CHIBUZOR v. PDP & ANOR
(2022)LCN/16263(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, November 18, 2022
CA/OW/370/2022
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
HON. OKOLIE EDWIN CHIBUZOR APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY (PDP) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO:
GUIDING PRINCIPLES IN THE DETERMINATION OF WHO IS A NECESSARY PARTY
Some guiding principles in the determination of who is a necessary party in a suit were given by the Supreme Court in the case of Adeniran v Olusokan II (2019) 8 NWLR Part 1673 Page 98 at 118-119 Para H-A per Peter- Odili JSC, as follows:
(i) “That the presence of such party is necessary for the effectual adjudication of the matter in dispute;
(ii) That the Plaintiff’s claim against the existing Defendants also affects the party sought to be joined; and or
(iii) That his interest is the same or identical with that of the existing Defendants.” OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE DEFINITION OF A NECESSARY PARTY IN AN ACTION
The same Court, in Poroye v Makarfi (2018 1 NWLR Part 1599 Page 91 at 142-143Para F-H per Ariwoola JSC (now CJN) opined:
“Who then is a necessary party to an action? A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who, in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action instituted.” OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE PRINCIPLE OF LAW ON PRE-ELECTION MATTERS
A similar argument as put up by the Appellant in this case was put forth in the case of PDP v Ezeonwuka (2018) 3 NWLR Part 1606 Page 187 where Kekere-Ekun JSC, at Page 249 Para A-F, reading the lead judgment, held as follows:
“I had observed earlier that pre-election matters just like election matters are sui generis. In other words, they are of a special breed. Where a party is claiming to be the only qualified, legitimate, duly elected and validly nominated candidate of the party for the primary election, the action cannot be properly constituted in the absence of the other aspirants. The 1st respondent contended that he had no grouse against the other aspirants. However, since this is a pre-election matter, there is no doubt that the interests of the other aspirants would certainly be affected by the outcome of the suit. The view of the lower Court at page 610 of the record that there was no need for the other aspirants to have been made parties to the suit because the 1st respondent had no claim against them and no particular order was made against them, with respect, cannot be correct. A declaration that the 1st respondent is the only legitimate candidate of the party has the effect of disqualifying any other aspirant whose name might actually have been submitted to INEC by the party. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
INTERPRETING THE PROVISIONS IN AN ELECTORAL ACT
Interpreting Article 14.11 of the Constitution of the APC, a similar provision as Section 84 (c) of the Electoral Act Supra, the Supreme Court in the case of Mato v. Hember (2017) LPELR 42765 (SC) per Eko JSC in his contributory judgment at Pages 55-56 Para F-B held:
“Article 14.11 of the Constitution of the 2nd Respondent makes it mandatory that the nomination congress shall be held at the headquarters of the Federal Constituency. Section 87(4)(c)(i) of the Electoral Act, 2010, as amended, also makes it mandatory that the nomination congress shall hold at a “designated centre”. Accordingly, when Section 87(4)(c)(i) of the Electoral Act is read together with Article 14.11 of the Constitution of the 2nd Respondent the purported nomination of the 1st Respondent outside the Federal Constituency was a nullity and a non-starter.”
In Ogara v. Asadu (2014) LPELR-22862 (CA), this Court, per Agube JCA, at Pages 47-48 Para H-A held:
“In the same vein, if the said primary was conducted at a venue other than that stipulated by the Guidelines, except there is reasonable explanation by the National Executive Committee or the National Assembly Electoral Panel on the change of venue, such Election and the result generated there from ought to be null and void if the allegation is proven.” OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE CONFLICT BETWEEN THE PROVISIONS OF THE CONSTITUTION AND THE ELECTORAL ACT
Let me quickly state here, that where the Provisions of the 1999 Constitution which is the grundnorm of this Country conflicts with the provisions of any other legislation, including the Electoral Act 2022, the Provisions of the 1999 Constitution shall prevail.
It is a notorious fact, a naked fact and of common knowledge both in this Country Nigeria and in diaspora, that Nigeria in general and the South Earthen States of Nigeria in particular, including Imo, Anambra and Enugu States are toxic and volatile presently. Spates of killings, kidnapping, Armed Robbery, Banditry have pervaded these States. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE PRIMARY PURPOSE OF GOVERNMENT IS TO ENSURE SECURITY AND WELFARE OF THE PEOPLE
It is trite that the primary purpose of government is to ensure the security and welfare of the people. This duty is cast in stone. It cannot be compromised by anything under the sun.
The Court is bound to evaluate the facts before it and pronounce on every issue before it. Anything short of this amounts to miscarriage of justice. RITA NOSAKHARE PEMU, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting at Owerri, delivered on the 16th day of September, 2022 by M. T. Segun Bello, J. (hereafter referred to synonymously as ‘the trial Judge’/ ‘lower Court’), dismissing the case of the Appellant. Aggrieved, the Appellant filed a ten ground Notice of Appeal on 29th day of September, 2022.
FACTS OF THE CASE:
The case of the Appellant is that he was the candidate of the 1st Respondent for the Orlu/Orsu/Oru East Federal Constituency in Imo State, at the primary election for the House of Representatives held on 25th May, 2022. After he had emerged winner and elected as candidate of the party, unknown to him, a fresh primary election was held at Owerri. He only got to know about this fresh election when he went to make enquiries as to whether his name had been submitted to INEC, the 2nd Respondent. He exhibited, inter alia, his Expression of Interest Form, his Nomination Form, the Result of the Election, showing him as winner (Exhibit E).
