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BWACHA v. KENTE & ORS (2022)

BWACHA v. KENTE & ORS

(2022)LCN/16091(CA) 

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, November 24, 2022

CA/YL/167/2022

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

SENATOR EMMANUEL BWACHA APPELANT(S)

And

1. CHIEF DAVID SABO KENTE 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ALL PROGRESSIVES CONGRESS RESPONDENT(S)

 

RATIO:

THE PASSAGE OF JUDGMENT WHERE OCCURS SUBSTANTIAL ERRORS OCCURED MUST BE GIVEN   WHERE MISDIRECTION IS MADE A GROUND OF APPEAL

The law is settled that where error(s) of law or misdirection is made a ground of appeal, the particulars of the error of law or misdirection must be given though the particulars need not be separate, it may be embodied in the ground itself provided the ground is framed as to leave no one in doubt of the errors been complained of. It is not sufficient to quote or paraphrase the portion of the judgment to which the error of law or the misdirection is contained. The passage of the judgment where the error or misdirection occurred must be quoted and full and substantial particulars of the alleged error or misdirection must be given. See ANYAOKE & ORS V. ADI & ORS (1986) LPELR-519(SC) AT 15(D-F), KOYA V. UBA (1997) LPELR- 1171(SC) AT 30-31(B-A), DIAMOND BANK LTD V. PARTNERSHIP INVESTMENT CO LTD & ANOR (2009) LPELR-939(SC) AT 17 (A-C). OKWUAGBALA & ORS V. IKWUEME & ORS (2010) LPELR-2538(SC) AT 14 (A-F). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE SETTLED LAW ON SUING ONLY PARTIES WHOM HAS A CAUSE OF ACTION

The law is settled that a plaintiff is required to sue only parties against whom he has a cause of action. The Court will not compel a plaintiff to proceed against a party he has no desire to sue. See GREEN v. GREEN (1987) LPELR-1338(SC) AT 40(A-B). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

IT IS IMPRFOPER TO JOIN A CO-DEFENDANT TO AN ACTION AGAINST WHOM THERE IS NO CAUSE OF ACTION AND NO CLAIM

In IN RE: MOGAJI (1986) LPELR-1891(SC) AT 17 (A-B), (1986) 1 NWLR (PT.19) 759, APAMPA & ORS V. OGUNGBEMI (2017) LPELR-43264(CA) AT 13 (B-D). In AYORINDE & ORS v. ONI & ANOR (2000) LPELR-684(SC) AT 27 (D-F), the Supreme Court Per KARIBI-WHYTE held that:
“At the commencement of trial, a properly constituted action must contain the Plaintiff, a defendant and the claim against the defendant. In Alhaji Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101, it was held that it was improper to join as co-defendants to an action, persons against whom the Plaintiff has no cause of action and against whom he has not made any claim – See Lajumoke v. Doherty (1969) NMLR 281.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

PLEADINGS SHOULD BE READ AND CONSIDERED IN THEIR TOTALITY IN ORDEER

It is the law that pleadings should be read and considered in their totality in order to get the real gist of a case being presented by a party. In a case commenced by originating summons as the instant case, the question(s) presented for determination, the reliefs sought, the affidavit(s) and the documents must be read and considered together to get the real case being made by the plaintiff. The case presented by the 1st respondent is very simple and it is that no election was held but results were declared. The facts relied on by the 1st respondent in support of that assertion is what the appellant is hammering on as constituting separate cases. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE DUTY TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO AN EVIDENCE IS PRIMARILY THAT OF THE TRIAL COURT

It is the law that the duty to evaluate and ascribe probative value to the evidence led is primarily that of the trial Court. The appellate Court can only interfere where the trial Court is shown not to have performed its duty properly. See JIBRIN V. FRN (2018) LPELR-43844(SC) AT 13 (A-C) where the Supreme Court held that:
“The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – see Fatai V. State (2013) 10 NWLR (Pt.1361) 1 at 21 SC.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

AN APPEAL CAN ONLY BE ALLOWED WHERE THE ERROR IS SUBSTANTIAL IN A WAY TO OCCASION A MISCARRIAGE OF JUSTICE

It is the law that not every mistake or error in a judgment will result in the appeal being allowed. It is only that error which is substantial in such a way that it has occasioned a miscarriage of justice that would warrant the appellate Court’s interference. In the instant case, I am of the view that the refusal of the lower Court to ascribe proper probative value to the results of the primary election and INEC’s reports which confirmed that the election held occasioned a miscarriage of justice. This Court is therefore under a duty to interfere with the judgment. Accordingly, issue 2 is resolved in favour of the appellant. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria delivered in suit no. FHC/JAL/CS/24/2022 on 20th September, 2022. The 1st respondent as the plaintiff instituted the suit by originating summons wherein he presented the following questions for determination:
1. Whether having regard to Section 84(1), (4), (5), (13) & 14 of the Electoral Act, 2022 and paragraphs 18, 19, 20 and 23 of the 3rd defendant’s guidelines for nomination of candidates for the 2023 general elections, the 3rd defendant conducted any primary election known to law for the nomination of its governorship candidate for Taraba State for 2023 governorship elections when there was no accreditation or any …within the time frame prescribed by the guidelines, no voting or counting of votes or collation of votes or equal opportunity for the aspirants to vote or be voted for?
2. Whether having regard to Section 84(4) of the Electoral Act, 2022, the plaintiff as an aspirant to the office of the Executive Governor of Taraba State, under the platform of the 3rd defendant was afforded fair and equal opportunity by the 3rd defendant to vote and be voted for at the purported primary election for nomination of the 3rd defendant’s governorship candidate for Taraba State in the 2023 governorship general elections when having informed the plaintiff and made public press statement as well as informed the 1st defendant that it was going to conduct the gubernatorial primaries in every state in Nigeria including Taraba State on the 26th May, 2022 by indirect primaries except for three states of Abia, Benue and Osun then made a summersault and surreptitiously in connivance with the 2nd defendant purported to adopt direct primaries on 26th May, 2022 for gubernatorial primaries to the disadvantage of the plaintiff who had no opportunity to vote nor appoint and deploy his agents to voting centres in the wards spread across Taraba State nor mobilize his supporters who are members of the 3rd defendant to vote for him at the purported direct primary of the 3rd defendant?
3. Whether the 3rd defendant was not thereby in breach of its contract with the plaintiff as an aspirant and in breach of its statutory duties in the manner in which it purported to conduct the primary election for the nomination of candidate for the 2023 governorship election of Taraba State?
4. Whether in the circumstances of this case, the purported announcement/declaration by the 3rd defendant’s governorship primary election committee, chaired by one Lawrence Onochukwu with one Abbas Braimoh as Secretary of 2nd defendant as the governorship candidate of the 3rd defendant for Taraba State and winner of an unlawful primary election in complete violation of the Electoral Act, 2022, the Constitution of the 3rd defendant of March, 2022 (as amended) and the 3rd defendant’s guidelines for the nomination of candidate for the 2023 general elections was not a sham and illegal?
5. Whether in the circumstances, the 3rd defendant has any validly nominated candidate for the 2023 governorship elections for Taraba State that should not be excluded from the list of candidates for the general elections in 2023?
He sought for the following reliefs:
1. A declaration that the mandatory provisions of the Electoral Act, 2022, the 3rd defendant’s Constitution of March, 2022 (as amended) and the 3rd defendant’s guidelines for the nomination of candidates for the 2023 general elections, there was no governorship primary election known to law conducted by the 3rd defendant in Taraba State for the nomination of the 3rd defendant’s candidate for the 2023 Governorship election for Taraba State.
2. A declaration that the purported governorship primary election conducted by the 3rd defendant for the nomination of its candidate for the 2023 governorship election in Taraba State, violated the Electoral Act, 2022, the 3rd defendant’s Constitution of March, 2022 (as amended) and the 3rd defendant’s guidelines for the nomination of candidates for the 2023 general elections and was therefore a sham and illegal.
3. A declaration that the 3rd defendant has no validly nominated candidate for the 2023 Governorship Elections of Taraba State of Nigeria and no candidate presented by the 3rd defendant in respect of the Governorship of Taraba State should be accepted by the 1st defendant.
4. A declaration that the 3rd defendant owed the plaintiff a duty to provide an equal opportunity to vote and be voted for in the governorship primary election to nominate its candidate for the office of the governor in the general elections coming up in 2023 and its failure to do so constituted a breach of its contract with the plaintiff as an aspirant as well as its statutory duty to conduct the primary election for nomination of its candidates for the 2023 governorship elections for Taraba State of Nigeria in accordance with the Electoral Act, 2022.
5. Perpetual injunction restraining the 3rd defendant from presenting 2nd defendant as its governorship candidate for the governorship elections for Taraba State in the 2023 general elections and from submitting its name to the 1st defendant as its candidate for the governorship election for Taraba State.
6. Perpetual injunction restraining the 2nd defendant from holding out or carrying on or parading himself as the 3rd defendant’s governorship candidate for the 2023 general elections for Taraba State.
7. Perpetual injunction restraining the 1st defendant or any of its officers, servants or agents from accepting any submission by the 3rd defendant of the name of the 2nd defendant or recognizing the 2nd defendant as the 3rd defendant’s gubernatorial candidate for the 2023 governorship election in Taraba State.
8. A mandatory injunction compelling the 1st defendant to delist the names of the 2nd and 3rd defendants (If substituted or accepted) from among the list of political parties and gubernatorial candidates respectively for the February 2023 general elections for the office of governor of Taraba State.
9. An order directing the 3rd defendant to refund to the plaintiff, at once and in full, the sum of N58,120,000 (Fifty-eight million, one hundred and twenty thousand Naira only) being the cost of expression of interest and nomination form and sundry expenses incurred/purchased by the plaintiff for the gubernatorial primary election for Taraba State in his bid to be the 3rd defendant’s candidate for the 2023 governorship election for Taraba State.
10. An order directing the 3rd defendant to pay interest on the said sum of N58,120,000 (Fifty-eight million, one hundred and twenty thousand Naira only) at the rate of 26% per annum from the 29th day of April, 2022 when the sum was paid, till same is fully and finally liquidated by the 3rd defendant.
11. N1,000,000,000 (One billion Naira) payable by the 3rd defendant being exemplary and general damages for its breach of contract and statutory duties in failing to conduct a primary election according to law to the detriment of the plaintiff.

