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APC v. MUHAMMED & ORS (2022)

APC v. MUHAMMED & ORS

(2022)LCN/16243(CA)

In the Court of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, November 14, 2022

CA/S/153/2022

Before Our Lordships:

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ALL PROGRESSIVE CONGRESS (APC) APPELANT(S)

And

1. SIRAJO MUHAMMED 2. HON. AMINU MAGAJI BODAI 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

 

RATIO

THE POSITION OF LAW WHERE A PRE-ELECTION MATTER IS FILED OUTSIDE THE TIME PRESCRIBED BY THE CONSTITUTION

By virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a Plaintiff in a pre–election dispute or matter must file his action not later than 14 days from the date of the occurrence of the event, decisions or action complained of. Thus, where an action in a pre–election matter is filed outside the time prescribed by Section 285 (9) of the Constitution aforesaid, the jurisdiction of the Court to entertain the suit will be ousted and the action would become statute – barred. See UMERIEH V. A. P. G. A (2020) 4 NWLR (PT. 1713) 1 at 16 – 16 and ILIYASU V. RIJAU (2019) 16 NWLR 9PT. 1697) 1 at 24. 

THE POSITION OF LAW ON A CAUSE OF ACTION

It is settled that, a cause of action consist of:
(a). the fact or combination of facts that establishes or gives rise to a right of action;
(b). a factual situation which gives a person a right to judicial reliefs;
(c). every fact which it would be necessary to prove, if traversed to support the Plaintiff’s right to the judgment of the Court;
(d). the entire set of circumstances giving rise to an enforceable claim; and
(e). the act on the part of the defendant which gives the Plaintiff his cause of the complaint.
See EGBE V. ADEFARASIN (1985) 1 NWLR (PT. 3) 549, A. G. FEDERATION V. A. G. ABIA STATE (2001) 11 NWLR (PT. 725) 689 and ELABANJO V. DAWODU (supra).  PER SHUAIBU, J.C.A.

THE FUNDAMENTAL ASPECT OF LOCUS STANDI

The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint heard before the Court. The Plaintiff will therefore have locus standi in a matter if has a special right or alternatively, if he can show that he has sufficient or special interest in the performance of the duty to be enforced or where the interest is adversely effected. See ABACHA V. A. G. FEDERATION (2014) 18 NWLR (PT. 1438) 31 and NWORKA V. ONONEZE – MADU (2019) 7 NWLR (PT. 1672) 422 at 434 – 435. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, sitting at Sokoto, Coram Hon. Justice J. K. Omotosho delivered on 16th September, 2022 wherein the lower Court held that the 1st Respondent did not withdraw his candidature for member representing Dange/Shuni State Constituency of Sokoto State in the forthcoming 2023 General Election under the platform of the Appellant.

The 1st Respondent, a member of the Appellant was cleared by the party to participate in the Primaries for Dange/Shuni State Constituency of Sokoto State House of Assembly, participated and was declared winner. However, in a strange turn of event, the party conducted another Primaries on the pretext that the 1st Respondent has withdrawn his candidature and consequently the name of the Appellant was sent by the Party to INEC as the APC Candidate for the said Dange/Shuni, Sokoto State Constituency.

Miffed, the 1st Respondent filed an Originating Summons on 24th August, 2022. In it, he asked for the determination of the following questions: –
“1. Whether having regards to the provisions of Sections 33, 84 (5) (c) of the Electoral Act, 2022 Article 20:4 (e) and iii of the All Progressive Congress Constitution, 2022 (as amended) and paragraphs 22 and 25 of the All Progressive Congress Guidelines for the Nomination of Candidates for 2023 General Election, the 1st defendant can substitute the name of the Plaintiff with that of the 2nd Defendant as its candidate for Sokoto State House of Assembly representing Dange/Shuni Constituency in the forthcoming 2023 general election.
2. Whether, having regards to the provisions of Sections 33 and 84 (5) (c) of the Electoral Act, 2022, Article 20 (4) (e) and iii of the All Progressive Congress Constitution, 2022 (as amended) and the All Progressives Congress Guidelines for election, the 1st defendant having duly Nominated the Plaintiff can equally nominate the 2nd defendant as its candidate for State House of Assembly representing Dange/Shuni State Constituency of Sokoto State without the Plaintiff withdrawing his candidature.
3. Whether by the provision of Sections 31, 33 and 84 (5) (c) of the Electoral Act, 2022, Article 20 (4) (e) and iii of the All Progressives Congress Constitution, 2022 (as amended) and paragraph 22 and 25 of All Progressives Congress Guidelines for the Nomination of candidates for 2023 General Election, without the withdrawal of the Plaintiff, the 3rd defendant, can accept the name of the 2nd defendant as the candidate of the 1st defendant in the State House of Assembly, representing Dange/Shuni State Constituency of Sokoto State.

