Learned trial Judge is not binding on the Appellant relying on the case of MA’AJI VS. SULEIMAN (2017) LPELR 43149 CA. He drew attention to page 318 of the record to contend that reliance placed on Exhibit C to sanction the primary election in Cross River North Senatorial by PDP was without regard to the fact that Appellant was not party to it. That the judgment Exhibit C, is not a judgment in rem and it is not binding on the Appellant. He relied on the case ofNOEKOER V. EXECUTIVE GOVERNOR OF PLATEAU STATE & ORS (2018) LPELR 44350 SC. He urged the Court to resolve issue 2 in Appellant’s favour by holding that judgment in FHC/PH/CS/125/2020 is judgment in personam.

On issue 3 as to whether the lower Court was wrong in giving the consequential reliefs on pages 323 without a counter claim. The Learned Senior Counsel to the Appellant submitted that the lower Court lacked vires to make consequential orders which according to him were not pleaded by

the 1st Respondent nor sought by him. That the Court is not father Christmas. He relied on the case of LAWANI & ORS VS. LAWANI & ANOR (2018) CA. (no citation supplied).

On the meaning of a consequential order or reliefs, he relied on the case of TITUS & ORS vs. BADO (2018) LPELR 44002 per ABIRIYI, JCA. He referred to the reliefs granted as consequential orders to submit that a Court is bound by the claims and reliefs of the parties and cannot go outside the claim to grant what was not asked for. He relied on the case of AFRICAN PRUDENTIAL REGISTRARS PLC & ORS V. MACAULAY & ORS (2020) LPELR 49593 per OGAKWU, JCA.

On the whole, Appellant’s Learned Counsel submitted that the lower Court erred in granting reliefs aforesaid as consequential reliefs and urged the Court to set aside the judgment and uphold the appeal, and grant reliefs sought by the Appellant.

In response, the Learned Counsel to the 1st Respondent Charles Udeh, Esq., submitted that the Appellant failed to substantiate allegation of supplying false information to 2nd Respondent by 1st Respondent. That there was abundance evidence before the lower Court showing

uncontroverted evidence that 1st Respondent fulfilled all the requirements and Constitutional requirements for the election. He relied on Exhibit A attached to the 1st Respondent’s Counter Affidavit as showing correct and true information on qualification of 1st Respondent submitting all his educational qualification to contest the Cross River North Senatorial bye-election. He referred to Section 65 of the Constitution of the Federal Republic of Nigeria as prescribing the qualifications needed to contest the election and that 1st Respondent cannot be disqualified because he met all requirements relying on the following cases viz:
1. KUBOR V. DICKSON (2013) 4 NWLR (PT. 1435) 534 at 584 – 585 H – B.
2. ANPP V. USMAN (2008) 12 NWLR (PART 1100) 1
3. AGI SAN VS. PDP & ORS (2016) LPELR – 42578.

The Learned Counsel to 1st Respondent stated that allegations of Appellant border on Criminal allegation proved beyond reasonable doubt. He relied on the case of AUDU V. INEC (2010) 13 NWLR (PT 1212) 456 410 H and Section 135 of the Evidence Act 2011. He submitted that Appellant did not place any materials before the lower Court to prove his case

and that by Rule of Evidence, he who asserts must prove. That Appellant has duty of proving the falsity of 1st Respondent’s qualification. He relied on the case of OBEY V. KEMI (199) 4 NWLR (PART 598) 204 per Oene, JCA and NBA v. AKINTOKUN (2006) ALL FWLR (PART 334) 1926 at 1942. He urged the Court to resolve issue 1 in 1st Respondent’s favour.

On the issue of valid delegate list used in the primary election and whether those who nominated 1st Respondent were on the authentic delegates list the Learned Counsel to the 1st Respondent that the lower Court correctly found on the totality of Exhibit B series to the effect that the Peoples Democratic Party conducted its ward, Local Government Area Congresses in all wards and Local Government Areas which made up Cross River North Senatorial District for purpose of electing party Executives.

That the process leading to the products of Exhibit B series was duly monitored by the 2nd Respondent and that PDP Constitution was duly complied with. He stated that the Primary Election wherein the 1st Respondent was nominated was conducted by the National Executive Council of the Party which has powers to conduct its

primaries. He relied on the cases of:
1. EMEKA V. OKADIGBO & ORS (2012) LPELR – 9338 per RHODES-VIVOUR JSC
2. YAR’ADUA & ORS V. YANDOMA & ORS (no citation)

He drew attention of the Court to Exhibit C which is the judgment in suit FHC/PH/CS/125/2020. HON JARIGBE V. PDP & ORS delivered by I. M. SANI J. That the judgment authenticated the delegate List of PDP on conduct of its congresses on 7th and 21st March, 2020 for Cross River North Senatorial District Bye-Election. He reproduced the orders of the said Judge in the aforesaid suit on pages 12 – 13 of 1st Respondent’s Brief of Argument to submit that Exhibit C is still valid and subsisting judgment rein. He submitted that lower Court rightly relied on the said judgment and that lower Court’s finding is unassailable. He relied on the cases of AGBOGUNLERI V. DEPO & ORS (2008) LPELR – 243 and LEADERS & COMPANY LTD & ANOR V. KUSAMOTU (2003) LPELR – 5805 and Section 287 (3) of the Constitution of the Federal Republic of Nigeria.

That Exhibits D and E are the results declared and the Reports on the primary election as issued by PDP and that 1st Respondent got 381 highest

number of valid votes as shown in Exhibit D on page 137 – 136 of record.

He also stated that the lower Court found that PDP complied with Section 85 of Electoral Act on requisite 21 days it ought to give to 2nd Respondent to monitor the Primary in question. That 2nd Respondents officials monitored the Primary Election relying on Exhibit B1 showing that one Modibo B. Belel witnessed the Primary election which held on 5th September, 2020 at OGOJA Local Government Secretariat Ogoja Cross River State per Exhibit E1 on page 137 – 217 of the record.

He concluded that with credible documentary evidence placed before the lower Court by 1st Respondent, the Appellant case is bereft of any merit. He relied on the cense of KOTUN & ORS V. OLASEWERE & ORS (2010) 1 NWLR (PART 1175) 411 at 437 E per RHODES-VIVOUR JCA now JSC. He urged the Court to dismiss the Appellant’s appeal and affirm the lower Court’s decision.

In his own submissions and in reply to Appellant’s submissions, the Learned Counsel to the 2nd Respondent DR. AGADA ELACHI submitted along the same line with the 1st Respondent’s Counsel. He stated that in spite of all allusions

contained in the Appellant’s Affidavit in support, Appellant failed to attach any scintilla of evidence and did not place any materials before the lower Court. That it is thus absurd for the Appellant to accuse the lower Court of failure to properly evaluate the Affidavit evidence before lower Court. He stated that there was nothing before the Court to evaluate and lower Court said so on page 316 of the record of appeal. That it is not the business of trial Court to fish for evidence for a claimant. That it is the claimant who must prove his case as asserted. He relied on
1. EJEZIE & ORS VS ANUWU & ORS (2008) LPELR – 1063
2. COL. NICHOLAS AYANRU RTD VS. MANDILAS LIMITED (2007) LPELR 670 (SC) and
3. PETER OJOH V. OVVUALA KAMALU & ORS (2005) LPELR 2389 SC and SECTION 135 – 137 of the EVIDENCE ACT 2011.