Parties filed and exchanged all necessary processes including written addresses. After hearing all the parties, the lower Court resolved the questions presented for determination in favour of the 1st respondent and granted him reliefs 1-8. Reliefs 9, 10 and 11 were refused. In their stead, the Court made the following orders:
“1. That the 3rd defendant shall within fourteen days from the date of this order conduct a fresh gubernatorial primary election for Taraba State, ensuring compliance with the provisions of Electoral Act and its Constitution and Guidelines and may adopt any mode of its choice, provided notice of the mode adopted shall be made public, not later than seven (7) days before the date of the election.
2. That whereas the order of this Court is made for the conduct of the 3rd defendant’s gubernatorial primaries of Taraba State for the 2023 governorship elections within 14 days from the receipt of this order, the grant of prayers 9, 10 and 11 of the plaintiff’s originating summons are no longer necessary at this point in time. They are accordingly refused.”

The appellant being dissatisfied with the judgment filed a notice containing twenty four (24) grounds of appeal against the judgment on 27th September, 2022. Appellant’s brief of argument was filed on 13th October, 2022. The 1st respondent’s brief was filed on 25th October, 2022. Appellant’s reply brief of argument was filed on 1st November, 2022. The 2nd and 3rd respondents did not file any brief of argument.

The 1st respondent filed a motion on 10th November, 2022 seeking an order to dismiss the appeal on the following grounds:
1. The appellant’s brief of argument filed on 13th October, 2022 was filed out of time.
2. The record of appeal is incompetent as substantial parts of volumes 3 and 4 of the records of appeal are illegible and difficult to read.
3. The appellant has resorted to self-help by willful refusal to comply with a lawful order of a Court of law.
4. This appeal no. CA/YL/167/22 and appeal no. CA/YL/168/22 which were filed simultaneously by the appellant and 3rd respondent are litigating the same issues and seeking the same reliefs from this Court.
5. Grounds 4 and 5 of the appeal and issues 2 and 4 distilled therefrom are incompetent for lack of particulars.
6. Issues 3 and 5 do not flow from the grounds of appeal they are purportedly distilled from.

The motion is supported by a three (3) paragraph affidavit and exhibits. The 1st respondent opposed the application by a three (3) paragraph counter affidavit and exhibits. Counsel to both parties adopted their respective written addresses. The appellant’s counsel raised some preliminary issues against the motion and urged the Court to strike it for being incompetent.

I have considered the arguments of counsel for and against the motion. The following are my resolutions.
The first point raised by the appellant’s counsel against the motion is that it is incompetent having been filed outside the five (5) days prescribed by Paragraph 12 of Election Judicial Proceedings Practice Directions, 2022. It is trite and the 1st respondent’s counsel emphasized the law that election and pre-election matters are sui generis. They are governed by the Election Judicial Proceedings Practice Directions, 2022, (Practice Directions). It is also trite that the timeline set by the practice directions are sacrosanct and cannot be extended under any guise. See PDP V. INEC (2014) 17 NWLR (PT.1437) 523, OBHAFUOSO & ANOR v. INEC & ORS (2015) LPELR-40888(CA) AT 8-10(F-E), A.P.P V. OBIANO & ORS (2018) LPELR-44646(SC) AT 16-22(A-D). The argument that Paragraph 12 of the Practice Directions, 2022 does not contemplate a motion is misconceived. The words of that paragraph are clear and unambiguous that the respondent shall file his brief of argument within five (5) days of service of the appellant’s brief of argument. A respondent’s brief being a response to the appellant’s brief, any complaint against any process filed in the appeal including notice of appeal, the record of appeal and appellant’s brief of argument must be raised within the five days prescribed for filing the respondent’s brief. It is certainly not the intention of the maker of the practice directions that the time to raise objection to process filed in a pre-election matter should be at large or be regulated by the Rules of this Court in other matters. Considering the sui generis nature of pre-election matters, I am of the strong view that the 1st respondent’s motion by which various objections were raised in respect of the appeal, record of appeal and the appellant’s brief ought to have been filed within the five (5) days prescribed by Paragraph 12 of Practice Directions, 2022. The motion filed on 10th November, 2022, twenty-one (21) days after the service of the appellant’s brief of argument on the 1st respondent is incompetent. See KAMALU V. OLU & ORS (2017) LPELR-43457 (CA) AT 16.

The second preliminary point is about the propriety of a legal practitioner swearing to an affidavit in support of an application in a case in which he is a counsel. Every fact deposed to in an affidavit is akin to evidence given by a party in litigation which a Court can rely on to take a decision. Since 1964 the Supreme Court has continue to emphasize the undesirability of a counsel swearing to an affidavit in support of an application in which he is appearing in a professional capacity. See OBADARA & ORS V. PRESIDENT OF IBADAN WEST DISTRICT GRADE B CUSTOMARY COURT (1964) LPELR 25219 (SC) AT 11-12 (C-C) where the Supreme Court Per Brett, JSC held that:

“There would be little harm in Counsel swearing an affidavit setting out formal facts required to be established to support a purely formal ex parte application where there is no possibility of those facts being disputed, but even in such a case there would be little need for Counsel himself to swear the affidavit as some member of his staff could easily depose to the same facts as a matter of information and belief (due heed being paid to Section 87 and Section 88 of the Evidence Ordinance). If on the other hand, Counsel finds himself in the position where he is the only person with the knowledge necessary to swear the affidavit, and where the facts to which he is to swear are likely to be in dispute, then he should for the purposes of that application withdraw from the case and brief other Counsel.”
See also EKPETO & ORS V. WANOGHO & ORS (2004) LPELR-1094(SC) AT 17 (C-E), NWEKE V. FRN (2019) LPELR-46946 (SC) AT 6-9 (B-A). In AKINLADE & ANOR V. INEC & ORS (SUPRA), the Supreme Court discountenanced a counter-affidavit sworn to by a legal practitioner. The affidavit in support of the motion having been sworn to by a legal practitioner is hereby discountenanced. The effect is that the motion even if it was filed within time is not supported by an affidavit. It is incompetent. It is hereby struck out.

Ordinarily, the application having been struck out, that ought to be the end of the matter. However, since this not the ultimate Court, I will proceed with the consideration of the motion on merit in case my decision on the competence of the motion is wrong.

On ground 1 of the objection, the contention of the respondent’s counsel is that time to file the appellant’s brief of argument starts to run when a respondent is served with the record of appeal. Paragraphs 9 and 10 of the Practice Directions upon which the appellant’s counsel predicated his contention are stated below:
9. “The Secretary of the Tribunal or Registrar of the lower Court shall, within a period of not more ten (10) days of the receipt of the Notice of Appeal, cause to be compiled and served on all the parties, the Record of Appeal.
10. Within a period of seven (7) days after the service of the Record of Appeal, the appellant shall file in the Court, his Brief of Argument in the appeal for service on the Respondent(s).”