Consequently, he filed an Originating Summons against the Respondents jointly and severally seeking the following Declaratory Reliefs:
1. A Declaration that Applicant is the winner of the Primary Election of the 1st Respondent conducted on the 25th of May, 2022, for Oru East/Orsu/Orlu Federal Constituency Imo State and His name must be forwarded to the 2nd Respondent.
2. A Declaration that the 1st Respondent cannot forward any other name apart from the applicant who won the primary Election conducted on the 25th of May, 2022 for Oru East/Orsu/Orlu Federal Constituency in Imo State.
3. A Declaration that the Applicant is the winner of the Primary Election of the 1st Respondent conducted on the 25th of May, 2022; for Oru East/Orsu/Orlu Federal Constituency Imo State and He must be so recognized by the 2nd Respondent.
4. An Order directing the 1st Respondent to forward his name forthwith to the 2nd Respondent as the winner of the Primary Election of the 1st Respondent conducted on the 25th of May, 2022; for Oru East/Orsu/Orlu Federal Constituency Imo State
5. An Order for the 2nd Respondent to forthwith recognize, and put on the ballot as a candidate for the 1st Respondent, the Applicant as the winner of the 1st Respondent’s Primary Election conducted on the 25th of May, 2022 for Oru East/Orsu/Orlu Federal Constituency Imo State.
The case of the 1st Respondent, as deposed to by Kissinger Ikeokwu, Legal Adviser of the Imo State Chapter of the 1st Respondent, however is that the election held on 25th May, 2022 for the said Constituency produced one Aloysius Igwe as winner of the primaries but that the same was cancelled, following complaints by one Chief Kingsley Onyegbule to the Imo State National Assembly Primaries Appeal Electoral Appeal Panel of irregularities in the conduct of the election.
The panel cancelled the said primaries and ordered a re-run primary election, which was fixed for 5th June, 2022. This decision was accepted by the National Working Committee of the 1st Respondent at its meeting held on 3rd June, 2022. The 2nd Respondent was duly communicated through its Resident Electoral Commissioner. The re-run was conducted by a five man team sent by the 1st Respondent and monitored by a 7 man team from the 2nd Respondent.
The 1st Respondent denied the authenticity of the result exhibited by the Appellant, alleging that it was a forgery and did not emanate from them. It also did not possess the mandatory “Result Sheet Code” as required by the “People’s Democratic Party’s Guidelines for Primary Election, 2022”, unlike the authentic result exhibited by them as Exhibit “Kissinger 4”. They alleged that all the aspirants, including the Appellant, who participated in the former election of 25th May, 2022, were all notified about the cancellation of the said election and that the Appellant took part in the later re-run election but scored zero votes. It also denied that the Appellant was winner of the cancelled election but that it was one Aloysius Igwe. It exhibited the Result sheet of the cancelled primary (Exhibit “Kissinger 8”) showing Aloysius Igwe as the winner with 39 votes, Kingsley Onyegbule with 36 votes and the Appellant with 3 votes.
The 2nd Respondent in its Counter-Affidavit deposed to by Linda Oparaocha, Litigation Clerk in the employment of the 2nd Respondent, deposed that the 1st Respondent notified them by letter dated 18th May, 2022 of their intention to relocate their Primary Elections from the various constituencies to Owerri on grounds of security. They (2nd Respondent) acted on the same and monitored the primaries, which were held at Aladinmma Mall, Owerri, Imo State, on 25th May, 2022. A subsequent primary election monitored by them, was held by the 1st Respondent on the 5th day of June, 2022 in which one Kingsley Onyegbule was returned as the flag bearer of the 1st Respondent. They denied that the 1st Respondent conducted any primary election at Orlu LGA on the 25th May 2022, neither did they monitor any primary election held at Orlu LGA on the 25th May, 2022. They duly submitted a report of this exercise (Exhibit INEC 2) to the 2nd Respondent.
They exhibited as “INEC 1” the letter from the 1st Respondent to them, dated 18th May, 2022, informing them that due to the security situation in both Imo and Anambra States and in order to protect lives and properties of the people, the primaries for the various constituencies would be held in the state capitals.
The lower Court, delivering its judgment, upheld one of the legs of the Preliminary Objection which had challenged the suit on the ground that it was incompetent for the non-joinder of other aspirants who took part in the primary election for the nomination of the 1st Respondent’s candidate for the member representing Orlu/Orsu/Oru East Federal Constituency of Imo State, most importantly for failure to join Mr. Kingsley Onyegbule whose name was forwarded as the winner of the election in question. It struck out the suit for being improperly constituted. In spite of this decision, the Court still proceeded to consider the case of the Appellant but found same to be lacking in merit and dismissed it. It is against this decision that the Appellant has appealed.
BRIEFS OF ARGUMENT/ISSUES FOR DETERMINATION
The Appellant’s Brief of Arguments, settled by Adekunle Oladapo-Otitoju Ph.D and filed on 13th October, 2022, distilled three (3) issues for the Court’s determination, to wit:
1. Whether the Court was right when he failed to grant the reliefs sought by the Appellant and sustained the preliminary objection.
2. Whether the trial Court was right when he failed to recognize the only valid primary Election conducted within the Orlu/Orsu/Oru East Federal Constituency Imo State.