Dr. Elachi drew attention of this Court to the fact that Appellant as Plaintiff did not file Reply to 2nd Defendant’s Counter Affidavit to the Claimant’s Originating Summons to challenge 2nd Respondent’s averments. Learned Counsel to 2nd Respondent also stated that the Appellant did not file any Reply or Further Affidavit in

opposition to 1st Respondent’s/Defendant’s Counter affidavit to challenge the averments therein.
He relied on pages 24 – 283 of the record and the cases of:
1. CHINWO & ORS V. CHINWO & ANOR (2010) LPELR – 9113 CA
2. HABIB NIGERIA BANK LTD V. OPOMULERO & ORS (2000) LPELR – 5688 CA.
He urged the Court to resolved issue 1 in 2nd Respondent’s favour.

On issue 2 raised by 2nd Respondent and on the proprietary of the consequential orders made by the lower Court, the submissions of Dr. Elachi are in tandem with submissions of Learned Counsel to the 1st Respondent. He urged the Court to resolve issue 2 in 2nd Respondent’s favour and to affirm the judgment of the lower Court. Dr. Elachi finally urged the Court to dismiss the appeal.

The pedestal upon which the Appellant predicated his appeal is that the trial Court failed to evaluate the Affidavit evidence before it.

One of the cardinal duties or functions of a Judge in adjudication is that he must eloquently or adequately evaluate, assess and consider dispassionately all materials placed before the Court in order to arrive at a fair and just decision particularly in a

suit or action fought or contested on purely Affidavits evidence with documents or exhibits attached in an action or suit commenced vide Originating Summons or originating motion. The Affidavits, further Affidavits and or Reply to Counter Affidavits must be meticulously examined before arriving at a decision one way or the other as in trial conducted on pleadings in an action initiated by a writ of summons. Where the complaints of an Appellant is that a trial Court failed to carefully examine or evaluate the depositions in Affidavits evidence Exhibits attached and it is shown that it occasioned a miscarriage of justice or a perverse decision to the Appellant, the Appellate Court is also in a good position or stead to intervene and re-evaluate the Affidavits evidence of the parties and Exhibits attached to processes filed by them. See
1. SIMON EZECHUKWU & ANOR V. I.O.C. ONWUKA (2016) 5 NWLR (PART 1506) 579 at 549 C- D per M. D. MUHAMMAD JSC who said:
“The lower Court as well as this Court are eminently qualified to further appraise the affidavit evidence which, not being oral, does not put the credibility of the deponents in issue. It is only

where the evidence to be re-appraised is oral and the credibility of the witnesses is in issue that the appellate Court not having seen and assessed the witnesses, is hindered and not as qualified the trial Court in evaluating the evidence. See Soleh Boneh Overseas (Nig.) Ltd. v. Ayodele (1989) 1 NWLR (Pt. 99) 549 and Umar v. Bayero University (1988) 4 NWLR (Pt. 86) 85.”
And at page 551 E to H to 552 A – C, His Lordship continues:
“To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. In Mogaji v. Odofin (1978) 4 SC 91 at 94-95, this Court has outlined the proper procedure to be adopted by Courts in the particular task thus: –
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the

defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:-
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.
The above procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 at 451.”

Now what are the facts placed before the lower Court by the Appellant? The 29 paragraphs Affidavit reads:
1. That I am the Litigation Secretary in the Law Firm of E. C. Ugwuodo & Co. Counsel

to the Claimant in this Suit by reason of which I am conversant with the facts and circumstances deposed.
2. I have the consent and authority of my employer and the Claimant to depose to this Affidavit and its contents; and where the facts deposed are not within my personal knowledge, I have been informed by the Claimant himself and E. C, Ugwuodo Esq (of Counsel) during meeting at our office at No Suite 306B Fairtrade Business Complex, 22 Kigoma Street, Wuse Zone Abuja on 2nd October, 2020 at about 10:00 AM, which I verity believe; and I now depose as follows:
3. That the Claimant is a notable chieftain of the People’s Democratic Party (PDP) and registered voter at Ogoja Local Government Area of Cross Rover State as well and meets his membership obligations as end when due. A copy of the membership card of the Claimant is now attached as Exhibit A.
4. That in view of the Claimant’s valid membership of the People’s Democratic Party (PDP) and his notable contributions towards the growth of the party, he was elected as the Secretary of the Party in Ogoja Local Government of Cross-River State, wherein he has served the party and his

constituency meritoriously.
5. That as notable member of his political party, the Claimant is committed towards ensuring that the affairs of the party is conducted in democratic manner and in consonance with the law such that only qualified person can be nominated to contest for any elective position under its platform.
6. That the 1st Defendant is politician and an aspirant to the position of the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial District primary election of the Party.
7. That the 2nd Defendant is the agency of the Federal Government of Nigeria charged with the conduct of elections in Nigeria including the Cross North Senatorial bye-election scheduled to hoed on 31st October, 2020 or at any other date which the 1st Defendant purports or claims to contest for.
8. That following the vacancy created by the demise of the former Senator representing Cross River Senatorial District at the National Assembly, the 2nd Defendant has fixed 31st October, 2020 for the conduct of bye election for the purposes of filling the vacancy.
9. That accordingly, the Claimant’s party

being the People’s Democratic Party (PDP) is one of the political parties nominating and sponsoring candidate for the said election.
10. That in pursuance of same, the 1st Defendant indicated interest and sought to be nominated as the candidate of the party.
11. That however, the 1st Defendant is not qualified to seek nomination for the said bye-election as he does not have the requisite educational qualification to be so nominated.
12. That sometimes on 31st September, 2020 while conducting extensive research and investigation into the educational qualification of the candidates, the Claimant discovered that the 1st Defendant does not have the requisite educational qualification but supplied false information claiming to be so qualified to the 2nd Defendant.
13. That the 1st Defendant, not having the requisite educational qualification supplied false information to the 2nd Defendant regarding his educational qualifications which are all false.
14. That the false information which the 1st Defendant gave to or supplied to the 2nd Defendant is in violation of the mandatory provisions of the law.
15. That the Constitution of the

Federal Republic of Nigeria as well as the Electoral Act is clear on the constitutional requirements for educational qualifications and eligibility for any person seeking to contest for senatorial election in Nigeria as well as import of giving or supplying false information to the 2nd Defendant
16. That the action of the 1st Defendant in presenting false information regarding his educational qualification and of the 2nd Defendant in accepting and recognizing his nomination, is illegal, unlawful and unconstitutional.
17. That the importantly, the 1st Defendant People’s Democratic Party (PDP) duly conducted its primary election on 5th September, 2020 for the purposes of nominating its candidate for the election.
18. That the 1st Defendant doctored and manipulated a list of delegate which was not approved by the National secretariat of the party and therefore unknown to the party.
19. That the National secretariat of the Party is the only arm of the party that has the power to conduct the party primaries.
20. That the National secretariat of the Party was not aware of and never conducted any primary election for the Cross-