The argument of the 1st respondent’s counsel is nothing but an absolute absurdity. There is nothing in the clear and unambiguous words of paragraph 10 of the Practice Directions to warrant an interpretation that the appellant’s time to file his brief of argument starts to count upon service of the record of appeal on the respondent even if as in the instant case the record is served on the respondent before it is served on the appellant Paragraph 10 of the practice directions clearly provides that the appellant shall file his brief of argument within seven (7) days of the service of the record of appeal. The proof of service in the record of appeal shows that the record of appeal was served and signed for by the appellant’s counsel on 7th October, 2022. Therefore, the appellant’s brief of argument filed on 13th October, 2022 was filed within the seven (7) days prescribed in Paragraph 10 of the Practice Directions.

On ground 2, by virtue of Paragraphs 9 of the Election Practice Directions, it is the duty of the Secretary of the Tribunal or Registrar of the lower Court to cause the record of appeal to be compiled, transmitted to this Court and served on all the parties not more than ten (10) days of the receipt of notice of appeal. It is therefore the duty of the Secretary of the Tribunal or Registrar of the lower Court to ensure that records of appeal are typed correctly and are legible before they are certified as true copies of the proceedings. Transmission of an illegible record of appeal is a serious default on the part of the Registrar of the lower Court in the performance of his duty. It is the duty of the Registrar of this Court to return a badly compiled and illegible record to the lower Court or refuse to accept it in the first place. See OYENUGA V. INTERNATIONAL COMPUTERS (NIG) LTD(1991) LPELR-2877(SC) AT 11-12 (G-B). See NWANA V. FCDA (2007) LPELR-2101(SC) AT 18-19 (F-E), (2007) 11 NWLR (PT.1044) 59. STATE V. JOHN (2013) LPELR-20590 (SC) AT 26 (B-C). Whether the Registrar of this Court can do so in a time bound appeal such as a pre-election or an election appeal is a different matter. Therefore, counsel also has a duty to ensure and insist that the record of appeal is properly compiled and legible. See EGEMASI & ANOR V. ONYEKWERE & ANOR (1983) LPELR-1042(SC) AT 9 (C-D), STATE V. JOHN (2013) LPELR-20590(SC) AT 26 (B-C). Where any part of the record of appeal is illegible, this Court reserves the right to strike out the record of appeal and refuse to hear the appeal whether or not it is time bound.

Fortunately, the situation in the instant appeal is saved by the fact that the documents on pages 1473-1535 Volume 3 and those on pages 1755-1942 Volume 4 of the records of appeal which are clearly illegible are also in volumes 1 and 2 of the records of appeal. The appellant’s counsel called the attention of the Court to those documents and the 1st respondent’s counsel did not dispute the fact that the documents are the same as those in Volumes 3 and 4.

On ground 3, it is the law that a person who is in contempt of a subsisting Court order is not entitled to be granted Court’s discretion to enable him continue with the breach. See SHUGABA V. U.B.N. PLC (1999) LPELR-3068(SC) AT 17-18 (C-A), 11 NWLR (PT.627) 459. MOBIL OIL (NIG.) LTD V. ASSAN (1995) 8 N.W.L.R. (Pt. 412) 129 at 143. An exception to the general rule is that where a party challenges the validity of an order directed against him either by way of an appeal or other application, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other. See GROUP DANONE & ANOR V. VOLTIC (NIG) LTD (2008) LPELR-1341(SC) AT 21-22(E-D), (2008)7 NWLR (PT. 1087) 637. See AG FEDERATION v. BI-COURTNEY LTD (2014) LPELR-22968(CA) AT 18-20 (C-C). In addition to the instant appeal, the appellant has also filed a motion on notice for an order maintaining the status quo by restraining the respondents from giving effect to the judgment of the lower Court pending the hearing and determination of this appeal. Most importantly, there is nothing before us to show that the name of any person has been presented as the 3rd respondent’s candidate or accepted by the 2nd respondent as was done in APC V. KARFI (SUPRA). In that case the appellant while exercising their right of appeal not only refused to repeat the primary election as ordered by the Federal High Court but at the same time and in collusion with INEC put up the appellant as the candidate of APC in the general election. The appellant cannot be said to have resorted to self-help on the facts and circumstances of this case.

On ground 4, the suit was instituted by the 1st respondent against the appellant and 2nd and 3rd respondents. They defended the case in their different capacities. They filed  separate counter-affidavits and written addresses and were represented by separate counsel as in this appeal. Specific and separate reliefs were sought and granted against the appellant and each of the 1st and 3rd respondents. By Section 241(1), 244(2) and 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a party who has suffered a legal grievance, an infringement or denial of certain legal right and is thus “aggrieved” by the decision of a Court has a right of appeal and can exercise that right independently of any other party in the case. The appellant is entitled and in fact has the right in law to file separate appeals.

On ground 5, grounds 4 and 5 of the appeal read:
4. “The honourable lower Court erred in law and occasioned a miscarriage of justice when it held at pages 45-48 of the judgment that Sections 97 and 98 of the Sheriffs and Civil Processes Act do not apply to processes issued by the Federal High Court to be served anywhere in Nigeria because the Court has and exercises jurisdiction throughout the Federal Republic of Nigeria.
5. The honourable lower Court erred in law and occasioned a miscarriage of justice when it held at pages 48-50 of the judgment that the case of the 1st respondent as constituted before it did not constitute an abuse of Court process.”

The law is settled that where error(s) of law or misdirection is made a ground of appeal, the particulars of the error of law or misdirection must be given though the particulars need not be separate, it may be embodied in the ground itself provided the ground is framed as to leave no one in doubt of the errors been complained of. It is not sufficient to quote or paraphrase the portion of the judgment to which the error of law or the misdirection is contained. The passage of the judgment where the error or misdirection occurred must be quoted and full and substantial particulars of the alleged error or misdirection must be given. See ANYAOKE & ORS V. ADI & ORS (1986) LPELR-519(SC) AT 15(D-F), KOYA V. UBA (1997) LPELR- 1171(SC) AT 30-31(B-A), DIAMOND BANK LTD V. PARTNERSHIP INVESTMENT CO LTD & ANOR (2009) LPELR-939(SC) AT 17 (A-C). OKWUAGBALA & ORS V. IKWUEME & ORS (2010) LPELR-2538(SC) AT 14 (A-F).
In the instant case, all that the appellant did was to refer to the pages of the judgment of the lower Court without specifying the nature of the error and particulars of the alleged misdirection. While Ground 4 of the appeal leaves no one in doubt that the complaint of the appellant is about the application of Sections 97 and 98 of the Sheriffs and Civil Processes Act to processes issued by the Federal High Court in a State for service in another State. The same cannot be said of ground 5. Ground 5 is incompetent for failure to state the nature of the error or the particulars of misdirection. It is hereby struck out.

On ground 6, I have compared issues 3 and 5 with grounds 3 and 15 of the appeal. The issues emanated from grounds 3 and 15 of the appeal. Ground 3 complain of failure to join members of the electoral committee of APC while ground 15 also complain of failure to join the electoral committee and members of the INEC that monitored the election when there is an imputation of crime in the case. In conclusion, the preliminary objection fails on merit except in respect of ground 5 of the appeal which is hereby struck out.

