DR.HUSSAINI SULEIMAN KANGIWA v. UMAR ABDULLAHI KAMBA & ORS (2019)

DR.HUSSAINI SULEIMAN KANGIWA v. UMAR ABDULLAHI KAMBA & ORS

(2019)LCN/13529(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2019

CA/S/72/2019

RATIO

RESTING CASE ON THAT OF THE PLAINTIFF: IMPLICATIONS

The implication of a defendant resting his case on that of the plaintiff could be hazardous because every litigant is by law expected to adduce evidence in support of his pleadings, for a pleading without evidence remains what it is pleading.PER AHMAD OLAREWAJU BELGORE, J.C.A.

CIVIL LITIGATION: THE FATE OF EVERY MATTER IN CIVIL LITIGATION DEPENDS ON PLEADINGS AND EVIDENCE

In civil matters the fate of every case depends on pleadings and the evidence in support. A matter that is pleaded but not traversed remains a fact against the other side. Thus, where the plaintiff pleads negligence and went on to specifically prove the averment by evidence in Court and the defendant offers no evidence whatsoever, the pleading remains uncontroverted and might be held against the defendant. See FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR & ANR. (1993) 12 SCNJ 82 @ 91. Also in FEDERAL CAPITAL DEVELOPMENT AUTHORY V. ALHAJI MUSA NAIBI (1990) 5 SCNJ 186, it was held that pleadings cannot constitute evidence and defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff notwithstanding his general traverse. If the defendant does not give evidence in support of his pleadings, the averments therein are taken as having been abandoned for they stand as no more than mere averments which have not been supported.PER AHMAD OLAREWAJU BELGORE, J.C.A.

Justices

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

DR. HUSSAINI SULEIMAN KANGIWAAppellant(s)

AND

UMAR ABDULLAHI KAMBA & 2 ORS.Respondent(s)

AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Kebbi Judicial Division, Birnin Kebbi (hereinafter referred to as Lower Court), delivered by Hon. Justice S. B. Onu on 17th April, 2019, in Suit No. FHC/KB/CS/7/2019.

By an Originating Summons dated 29th October, 2018 and filed the 30th day of October, 2018 the 1st Respondent, then as the plaintiff sought the determination of the following questions.
(i) Whether in view of the provisions of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressives Congress and the APC Guidelines for nomination of candidates for the 2019 General Elections 2019 Indirect Primaries relating to conduct of All Progressives Congress primaries, it is lawful for the 1st Respondent to recognise and forward the name of any person other than the plaintiff as its candidate for Arewa/Dandi Federal Constituency of Kebbi State in the 2019 General Elections.
(ii) Whether in view of the provisions of Section 87 of the Electoral Act, 2010 (as amended

and having regard to the provisions of Article 20 of the Constitution of the All Progressives Congress and the Guidelines for nomination of candidates for the 2019 General Elections 2019- Indirect Primaries relating to conduct of All Progressive Congress Primaries, it is lawful for the 1st Respondent to change the result of the Primary Election conducted for Arewa/Dandi Federal Constituency in the House of Representatives in which the plaintiff emerged winner and was so declared by the 1st Respondent.
(iii) Whether having regard to the provisions of Section 87 of the Electoral Act, 2010 (as amended), the 1st Respondent is not under a mandatory duty to forward the name of the plaintiff as its candidate for Arewa/Dandi Federal Constituency in the House of Representatives to the 3rd Defendant and the 3rd Defendant was under a duty to accord him recognition as candidate for the election into Arewa/Dandi Federal Constituency in the House of Representatives.

He consequently sought for the following reliefs:
1. A DECLARATION that it is not lawful for the 1st Defendant to recognise and forward the name of any candidate other

than the plaintiff to the 3rd defendant as its candidate for Arewa/Dandi Federal Constituency of Kebbi State.
2. A DECLARATION that it is not lawful for the 1st Defendant to change the result of the Primary Election it conducted for Arewa/Dandi Federal Constituency of Kebbi State in which the plaintiff emerged winner as was so declared by the 1st Defendant.
3. A DECLARATION that any name of candidate submitted by the 1st Defendant to the 3rd Defendant not being the name of the plaintiff for Arewa/Dandi Federal Constituency in the House of representative is unlawful, null and void.
4. AN ORDER of mandatory injunction directing the 1st Defendant to submit the name of the plaintiff to the 3rd Defendant as its candidate for Arewa/Dandi Federal Constituency in the House of Representatives.
5. AN ORDER of mandatory injunction directing the 3rd Defendant to accept and treat the plaintiff as the candidate of the 1st Defendant for Arewa/Dandi Federal Constituency in the House of representatives for the 2019 General Election.
6. AN ORDER of mandatory injunction compelling the 3rd Defendant to recognise and treat the plaintiff as the candidate

of the 1st Defendant for Arewa/Dandi Federal Constituency in the House of Representatives for the 2019 General Elections.
7. AN ORDER of injunction restraining the 2nd Defendant from parading himself as the candidate of the 1st Defendant for Arewa/Dandi Federal Constituency of Kebbi State at the 2019 General Elections.