River North Senatorial District with the List of Delegate purportedly used by the 1st Defendant.
21. That it is the National Secretariat of the People’s Democratic Party (PDP) that has the duty and power to approve any list for the conduct of its primary election and did not approve the fictitious list used in the primary election wherein the 1st Defendant purportedly emerged as its candidate.
22. That the 2nd Defendant was never notified of the conduct of the primary election and did not monitor or even issue any report and therefore the Claimant cannot claim to have won the primary election.
23. That it is mandatory for 2nd Defendant to monitor every primary election of all political parties and did not do so in the present case.
24. That the purported primary election of the People’s Democratic party (PDP) held on 5th September, 2020 at Ogoja Local Government Secretariat, Ogoja, Cross River State wherein the 1st Defendant claims to have been nominated as the candidate of the party for the Cross River North Senatorial bye-election scheduled to hold on 3rd October, 2020 or at any other date was monitored by the 2nd Defendant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That despite the foregoing illegality, the 1st Defendant has been parading himself the validly nominated candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial bye-election and the 2nd Defendant has been according him recognition as such.
26. That it would been illegal and unconstitutional for an unqualified person, such as the 1st Defendant, who was not validly nominated to stand for an election and seek to be voted for in the Cross River North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date.
27. That time is of the immense essence in this Suit as the said bye-election is fast approaching.
28. That it will be in the interest of justice for this Honourable Court to grant the Reliefs sought in this Suit.
29. I depose this Affidavit in good faith while believing its contents to be correct in accordance with the Oaths Act Cap 01 LFN 2004.”

As can be seen in the said Affidavit, only membership card of Appellant is attached. He accused the 1st Respondent of supplying false information about his educational qualifications and that 1st Respondent has no requisite

qualification. That the false information which 1st Defendant gave or supplied to 2nd Respondent violated mandatory provisions of the law. The particulars of non qualification of 1st Respondent are not stated or itemized in the supporting Affidavit.

The Appellant was not a contestant in the Primary Election conducted by the Peoples Democratic Party on 5/9/2020. He specifically accused the 1st Respondent in paragraph 18 of the Affidavit in support of Originating Summons that:
“the 1st Defendant doctored and manipulated a List of Delegate which was not approved by the National Secretariat of the Party and therefore unknown to the party.”

On the part of the 1st Respondent, a 29 paragraphs counter affidavit in opposition of the originating summons was filed on 14th October, 2020 to which five(5) Exhibits were attached and marked A, B, C, D, and E respectively how the primary election was conducted. He attached his nomination form as Exhibit “A” and copies of summary of results of congresses conducted in the senatorial zone in question as Exhibit B series. He also attached as Exhibit “C.” copy of the enrolled order of Federal High Court

Port Harcourt which held that delegate List of the ward and Local Government Area Executive of PDP held on 7th and 21st March, 2020 are the authentic List of delegates for the Primary Election of the party. The judgment was attached as Exhibit “E”. That the primary election at which 1st Respondent was elected was monitored by 2nd Respondent requested in his counter affidavit for consequential order affirmed his nomination as candidate of PDP for Cross River North Senatorial Bye-Election. For ease of reference, the Counter Affidavit of 1st Respondent reads in full as follows:
“1ST DEFENDANT’S COUNTER AFFIDAVIT IN OPPOSITION OF THE ORIGINATING SUMMONS
I , Kenneth Okwu, male, adult, Nigerian citizen and Litigation Assistance in the of Anointed Chambers of O82 Block O, Efab Extension, Area 11, Abuja do hereby make an oath state thus:
1. That I work in the Law Chambers of Anointed Chambers, which has been engaged as Counsel to represent the 1st Defendant herein and by reason of that fact I am conversant with the facts and circumstances of this case and all the facts deposed to herein.
2. That I have the consent and

authority of my employer as well as the 1st Defendant to depose to this Counter Affidavit in opposition to the Originating Summons.
3. That where any facts deposed herein are not within my knowledge, I have been duly informed by Hon. Jarigbe Agom Jarigbe (the 1st Defendant) and Ude Charles, Esq (lead Counsel) during our Chambers briefing on 12th October, 2020 at about 20:00 pm at D82 Block O. Efab Mall Extension, Area 11, Abuja which facts I verily believe to be true.
4. That I have seen, read and understood the contents of the Affidavit of one Agu Obinna deposed to on 31st October, 2020 all of whose contents and depositions are denied as false, misleading, erroneous and misconceived.
5. That, in denial of the said baseless assertions of the Claimant I state that the totality of the case or claims of the Claimant regarding the 1st Defendant is false and incorrect.
6. That the factual and/or legal bases of the case of the Claimant are bereft of any cogent fact or credible evidence worthy of judicial consideration.
7. That the 1st Defendant admits paragraph 3 of the Affidavit of Agu Obinna only to the extent that the Claimant is

a member of the People’s Democratic Party (PDP) and registered voter at Ogoja Local Government Area of Cross River State but denies every facts stated therein.
8. That the 1st Defendant denies paragraphs 4 and 5 of the Affidavit of Agu Obinna and puts the Claimant to the strictest proof thereof.
9. That in rebuttal of every other allegation of facts made at paragraphs 8 to 28 of the Affidavit of Agu Obinna, the 1st Defendant informed me at the aforementioned meeting, date and time, and I verily believed him that all the allegations are false in every material particulars.
10. That the 1st Defendant is frontline member of the People’s Democratic Party (PDP) and have served the party in various capacities as well as made immense contributions towards the growth and success of the party.
11. That the 1st Defendant is immeasurable contribution has been recognised by his party which considered him to be its candidates at various times.
12. That owing to the credible standing of the 1st Defendant, the electorate in cross River State has always supported his candidature for various elections, as he possesses the requisite educational

qualification, knowledge and capacity for every elective position in the country.
13. That regarding the allegation of the Claimant that the 1st Defendant gave or supplied false information to the 2nd Defendant (INEC) in his nomination forms for the Cross North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date, the 1st Defendant informed me at the aforementioned meeting date and time, which I verily believe thus:
i. That the 1st Defendant has and possesses the requisite statutory as well as constitutional requirement for the Cross North Senatorial bye-election scheduled to hold on 31st October, 2020 or at any other date.
ii. That the 1st Defendant did not give or supplied any false information to the 2nd Defendant regarding his educational qualification or any other information contained or disclosed in his statutory forms to the 2nd Defendant.
iii. That in his Statutory forms to the 2nd Defendant, the 1st Defendant truly and correctly gave details of his educational qualifications by which he is eminently qualified to be nominated by his party and/or stand for the Cross North Senatorial