MAIN APPEAL
From the twenty-four grounds of appeal, the appellant formulated the following issues for determination:
1. Whether the plaintiff’s suit was properly situated within the narrow compass of Section 84 (14) of the Electoral Act, 2022 to vest the noble lower Court with the vires to hear and determine same? (Distilled from grounds 1 and 2 of the notice of appeal)
2. Whether if issue 1 is resolved in favour of the appellant, the originating summons does not constitute an abuse of Court process? (Distilled from ground 5 of the notice of appeal)
3. Whether taking into cognizance the surrounding facts and circumstances as constituted in the originating summons and the findings of the lower Court suggesting forgery and falsification of results of the primary election conducted by members of the Taraba State Gubernatorial Primary Election Committee has not amounted to the breach of their inalienable right to fair hearing as preserved and protected under the Constitution of the Federal Republic of Nigeria 1999 (as amended)? (Distilled from grounds 3 and 15 of the notice of appeal)
4. Whether Sections 97 and 98 of the Sheriffs and Civil Processes Act are inapplicable to the Federal High Court as held by the honourable lower Court? (Distilled from ground 4 of the notice of appeal)
5. Whether taking into cognizance the case of the 1st respondent as specifically defined by the questions for determination, it was not adroitly clear that the grievance of the 1st respondent was directed at the alteration of the mode of the primary election by the All Progressives Congress, the 3rd respondent herein, and the effect of such alteration on him as a person, thus rendering all other issues bothering on alteration of the mode of the election raised and determined by the lower Court, extraneous and in effect, amounting to the lower Court making a case for the 1st respondent? (Distilled from grounds 6, 7, 8 and 18 of the notice of appeal)
6. Whether the lower Court did note the viola right to fair hearing of the appellant when it relied on Exhibits 4b and 5b without ruling on the objection raised by the appellant and 3rd respondent on the ground that the exhibits were not part of the proceedings, same having been extricated by the 1st respondent before service of same and only to be served and applied to be played in the Court on the day of the hearing? (Distilled from ground 11 of the notice of appeal)
7. Whether failure on the part of the lower Court to give consideration to and make pronouncements on all the issues submitted to it for adjudication did not amount to the breach of the right to fair hearing of the appellant and in consequence resulted in miscarriage of justice? (Distilled from grounds 21 and 22 of the notice of appeal)
8. Whether the appellant can be said to have been wrong when he urged the lower Court to discountenance the case of the plaintiff for being inconsistent taking into cognizance the mutually exclusive and diametrically opposed claims of non-holding of election and unequal treatment allegedly meted out to him in the course of the primary election by the 3rd respondent? (Distilled from grounds 21 and 22 of the notice of appeal)
9. Whether the lower Court did not misplace the burden of proof when it found that a party who contends that there was an election has the burden of proving the incidences of election, not vice versa? (Distilled from grounds 9 and 19 of the notice of appeal)
10. Whether the lower Court properly evaluated the pieces of evidence adduced by the parties before the lower Court and rightly ascribed probative value to them? (Distilled from grounds 12, 14, 16, 17 and 24 of the notice of appeal)
11. Whether the Exhibits 4b and 5b were in the real sense demonstrated in the open Court as stated by the lower Court in its judgment to have supported the reliance thereon in finding for the 1st respondent that the primary election under the contest was never conducted? (Distilled from grounds 10 and 13 of the notice of appeal)
12. Whether the lower acted within jurisdiction when it ordered the conduct of fresh gubernatorial election of the 3rd respondent in Taraba State? (Distilled from ground 23 of the notice of appeal)

The 1st respondent formulated the following issues for determination:
1. Whether the plaintiff’s suit was properly situated within the narrow compass of Section 84 (14) of the Electoral Act,2022 to vest the noble lower Court with the vires to hear and determine same?
2. Whether if issue 1 is resolved in favour of the appellant, the originating summons does not constitute an abuse of Court process?

I have perused the entire record of appeal including, the originating summons, the affidavits of all the parties, the exhibits, the judgment of the lower Court, the notice of appeal and the briefs of argument. In my view, the issues formulated for determination by the appellant’s counsel are subsumed into the following issues:
1. Whether the lower Court was right when it held that the suit as constituted is competent and the Court had the jurisdiction to entertain it?
2. Whether the lower Court properly evaluated the entire affidavit evidence before it and rightly arrived at the conclusion that the evidence strongly show that no gubernatorial primary election was conducted by the 3rd respondent in Taraba State on 26th May, 2022.

On issue 1, the appellant’ counsel raised three points in support of his contention that the lower Court was wrong to hold that it had the jurisdiction to entertain the suit. The first is on the application of Sections 97 and 98 of the Sheriffs and Civil Processes Act to a writ issued by the Federal High Court of Nigeria sitting in a State for service in another State within Nigeria. Counsel contended that by the combined effect of Sections 97 and 98 of the Sheriffs and Civil Processes Act is that where a writ including an originating summons is to be served within and outside the issuing state, same shall be endorsed and marked as concurrent and compliance is mandatory. He submitted that in the event of non-compliance with the provisions of Sections 97 and 98 of the Sheriffs and Civil Processes Act, the initiator of the suit, in this case the 1st respondent not the registry ought to be held accountable. He referred to SALLAU & ANOR V. UMAR (2019) LPELR-48324(CA) AT 18-23(F-D). According to counsel, non-compliance with the Sections 97 and 98 of the Sheriffs and Civil Processes Act renders the originating summons invalid, null and void ab initio. He relied on GRENACONIG. LTD & ANOR V. ABOLADE JOHNSON NIG.LTD & SONS (2019) LPELR- 46879 (CA) AT 28-31, PDP V. INEC & ORS (2018) LPELR – AT 15- 18(E-C), IZEZE V. INEC & ORS (2018) LPELR- 44284 (SC) AT 17- 23 (B-G), FAYEMI v. ONI (2019) LPELR-49291 (SC) AT 17-23 (B- G). He contends that the decision of the Supreme Court in IZEZE V. INEC & ORS (SUPRA) rather than BIEM V. SDP & ORS (2019) 12 NWLR (PT. 1678) represents the position of the Supreme Court on Section 97 of the Sheriffs and Civil Processes Act and this was reiterated in OMAJALI V. DAVID & ORS (2019) LPELR-49381(SC) AT 13-17(D) which was delivered in June, 2019 and later in time than BIEM V. SDP & ORS (SUPRA). He referred to ATIKU V. MOHAMMED (2022) LPELR-57219(CA) 11-16(E-A). He submitted that from the foregoing, it is clear that the lower Court erred in law in following the decision in BIEM V. SDP & ORS (SUPRA) rather than IZEZE V. INEC & ORS (SUPRA) and OMAJALI V. DAVID & ORS (SUPRA).

The second point is on the provision of Section 84 (14) of the Electoral Act, 2022. It is contention of the appellant that the 1st respondent does not qualify as an aspirant within the provision of Section 84 (14) of the Electoral Act, 2022 and thus has no locus standi to institute the suit. He submitted that by virtue of paragraph 15 (f) of the 3rd respondent’s guidelines for the primary elections, screening and clearance by the Screening Committee to contest the primary election is the first requirement of participation in the primary election of the 3rd respondent but the 1st respondent failed to produce any certificate of clearance issued by the Screening Committee to prove that he was screened and cleared to contest the primary election. He argued further that the 1st respondent having failed to prove that he was cleared to contest the election does not qualify as an aspirant under Section 84 (14) of the Electoral Act, 2022 and did not participate in the election. He relied on ALIYU V. APC & ORS (2022) LPELR-57345(SC) AT 26-27(E-B), BABAYEMI V. PDP & ORS. (2022) LPELR-22878(SC) AT 48-49(A-E).

The third point is on non-joinder of the members of the Electoral Committee. Counsel contended that a communal reading of the affidavit in support of the originating summons revealed allegations of serious misconduct and commission of fraud by the Chairman and members of the Electoral Committee which would have necessitated their joinder for the purpose of affording them a hearing. He referred to EMMANUEL V. UMANA & ORS (2016) LPELR- 40037(SC), MILITARY GOV. OF IMO STATE V. NWAUWA (1997) LPELR-1876 (SC) AT 46 (A-E). He submitted that the members of the committee were not just necessary but mandatory parties to the suit.

In response, the respondent’s counsel submitted that the radical impact of the pronouncement of the Supreme Court in BIEM V. SDP has exempted a process issued out of the Federal High Court of Nigeria from the application of Sections 97 and 98 of the Sheriffs and Civil Processes Act. Therefore the lower Court was right when it held that the originating summons issued by the Federal High Court of Nigeria in a State such as Taraba meant for service within and outside Taraba State but within the Federal Capital Territory of Nigeria need not be endorsed nor marked concurrent writ in line with Sections 97 and 98 of the Sheriffs and Civil Processes Act. He submitted that OMAJELI V. DAVID dealt with whether leave was required to issue an originating summons issued by the Federal High Court sitting in Markudi for service in Abuja and the Court answered issue in the negative.

On the locus standi of the 1st respondent, counsel submitted that the lower Court was right in holding that the 1st respondent was an aspirant within the provisions of Section 84 (14) of the Electoral Act, 2022 in the 3rd respondent’s primary election for nomination of its gubernatorial candidate for Taraba State and therefore has the locus standi to institute the suit. He referred to UBA V. MOGHALU (2022) 15 NWLR (PT.1850)271. LAU V. PDP & ORS (2017) LPELR-42800. He referred to the affidavit in support of the summons. He submitted that there is no dispute that the 1st respondent purchased the expression of interest form and nomination form and paid N50,000,000.00 (Fifty million naira) as demanded from the aspirants. The 1st respondent was screened and cleared to contest the primary election of the 3rd respondent and was an aspirant who has the locus standi to sue on the processes leading to the actual primary election whether he lost or was excluded or placed in a disadvantage position in relation to actual voting.