On the resolution of the above questions, plaintiff prayed as follows:
1. A declaration that by the interpretations of the provisions of Sections 33, 84, (5) (c) of the Electoral Act, 2022, Article 20: 4 (e) and iii of the All Progressives Congress Guidelines for the Nomination of Candidates for 2023 General Election, the Nomination of the Plaintiff as the candidate of the 1st defendant to stand for State House of Assembly election representing the Dange/Shuni State Constituency is valid and subsisting the plaintiff having not withdrawn from the nomination.
2. A declaration that by the interpretations of the provisions of Sections 33, 84 (5) (c) of the Electoral Act, 2022, Articles 20:4 (e) and iii of the All Progressives Congress Constitution, 2022 (as amended) and paragraphs 22 and 25 of the All Progressives Congress Guidelines for the Nomination of Candidates for 2023 General Election, the substitution of the Nomination of the plaintiff with the name of the 2nd Defendant as the Candidate of the 1st defendant to stand for State House of Assembly election representing the Dange/Shuni State Constituency is null and void, the plaintiff having not withdrawn from his nomination.
3. A declarations that by the interpretation of the provisions of Sections 33, 84, (5) (c) of the Electoral Act, 2022 (as amended) and paragraphs 22 and 25 of the All Progressives Congress Guidelines for the Nomination of Candidates for 2023 General Election, the submission/Nomination of any other person apart from the plaintiff as the candidate of the 1st defendant to stand for State House of Assembly election representing the Dange/Shuni State Constituency in the forthcoming general election is null and void, the plaintiff having not withdrawn from his nomination.
4. And for such further Orders as this Court may deem fit to make in the circumstances.
5. Cost of the Action.

In support of the Originating Summons, the 1st Respondent deposed to an affidavit of 20 paragraphs with seven annexures marked as Exhibits A, B, C, D, E, F, and G respectively.

In response to the Originating Summons both the Appellant, 2nd and 3rd Defendant as 1st and 2nd Defendants filed a Counter-affidavit and the Plaintiff now 1st Respondent filed further and better affidavit. The 1st and 2nd Defendants in addition filed notice of Preliminary Objection to which the plaintiff responded by filing Joint address on the 1st and 2nd defendants’ Notice of Preliminary Objection. The 2nd defendant reacted by a reply on point of law to the Plaintiff’s response to the Preliminary Objection.

In a considered judgment delivered on 16th September, 2022, Learned trial Judge overruled the Preliminary Objection and found merit in the Plaintiff’s Originating Summons.

At page 313 of the record of appeal, Learned trial Judge found as follows:-
“In the final analysis, the plaintiff has successfully proved that he remains the validly nominated candidate of 1st Defendant for the Dange/Shuni State Constituency of Sokoto State in the forthcoming 2023 General Elections. Consequently, the Plaintiff is hereby declared the validly Nominated Candidate of the 1st Defendant for the election having emerged winner of the Primary election of 9th June, 2022. In the same vein, the primary election of 12th August, 2022 having no basis in law is hereby declared null, void and of no effect together with its outcome.”

Dissatisfied, the Appellant filed this appeal on 23/09/2022 containing thirteen grounds of appeal located at pages 315 – 329 of the record of appeal.

Parties filed and exchanged briefs of arguments. Appellant’s brief of argument settled by Adeola Adedipe was filed on 5/10/2022. The 1st Respondent’s brief settled by M. Nuhu, Esq was filed on 11/10/2022 while the 3rd Respondent’s brief, settled by Fodiyo Saidu, Esq was filed on 9/10/2022.