bye-election scheduled to hold on 31st October, 2020, or at any other date. A copy of the 1st Defendant’s Nomination Form is now attached as Exhibit A.
iv. That there is no defect in the educational qualification of the 1st Defendant as stated in his Nomination Form.
v. That the Claimant has totally failed to disclose how the 1st Defendant gave or supplied false information regarding his educational qualification to the 2nd Defendant.
vi. That the Claimant has failed to prove his assertion for the disqualifications of the 1st Defendant as the 1st Defendant met the constitutional requirements for the election.
vii. That the claim for the disqualification of the 1st Defendant it based on the erroneous grounds that he gave or supplied false information to the 2nd Defendant which fact has been shown to be totally false.
viii. That when a claim is based on a ground, which has been shown to be false, such claim must be dismissed by the Court.
ix. That the allegations of the Claimant that the 1st Defendant supplied false information to the 2nd Defendant in his Nomination Form is a criminal allegation which must and has not been

proved beyond reasonable doubt by the Claimant who solely has the legal duty to do so.
13. That the allegation of the Claimant that the Delegate List used in the conduct of the primary election of the People’s Democratic Party for the Cross River North Senatorial District, was not the authentic list of delegate, the 1st Defendant informed me at the aforementioned meeting, date and time, which I verily believe thus: –
i. That the Cross River North Senatorial District comprises of Five (5) Local Government Areas, to wit Obantiku L.G.A, Obudu L.G.A, Bekwairi L.G.A, Ogoja L.G.A and Yola L.G.A.
ii. That sequel to the said primary election, the Peoples’ Democratic Party (PDP) had conducted its ward and L.G.A. Congresses in all the wards and Local Government Areas that made up the Cross River North Senatorial District for the purposes of electing the party Executives.
iii. That following the successful conduct of the said ward and L.G.A. Congresses, members Executives for the respective Local Government areas in the Cross River North Senatorial District, were duly elected. Copies of the Summary of the Result Sheets for the election of

the L.G.A. Executive of the PDP for the Cross River North Senatorial District are now attached as Exhibit B Series.
iv. That process leading up to Exhibit B Series was duly monitored and supervised by the PDP and also followed the due process of the law and strict, compliance with the Party’s Constitution.
v. That in the intervening period, some issues arose as to the legitimate List of Delegate for the conduct of the primary election of the PDP for the nomination of its candidate for the Cross River North Senatorial District.
vi. That the 1st Defendant instituted an action at the Federal High Court of Nigeria sitting at Port-Harcourt in SUIT NO: FHC/PH/CS/125/2020 between HONOURABLE JARIGBE AGOM JARIGBE V. PEOPLES DEMOCRATIC PARTY (PDP) & 2 ORS wherein he sought the interpretation of the relevant provisions of the law viz-a-viz the legitimate list of delegates of the party and the conduct of the primary election of the party.
vii. That upon hearing, the matter on the merit, the Court per I. M. Sani, J. delivered its Judgment on 4th September, 2020 (a day before the date of the primary election held on 5th September, 2020)

wherein it granted the prayers sought by the 1st Defendant, and among other things ordered that the delegate list of members elected as Ward and Local Government Area Executive of the People’s Democratic Party on 7th and 21st March, 2020 are the authentic list for the purposes of selecting the candidate of the party for the Cross River North Senatorial District Bye-Election. A copy of the Enrolled Order of the Court is now attached as Exhibit C.
viii. That in clear terms, the Court in Exhibit C ordered thus:
“IT IS HEREBY ORDERED
1. That the 1st Defendant shall utilize the list of party members who emerged as ward and Local Government Area executives of the 1st Defendant on the 1st and 21st of March, 2020, same having been authenticated by the 1st Defendant and certified by the 3rd Defendant, for the purposes of selecting the senatorial candidate of the 1st Defendant for the senatorial bye-election in Cross-River North Senatorial District.
2. That the 1st and 2nd Defendants are hereby, restrained either by themselves or acting through any of their organs, agents or privies, from carrying out any change, modification, exclusion,

substitution or howsoever described by them, to the list of the party members who emerged as Ward and Local Government Areas Executive of the 1st Defendant on the 7th and 21st or March, 2020, same having been authenticated by the 1st Defendant and certified by the 3rd Defendant, for the purpose of selecting the senatorial candidate of the 1st Defendant for the senatorial bye election in Cross River North Senatorial District.
3. That the 3rd Defendant is also restrained from giving effect to any purported change, modification, exclusion, substitution or howsoever described by it or the 1st Defendant, to the list of the party members who emerged as the Ward and Local Government Areas executives of the 1st Defendant on the 7th and 21st of March, 2020, same having been authenticated by the 1st Defendant and certified by the 3rd Defendant, for the purpose of selecting the senatorial candidate of the 1st Defendant for the senatorial bye election in Cross River North Senatorial District.
4. That the 1st Defendant shall conduct the primary election for the purposes of selecting the senatorial candidate of the 1st Defendant for the senatorial Bye election

in Cross River North Senatorial District scheduled for the 5th September, 2020 or any other date, at the Senatorial headquarters in Ogoja in accordance with the provisions of the 1st Defendant’s Constitution.
5. That the purported disqualification of the Plaintiff as aspirant by the Screening Committee for the Cross River State North Senatorial District and Obudu Constituency bye election is hereby set aside.”
ix. That the foregoing Judgment or the ordered made therein has not been set aside, but is still valid, subsisting.
x. That as far as the issue of the conduct of the Cross River North Senatorial District and the nomination of the 1st Defendant as the candidate of the Peoples Democratic Party (PDP), is concerned, Exhibit C has conclusively determined the jurals rights and obligations of the party with finality.
xi. That the Delegate List used in the nomination of the 1st Defendant was the one authorized by the Court and Exhibit C is a judgment in rem as it binds everyone River North Senatorial Primary Election held on 5th September, 2020 at the Ogoja Local Government Secretariat, Ogoja, Cross River State is now attached as Exhibit E.

That Exhibit E was validly issued by the 2nd Defendant authenticated and certified by it and clearly vindicated the entire exercise as having been done in line with the law.
v. That apart from the primary election wherein the 1st Defendant was nominated as the Senatorial candidate of the People’s Democratic, the 2nd Defendant did not monitor or issued any other Report on the conduct of any other primary election.
15. That I know as of fact that the allegations of the Claimant are a ruse and mere smokescreen aimed at misusing the process of the law to frustrate the nomination of the 1st Defendant by having him disqualified from the election.
16. That I also know as of fact that some faceless individuals opposed to the emergence and fast rising profile of the 1st Defendant as the preferred candidate of the bye election are using the Claimant and his likes to seek the disqualification of the 1st Defendant from the bye election.
17. That it will be in the interest of justice for this Honourable Court to dismiss the claims of the Claimant in its entirety.
18. That this Honourable Court has the inherent judicial

powers to stop the present unlawful abuse or machination of the Claimant and his likes by determining the jural rights of the parties herein with finality and also by making consequential orders to give effect to any eventual judgment in this matter so that all Issues relating the subject matter will be laid to rest with judicial finality.
19. That it will be in the interest of justice for this Honourable Court to exercise its inherent and vested judicial powers to making ancillary or consequential orders affirming the qualification of the 1st Defendant and his consequent nomination as the Senatorial candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial Bye Election.
20. That as a matter of fact, I know that the cause of justice will be better served and advanced if this Honourable Court makes consequential orders finding amongst other things that:
i. That the 1st Defendant did not given or supply any false information in his Nomination Form to the 1st Defendant to the subject matter of this Suit.
25. That the consequential orders sought herein are clearly incidental to the present case and is imperative

in order to effectually and conclusively give effect to dismissal of the Claimant’s case and finally determine the jural rights of the parties as well as obviate the necessity of unending cycles of re-litigation of the same issues again.
26. That this Honourable Court has the power to grant consequential reliefs in the terms sought even where the 1st Defendant did not file any counter claim, as in the present case.
27. That, it will be in interest of justice for this Honuorable Court to dismiss the case of the Claimant and make consequential orders, arising from such dismissals.
28. That all the materials, evidence and facts entitling the 1st Defendant to the consequential orders sought have been placed before this Honourable Court.
29. I depose this Counter Affidavit in good faith while believing its contents to be correct in accordance with the Oaths Act Cap 01 LFN 2004.”