On non-joinder of the members of the electoral committee, counsel submitted that the 1st respondent did not seek any relief against members of the gubernatorial primary election committee and the appellant has not shown how the lower Court made any finding against any member of the committee. He further submitted that assuming but without conceding that members of the committee are necessary parties who ought to be joined, failure to join them cannot be a ground for setting aside the judgment. He referred to AYORINDE & ORS V. ONI & ANOR (2000) LPELR- 684, OMOBORIOWO & ORS V. AJASIN (1984) LPELR-…, AT 39-40 (D-B).

The appellant’s reply is a recap of his submissions in the appellant’s brief of argument.

RESOLUTION
Sections 97 and 98 of the Sheriffs and Civil Processes Act provide that:
97. “Every writ of summons for service under this part out of the State or the Capital Territory which it was issued shall in addition to any other endorsement or notice required by the law of such State or the Capital Territory have endorsed thereon a notice to the following effect: This summons (or as the case may be) is to be served out of the … State (as the case may be)… and in the … State (as the case may be).”
98. A writ of summons for service out of the state or the Federal Capital Territory in which it is issued may be issued as a concurrent writ with the one for service within such state or the Capital Territory and shall in that case be marked as concurrent.”
In IZEZE V. INEC (SUPRA), the Supreme Court held as follows:
“It is important at this stage that I examine relevant provisions of the Federal High Court (Civil Procedure) Rules. Order 6 Rule 13: Service out of jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge in chambers whenever 13(g). Any person out of jurisdiction is a necessary or proper party to an action properly brought against some other party within the jurisdiction; or 14(i). Every application for leave to serve a writ or notice on a defendant out of the jurisdiction shall be supported by affidavit or other evidence stating that in the belief of the deponent the plaintiff has a good cause of action and showing in what place or country the defendant is or probably may be found, and the grounds upon which application is made. (2) No such leave shall be granted unless it is made sufficiently to appear to the Court or a judge in chambers that the cause is a proper one for service out of jurisdiction under these Rules 17.(1) Service out of jurisdiction may be allowed by the Court or a judge in chambers of the following processes or of notices thereof, that is to say. (a) An originating summons, where the proceeding begun by an originating summons might have been begun by a writ of summons under these Rules.” The above was not considered by the Federal High Court. The learned trial judge struck out the suit for failure to comply with the provision of Section 97 of the Sheriff and Civil Process Act. A diligent examination of Order 6 Rules 13-17 of the Federal High Court (Civil Procedure) Rules reveals that the requirement that the originating process for service out of jurisdiction must be endorsed as provided by Section 97 of the Sheriff and Civil Process Act is not part of the said Rules. The Sheriff and Civil Process Act is an Act of the National Assembly, while the Federal High Court (Civil Procedure) Rules is a subsidiary legislation, a bye-law, inferior to an Act of the National Assembly. The Court of Appeal was wrong to restrict itself to whether the originating process was properly issued and served on the 1st and 2nd respondents, oblivious of superior legislation, to wit: the mandatory requirement of compliance with Section 97 of the Sheriff and Civil Process Act ​ which was not even addressed by the Court. The mandatory requirement of Section 97 of the Sheriffs and Civil Process Act must be complied with before the originating process can be valid. It is only after there is a proper endorsement on the originating process, that issuance and service follows. Where, as in this case the originating process is invalid issuing and serving it is an exercise in futility as you cannot serve a void process. Once again in Enterprise Bank Ltd v Aroso (supra) Section 97 of the Sheriff and Civil Process Act was not considered. That case was decided on Rules of Court. It is not authority for service of originating process out of jurisdiction when Sections 97, 98 and 99 of the Sheriff and Civil Process Act are considered or are in issue.”
However, in BIEM V. SDP (SUPRA), the Supreme Court revisited the issue of whether or not Sections 97 and 98 of the Sheriff and Civil Process Act apply to originating summons issued by the Federal High Court. The Court answered the question with a resounding No. This is what the Court said at page 404 of the report:
“The submission of the learned Counsel for the Appellant are well founded. Section 19 (1) of the Federal High Court Act provided that the Court shall have and exercise jurisdiction throughout the Federation and for that purpose the whole area of the federation shall be divided into judicial divisions. This if for administrative convenience and for dispatch of business as the Chief Judge may direct … The submission by learned counsel for the 1st Respondent/Cross-Appellant that the principal legislation that deals with the service of Court processes of any Court in Nigeria is the Sheriff and Civil Processes Act is therefore not correct as it relates to the Federal High Court. It is true of State High Courts and the FCT High Court because their jurisdiction is circumscribed by territory each state occupies and the Federal Capital Territory. The service of any process issued by the Federal High Court can be carried under the Sheriffs and Civil and Process Act, if such service is to be executed outside the territory of Nigeria Order 6 Rule 31 of the Federal High Court Rules interprets outside jurisdiction to mean, outside the Federal Republic of Nigeria. Thus to effect service at Abuja outside Delta State where it is issued from should be nullified because it did not comply with Section 97 of the Sheriffs and Civil Process Act as this Court did in Izeze vs INEC (2018) 110 at 132 did not take cognizance of Section 19 of the Act and Order 6 Rule 31. I am of the considered view that the Originating Summons issued by the Federal High Court Makurdi which is to be served in Abuja cannot be considered to be service outside jurisdiction and therefore, does not require to be endorsed as a concurrent Writ.”
In resolving the controversy on whether or not the above provisions of the Sheriffs and Civil Processes Act apply to a writ issued by the Federal High Court of Nigeria, the lower Court considered the decisions of the Supreme Court in IZEZE V. INEC (SUPRA) and BIEM V. SDP (SUPRA) at pages 2434-2436 of the record of appeal. The Court decided to follow the decision BIEM V. SDP (SUPRA) and came to the conclusion that the writ issued by the Registry of the Federal High Court sitting in Jalingo for service in Abuja outside of Taraba State is exempted from the provisions of Sections 97 and 98 of the Sheriffs and Civil Processes Act. A case is only an authority for what it decides, See PDP V. INEC (SUPRA) AT 19 (A-B). As rightly stated by the lower Court, the issue of the application of the application of Section 97 of the Sheriff and Civil Process Act was not considered and pronounce upon in OMAJALI V. DAVID (SUPRA) and the decision did not change the firm position of the Supreme Court or say anything to contradict or overrule BIEM V. SDP. The issue in OMAJALI V. DAVID (SUPRA) was the application of section 98 of the Sheriff and Civil Process Act and the Court firmly and unequivocally held as follows:
“For the purpose of Service of Court processes, be they originating or otherwise, the Federal High Court has and exercises jurisdiction throughout the country and a party does not require leave for such processes to be served within Nigeria.”
Reading the cases of BIEM V. SDP and OMAJALI V. DAVID together, there is no doubt that the current position of the Supreme Court is that the provisions of Sections 97 and 98 of the Sheriff and Civil Process Act are not applicable to processes issued by the Federal High Court. The decision of the lower Court that the originating summons issued for service in Abuja is competent as there is no need for the endorsement of same as concurrent following the decision in BIEM V. SDP in impeccable and cannot be disturbed.

On the locus standi of the 1st respondent, Section 84 (14) of the Electoral Act, 2022 provides that:
“(14) 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 have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
Section 152 of the Electoral Act, 2022 defines an “aspirant” as “a person who aspires or seeks or strives to contest an election to a political office.”
Section 84 (14) of the Electoral Act, 2022 provides a window for an aspirant who complains that any of the provisions of the Electoral Act or his party’s guidelines have not been complied with in the conduct of the primary for the selection or nomination of the party’s candidate for general election, to ventilate his grievance before the Federal High Court. Not only must his complaint relate to non-compliance with the Electoral Act or his party’s guidelines, he must also bring himself within the purview of the sub-section by showing that he was an aspirant in the primary election complained of. See EZE v. PDP & ORS (2018) LPELR-44907(SC) AT 37-39 (A-E).