At the hearing of the appeal on 31st October, 2022, Learned Counsel for the Appellant Adeola Adedipe, adopted and relied on the said Appellant’s brief in which he formulated three issues as follows:
1. In view of the peculiar facts of the case and extant decisions of Court on substantive and procedural jurisdiction, whether the trial Federal High Court was right in assuming jurisdiction to entertain the suit, whereof he dismissed the Appellant’s Notice of Preliminary Objections, and all on the grounds contained therein
2. Considering the delicate role of a Court, its circumscribed procedural jurisdiction and corresponding Appellant’s right to a fair hearing, whether the trial Federal High Court was right in making a case for the 1st Respondent, whereof he granted him reliefs which were not sought for, and also set aside the primary election of 12th August, 2022, when the said primary election was not a subject matter submitted before it for adjudication
3. Whether the trial Federal High Court effectively appraised the facts of the case and rightly dismissed same, notwithstanding the 1st Respondent’s failure to discharge on preponderance of evidence, the burden of proof placed on him to be entitled to judgment.

Learned counsel for the 1st Respondent adopts all the three issues formulated by the Appellant. While Counsel for the 2nd Respondent filed no brief, Counsel for the 3rd Respondent formulated a sole issue for the determination of this appeal and it reads thus:- “Whether having regard to the circumstances of this appeal, the Appellant is entitled to the reliefs sought.”

I shall consider the appeal on the basis of the Appellant’s three issues being the undisputed owner of the appeal.

ISSUE 1
Learned counsel for the Appellant categories his argument on this issue into what he described as substantive jurisdiction and procedural jurisdiction. On the substantive jurisdiction, he submit that the mandate that inured to the 1st Respondent was on the 9th June, 2022 while the action culminating into this appeal was filed on 24th August, 2022 which means that the 14 days window in pre-election matters pursuant Section 285 (9) & (14) has been closed and thus the rights of the 1st Respondent to commence legal proceedings has expired. He referred to ELABANJO V. DAWODU (2006) 6 – 7 SC 24 to the effect that where an action is brought outside the prescribed limitation period, the right to take legal proceedings in Court over the matter is foreclosed and a Plaintiff who might otherwise have had a valid cause of action loses the right to enforce it by judicial process because of the lapse of time.

Counsel made copious references to the averment in paragraph 12 of the affidavit in support of the Originating Summons as well as the reliefs sought to contend that the 1st Respondent knew about the subsequent primaries conducted on 24th August, 2022, but refused to participate. He submit that the law does not permit him to challenge the primaries he did not participate. In aid, Counsel relied on the authorities in the cases of DANIEL V. INEC (2015) 9 NWLR (PT. 1463) 150 at 153, EZE V. PDP (2019) 1 NWLR (PT. 1652) 33 and ETIM V. AKPAN & ORS (2018) LPELR – 449904 (SC) to the effect that for the 1st Respondent was not an aspirant to the Primaries conducted on 24th August, 2022 and therefore lacked the locus standi to institute the action at the lower Court.

On the procedural jurisdiction, Counsel argued that to determine if an action is statute-barred, it is the Originating Process that the Court should look at, but where as in this case the objection was considered and determined after the conclusion of evidence by both sides, all the processes must be considered. He submit that the lower Court failed to consider the material facts put forward by the Appellant and the 2nd Respondent which would have shown that the 1st Respondent’s grouse arose since 7th June, 2022 and that the action was only initiated on 24th August, 2022 relying on KARSHI V. GWAGWA (2022) 9 NWLR (PT. 1834) 139 at 158 – 159 and ILIYASU V. RIJAU & ORS (2019) LPLER – 48120 (CA).

Still on procedural jurisdiction, Counsel submit that there are no parameters against which the lower Court measured in concluding that the 1st Respondent’s case discloses any reasonable cause of action. And thus, the orders made compelling the 3rd Respondent to recognize the 1st Respondent as the candidate of the Appellant was not a subject matter before it.

Learned counsel for the 1st Respondent in his brief attacked some of the Appellant’s grounds of appeal contending that same did not relate to any of the three issues distilled therefrom. It is to be noted that where a Preliminary Objection will not fully dispose of the appeal, it is not the proper procedure when there are valid grounds that can sustain the appeal. In such a case, the Respondent is required to file a motion seeking to strike out the incompetent grounds of appeal. In this case, the 1st Respondent did not filed a motion seeking the striking out of the purported incompetent grounds 1, 5, 6 and 10 but smuggled argument into his brief which is not a proper procedure.

In response to issue 1, counsel contend that parties are ad idem as regards the primaries conducted on 9th June, 2022 and thus there was no complaint arising therefrom. He submit that the cause of action arose on 12th of August, 2022 when the Appellant took steps to conduct another primary election for the purpose of substituting the 1st Respondent’s name with that of the 2nd Respondent. Hence, the action that led to this appeal was instituted within the time permitted by law and that same is not statute – barred.