It must be noted that the Appellant claimed that 2nd Respondent did not monitor the Election at which 1st Respondent was elected candidate but the 2nd Respondent debunked the allegation and deposed in paragraphs 9 – 12 of its Counter Affidavit that it

actually nominated and witnessed the primary election. The said paragraphs are as follows:
9. That in response to paragraphs 22, 23 and 24 of the Claimant’s affidavit, I aver that:
a. The 2nd Defendant was fully aware and monitored the conduct of the primary election held on the 5th day of September, 2020.
b. That contrary to the averments of the Claimant in their affidavit in support of their Originating Summons, the 2nd Defendant monitored the primary election through a team of Monitors led by one Modibbo Bello Belel, a staff of the 2nd Defendant in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, as well as the Electoral Act. A copy of a fetter dated 25th August, 2020, appointing Modibbo B. Belel as Monitor and a copy of the Monitors Checklist and Outcome of the Cross River North Senatorial District primary election are hereby annexed and marked as Exhibits B1 and B2 respectively.
10. That in further response to paragraph 22, I aver that:
a. The 2nd Defendant was notified by the People’s Democratic Party (PDP) of the schedule of its primary election for the Cross River North Senatorial

District via a letter dated 26th August, 2020. A copy of the said letter from PDP to the 2nd Defendant is hereby annexed and marked as Exhibit C.
b. That a committee chaired by one Hon. Talib Tebite was constituted by the PDP and saddled with the responsibility of conducting the primary election. A copy of a memo dated 31st August, 2020, comprising of the list of the five (5) members of the said committee is hereby annexed and marked as Exhibit D.
c. That the People’s Democratic Party (PDP) issued Guidelines for the conduct of the primary election wherein the indirect primary election method was adopted through which delegates voted for the aspirants of their choice. A copy of the PDP Electoral Guidelines for primary elections is hereby annexed and marked as Exhibit E.
d. That on the 5th day of September, 2020, being the date scheduled for the primary election, the Delegates list used in the conduct of the election was the one ordered to be used for the primaries by the Federal High Court, Port Harcourt Division on 4th September, 2020. A copy of the said Court Order is annexed and marked as Exhibit F.
e. That the 2nd Defendant

thereafter issued a report signed by one Modibbo Bello Belel, the appointed Monitor for the purpose of the said primary election held on 5th September, 2020. A copy of the report is already attached as Exhibit A. A copy of the Agenda of the primary election; a copy of a memo dated 31st August, 2020; and a list of cleared aspirants for the primary election are herein annexed and marked as Exhibits G1, G2 and G3 respectively.
11. That in response to paragraph 25 of the Claimant’s affidavit, I aver that:
a. By the primary election duly conducted on the 5th day of September 2020, the 2nd Defendant is obligated and mandated by law to recognize the 1st Defendant as the validly nominated candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial bye-election.
b. That any attempts by the 2nd Defendant to deny the 1st Defendant of recognition would be null and void, as the 1st Defendant remains the validly nominated candidate of the People’s Democratic Party (PDP) for the Cross River North Senatorial bye-election in accordance with the extant laws.
12. That the 2nd Defendant monitored the primaries in full

compliance with the provision of the law as every action taken during the conduct of the primary election – was legal, lawful and constitutional. The allegation that the 2nd Defendant was not present during the primaries held on the 5th day of September 2020 is incorrect and an inaccurate recollection of the events of that day.”

Notwithstanding the volatile and highly damaging and damnifying averments contained in the Counter Affidavits of the Respondents with documentary evidence attached against the averments contained in the Appellants Affidavit in support of the Originating Summon, it is quite amazing and strange that the Appellant surprisingly failed to file Further Affidavit Reply to controvert all the scathing assertions contained in the 1st and 2nd Respondent’s Counter Affidavits.
The Appellant became dazed and blew muted trumpets. He has no answers to the heavily loaded Counter Affidavits that are no doubt inimical to the Appellant’s suit and interests in all ramifications rendering impotent all the unfounded allegations the Appellant made against the Respondents.
The law needs no restatement that where a Defendant filed Counter

Affidavit against Affidavit in support of summons or motion containing material facts potentially capable of destroying the assertions contained in the supporting Affidavit as in this case, the claimant is duty bound and under obligation to file a Further Affidavit or Reply to Counter Affidavit to challenge or controvert the facts or averments contained in such a Counter Affidavit otherwise the claimant will be taken to have admitted all the averments or facts deposed to in the Counter Affidavit and the claimant will taken to have no answers to the Defendants/Respondents assertions and facts contained in the Counter Affidavit. And that will be death knell to the claimant’s case.
See:
1. OLUWATOSIN LAWAL V. FRN (2013) 3 NWLR (PART 1342) 451 at 468 B – D per AUGIE JCA now USC.
2. SIMON EZECHUKWU & ANOR VS. I.C.O. ONWUKA (2016) 5 NWLR (PART 1506) 529 at 552 C – H to 553 A per M. D. MUHAMMAD JSC who said:
“In the case at hand, the evaluation of the affidavits of the contending parties done by the trial Court and indeed the re-evaluation of same by the lower Court have clearly shown that the conflict the learned appellants’ counsel

ascribes to them is nonexistent. What has emerged from the exercise is the undisputed facts of service of hearing notice, Exhibit R, on the appellants through their counsel, and their being aware of the proceedings against them through the unchallenged and uncontroverted averments in the counter-affidavits filed by the respondent in opposition to appellants’ application. It is elementary principle of law that such unchallenged averments must be acted upon by the Courts as being true.”
3. MR. IRE MATTHEW OWURU & ANOR VS. HON. AGI MICHAEL ADIGWU & ANOR (2018) 1 NWLR (PART 1599) 1 at 24 D – H per ONNOGHEN CJN RTD who said:
“Given the above scenario, it is my view that the 1st respondent shot himself in the foot when he failed to refute or challenge, in a further affidavit in response to the 1st appellants counter affidavit the weighty allegations against his supposed victory at the primary election. It must be noted that an affidavit evidence constitutes evidence and must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. See Ajomale v Yaduat (No.2) (1999) 5 NWLR