The contention of the appellant that the 1st respondent is not an aspirant is predicated on the alleged failure to produce certificate of clearance to contest the election, The lower Court evaluated the affidavit evidence on record and held as follows at pages 2429 -2430 Volume 5 of the records of appeal:
“In the instant case, the Affidavit evidence and the exhibits before me, indisputably shows that the Plaintiff purchased the 3rd Defendant’s expression of interest form as well as gubernatorial nomination form to contest for the office of Governor of Taraba State, and paid the whopping sum of N50,000,000.00 (Fifty Million Naira) demanded of aspirants. He was screened alongside other aspirants and cleared to contest the Gubernatorial Primary Election of the 3rd Defendant for Taraba State, and even attended several meetings with stakeholders, including a meeting with the Taraba State Gubernatorial Primary Election Committee on the 26th of May, 2022, the date billed for the election. These uncontroverted facts do not only show that the Plaintiff had a strong desire to contest the gubernatorial primary election of the 3rd Defendant for Taraba State, but also shows that he tried very hard and devoted serious effort and energy towards contesting for the said gubernatorial primary election, and therefore, he is rightly an aspirant within the meaning and contemplation of Sections 84 (14) and 152 of the Electoral Act, 2022, and thus, clearly has the locus standi to invoke the powers of this Court under Section 84 (14) of the Electoral Act (supra). The arguments of the 2nd Defendant to the contrary is clearly erroneous and misleading, as same runs contrary to the clear provisions of Section 152 of the Electoral Act, 2022, Also, the judicial authorities cited in support of the arguments, no longer represents the position of law, with regards to who an aspirant is, by virtue of Section 152 of the Electoral Act, 2022, and thus, cannot be relied upon in the determination of the locus standi of the Plaintiff to invoke Section 84 (14) of the Electoral Act, 2022. Accordingly, the arguments of the 2nd Defendant on the issue of locus standi as well as the authorities cited in support thereof, are discountenanced. Consequently, this issue is resolved in favour of the Plaintiff and against the 2nd Defendant. I so hold.”

I have no reason to disturb the finding of the lower Court. By the affidavit evidence on record, the appellant’s contention cannot fly. In paragraphs 6-13 of the affidavit in support of the originating summons on pages 9 and 10, Volume 1 of the records of appeal, the 1st respondent narrated how he purchased expression of interest form and nomination form and paid N50,000,000.00 (Fifty million Naira) for the for the forms. On 15th May, 2022 he was screened along with other aspirants by the 3rd respondent’s screening committee and was cleared to contest the election. The appellant filed a counter-affidavit which is on pages 1726-2195 Volume 4 of the records of appeal, Paragraphs 6-13 of the 1st respondent’s affidavit in support of the originating summons relating to his participation in the process of the primary election were not denied. The law is settled that where vital depositions in an affidavit are not denied by way of a counter-affidavit, they are generally deemed admitted and the Court is entitled to act thereon. What is stated in paragraph 5 of the counter-affidavit is that all the facts contained in the 1st respondent’s affidavit on the allegations of non-conduct of the primary election or preferential treatment being given to the appellant by the 3rd respondent in the conduct of the election or allotment of votes to aspirants are incorrect and outright falsehood. In paragraphs 19 – 29 of the appellant’s counter-affidavit the votes allegedly scored by the 1st respondent in each ward in the purported election were stated. The fact of the participation of the 1st respondent in the process leading to the primary election was confirmed and sealed by the 3rd respondent under whose umbrella the appellant and 1st respondent were seeking nomination as candidate for the governorship election in Taraba State. It is clearly stated in paragraph 8 of its affidavit on page 1057 Volume 3 of the record of appeal that on 15th May, 2022, the 1st respondent and other aspirants including the appellant presented themselves for screening to contest the governorship primary election in Taraba State. The appellant and 1st respondent was cleared to contest the primary. The law is sacrosanct that what is admitted needs no further proof.

In the face of all the established facts, insistence of the learned senior counsel on production of clearance certificate issued by the screening committee is unwarranted. ALIYU V. APC & ORS (SUPRA) relied on by the appellant’s counsel is inapplicable to the instant case. The case was about election into the office of chairman of a local government, Nasarawa State. Apart from the decision of the Supreme Court that by virtue of Section 103 of the Electoral Act, the case of the appellant is wholly and exclusively regulated by the State Law, the National Electoral Commission or the Electoral Act have no place in the election, the appellant’s allegation was that the election was conducted behind him thus admitting that he did not participate in the election.

The facts of this case align more with the case of UBA V. MOGHALU (SUPRA). In that case, the 1st respondent and 12 other persons were aspirants in the primary election of APC that held on 26th June, 2021. The 1st respondent was screened and cleared to contest the election just as the 1st respondent herein was screened and cleared to contest the election. On the day of the election, the election committee was not seen anywhere in all the wards in Anambra State. Nevertheless, the election committee showed up the next day in a hotel and announced a bogus election result written in favour of the appellant. On the issue of whether the lower Court was correct to hold that the 1st respondent had the locus standi to institute the suit before the trial Court, the Supreme Court at page 305-306(G-A) of the report held that:
“By the affidavit evidence and the documents in this matter, it is indisputably clear and deducible that the 1st respondent purchased expression of interest form, nomination form, paid N25,000,000 demanded for aspirants, was cleared to contest the primary election on 26/6/21, was given clearance certificate and he campaigned in all the 326 wards in Anambra State. He therefore qualified as an aspirant in the Anambra State governorship primary election that held on 26/6/2021,and invariably has the locus standi to institute the instant suit, having been aggrieved with the process and procedure of the conduct of the primary election that held on 26/6/2021.”

The contention of the appellant that the 1st respondent has no locus standi to institute the suit at the lower Court is clearly misconceived and was rightly rejected by the lower Court.

On non-joinder of the election committee, the lower Court aptly captured the law in relation to the facts disclosed in this case when it held as follows at pages 2431- 2432 Volume 5 of the records of appeal as follows:
“A careful perusal of the questions for determination and reliefs sought endorsed on the originating summons as well as the facts in the affidavit in support thereof, clearly shows that what is in issue before this Court is alleged non-compliance with the provisions of the Electoral Act and the 3rd Defendant’s Guidelines, in the nomination of the 2nd Defendant as its candidate for the 2023 gubernatorial election of Taraba Staten As rightly submitted by the learned Senior Counsel for the Plaintiff, the issues before this Court can be fully and properly decided without making any judicial findings on any issue bordering on criminality. Thus, members of the 3rd Defendant’s Committee for Gubernatorial Primary Election for Taraba State, are neither mandatory nor necessary parties to this suit, as their presence is not in any way necessary for the effective and complete determination of the issues before this Court, and as such their non-joinder to this suit, does not in any way affect the jurisdiction of this Court. Moreover, even if the said persons were necessary parties in this suit, I do not even think their non-joinder as parties will affect the competency of this suit or prevent this Court from exercising jurisdiction over this suit. This is so because the non-joinder of a necessary party to an action does not render the action a nullity, provided that the action is properly constituted, with a Plaintiff with legal capacity to sue, and a Defendant or Defendants with capacity to defend and a claim with cause of action against the Defendant or Defendants.”

The law is settled that a plaintiff is required to sue only parties against whom he has a cause of action. The Court will not compel a plaintiff to proceed against a party he has no desire to sue. See GREEN v. GREEN (1987) LPELR-1338(SC) AT 40(A-B).

In IN RE: MOGAJI (1986) LPELR-1891(SC) AT 17 (A-B), (1986) 1 NWLR (PT.19) 759, APAMPA & ORS V. OGUNGBEMI (2017) LPELR-43264(CA) AT 13 (B-D). In AYORINDE & ORS v. ONI & ANOR (2000) LPELR-684(SC) AT 27 (D-F), the Supreme Court Per KARIBI-WHYTE held that:
“At the commencement of trial, a properly constituted action must contain the Plaintiff, a defendant and the claim against the defendant. In Alhaji Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101, it was held that it was improper to join as co-defendants to an action, persons against whom the Plaintiff has no cause of action and against whom he has not made any claim – See Lajumoke v. Doherty (1969) NMLR 281.”

I have perused the findings of the lower Court on pages 2488-2489 Volume 5 of the record of appeal that same handwriting appeared on several result sheets. No where did the lower Court state that the electoral committee was responsible for that anomaly, if any. The central issue and complaint of the 1st respondent is that no primary election known to law was held on 26/5/22, The reliefs sought are directed against the 2nd and 3rd respondents and the appellant as the candidate declared as winner of the primary election. No relief is sought against the electoral committee. The issue in dispute can be effectively and completely determined without the presence of the committee. The members of the committee are not necessary parties to this case. issue 1 is resolved against the appellant.

On issue 2, the appellant’s counsel contends that the 1st respondent by his affidavit and the reliefs sought stated in one breadth that the primary election did not hold and in another breath stated that the election was held but he was not given a level playing field due to the alteration of mode of the election thus presenting a diametrically opposed claims. He submitted that Exhibit APC on page 1153 of the records of appeal, INEC 2 and DSK clearly show that the alteration of the mode of primary election was authorized by the headquarters of the 3rd respondent. He contends that the issue of change of mode of primary election by Taraba State Executive Committee of the 3rd respondent, none authorization of the change by the 3rd respondent, non-publication of the change to members of the public thus depriving the 1st respondent equal opportunity are all extraneous to the case as constituted. He further submitted that the Court’s reliance on Exhibits 4b and 5b without a ruling on the appellant’s objection is a violation of the appellant’s right to fair hearing. On the holding of the election, counsel submitted that the lower Court misplaced the burden of prove on the appellant as there is no law that imposes burden to prove the holding of the election on the defence. He relied on UCHECHUKWU V. OKPALAEKE (2010) LPELR-5040(CA) AT 38(A-D) IPIGANSI & ANOR V. INEC (2019) LPELR-48907(CA) AT 43-45(B-A), PDP V. EKEAGBARA (2016) LPELR-40849(CA) AT 37-38. Counsel embarked on extensive analysis of the evidence led and the findings of the lower Court, he urged the Court to set aside all the improper findings of the lower Court for improper or no evaluation of evidence and re-evaluate the documentary evidence. He referred to AYORINDE V. KUFORIJI (2022) LPELR 56600 (SC) AT 92-93 (F-B).