On the question of the 1st Respondent’s Locus standi, Counsel submit that having shown that he was the winner of the primary election of the Appellant and the Appellant surreptitiously took step onwards substituting him with the 2nd Respondent, the 1st Respondent has demonstrated his locus standi before the lower Court and the lower Court was also right in dismissing the Appellant’s objection respecting the allegation of granting reliefs not sought for by the lower Court. Counsel submit that every superior Court of record has inherent power to give effect to its decision by way of consequential orders as same need not be expressly claimed. Thus, the reliefs granted by the lower Court complained of by the Appellant are merely consequential flowing from the nature of the case of the 1st Respondent. He referred to GBOBOH V. BRITISH AIRWAYS PLC (2016) LPELR – 40099 (CA).

On the part of the 3rd Respondent, Counsel merely restates the Constitutional/Statutory role of the commission and therefore guided by the admonition of the Courts of its neutrality. In other words, the 3rd Respondent did not proffer argument respecting any of the issues.

By virtue of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a Plaintiff in a pre–election dispute or matter must file his action not later than 14 days from the date of the occurrence of the event, decisions or action complained of. Thus, where an action in a pre–election matter is filed outside the time prescribed by Section 285 (9) of the Constitution aforesaid, the jurisdiction of the Court to entertain the suit will be ousted and the action would become statute – barred. See UMERIEH V. A. P. G. A (2020) 4 NWLR (PT. 1713) 1 at 16 – 16 and ILIYASU V. RIJAU (2019) 16 NWLR 9PT. 1697) 1 at 24.

It is settled that, a cause of action consist of:
(a). the fact or combination of facts that establishes or gives rise to a right of action;
(b). a factual situation which gives a person a right to judicial reliefs;
(c). every fact which it would be necessary to prove, if traversed to support the Plaintiff’s right to the judgment of the Court;
(d). the entire set of circumstances giving rise to an enforceable claim; and
(e). the act on the part of the defendant which gives the Plaintiff his cause of the complaint.
See EGBE V. ADEFARASIN (1985) 1 NWLR (PT. 3) 549, A. G. FEDERATION V. A. G. ABIA STATE (2001) 11 NWLR (PT. 725) 689 and ELABANJO V. DAWODU (supra).

Now amalgamating the above, what then is the 1st Respondent’s cause of action. Put differently, what was the act of the Appellant as defendant at the lower Court which gives the 1st Respondent as Plaintiff his cause of complaint? It was submitted rightly that in order to determine whether a suit discloses a cause of action; it is the Originating Processes that are examined by the Court to ascertain whether they raise some question fit to be determined by the Judge.

In the instant case, the learned trial Judge in determining the nature of the 1st Respondent’s cause of action confined himself to the Originating Summons and the supporting affidavit and concluded at pages 295 – 296 of the record as follows:
“According to the Plaintiff, he contested and won the primary election of the 1st Defendant for the Dange/Shuni State Constituency of Sokoto State in the 2023 general Elections. The said primary which produced him was conducted on the 9th June, 2022. However, according to him, the 1st Defendant appealed to him to withdraw his nomination and there was a purported letter stating that he had withdrawn his nomination. Subsequently, the 1st Defendant re-conducted the primary election on the 12th August, 2022 which only 2nd Defendant participated in and was declared winner thereby substituting the nomination of the plaintiff. Concurrently, the plaintiff was never informed of the 1st Defendant’s intention to re-conduct the primary thereby substituting his nomination when it conducted a fresh primary which only the 2nd Defendant participated in and won. This suit was filed on 24/8/2022 within Constitutional Stipulated time of 14 days and therefore not statute barred.”

The Appellant’s grouse is on the cause of action with reference to the primary election conducted on 9th June, 2022 and not the one of 12th August, 2022. That in my view cannot be correct given the fact that the 1st Respondent has not complained against the primary election of 9th June, 2022. I therefore agree with the learned trial Judge that the suit was not statute barred and that the 1st Respondent’s complaint was against the event of 12th August, 2022. In A. P. C V. LERE (2020) NWLR (PT. 1705) 254 at 300, the Supreme Court has held that a right of action can only occur when the person who sues become aware of the wrong. It is only reasonable and just that a party can only sue when he becomes aware that his right has been tampered with, for, as long as he is unaware that someone has dealt with his property inconsistent with his ownership, he cannot sue.