(Pt.191) E – 266, Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) 287, Henry Stephens Engineering Ltd V. Yakubu. Nig. Ltd (2009) 10 NWLR (Pt.1149) 416 and Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90. The Court below found as a fact that the 1st respondent failed to respond to critical facts or evidence contained in the counter affidavit of the 1st appellant. The lower Court also found as fact that the said failure was fatal to the case of the 1st respondent. However, the Court of Appeal went on to say that the uncontroverted depositions in the appellants’ affidavit were “beside the point.” Reason? Because, the issue before the Court was not to determine who won the election but whose name ought to be forwarded to the 2nd respondent as 2nd appellant’s candidate based on the declaration contained in Exhibits E and F.
In my respectful view, this is where the error was committed by the Court below. ”
At pages 27 E – H 28 A – C KEKERE-EKUN, JSC had this to say:
“The suit at the trial Court was instituted by way of originating summons with affidavits in support and in opposition thereto. Documents were attached to the affidavits and marked as exhibits.

conduct of the Returning Officer, Barry Ogbaka. The 1st respondent’s case was further compounded by Exhibits 6 and 6A, reports of independent observers (INEC the Police) which supported the averments in the appellant’s counter affidavit.
Contrary to the majority opinion of the lower Court, the failure to controvert crucial averments in the appellant’s counter affidavit was a fundamental omission that was fatal to the 1st respondent’s case. The only way the trial Court could determine whose name ought to have been forwarded to the 2nd respondent was by first determining who won the primary election. In order to do so, the Court was bound to consider the entirety of the evidence before it.
It has been said time and again by this Court that Courts must always strive to do substantial justice and avoid reliance on technicalities to truncate a party’s case.” Underlined mine
Therefore, there is nothing or no evidence at all that can tilt the scale of justice in Appellant’s favour having capitulated upon seeing the weighty Counter Affidavits of the Respondents. It does not lie in the mouth of slippery litigant like Appellant to accuse the lower

Court of failure to consider the affidavits evidence. The lower Court excellently did. The material evidence put forth by the Respondents has clearly dislodged the case of the Appellant and unfounded assertions and claims contained in it. The lower Court was and is perfectly right in relying on the unchallenged evidence before it showing glaringly that the Appellant has no case against any of the Respondents.
ELIZABETH MABAMIJE V. HANSWOLFGANG OTTO (2016) 13 NWLR (PART 1529) 171 at 203 F – H to 204 A per PETER ODILI JSC.

It is also very important to say that any member of a political party who claims to be an Aspirant or have interest in whoever becomes the candidate of the party must make the Political party a party to the action otherwise the action will be deemed not properly constituted. It means proper parties are not before the Court. The reason is not farfetched.
The Political party is, by virtue of Section 87 (1) of the Electoral Act 2010 as amended, to nominate and sponsor candidates for elections under the Electoral Act aforesaid. The Political Party through its National Executive Committee or National Working Committee that is charged

with the conduct of its Primaries for purposes of nominating or selection of its candidates for the election.
It is the Political Party and participants in its Primary Elections that has and have locus standi to challenge the outcome of Primary Elections or candidate for elections of which Independent National Electoral Commission powers to conduct such elections under the Electoral Act. Any action instituted in any Court or Tribunal without the sponsoring Political Party will be grossly incompetent and the Court will be devoid of jurisdiction to entertain the suit or action.
See:
1. HON JAMES A. FALEKE V. INEC & ORS (2016) 18 NWLR (PART 1543) 60 at 135 A – F per KEKERE- EKUN JSC who said:
“On the Issue of non-joinder of the All Progressives Congress as a party before the Tribunal. it is apposite to consider the factors that make a person a necessary party to an action. The position of the law was eruditely stated in the well-known case of Green v. Green (1987) 3 NWLR (Pt.61) 481 where this Court held that it is necessary to make a person a party to an action so that he should be bound by the result. It also held that a necessary

party is one who is not only interested in the subject matter of the proceedings but also one in whose absence, the proceedings could not be fairly dealt with. See also: Azubuike v. PDP. (2014) 7 NWLR (Pt.1406) 292 @ 316, E – F and 313, O E. The question of proper parties has been held to affect the jurisdiction of the Court as it goes to the foundation of the suit in limine, in which case the Court would lack jurisdiction to hear the suit. See: C. & T Investment Ltd. v. Witts & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500 538, F- H.
The trial Tribunal at pages 1280 – 1281 of the record came to the conclusion that the APC was a necessary party to the petition on the following grounds:
(a) that the APC is the political party that sponsored both the petitioner (appellant) and the 2nd respondent;
(b) that although the petitioner contends that he has sought no relief or complained against the said political party (APC), he has however urged the Tribunal to declare that the return of the 2nd respondent is unconstitutional, illegal, undemocratic, arbitrary, null and void and ultra vires the powers of the 1st respondent, which relief, is

indirectly sought against the political party (APC);
(c) that the APC is a necessary party being a person likely to be affected by a decision in the matter and whose presence would assist the Tribunal in, effectively determining the dispute between the petitioner (appellant) and the 2nd respondent.
The lower Court agreed with this finding at page 1631 of the record. I am of the view that the concurrent findings accord with the justice of the case and are not perverse. This is because the reliefs in paragraphs 56(viii) & (xi) of the petition which pray “that it may be determined and thus declared that the return of the 2nd respondent by the 1st respondent in December 5, 2015 is unconstitutional, illegal unlawful undemocratic arbitrary, null and void and also ultra vires the powers of the 1st respondent” and for “an order mandating/directing the 1st respondent to issue forthwith to the petitioner Certificate of Return as the person duly elected as Governor of Kogi State pursuant to the election held in November 21, 2015 “although do not specifically seek reliefs against the APC, are certainly matters in which the interest of the

party is involved, as its right to and sponsor a candidate at the election is being questioned – This is more so, as on the authority of Amaechi v. INEC (supra) and Section 221 of the Constitution, it is the political that contests elections even though through its candidates and there is no provision in our law for independent candidates. I see no reason to interfere with the concurrent findings of the two lower Courts in this regard. The fact that a political party is not named as a statutory respondent Section 137(2) of the Electoral Act cannot be a bar to joining a political party as a respondent where its interest is involved and where it would be bound by the result of the action.”
2. PDP & ORS VS. BARR S. E. EZEONWUKA & ORS (2018) 3 NWLR (PART 1606) 187 247 B – H 248 A – F per KEKERE-EKUN JSC.

The Appellant also found fault with the reliance placed on Exhibits B and C List of Delegates and Federal High Court judgment which confirmed the authenticity of delegates List for the primary of PDP of which Appellant did not participate in. He stated the judgment is in personam and not in rem. The Appellant is mistaken Peoples Democratic Party to which

Appellant belongs was a party to the said proceedings and the Appellant did not by any iota or any scintilla of evidence show that his party appealed the judgment. The Appellant is bound by the said judgment. In any event, since the judgment and all documents attached to the Counter Affidavits of the two Respondents formed part of the evidence before the trial Court and there was no contrary judgment or documents produced by the Appellant the learned trial Judge was on firma terra in relying on the said judgments and delegate lists to found against the Appellant. See MATTHEW IYEKE & ORS VS. PTI & ANOR (2019) 2 NWLR (PART 1656) 217 at 239 per AUGIE, JSC who said:
“It is settled law that documents attached to an affidavit as exhibits, form part of the affidavit in question – see Ezechukwu v. Onwuka (2016) LPELR-26055 (SC), (2016) 5 NWLR (Pt 1506) 529 end S.E.N.C & Ors v. Anwara (1975) 9-11 SC 55, wherein Fatayi -Williams, JSC (as he then was) observed :
“In Re Hinchcliffe (1895) 1 Ch. 117, it was held that such an exhibit is part of the affidavit, and any person who is entitled to inspect the affidavit has right to

demand inspection of the exhibits referred to in it. In the view of Lord Herschel. LC. at 120.”
“They form as much part of the affidavit as if they had been actually annexed to annexed to and filed with it.”