In response, the 1st respondent’s counsel submitted that given the facts on record which were largely uncontroverted by the appellant, the lower Court was right to conclude that the 3rd respondent did not conduct any valid gubernatorial primary election in Taraba State. He further submitted that the appellant’s spirited attack on exhibits 4b and 5b is belated as the record shows that when the appellant’s objection to the playing of the video recording in the open Court was overruled, the lower Court invited the appellant to file any process they wished in reaction to the videos but the appellant did not file anything to challenge the authenticity of the video recording or the accuracy of the transcripts.

In his reply, the appellant’s counsel submitted that failure of the appellant to file a response to Exhibits 4b and 5b has nothing to do with the objection raised by the appellant because the Court has a duty make a pronouncement on the objection.

RESOLUTION
It is the law that pleadings should be read and considered in their totality in order to get the real gist of a case being presented by a party. In a case commenced by originating summons as the instant case, the question(s) presented for determination, the reliefs sought, the affidavit(s) and the documents must be read and considered together to get the real case being made by the plaintiff. The case presented by the 1st respondent is very simple and it is that no election was held but results were declared. The facts relied on by the 1st respondent in support of that assertion is what the appellant is hammering on as constituting separate cases.

It is the law that the duty to evaluate and ascribe probative value to the evidence led is primarily that of the trial Court. The appellate Court can only interfere where the trial Court is shown not to have performed its duty properly. See JIBRIN V. FRN (2018) LPELR-43844(SC) AT 13 (A-C) where the Supreme Court held that:
“The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – see Fatai V. State (2013) 10 NWLR (Pt.1361) 1 at 21 SC.”

After the consideration of the documentary evidence relating to mode adopted by the appellant for the conduct of the primary election, the lower Court held that there was nothing to show that the decision to alter mode of primary election for Taraba State was taken before 26/5/22 and not after neither is there anything to show that such decision was communicated to any member of the appellant including the aspirants. The letter of 25th May, 2022 which the Court relied on to hold that the appellant had adopted direct mode of primary in Taraba Stated only stated that the mode of election in Abia, Benue and Osun will be by direct primary. It was silent on what mode would be adopted for other states. Even if the appellant had adopted indirect mode of election, the lower Court rightly held that the appellant has the right to change that mode and this it did in the instant case. Exhibit INEC2 signed by the Chairman and Secretary of the appellant on 30/5/22 shows that the writer of Exhibit APC 2b was not on frolic of his own when he wrote and signed the letter contrary to the finding of the lower Court. In paragraph 9 of the appellant’s counter-affidavit on pages 1057 -1060 of the record of appeal, the appellant explained how the decision to conduct the gubernatorial primary in Taraba State by an indirect mode came about. That paragraph of the affidavit reads:
“9. That in response to the deposition contained at paragraphs 18, 19, 20, 21, 22 and 23 of Plaintiff’s Affidavit in support of Originating Summons, the National Legal Adviser of the 3rd Defendant, Ahmad El-Marzuk informed me at the 3rd Defendant’s Secretariat at Plot 40 Blantyre Street, Wuse II, Abuja FCT, on 4th July, 2022 at about 2:30pm which information I verily believed to be true and correct that:
(a) On 15th May, 2022, after the screening of the Plaintiff, he and the Aspirants of the 3rd Defendant including Senator Anthony G. Manzo, Barr. Danladi I. Kefasi approached him in the office with a request that it was impossible to conduct the Governorship Primary Election in Taraba State by indirect primary election due to pending litigation over leadership crisis in the Taraba State Chapter of the 3rd Defendant.
(b) After listening to their request, he advised that the consent of all the contestants in the Governorship Primary Election and State Chapter Executive Council was required by the Party before direct mode of Primary Election in Taraba State could be approved.
(c) On 20th May, 2022, the Taraba State Chairman of the 3rd Defendant, the Plaintiff along with other Aspirants except the 2nd Defendant met him in the office to press their request for a direct mode of Primary Election to be adopted in the conduct of the Governorship Primary in Taraba State.
(d) They came along with a letter signed by the State Chairman of the party requesting for the adoption of direct mode of primary. The letter which has been shown to me is hereby attached and marked as EXHIBIT “APC1”
(e) But seeing that the 2nd Defendant was still absent, he insisted that the 2nd Defendant must be present at the meeting before the party could take a position on their request.
(f) In the evening on 23rd May 2022, after the press briefing by the Publicity Secretary of the 3rd Defendant, the Plaintiff and all the Aspirants of the 3rd Defendant met him in his office, this time with the 2nd Defendant in attendance to press their request for the adoption of direct mode of Primary Election for Taraba State.
(g) Due to the urgency of the request, the National Chairman of the 3rd Defendant summoned an emergency National Executives Committee meeting, (as the Committee had been vested with the powers to take decisions by the National Working Committee (NWC) on matters relating to conduct of election) to approve direct mode of Primary Election for Taraba State.
(h) After the approval of direct mode of primary for the conduct of the Governorship primary election in Taraba State, the National Chairman directed the State branch to make a letter to the 1st Defendant indicating the mode of Primary Election approved for Taraba State.
(i) The acknowledgment copy kept by the 3rd Defendant of the letters made to the 1st Defendant which has been shown to me are hereby attached and marked as EXHIBITS “APC 2” and “APC 2a” respectively.”

The lower Court in arriving at its decision that the letter of 30/5/22 was an afterthought did not consider the depositions in paragraph 9 of the appellant’s affidavit which confirmed that the decision to conduct the primary election by direct mode was that of the National Executive Committee through the National Executive Committee.

The lower Court also found that no gubernatorial primary election was conducted in Taraba State on 26/5/2022. He relied on the press conference held by the Chairman of the Electoral Committee. The appellant explained the circumstances under which the Chairman gave the press conference at the force headquarters. In order to prove that the primary election was conducted, certified true copies of the result sheets were produced by the 1st respondent together with a report by each of the electoral officers from the INEC monitoring unit that monitored the election. The lower Court at pages 2488-2489 Volume 5 of the record of appeal held as follows:
“the Defendants contend that there was actually gubernatorial primary election in Taraba State. The only documentary evidence adduced by them in support of this contention are purported results sheets and reports from staff of the 1st Defendant from its Taraba State Office. Apart from these documents, no other documents were placed before this Court in proof of this contention and in sufficient rebuttal of the Plaintiff’s claim that there was no election. Now, it should be noted that the Plaintiff has challenged the credibility of the results sought to be relied on by the Defendants as evidence that there was primary election in Taraba State, making it expedient for this Court to scrutinize the said documents. I have carefully and painstakingly scrutinized purported results sheets annexed to the respective counter-affidavit of the Defendants, and find as alleged by learned Counsel for the Plaintiff that, the same handwritings appear on different result sheets from different wards and different local government areas, which clearly exposes a foul play in the preparation of the purported results. For instance, the same handwriting which appeared on APC 6, the purported result sheet for Munkin A Ward in Zing Local Government, also appeared on APC 7 which is the result for Zing B Ward, as well as on APC A9, which is result for Zing A “I” and APC 13 which is ward result for Zing B “II”, and so on and so forth. There is no explanation before this Court from the Defendants, as to why one handwriting would appear on more than one result sheets. This situation clearly impeaches the credibility of the Ward result sheets, and renders the exhibits unreliable. In the circumstance therefore, this Court is unable to rely on APC 5 – 188 of the 3rd Defendant and similar exhibits of the 1st and 2nd Defendant purporting to be results from the purported election, for the purpose of determining the controversy in issue.”