The main contention relating to the 1st Respondent’s locus standi to commence the action at the lower Court was tied to the fact that he did not participate in the primary election of 12th August, 2022 and that he was not an aspirant within the contemplation of Sections 285 (14) (a) of 1999 Constitution (fourth alteration) and 84 (14) of the Electoral Act, 2022.

The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint heard before the Court. The Plaintiff will therefore have locus standi in a matter if has a special right or alternatively, if he can show that he has sufficient or special interest in the performance of the duty to be enforced or where the interest is adversely effected. See ABACHA V. A. G. FEDERATION (2014) 18 NWLR (PT. 1438) 31 and NWORKA V. ONONEZE – MADU (2019) 7 NWLR (PT. 1672) 422 at 434 – 435.

In the instant case, the 1st Respondent having averred that he participated and won the primary election for State Assembly in the forthcoming 2023 General Election and that the Appellant has surreptitiously given the mandate to the 2nd Respondent has no doubt demonstrated his locus standi to commence the action at the lower Court as his interest was adversely affected. As to the argument that he did not participate in the primary election of 12th August, 2022 that argument is whittled down by the fact that there was no valid primary election on 12th August, 2022 by virtue of Sections 31 and 33 of the Electoral Act, 2022. The findings of the lower Court invalidating the said primary election, was not appealed against by the Appellant. Therefore, the only valid primary election was the one conducted on 9th June, 2022 to which the 1st Respondent was an aspirant, having emerged winner and was duly nominated by the Appellant.

It was also the contention of the Appellant that considering the nature of the Preliminary objection and that having contemporaneously heard the objections with the substantive case, the lower Court was obliged to consider all the materials put forward by the respective parties while determining when the cause of action arose. Perhaps, the learned Counsel is oblivious of the fact that there is a difference between the parameters in determining when the cause of action accrued as opposed to whether the suit discloses a cause of action. In the case of ILLIYASU V. RIJAU (supra) been relied upon by the Appellant, it was held that in determining when a cause action accrued as opposed to whether the suit discloses a cause of action, the Court is entitled to look at all the processes before it. Learned trial Judge has shown that he appreciated the differences when he stated at page 300 of the record of appeal thus:-
“Consequently, this Court will examine the Counter – affidavit and the other process to determine locus standi and reasonable cause of action.”
It is therefore absurd to argue as done by the Appellant, that the lower Court relied on the Originating Summons alone and failed to consider the material facts put before it by the Appellant and the 2nd Respondent in discerning whether the suit discloses reasonable cause of action.

​Finally, on this issue, Appellant faulted the grants of the reliefs to the 1st Respondent by the lower Court at page 313 of the record that is, validating the nomination of the 1st Respondent and nullifying the primary election that produced the Appellant. I am in total agreement with the submission that a valid decision of a Court must be based on the issues submitted to it by the parties and canvassed before it. However, every Court has inherent powers to make consequential orders to give effect to its judgment. Even when the relief for consequential orders was not specifically asked for from the Court, the Court has the power to grant such reliefs as a consequential relief to give effect to its judgment or declaration. See KARAYE V. WIKE (2019) 17 NWLR (PT. 1701) 355. The reliefs being complained against by the Appellant flows from the facts and are necessary to prove the established rights of the 1st Respondent. Also being in the realm of consequential orders, they were granted to give effect to the lower Court’s decision that the 1st Respondent is neither dead nor withdrawn from the race which are the only circumstances that can warrant the conduct of the primary election of 12th August, 2022. Issue 1 is therefore resolved against the Appellant.

ISSUE 2
On this issue, Counsel for the Appellant contend that the learned trial Judge descended to the arena when he considered the letter of withdrawal, Exhibit AMB5. He argued further that the 1st Respondent did not at any time deny the signature on the withdrawal letter and what would have been expected of the 1st Respondent, according to Counsel was for him to produce a forensic report and analysis of the signature to show that same is not his signature.

In his brief response, Counsel to the 1st Respondent referred this Court to paragraphs 5 and 6 of the 1st Respondent’s joint counter-affidavit in opposition to the Appellant’s notice of preliminary objections to contend that he vehemently denied authorship and knowledge of the letter of withdrawal. He then submit that the trial Court did not descend to the arena of adjudication.