3. Whether the judgment of the trial Court was predicated on careful and proper evaluation of all the Exhibits and Evidence placed before it by the Appellant. Distilled from grounds 8, 9 and 10 of the Notice of Appeal.
The 1st Respondent’s Brief of Arguments, settled by I. K. Ujah, Esq. ACArb and filed on 18th October, 2022, similarly distilled three issues for determination, namely:
1. Was the Court below not right when it refused to grant the reliefs sought by the Appellant and sustained the preliminary objection of the 1st Respondent on the non-joinder of other aspirants who took part in the primary election for the nomination of the Respondent’s candidate for the member representing Orlu/Orsu/Oru East Federal Constituency of Imo State held on 25th/26th May, 2022?
2. Was the Court below not right when it refused to recognize the purported primary election relied upon by the Appellant?
3. Whether the Court below did not properly evaluate the exhibits presented before it in coming to its decision to dismiss the Appellant’s suit for lacking in merit?
The 2nd Respondent’s Brief of Arguments, settled by Olachi C. Nwugo (Mrs.), Esq., and filed on 18th October, 2022, also distilled three issues for determination, namely;
1. Whether the trial Court was right in sustaining the preliminary objection of the 1st Respondent and holding that the suit was improperly constituted?
2. Whether from the affidavit evidence placed before the trial Court by parties there is another valid primary Election conducted by the 1st Respondent at any other location apart from the Primary Election held in Aladinma Mall in the Owerri Capital Imo State on the 25th of May, 2022 in which the Appellant won?
3. Whether the learned trial judge rightly and carefully considered, reviewed and evaluated all the evidence of parties before dismissing the suit and holding that all the reliefs of the Claimant are non-justiciable and whether the Appellant is entitled to the Reliefs sought in this appeal.
The Appellant filed two Reply Briefs of Argument, one on 26/10/2022 in response to the 1st Respondent’s Brief of Argument and the second on 21/10/2022 in response to the 2nd Respondent’s Brief of Argument.
PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on the 17th of October, 2022, the 2nd Respondent urged this Court to discountenance the Appellant’s Brief of Arguments for being invalid and to strike out his appeal. In his arguments on the Preliminary Objection, incorporated in the 2nd Respondent’s Brief of Arguments, learned Counsel argued that that the Appellant’s brief was not typed using the font and line spacing specifications mandatorily provided for by Article 14 of the Election Judicial Proceedings Practice Directions, 2022. Counsel anchored her arguments on the ratios of the case of Fregene v. UAC (Nig) Ltd (1997) 3 NWLR (Part 493) 359 at 365.
APPELLANT’S REPLY TO THE PRELIMINARY OBJECTION
Responding, the Appellant contended that the purpose of a Preliminary Objection as envisaged by the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2021 is to challenge the Grounds of Appeal and the substance of the Appeal itself and not to challenge the form of a Brief of Argument. Citing the cases of Agbon-Ojeme v Selo Ojeme (2020) All FWLR (Part 1074) 1118 C.A, Charity Luba Consultancy v. Federal Republic of Nigeria [2016] All FWLR he urged that it would be in the overriding interest of justice to consider the Appellant’s Brief of Argument which was typed in a clear typographical character and to discountenance the Preliminary Objection of the 2nd Respondent as being academic.
RESOLUTION OF THE PRELIMINARY OBJECTION
Article 14 of the Election Judicial Proceedings Practice Directions 2022 provides as follows:
“14. – (a) Every Brief of Argument, whether of the Appellant or of the Respondent to be filed in the Court, shall not exceed forty pages and a Reply Brief shall not exceed fifteen (15) pages.
(b) Every Brief must be prepared in 210mm by 297mm paper size (A4) and typed in clear typographic character. The font type shall be in Arial, Times New Roman or Tahoma of 14 font size with at least 1.5 line spacing between.
(c) Any Brief of Argument which does not comply with these provisions shall be invalid.”
I note that the Appellant’s Counsel has not denied his failure to comply with the provisions of (b) and (c).
Counsel should note that there is a reason for the requirement in the Practice Directions for the use of a particular font and size in the preparation of Briefs of Argument. This requirement is to ensure legibility and clarity for the Court and opposing Counsel. Unfortunately, what Counsel are wont to do is to opt for a font type and size which are so small as to make the Brief of Arguments hardly legible, all in an attempt to beat the number of pages of Brief stipulated in the Rules. In some Briefs of Argument, Counsel doesn’t even number the pages, in a bid to hoodwink the Court as to the number of pages of the Brief. Rules of Court are meant to be obeyed and not treated with this manner of deliberate levity.
The Appellant’s Counsel, realizing his infraction of the Practice Directions and indeed Order 19 Rule 3 (6) of the Court of Appeal Rules 2021, which is similar, has, in his Reply Brief, used the proper font and size!
Courts have however been urged not to penalize the litigant for the sins of his Counsel. Much as I deprecate the attitude of the Appellant’s Counsel, I shall not penalize the litigant for his Counsel’s act. Thus, even though I find merit in the Preliminary Objection, I shall, in the interest of justice, determine this appeal on its merits.
MAIN APPEAL
The three issues for determination distilled by all three counsel in the suit are similar. I shall accordingly adopt them but will condense the 2nd and 3rd issues raised by Counsel into a single issue.
The issues for determination shall be as follow:
1. Whether the trial Court rightly sustained the preliminary objection of the 1st Respondent?
2. Whether the trial Court properly evaluated the case of the parties before coming to its decision to dismiss the Appellant’s suit?