Section 101 of the Evidence Act empowers the Court to compare signature, writing, seal or finger impression with others admitted or proved but that power is obviously limited to admitted or proved signature, writing, seal or finger impression. It does not extend to an inquisitorial or investigative exercise to discover whether the writing on a set of documents are the same. Section 101 of the EVIDENCE ACT READS:
101.” (1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write word or figure or to make finger impressions for the purpose of enabling the Court to compare the words, figure or finger impressions so written with any words, figures or finger impression alleged to have been written or made by such person; Provided that where a defendant does not give evidence he may not be so directed to write such words of figures or to make finger impressions.”
See ENWEREM v. ABUBAKAR & ANOR (2016) LPELR-40369(CA) AT 19-20 (F-D), ALIYU V. OKOYE & ORS (2018) LPELR-45429(CA) AT 28-37(G-G). The Supreme Court Per KUTIGI, J.S.C stated when a trial Court is permitted to compare writings and or signatures in YONGO & ANOR V. C.O.P (1992)8 NWLR (PT.257) 36, (1992) LPELR-3528(SC) AT 28 (B-E):
“I am of the view that the senior magistrate was wrong when he single-handedly in his chambers, proceeded to examine EXH.K and thereby arrived at the conclusion that “the writing and the signatures” thereon were all done by one single individual. (See R. v. Wilcox (1961) 2 S.C.N.L.R. 296; (1961) 1 ALL NIL.R. 631). No wonder he did not say who wrote and or signed it! I think although the law permits trial Courts to compare writings and or signatures in order to discover their authors, this only arises in a case where the writings and or signatures are in dispute and therefore in issue. And in such cases proven or acknowledged writings or signatures of the disputants must be before the Court. (See Zakiah v. Board of Customs & Excise (1966) N.M.L.R. 293).”
At pages 43-44 (D-A) KARIBI-WHYTE, J.S.C stated the distinction between a comparison made in open Court and that not made in open Court as follows:
“In the case of Duriminiya v. Commissioner of Police (1961) N.R.N.L.R. 70, the Court drew the distinction between a comparison made in open Court, and that not made in open Court. Whereas those in Court constitute part of the proceedings and are acceptable, those out of Court are regarded as if in the process of investigation, and not acceptable. In doing the latter, the Magistrate will not be trying the case he will be regarded as investigating. It is not the function of the Court in our adversary procedure to investigate. There was evidence in the instant case that the investigation was made in chambers and not in open Court, and therefore falls within the principles laid down in R. v. Wilcox (supra) and Duriminiya v. Commissioner of Police (supra).”
In the Supreme Court of India’s decision in THIRUVENGADAM PILLAI V. NAVANEETHAMMAL (2008) 3 ALD 112, SC, it was held that:
“While there is no doubt that Court can compare the disputed handwriting/signature/finger impression with admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed thumb impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of finger prints, the Court may record a finding on comparison, even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by casual perusal. The decision in Murari Lal 4 and Lalit Popil 5 should not be construed as laying a proposition that the Court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching conclusions based on a mere casual or routine glance or perusal.”
In Y. JOGULAMMA at JYOTHI V. CHUKKAKULAKONDAMMA 2011 (6) ALD 741, the Court held that:
“So far as the comparison of the signatures or the thumb impression is concerned, such course has to be done sparingly, The judge, who comes to an opinion after comparison, should also disclose his expertise and also give reasons for the conclusions. A mere statement that the Court is of the opinion that the thumb impressions or the signature appears to be similar is not proper since an expert, whose evidence is to be assessed, the judge, who is also giving his opinion, should mention the reasons.”
​The clear principle established by all the above cases is that while the law permits the Court to compare writings and or signatures in order to discover their authors in cases where the writings and or signatures are in dispute, proven or acknowledged writings or signatures of the disputants must be before the Court. The Court should always be cautious in exercising that power without an input by the parties or counsel and without an assistance from an expert especially where several and sensitive documents are involved. Mere perusal no matter how painstaking without stating the reasons and the characteristics found in the documents cannot be accepted as a valid finding that the result sheets were written by the same person.

By virtue of Section 168 of the Evidence Act 2011, there is a presumption of regularity in favour of the INEC’s reports. The presumption can only be rebutted by cogent, credible and acceptable evidence. The presumption of regularity enjoyed by INECS reports are not rebuttable by presumptuous postulations. See CPC V. INEC & ORS (2011) LPELR-8257(SC) AT 57 (A-C), EMMANUEL v. UMANA & ORS (2016) LPELR-40037(SC).

The importance of INEC’s report of an election monitoring exercise can be gleaned from the pronouncement of the Supreme Court in AMAECHI V.INEC & ORS (2008) LPELR-446(SC) AT 39-40 (F-D) Per Oguntade, JSC where the Supreme Court that:
“It must be borne in mind that the political parties were a creation of Section 221 of the 1999 Constitution. The same 1999 Constitution in Section 222 imposes the duty on parties to file copies of their Constitution with Independent National Electoral Commission (INEC). Nothing in a party’s Constitution can override or be superior to the Constitution of Nigeria and the Laws validly enacted by the authority of the Nigerian Constitution. Under Section 85 of the Electoral Act, 2006, it is mandatory that political parties inform INEC of the date and time of holding a convention or congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral Act, 2006. If parties were not to be bound by the results of their party primaries in the nomination of candidates at any level, why would it be necessary for Independent National Electoral Commission’s (INEC) representatives to be present at and monitor the proceedings of such congress It seems that the obligation on the parties to inform INEC of such congresses was to ensure that INEC would know and keep a record of candidates who won at the primaries.

The above decision was referred to in UBA V. MOGHALU (2022)15 NWLR (PT.1853)271 AT 303 – 303 (H-C) where the Supreme Court stated the purpose of INEC’s duty of monitoring a party’s primary election as follows:
“Although it has been argued by the learned senior counsel to the Appellant, relying on Shinkafi & Anor v. Yari & Ors (2016) LPELR – 26050 (SC); (2016) 7 NWLR (Pt.1511) 340, that the role of INEC monitoring team is merely observatory and nothing more is clearly misconstrued in this context. The observatory function of INEC is clearly spelt out under Section 85(2) (b) for the purpose of..
“(b) nominating candidates for an election at any level.”
Who then has INEC observed to have been nominated by the 3rd respondent as its candidate in the Anambra State governorship primary election?

The lower Court held that INEC’s report is insufficient to prove the claim that there was an actual election because it is not impossible for the reports to have been procured by any means. That is purely speculative and unfounded. It is trite law that a Court is not entitled to decide a case on mere conjecture or speculation or guesswork.

See IVIENAGBOR V. BAZUAYE & ANOR (1999) LPELR-1562(SC) AT 14 (A-D) where the Supreme Court Per UWAIFO, J.S.C held that:
“A Court cannot decide issues on speculation, no matter how close what it relies on may seem to be on the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the Court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it. See Overseas Construction Co. Ltd v. Creek Enterprises Ltd. (1985) 16 NSCC (Pt. 2) 1371 at 1375; (1985) 3 NWLR (Pt. 113) 409.”
See also OLALOMI INDUSTRIES LTD v. NIDB LTD (2009) LPELR-2564(SC) AT 44(E-G), ORISA V. STATE (2018) LPELR-43896(SC) AT 25-26(C-A). The presumption of regularity in favour of the reports was not rebutted by any scintilla of evidence on record.

It is the law that not every mistake or error in a judgment will result in the appeal being allowed. It is only that error which is substantial in such a way that it has occasioned a miscarriage of justice that would warrant the appellate Court’s interference. In the instant case, I am of the view that the refusal of the lower Court to ascribe proper probative value to the results of the primary election and INEC’s reports which confirmed that the election held occasioned a miscarriage of justice. This Court is therefore under a duty to interfere with the judgment. Accordingly, issue 2 is resolved in favour of the appellant.

In conclusion, the appeal succeeds. It is hereby allowed. The judgment of the Federal High Court delivered in suit no. FHC/JAL/CS/24/2022 on 20th September, 2022 is hereby set aside in its entirety. In its place, judgment is hereby entered against the plaintiff. The questions presented for determination are resolved against the plaintiff and the reliefs sought are refused. The case is dismissed. Parties shall bear their own costs.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, M. O. Bolaji Yusuff, JCA. I agree with the reasoning and conclusion reached in the lead judgment. I have nothing useful to add.

JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read in draft the judgment delivered by my learned brother, Misitura Omodere Bolaji-Yusuff, JCA. I agree with the reasoning and conclusion reached in the judgment. I have nothing else to add.

Appearances:

Dr. E. A. Ibrahim-Effiong, with him, D.G. Tukura For Appellant(s)

J. A. Oguche, with him, G. T Ieave – for 1st Respondent

S.D. Toklen – for 2nd Respondent

F.K. Idepefo, SAN, with him, I.A. Simon, M.D. Arosanyin, S.Y. Audu, and S.A. Tyongbeha – for 3rd Respondent For Respondent(s)