Issue 3 quarrels about the consequential reliefs granted on page 323 of the record by the trial Court. I think it is outlandish on the part of the Appellant who did not find it necessary to challenge the request of 1st Respondent as contained in his Counter Affidavit praying the Court to make such consequential orders in paragraph 19 and 20 of the 1st Respondent’s Counter Affidavit. The complaint is an afterthought.
In any event, the Appellant claimed in his originating summons “AND FOR SUCH FURTHER OR ANY OTHER ORDER as this Court may deem fit to make in the circumstance”. This lower Court is well covered under the omnibus and pervasive prayer of the Appellant.
Furthermore, a Court has inherent powers to grant or make consequential orders to give effect to the Court’s decision and avoid any doubt in adjudication.
See: APC & ORS V. HON. DANLADI IDRIS KARFI & ORS (2018) 6 NWLR (PART 1616) 479 at 505H to 506A per

Okoro JSC, who said:
The power of a Court of law to make consequential orders is inherent and flows from its jurisdiction to try the case. All superior Courts of record possess inherent powers necessarily derivable from any law. It is embedded in a Court to ensure and enhance a free flow of justice to end-users. A consequential order is therefore an order, which gives effect to the judgment already given by the Court. It is not granted as a fresh, unclaimed or unproven relief. See Awoniyi v. Registered Trustees of the Rosicrucian Order ARMOC (2006) 6 SCNJ 14, (2000) 10 NWLR (Pt. 676) 522.”

Moreso the Appellant made criminal allegations against 1st Respondent of having manipulated and doctored Delegates List. A party who makes allegations of crime the bedrock of his case or reliefs sought in a Court of law is under a bounden duty to prove the allegations beyond reasonable doubts in accordance with Section 135 of Evidence Act 2011 as amended. Allegation of forgery must also be proved beyond reasonable doubt. See:-
DR. SAMPSON UCHECHUKWU OGAH VS DR. OKEZIE VICTOR IKPEAZU (2017) 17 NWLR (PART 1594) 299 AT 336 G – H TO 337A per M. D. MUHAMMED,

JSC who held;-
“I agree with learned senior counsel to both respondents that the appellant having asserted that 1st respondent’s tax declaration in Form CFOO1 is false has the burden of proving what he asserts. Addedly, the reliefs the appellant seeks being declaratory, he succeeds the strength of his case alone and not on the weakness of the case of the respondents. The appellant has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Being declaratory, the reliefs are not granted even on the admission of the respondents. See Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 and Senator lyiola Omisore Anor v. Ogbeni Rauf Adesoji Aregbesola & 8, Ors (2015) LPELR; (2015) 15 NWLR (Pt. 1482) 205.
To succeed in his claim, therefore, the appellant must, in the final analysis establish that the 1st respondent never paid the tax he declared in Form CF001, Exhibit D, to have paid as evidenced by Exhibits A, B and C the tax receipts and tax clearance certificate respectively.”
In the same case KEKERE-EKUN, JSC had this to say on pages 348 H to 349 A:-
“By the assertion that the documents submitted

are false, there is an inherent allegation of dishonesty. It is implied that the documents submitted were concocted or that the originals were altered for the purpose of allowing the 1st respondent to contest the election under false pretences i.e. that he had complied fully with the requirements of the law and the PDP Guidelines. In other words, a crime is being imputed to the respondent. In such circumstances, the appellant has the additional burden of proving his allegations beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011.”
In the same report on page 350 F – H thereof EKO, JSC said:-
“I wish to merely add that either under Section 31 (5) & (6) of the Electoral Act, 2010 (as amended), or Section 182 of the 1999 Constitution, as altered, the burden of proof imposed by Sections 131 – 139 of the Evidence Act, 2011 is not displaced. Whoever asserts under Section 31 (5) of the Electoral Act that “any information given by a candidate in the affidavit or any document submitted by that candidate is false” has the burden of proving his assertion in order to be entitled to judgment under Section 31 (6) of the Electoral Act, 2010.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Similarly, whoever asserts that the candidate in an election had “presented forged certificate to the Independent National Electoral Commission” has the onus of proving beyond reasonable doubt that the candidate had in fact presented a forged certificate. In any proceeding where commission of crime by a party is directly in issue the proof beyond reasonable doubt is the standard of proof. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145, (1984) r SCNLR 214.”

All the three issue distilled for determination of this appeal are hereby resolved against the Appellant.

Before bringing this judgment to a close, it is quite necessary to state categorically that the Claimant has no locus standi to institute this action and the Appellant has no cause of action.
By his reliefs, the Appellant did not participate in the Peoples Democratic Party Primary to select nominate candidate of the Party to contest in the Cross River North Senatorial Bye Election scheduled to hold on 31st October, 2020 or at arty other date. There are plethora of authorities of this Court and apex Court to effect that the Appellant, has no locus standi.

Suffice to refer to some of them viz:
1. RT. HON. PRINCE. v. TARZOOR VS ORTOM SAMUEL LORAER & ORS (2016) 3 NLWR (PART 1500) 463 AT 501 A – D per NGWUTA, JSC who said:-
“The next question is the locus standi of the appellant to impugn the exercise of primary election in a party other than his own, especially as he could not have participated in the primary election he complained about.
Primary elections are in-house matters of political party.
A non-member of the party has no locus to raise the issue and no member of the party who was not an aspirant can raise the issue. See Section 87 (9) (a) of the Electoral Act (supra).
This Court has made many pronouncements on who has the locus to challenge the conduct of a primary election. See the case of Daniel v. INEC (2015) 9 NWLR (Pt. 1463) page 113 at 155-157. In the most recent of the plethora of cases on the point, Okoro J.S.C., speaking for the Court said, inter alia:
“…Only an aspirant at the primary election is permitted by Section 87 (9) of the Electoral Act 2010 (as amended) to challenge the selection or nomination of a person for an elective