ISSUE ONE:
WHETHER THE TRIAL COURT RIGHTLY SUSTAINED THE PRELIMINARY OBJECTION OF THE 1ST RESPONDENT?
APPELLANT’S SUBMISSIONS:
It is the Appellant’s submission that the Court below misconstrued the law when it sustained the Preliminary Objection of the 1st Respondent. Counsel submitted that Order 3 of the Federal High Court Practice (Pre-Election) Direction 2022 which stipulates that a party challenging the conduct or outcome of a primary election shall join as a defendant in the suit the person who emerged winner of the said election or whose name is forwarded by his political party to the Independent National Electoral Commission, came into force after this suit was instituted and cannot operate retroactively. This case, he said, was instituted on the 16th of June, 2022 while the Practice Direction was created on the 28th day of June, 2022.
He cited the cases of Gusau V All Progressives Congress (APC) & 3 ORS (2019) LPELR-46897 (SC), Afolabi v. Gov. of Oyo State (1995)2 NWLR (Part 9)74 SC in submitting that the Appellant cannot be punished by a law that was not available at the time of instituting the case.
He also submitted that the Appellant has no grievance with the person whose name was sent, i.e. Mr. Kingsley Onyegbule, and that his non-joinder does not defeat the claim of the Appellant, as the Court can conveniently decide this case without joining him, as the person who sent the name and created confusion in this case is the 1st Respondent.
1ST RESPONDENT’S SUBMISSIONS:
Counsel to the 1st Respondent contended that by virtue of the decision of the apex Court in the case of P.D.P v. Ezeonwuka [2018]3 NWLR [Part 1606] Page 187 at 248-249, an aspirant who challenges the outcome of a primary election and claims to be the validly elected candidate must join the other aspirants who took part in the primary election in question. Failure to join the other aspirants is fatal to the case of the plaintiff. Also, Paragraph 3 of the Federal High Court [Pre-election] Practice Direction 2022 makes it mandatory that any action challenging the outcome of a primary election must join the person whose name was submitted to the 2nd Respondent. Even if this suit was commenced before the commencement of the Practice Directions, the Appellant’s suit is still incompetent by virtue of the Supreme Court’s decision in PDP v. Ezeonwuka [supra].
2ND RESPONDENT’S SUBMISSION:
Learned Counsel to the 2nd Respondent submitted that this suit, being a pre-election matter is sui generis, which means that assuming, without conceding that the Appellant was right in his contention that the provisions of the Practice Directions cannot apply retrospectively, the Appellant had the opportunity to amend his originating summons within 7 days of the service of the Respondent’s reply to conform with the provisions of the Practice directions. Which opportunity he ought to have availed himself of but failed to do so.
Learned Counsel also submitted that the person whose name was forwarded to INEC, one Kingsley Onyegbule ought to have been joined in this suit as a necessary party. A necessary party has been defined by the Supreme Court in Lagos State Bulk Purchase Corporation V. Purifications Techniques (NIG) LTD (2012) LPELR – 20617 (SC) as someone whose presence is essential for the effectual and complete determination of the issues before the Court.
RESOLUTION:
1st Respondent’s Counsel, as 1st Defendant before the lower Court had raised a Preliminary Objection, inter alia, that the non-joinder of other aspirants who appeared as co-aspirants with the Appellant as Defendants to the Petition before the lower Court, is fatal to the competence of the suit.
The lower Court, citing Order 3 of the Federal High Court (Pre-Election) Practice Directions 2022 and PDP v. Ezeonwuka Supra, sustained the Preliminary Objection “by reason of the non-joinder of other aspirants to the disputed primary election (particularly Chief Kingsley Onyegbule who is said to have won the re-run election)”.
Order 3 of the Federal High Court (Pre-Election) Practice Directions 2022 provides as follows:
“A party challenging the conduct or outcome of a Primary election shall join as a Defendant in the suit all the persons who emerged as winner of the said election or whose name was forwarded by the political party by his political party to the Independent National Electoral Commission.”
While the Appellant has contended that the suit was filed some days before these Practice Directions were created, the argument that his grouse is only against the Respondents and not the successful candidate, cannot stand, I hold. This is because, by the admission of the Appellant in Paragraphs 16-20 of his Affidavit in Support of the Originating Summons, at Page 7 of the Record of Appeal, a fresh primary election was held in Owerri subsequent to his own. This knowledge of a fresh election makes it mandatory for him to have joined the winner of that election as a party, as the outcome of his suit would necessarily affect the winner.
Some guiding principles in the determination of who is a necessary party in a suit were given by the Supreme Court in the case of Adeniran v Olusokan II (2019) 8 NWLR Part 1673 Page 98 at 118-119 Para H-A per Peter- Odili JSC, as follows:
(i) “That the presence of such party is necessary for the effectual adjudication of the matter in dispute;
(ii) That the Plaintiff’s claim against the existing Defendants also affects the party sought to be joined; and or
(iii) That his interest is the same or identical with that of the existing Defendants.”
The same Court, in Poroye v Makarfi (2018 1 NWLR Part 1599 Page 91 at 142-143Para F-H per Ariwoola JSC (now CJN) opined:
“Who then is a necessary party to an action? A necessary party in an action has been held to be that person who is not only interested in the subject matter of the proceedings but also who, in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action instituted.”