A Court should not set up for the parties a case different from the one set up by the parties themselves. Conversely, a Court should not descend into the arena and similarly, a Court has no duty to bridge a gap in the case of a party. See NWAFOR V. N. C. S. & ORS (2018) LPELR – 45 034 and SUBERU V. STATE (2010) 8 NWLR (PT. 1197) 586 at 605.

The question is, did the trial judge descends to the arena of adjudication when considering the potency of Exhibit AMB5? I do not think so considering the parties’ respective affidavit evidence before the lower Court. In paragraphs 3 – 4 of the Appellant’s affidavit in support of notice of preliminary objection, paragraphs 10, 12 and 13 of the 2nd Respondent’s affidavit in support of the notice of preliminary objection as well as paragraph 1.7, 1.8 and 1.9 of the 1st Respondent’s joint address in response to the Appellant and 2nd Respondent’s notice of preliminary objection, parties joined issues on the 1st Respondent’s withdrawal of his candidacy and same was predicated on the letter, Exhibit AMB5. And having found that the purported letter of withdrawal was unsigned, the learned trial Judge was right to conclude at pages 311 – 312 that:
“The ordinary consequence of this is that Exhibit AMB5 is inadmissible in evidence and it is worthless to prove that the plaintiff has withdrawn his candidacy. In the absence of a withdrawal notice from the plaintiff, not a death certificate proving that the plaintiff is not deceased, the condition precedent to the conduct of a fresh primary by the 1st Defendant remains unfulfilled and thus failed.”

On the strength of the above and considering the parties’ affidavit evidence, the lower Court neither set up for the parties a case different from the one set up by the them nor descended to the arena, therefore, issue 2 is resolved against the Appellant.

ISSUE 3
The argument of the Appellant is that the obligation is on the 1st respondent as plaintiff to prove by preponderance of evidence, the existence of the claim before the Court. In the light of the emphatic denials of the Appellant, counsel submit that the evidential burden placed on the 1st Respondent is to prove all the allegations contained in the supporting affidavit. He referred to Exhibits C1 and C2 to contend that the 1st Respondent was aware that another election was conducted on 12th August, 2022 wherein the 2nd Respondent emerged winner.

In further argument, Counsel submit that by the averment in paragraph 12 of the 1st Respondent’s supporting affidavit, same is laced with an admission against interest.

In response, counsel for the 1st Respondent submit that the 1st Respondent has established his case and shown that the Appellant was in breach of the provision of Section 33 of the Electoral Act, 2022 and hence entitled to judgment in his favour.

He submit further that the 1st Respondent had presented Exhibit F denying the rumour of his withdrawal. And since the Appellant and the 2nd Respondent neither denied nor explained any position about Exhibit F, it means they admitted the position of the 1st Respondent that he never withdrew his nomination.

By virtue of Sections 131 and 132 of the Evidence Act, 2011, the burden of establishing facts upon which legal rights and liability depends generally is on the person who asserts the fact (s). Put differently, the burden of proof in a proceeding lies on that person who will fail if no further evidence at all were given on either side. The Appellant asserted that the 1st Respondent has withdrawn from the race but the 1st Respondent vehemently denied withdrawing. Thus, the burden of proving that the 1st Respondent has withdrawn lies in the Appellant which it never did.

Furthermore, the Appellant did not make any effort to challenge or rebut or dispute Exhibit F in which the 1st Respondent denied rumour of his withdrawal. Thus, the averment in paragraph 9 of the affidavit in support of the Originating Summons is in law, deemed admitted by the Appellant. I also resolved issue 3 against the Appellant.

Having resolved all the three issues against the Appellant, the appeal is to fail. It is hereby dismissed and the judgment of the lower Court delivered on 16/9/2022 in Suit No: FHC/S/CS/2022 is accordingly affirmed. Parties shall bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, MOHAMMAD LAWAL SHUAIBU, PJCA.

I am in agreement with his reasoning and conclusion and hereby adopt his judgment as mine and also dismiss the appeal for lack of merit.

I abide by all the consequential orders contained in the leading judgment including that as to costs,

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Muhammed L. Shuaibu, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

Adeola Adedipe, with him, Mrs. Loveth Morka For Appellant(s)

Mr. Nuhu, with him, A. Saidu, F. Abdullahi, and I. U. Barade for 1st Respondent.

Chief J. E. Ochidi, SAN with him, B. M. Jodi, F. J. Anene, and N. I. Usman for 2nd Respondent

Fodiyo Saidu, with him, M. H. Hassan, and M. S. Mohammed for 3rd Respondent For Respondent(s)