office. Apart from an aspirant who took part in the primary election, no other person is authorised to file action to challenge the selection or nomination of a candidate by a political party for an election.”
2. WIKE EZENWO NYESOM V HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2016) 7 NWLR (PART 1512) 452 AT 515 C- D per KEKERE-EKUN, JSC who said:-
“Beyond this, the issue has been fully settled by this Court in its recent decision in: Shinkafi v. Yari SC. 907/2015 delivered on 8/1/2016, reported in (2016) 7 NWLR (Pt. 1511) 340 and Tarzoor v. Ioroer SC. 928/2015 delivered on 15/1/2016, reported in (2016) 3 NWLR (Pt. 1500) 463, that only INEC or a member of the political party concerned who is adversely affected as a result of the inadequate notice, is competent to complain of the inadequacy. The finding of the lower Court affirming the locus standi of the 1st and 2nd respondents is unassailable. I find no reason to disturb it.”
(Underlined mine)
3. AISHA JUMMAI ALHASSAN & ANOR VS DARIUS DICKSON ISHAKU & ORS (2016) 10 NWLR (PART 1520) 230 AT 265 B – H per RHODES – VIVOUR, JSC who said:-
“Section 87(9) of the Electoral Act states that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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87(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.
The above provision of the Electoral Act is available to dissatisfied aspirant who participated in his parties primaries. In a plethora of cases, this Court has explained party primaries and who can complain when they are not properly conducted. See Onuoha v. Okafor & Ors (1983) 14 NSCC p.494, (1963) 2 SCNLR 244; Dalhatu v. Turaki (2003) 15 NWL.R (Pt.843) p. 310.
On who can challenge the conduct of primaries of a political party, I said in PDP v. Sylva, & 2 Ors (2012) 13 NWLR (Pt.1316) p. 85 at page 126, paras. B-C that:
“Section 87(9) of the Electoral Act confers jurisdiction on the Court to hear complaints from a candidate who participated at his party’s primaries and complains about the conduct of the primaries.”
In Lado v. C.P.C. (2011) 18 NWLR

(Pt. 1279) p. 689 at page 718, papas. F – G, Onnoghen, JSC said that:
“… Section 87 of the Electoral Act, 2010, as amended deals with the procedure needed for the nomination of candidate by a political party for an election and specifically provided a remedy for an aggrieved aspirant who participated at the party primaries which produced the winner by the highest number of votes.”
Indeed, in Daniel v. INEC (2015) 9 NWLR (Pt. 1463) p. 113 restated the well laid down position of the law that only a parson who participated at party primary can complain about how it was conducted. More recently this Court made the same observations per Okoro, JSC in M.A. Shinkafi & Anor v. A. A. Yari & 2 Ors SC. 907/2015 delivered by this Court on 8/1/2016 now reported in (2016) 7 NWLR (Pt. 1511) 340 and T. Tarroor & Anor v. S. Ortom & 2 Ors SC. 928/2015 delivered by the Court on 15/1/2016 reported as Tarzoor v Ioraer (2016) 3 NWLR (Pt. 1500), 463, per Ngwuta, JSC. Furthermore, the following cases decided by this Court have laid to rest that issue. Uzodinma v. Izunaso (No. 2)(2011) 17 NWLR (Pt. 1275) p. 30; Emeka v. Okadigbo (2012) 8 NWLR (Pt.1331)

55; J. A. Ucha v. E. Onwe & Ors (2011) 4 NWLR (Pt. 1237) p. 3.86. Taiwo v. Adeghoro ors (2011) 5 SC (Pt. ii) p. 179, (2011) 11 NWLR (Pt. 1259) 562 at page 579, paras. F -G said that:
“The rule about Locus standi developed primarily to protect the Courts from being used as a play ground by professional litigants, or, and meddlesome interlopers, busybodies who really have no real stake or interest in the subject matter of the litigation.”
A petitioner satisfies the Court that he has locus standi if he is able to show that his civil rights and obligations have been or are in danger of being infringed.
By the clear provisions of Section 87(9) of the Electoral Act which has been explained repeatedly by this Court in cases alluded to in this judgment, the appellants have no locus standi to question the nomination and sponsorship of the 1st respondent by the PDP after admitting that fact and even if the fact was not admitted.”
(Underlined for emphasis)
The Appellant’s case is thus a crass abuse of the process of the Court. It is a most frivolous and vexations action that is of no value. He is neither an Aspirant nor is he a

candidate in the Primary in the Senatorial election. He does not come within the penumbra of Section 87 (9) of the Electoral Act 2010 as amended. On this score alone, the Appellant’s action ought to have been outrightly dismissed in limine for being an abuse of Court process by the lower Court.

The Black’s Law Dictionary 10 Edition pages 12 – 13 thereof defines abuse of Court process variously as follows;
“The improper and tortuous use of a legitimate issued Court process to obtain a result that is either unlawful or beyond the processes scope – Also termed abuse of legal process, malicious abuse of process, malicious abuse of legal process; wrongful process; wrongful process of law.
Distinction between a malicious abuse of process – There is a distinction between a malicious abuse of legal process. An abuse of legal process is where the party employs it for some unlawful object, not for the purpose which it is intended by law to effect, in other words, it is a perversion of it. For example, if a man is arrested, or his property seized, in order to extort money from him, even though it be to pay a just claim, other than that in suit, or to

compel him to give up possession of a deed or anything of value not the legal object of the process, it is settled there is an action for such malicious abuse of process. It is not necessary to prove that the action in which the process issued has been determined or to aver that it was sued out without probable cause.” Martin L. Newell, A Treatise on the Law of Malicious Prosecution, False Imprisonment and the Abuse of Legal Process 7 (1982).
“One, who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process.”
In the case of HON. JUSTICE T. A. OYEYEMI RTD & ORS VS HON. TIMOTHY OWOEYE & ORS (2017) 12 NWLR (PART 1580) 364 AT 397 D – H TO 398 A – D, the apex Court per BAGE, JSC said of abuse of Court process thus:-
“This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 419-420, paras. H- C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and

precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.
Per Tobi, J.S.C.”
This precisely is what the case of Appellant is designed to achieve. The Court is not a haven for harbingers of abuse of Court process and obstructionist tendencies in the citadel of justice. It has to be nipped in the bud.

The Appellant’s appeal has no merit whatsoever and the Appellant’s appeal is hereby dismissed in its entirety. The judgment of the High Court of the Federal Capital Territory, Abuja

delivered by HON JUSTICE BINTA MOHAMMED on 4th day of November, 2020 is HEREBY AFFIRMED.

The Appellant shall pay costs of N250,000 (Two Hundred and Fifty Thousand Naira) to the 1st Respondent and another costs of N100,000 (One Hundred Thousand Naira) to the 2nd Respondent.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in complete agreement with the reasoning and resolution arrived at in the lead judgment. The three issues distilled for determination were resolved against the Appellant and that is my position too. I agree that the Appellant lacks the locus standi to contest the result of a process he did not participate in, authorities abound in support and some were listed in the lead judgment.
I too dismiss the appeal for lacking in merit and abide by the other others made in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother, Peter Olabisi lge, JCA.

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I agree with the reasoning and conclusion reached therein, I therefore dismiss the appeal. I also affirm the judgment of the High Court of Federal Capital Territory, Abuja by Hon. Justice Binta Mohammed on 4th day of November, 2020.
I make no order as to costs.

Appearances:

EMEKA OZOANI SAN, with him MARY NNEOMA ELIJAHFor Appellant(s)

CHARLES C. UDE Esq. – for 1st Respondent.
DR. AGADA ELACHI with him, ONYINYE PRINCESS JAMES – for 2nd Respondent.
For Respondent(s)