A similar argument as put up by the Appellant in this case was put forth in the case of PDP v Ezeonwuka (2018) 3 NWLR Part 1606 Page 187 where Kekere-Ekun JSC, at Page 249 Para A-F, reading the lead judgment, held as follows:
“I had observed earlier that pre-election matters just like election matters are sui generis. In other words, they are of a special breed. Where a party is claiming to be the only qualified, legitimate, duly elected and validly nominated candidate of the party for the primary election, the action cannot be properly constituted in the absence of the other aspirants. The 1st respondent contended that he had no grouse against the other aspirants. However, since this is a pre-election matter, there is no doubt that the interests of the other aspirants would certainly be affected by the outcome of the suit. The view of the lower Court at page 610 of the record that there was no need for the other aspirants to have been made parties to the suit because the 1st respondent had no claim against them and no particular order was made against them, with respect, cannot be correct. A declaration that the 1st respondent is the only legitimate candidate of the party has the effect of disqualifying any other aspirant whose name might actually have been submitted to INEC by the party.
In the circumstances of this case, I am of the view and I do hold that the 1st respondent’s suit was not properly constituted and this is a feature that has adversely affected the competence of the Court to adjudicate on it. I agree entirely with learned senior counsel for the appellant that the manner in which the suit was constituted has occasioned a grave miscarriage of justice and amounts to a breach of his right to fair hearing. This issue is accordingly resolved in favour of the appellant.” Underlining Mine.
Applying the principles in the cases above to the instant case, the Appellant, who is claiming to be the winner of the primary election and that no other name but his be forwarded by the 1st Respondent to the 2nd Respondent, must, for his action to be competent, join the announced winner of the election. This is because a declaration that he is the only legitimate candidate of the party has the effect of disqualifying Kingsley Onyegbule, the winner of the re-run election. He is thus a necessary party to this suit, in whose absence the case cannot be properly settled, I hold. Not having been joined, this suit, sadly, is not competent. The lower Court, I thus hold, rightly sustained the Preliminary Objection of the 1st Respondent. I thus resolve the 1st issue for determination against the Appellant.
Even though I have held the lower Court right to have held the Appellant’s action to be incompetent for failure to join the winner of the election whose name was submitted by the 2nd Respondent to the 3rd Respondent, I shall, as the lower Court, nevertheless proceed to a determination of the other issues raised.
The 2nd issue for determination is
Whether the trial Court properly evaluated the case of the parties before coming to its decision to dismiss the Appellant’s suit?
APPELLANT’S SUBMISSIONS:
Counsel has submitted that the failure of the trial Court to recognize the election which held on the 25th of May, 2022 at Ihioma Township Hall for the Orlu, Orsu, Oru East primary election as the only valid primary election occasioned a grave miscarriage of justice. His submission is that the trial Court failed to properly evaluate the exhibits tendered by the Appellant, particularly, Exhibit “E”, “D” and Exhibit “G2” and this failure of the trial Court to properly evaluate the evidence placed before it was has led to a miscarriage of justice. He cited the case of Maku v. Al – Makura [2016] ALL FWLR 1606 S.C.
Counsel also contended that the allegedly cancelled election of the 25th of May, 2022 that produced Aloysius Igwe and the purported re-run primary election that produced Kingsley Onyegbule were conducted in Owerri, outside the Orlu/Orsu/Oru Federal Constituency, which rendered the elections illegal and invalid, citing the case of Mato v. Hember (2017) LPELR 12765. Even assuming, but not conceding, that there is any security threat in the Orlu/Orsu/Oru Federal Constituency, what the law prescribes is for the 1st Respondent to approach the Court for a change of venue from one local government to the other but within the same Federal Constituency and not outside the constituency, as an order for change of venue can only emanate from the Court.
1ST RESPONDENT’S SUBMISSIONS:
Counsel’s submission is that it is the National Executive Committee of a political party that conducts primary election in order to nominate or select her candidates for elective positions, therefore, any primary election not sanctioned or conducted by the National Executive Committee of a political party, such as the purported election paraded by the Appellant, is null and void. He cited the case of Emenike v. PDP [2012] 12 NWLR [PT. 1315] Page 556. He contended that the 1st Respondent conducted all her primaries, including, but not limited to the primary election for the nomination of the Respondent’s candidate for the member representing Orlu/Orsu/Oru East Federal Constituency of Imo State, at the Aladinma Shopping Mall, Owerri, Imo State between the 25th/26th May, 2022.
It is also learned Counsel’s submission that Exhibit “G2” is a worthless document as it does not contain the names of the Chairman and Secretary who allegedly authored it and cannot take the place of a report issued by the 2nd Respondent, who is statutorily mandated to monitor primaries of political parties. Counsel further submitted that the Court below was right to take judicial notice of the insecurity in the State, as the provisions of Section 124(1) (a) of the Evidence Act 2011 empowers a Court to take judicial notice of certain things that happen or are happening in the environment in which the particular Court in question is situated. He cited the case of Mumu v. Agor [1993] 8 NWLR (Part 313) PG. 573. Furthermore, the law is settled that a Plaintiff who seeks declaratory reliefs must succeed on the strength of his case and not on the weakness of the defence, as held in the case of Andrew & Anor v. INEC & Ors [2017] LPELR-48518 (SC) at page 120 paragraph E. The Appellant, having failed to establish by credible and cogent evidence the fact that the primary election which he is relying on was conducted by the 1st Respondent and monitored by the 2nd Respondent was not entitled to the reliefs sought by him as rightly held by the trial Court.
2ND RESPONDENT’S SUBMISSION:
Counsel to the 2nd Respondent submitted that the 2nd Respondent did not monitor any other Primary Election with regard to this suit except that of the 25th and 26th May, 2022 held at Aladinma Mall Owerri and the Re-run Primary of 5th June for which notices were sent. The trial Court thus rightly considered the evidence before it in arriving at the conclusion it did. He submitted further that it is general knowledge that the venue of the 1st Respondent’s Primary Elections for all the Constituencies in Imo State, held in the capital city, Owerri, due to the peculiar insecurity situation ravaging the state and which has been the bone of contention for various aspirants who lost in the Primary Election. Sufficient reasons, he said, were adduced for the relocation of the venue of the Orlu/Orsu/Oru-East Federal Constituency Primary Election from Orlu to Owerri which distinguishes this case from that of Mato v. Hember (2017) LPELR 12765 heavily relied on by the Appellant and brings it under the purview of the case of Ogara v. Asadu & Ors (2014) LPELR – 22262 (CA).
REPLY BRIEFS
It was Appellant’s contention that the state chapter of the 1st Respondent has no right to conduct any primary election, as it is the headquarters that has the right to conduct primary elections, therefore any letters signed by the state chapter of the 1st Respondent relocating the venue of election when the guideline to the election already provides for the place of election, is not tenable. He restated his arguments, citing Okechukwu Emeka v. Lady Margery Okadigbo & 4 Ors (2012)7 SC PT. 1, that any election not conducted within the headquarters of the Federal Constituency is invalid and there is no law that gives the Respondents the right to change the venue of a Primary Election that is statutorily provided for, as the power to change venues lies with the Court of Law. The purported re-run primary election conducted on the 5th of June, 2022 is thus invalid, as the 1st Respondent failed to give the prescribed notice of the 21 days, required by Section 82 of the Electoral Act 2022 to the 2nd Respondent for the conduct of a re-run primary election.
RESOLUTION:
The Appellant has complained that the trial Court was wrong when he failed to recognize the valid primary election held within the Orlu/Orsu/Oru East Federal Constituency Imo State.
The lower Court, in its judgment, at Page 311 of the Record, disparaged the Appellant’s contention that it won any primary election conducted in the Constituency.
It held:
“…for reasons only best known to the Applicant, he was very evasive about naming the actual location where the primary election he said he won took place. He only kept on averring that it was held “within the Federal Constituency” but refused to mention or name the location. In fact, all of the three affidavits which he relied on, he nowhere specifically stated the location “within the Federal Constituency” where the said primary he won, had been conducted.
To my mind, this apparently deliberate oversight by the Applicant, of the key material facts in issue in this case was an inexcusable gaffe! It is either the applicant intentionally withheld that vital piece of evidence; or his contention that the primary election which he won; was conducted somewhere within the Oru East/Orsu/Orlu Federal Constituency was entirely made up. Either way, that crucial omission was a major demerit to his case… It was in fact his Counsel who later supplied the name of the location where the alleged primary election took place…address of Counsel no matter how brilliantly worded, can never constitute evidence. A Counsel cannot under the guise of a beautifully couched final address proffer evidence to fill any lacuna in his client’s case.”
I find this statement by the lower Court indeed true. Nowhere in the affidavits of the Appellant did he mention where, in the Constituency, he ran for the election of the 25th May 2022. He merely kept saying that he won the election which took place in the Constituency, without mentioning where in the Constituency he ran for the election and won. It was in his Counsel’s address that it was stated that the venue was “Iheoma Township Hall” and “Ihioma Town Hall”.
I agree with the lower Court that the failure of the Appellant to mention the venue of his election which returned him as the winner, was damaging to his claim. As rightly held by the lower Court, the address of his Counsel cannot supply information that was not contained in the evidence/deposition of the Appellant.
As held by the Supreme Court in the case of Ali v State (2021)12 NWLR Page 159 at 194 Para E per Peter-Odili JSC, whatever is lost in evidence cannot be restored in a lawyer’s address or brief, as it is lost for all time. Closing speech of Counsel, I hold, no matter how brilliant and alluring cannot take the place of legal proof required. See also Okuleye v. Adesanya (2014)12 NWLR Part 1422 Page 521 at 539 Para B-C per Rhodes-Vivour JSC.
The lower Court thus rightfully rejected the holding of any primary in the Constituency which the Appellant alleged he won. In addition to this, Exhibit “E”, the copy of the election result allegedly issued by members of the Electoral Committee of the 1st Respondent, was disowned by the 1st Respondent as being their document and alleging that it failed to comply with the party’s Guidelines, Exhibit G1, with regard to the features it should contain. Exhibited by both Respondents is the result sheet of the initial primaries, which was later cancelled, in favour of the later one held on the 6th June, 2022 which returned Kingsley Oyegbule as the winner of the primaries. Both Respondents denied that any election held in the Constituency, in view of the security situation in the State.
Having held that the lower Court rightfully rejected the claim of the Appellant to have won the primary election, the follow-up question is whether these primaries conducted outside the constituency are invalid, as contended by the Appellant.
Section 84 (c) of the Electoral Act 2022 provides as follows:
“In the case of nominations to the position of a Senatorial candidate, a Member of the House of Representatives and a Member of a State House of Assembly, the political party shall, where it intends to sponsor candidates –
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for aspirants of their choice in designated centres on specified dates; and
(ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.
Interpreting Article 14.11 of the Constitution of the APC, a similar provision as Section 84 (c) of the Electoral Act Supra, the Supreme Court in the case of Mato v. Hember (2017) LPELR 42765 (SC) per Eko JSC in his contributory judgment at Pages 55-56 Para F-B held:
“Article 14.11 of the Constitution of the 2nd Respondent makes it mandatory that the nomination congress shall be held at the headquarters of the Federal Constituency. Section 87(4)(c)(i) of the Electoral Act, 2010, as amended, also makes it mandatory that the nomination congress shall hold at a “designated centre”. Accordingly, when Section 87(4)(c)(i) of the Electoral Act is read together with Article 14.11 of the Constitution of the 2nd Respondent the purported nomination of the 1st Respondent outside the Federal Constituency was a nullity and a non-starter.”
In Ogara v. Asadu (2014) LPELR-22862 (CA), this Court, per Agube JCA, at Pages 47-48 Para H-A held:
“In the same vein, if the said primary was conducted at a venue other than that stipulated by the Guidelines, except there is reasonable explanation by the National Executive Committee or the National Assembly Electoral Panel on the change of venue, such Election and the result generated there from ought to be null and void if the allegation is proven.”
The lower Court, answering the question posed above, held:
“This Court is of the view that it has become a notorious fact that recently, in some parts of the South-eastern part of this country, particularly, in Imo State; there have been long-drawn-out security issues – the sorts of issues that have even directly affected this Court’s normal schedule over the past four months. Within this said period, many counsel who appear before this Court; have regularly avoided taking adjournments on Mondays, citing widespread insecurity in Imo, Abia, Ebonyi, and Anambra states; as excuse. So, in that regard, it could be said that this Court is not just cognizant of, but it has also taken judicial notice of the prevalent security menace within its immediate territorial jurisdiction.
It would therefore, in my respectful view, amount to an absurd aftermath, for this Court (and indeed, any right-thinking Court); to hold that even in the face of these prevalent security challenges; elections must necessarily hold at all designated centres in the various Federal Constituencies; on the sheer premises that the Electoral Act and the various political parties’ Electoral Guidelines have designated locations for primary elections, which locations are absolute and unchangeable. Some realistic allowance, I think should be made for likelihoods of change in venue, specially in those areas that are notorious as hotspots of insecurity; or where there are greater odds that it would be perilous for participants in the election (e.g. aspirants, their supporters, party officers, and officials of (INEC); to venture to conduct elections. Such situations or circumstances in my view, are what the drafters of the Electoral Act must have had in mind when provisions such as paragraph (b)(i) were for instance, inserted into Section 84(5) of the Act. That is where it was stipulated that for the choice of Governorship candidate for a political party; the primary election ‘’shall’’ be held at the state capital or at ‘’any other place within the state.”
I am in absolute agreement with the lower Court. The 1st Respondent had, in a letter written to the 2nd Respondent, dated 18th May, 2022 and received on the same date and signed by its Chairman, Dr. Iyorchia Ayu and its Secretary, Sen Samuel Anyanwu, which letter is exhibited to the 2nd Respondent’s Counter Affidavit as Exhibit “INEC 1”, stated:
“Due to the security situation in Anambra and Imo States, we are compelled to inform the commission that our primaries for various constituencies in both Imo and Anambra States will hold at the State Capitals.
The decision to relocate the venue was taken to protect the lives and properties of the people in the states. The Commission may recall the unfortunate killing of one of its staff during the continuous voter registration.
The party regrets any inconvenience this changes may cause the commission…”
The Courts cannot close its eyes to the happenings in the Country and in particular the insecurity in the South Eastern parts of Nigeria, especially in Imo State. As held in the case of Mumu v. Agor (1993)8 NWLR Part Page 573 at 584 Para E-F per Rowland JCA, there is nothing wrong in a Court of law taking judicial notice of happenings in the environment in which the Court is situated.
As stated by the trial Judge in the instant case, Courts in these parts, because of security threats, have had to stop sittings on Mondays. It is also common knowledge that there are areas in the State that are volatile and hot spots for violence. This, I hold, constitutes “reasonable explanation for the change of venue” as contemplated in Ogara v. Asadu Supra, I hold.
Indeed this Court, faced with a similar situation, in which the conduct of the Imo West Senatorial District Primary Election by the 2nd Respondent in Owerri, the State capital, outside the Imo West Senatorial District, was challenged as being contrary to Section 84 (5) (c) (i) of the Electoral Act 2022 held, in a recent unreported decision delivered on 03/11/2022 in CA/OW/342/2022 Hon. Jerry Alagbaoso v. INEC and Ors per Rita Nosakhare Pemu JCA, reading the leading judgment, as follows:
“In considering this issue no. 2, many things come to mind, which are trite, notorious and of common knowledge in the State in question; that is to say Imo State of Nigeria.
The provisions of Section 14 (1) (2) (b) of Chapter 11 of the 1999 Constitution is apt and indeed instructive. It has this to say:
14(1) “The Federal Republic of Nigeria shall be a State based on the principles of democracy and social Justice.
(1) It is hereby accordingly declared, that
b) The security and welfare of the people shall be the primary purpose of government …”
Let me quickly state here, that where the Provisions of the 1999 Constitution which is the grundnorm of this Country conflicts with the provisions of any other legislation, including the Electoral Act 2022, the Provisions of the 1999 Constitution shall prevail.
It is a notorious fact, a naked fact and of common knowledge both in this Country Nigeria and in diaspora, that Nigeria in general and the South Earthen States of Nigeria in particular, including Imo, Anambra and Enugu States are toxic and volatile presently. Spates of killings, kidnapping, Armed Robbery, Banditry have pervaded these States.
There is the “sit at home” syndrome every Monday in these states. Nobody goes out on Mondays in these States. Courts are compelled not to sit on Mondays. People are living in utter fear, suspense and anxiety…It is a known fact that Owerri is the Capital of Imo State.
The 1st Respondent is by law and by virtue of Item 15 Part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended) has the constitutional powers to:
“organize, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.”
It follows from above, that the Independent National Electoral Commission has the powers to decide where an election shall hold. Particularly in the face of the notorious fact that a particular situs is devoid of adequate security.
The Appellant has not alleged that the Independent National Electoral Commission is unaware of the security situation in the Imo West Senatorial District of Imo State.
The Report of the 12 member INEC Monitoring Team, and report of the 2nd Respondent’s Appeal Panel show that the Primary was conducted in a free and fair manner. Indeed the issue of relocation of venue was as a result of the prevailing insecurity situation in this case… The insecurity in the State particularly in that particular Senatorial District amounts to an extenuating circumstance, indeed a peculiar circumstance in the circumstances of this case… It is the duty of the Government of this nation to take the security of its citizens seriously and not compromise it for whatever reason under the sun.
Where there is likelihood of insecurity, I am of the view that the Independent Electoral Commission has a duty to change venue even at the last minute. It is the body seised of the Constitutional powers to make, adjust, change arrangement already put in place as to venue, time, and other logistics in respect of ALL ELECTIONS in Nigeria.”
I adopt this reasoning, also having been part of the panel that delivered the judgment.
The duty placed on the Federal Government, by Section 14 (1) (2) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is to place as its primary purpose, the security and welfare of the people. It was therefore incumbent on the 2nd Respondent, a body established by the Constitution, to comply with this purpose. The change of venue, which by the facts deposed to by the 1st Respondent, was due to the security situation in these constituencies and communicated to all aspirants, was an extenuating circumstance in line with the dictum of Agube JCA in Ogara v. Asadu Supra, I hold. The trial Judge was thus right to have held as it did.
On the question of whether the lower Court properly evaluated the facts before it, the Court, in its judgment, noted at Pages 316-317 of the Record that the Appellant:
“…nowhere stated the precise location within Our East/Orsu/Orlu Federal Constituency wherein the said primary election he said he won took place. He also avoided mentioning who his co-aspirants in that said election were. He equally did not mention anywhere if he had explored the option of lodging a complaint before the Electoral Appeal Panel against the said “other candidate” whose name the party now wants to submit to INEC.
All the foregoing were material omissions of facts which he (i.e. the Applicant) had the onus of proving… to show that he is entitled to the declaratory reliefs he is seeking against them. The Applicant’s failure to make depositions to proffer credible documentary proof with respect to these foregoing material facts, in my view contiguously affected the declaratory reliefs specifically.“
Where the Appellant seeks declaratory reliefs, he succeeds on the strength of his own case and not on the weakness of the Respondents’ case, I hold. See Oguntade v. Oyelakin (2020) 6 NWLR Part 1719 Page 41 at 63 Para C-F per M.D. Muhammad JSC.
In addition, declaratory actions in civil matters require proof on the balance of probabilities or on the preponderance of evidence. See Emeka v Chuba-Ikpeazu (2017)15 NWLR Part 1589 Page 345 at 380 Para C-D per Ogunbiyi JSC.
Clearly, as pointed out by the lower Court, the burden placed on the Appellant to prove the facts relied upon by him in proof of the declarations sought, was not discharged.
Apparently, as an afterthough, the Appellant, in his Reply Brief threw in the argument that the notification by the 2nd Respondent to the 3rd Respondent was less than the period required and that it is only the headquarters that can conduct primaries and not the State chapters. This was however not his case at the lower Court and was not part of his appeal to this Court. These contentions are accordingly discountenanced.
From the foregoing, the lower Court properly evaluated the facts placed before it by the parties before dismissing the Appellant’s claims.
Having resolved all the issues against the Appellant, this appeal is entirely without merit and is dismissed. The decision of the Federal High Court, Owerri division delivered on 16th September, 2022 by M.T. Segun-Bello J. is affirmed.
Parties should bear their respective costs.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft, the lead judgment of my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
In this present case, the Court amply evaluated the evidence before it in order to arrive at a just conclusion and I cannot disturb this finding.
I also dismiss the appeal and affirm the decision of the Court below. I am of the view that parties in this appeal should bear their respective costs of this appeal.
ADEMOLA SAMUEL BOLA, J.C.A.: I am privileged to have read the draft of the judgment delivered by my learned brother, O. A. Adefope-Okojie, JCA. I am in agreement with his reasoning and conclusion. I adopt them as mine. I abide by the consequential orders made.
Appearances:
A. FEMI OGUNRINDE, holding the Brief of DR. ADEKUNLE OLADAPO OTITOJU For Appellant(s)
I.K. UJAH, ESQ. – for 1st Respondent
OLACHI C. NWUGO (MRS.), ESQ. CHIEF LEGAL OFFICER INEC – for 2nd Respondent For Respondent(s)