The Originating Summons was supported by a 23 paragraph affidavit deposed to by the 1st Respondent, dated 30th October, 2018 and filed the same day and a further affidavit dated 23rd November 2018 and filed the same day, and the one dated 17th December, 2018 which was also filed the same day.

The Appellant; being the 2nd Defendant at the lower Court as well as the 2nd Respondent who was the 1st Defendant at the lower Court filed their Counter Affidavits on 26th November 2018 and 27th November, 2018 respectively. Both of which the 1st Respondent responded to in his reply filed on 17th December, 2018.

In addition, the Appellant and the 2nd Respondent also filed Notices of Preliminary Objection challenging the competence of the 1st Respondents suit. Both were filed on 26th November, 2018 and 15th

January, 2019 respectively. The objection of the 2nd Appellant was opposed by the Appellant vide a counter affidavit dated 29th January 2019 and filed the same day, as well as a written address dated 28th January, 2019 and filed on 29th January, 2019.

The suit was filed in Abuja but it was transferred to Kebbi Judicial Division. The learned trial Judge in Kebbi invited parties to address him on the propriety of trying the case based on conflicting affidavit evidence. He was so addressed and he transferred the case to the general cause list thereby ordering parties to file pleading parties complied and filed their respective pleadings except that the Appellant was dissatisfied by the Ruling and appealed the ruling.

The 1st Respondent then filed a statement of claim dated 27th March 2019 and filed on 28th March, 2019 claimed against the Appellant as well as the 2nd and 3rd respondents; then as the 1st 3rd Defendants as follows:
1. A DECLARATION that it is not lawful for the 1st Defendant to change the result of the Primary Election it conducted for Arewa/Dandi Federal Constituency of Kebbi State.
2. A DECLARATION that it is

not lawful for the 1st Defendant to change the result of the Primary Election it conducted for Arewa/Dandi Federal Constituency of Kebbi State in which the plaintiff emerged winner and was so declared by the 1st Defendant.
3. A DECLARATION that any name of candidate submitted by the 1st Defendant not being the name of the plaintiff for Arewa/Dandi Federal Constituency in the House of Representatives is unlawful, null and void.
4. AN ORDER of mandatory injunction directing the 3rd Defendant to accept and treat the plaintiff as the candidate of the 1st Defendant for Arewa/Dandi Federal Constituency in the House of Representatives at the 2019 General Elections.
5. AN ORDER of mandatory injunction compelling the 3rd Defendant to recognise and treat the plaintiff as the candidate of the 1st Defendant for Arewa/Dandi Federal Constituency in the House of Representatives for the 2019 General Elections.
6. AN ORDER of injunction restraining the 2nd Defendant from parading himself as the candidate of the 1st Defendant for Arewa/Dandi Federal Constituency of Kebbi State at 2019 General Elections.
7. Consequently order directing the 3rd Defendant to

withdraw the Certificate of Return issued to the 2nd Defendant in respect of Arewa/Dandi Federal Constituency and to issue the certificate to the Plaintiff.

The Appellant as well as the 3rd Respondent filed their respective statement of defence on 2nd April, 2019, while the 2nd respondent filed its own statement of Defence on 3rd April, 2019.

Eight (8) witnessed testified: five (5) for 1st Respondent; two (2) for 2nd Respondent; one (1) for 3rd Respondent. Appellant did not testify and did not call witnesses.
Written addresses of parties were filed and exchanged.

In his judgment dated 17th April, 2019, the learned trial judge found for the 1st Respondent and granted his 5th-7th reliefs.

Dissatisfied with the decision, the Appellant has now approached this Court vide a Notice of Appeal dated and filed on 26th April, 2019 upon the following ten (10) Grounds of Appeal.
GROUND 1
The learned trial Judge erred in law when he held in his judgment that Suit No. FHC/KB/CS/7/2019 filed by the 1st Respondent on 30th October, 2018 was filed within the 14 days limited by Section 258(9) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended)

notwithstanding the fact that from contents of the Originating Processes, the cause of action of the 1st Respondent if any arose on 5th October, 2018 when the said primary election was conducted thereby robbing the trial Court of jurisdiction to entertain the matter, and the error has caused injustice to the Appellant.
PARTICULARS OF ERROR
1. The 1st Respondent by Suit NO.FHC/KB/CS/7/2019 challenged the entire processes of the indirect primary election conducted on 5th October, 2018 in respect of Arewa/Dandi Federal Constituency of Kebbi State which led the 2nd Respondent to forward Appellant’s name to the 3rd Respondent as its candidate.
2. The 1st Respondent’s action before the trial Court is hinged on an alleged breach of the Constitution and Guidelines for the conduct of the 2nd Respondent’s Primary Election under Section 87(9) of the Electoral Act. Part of the processes of the said primary election which the 1st Respondent was entitled to challenge by virtue of Section 87(9) of the Electoral Act, 2010 (As Amended) is the decision of the 2nd Respondent to allow the Appellant to participate in the primary election

notwithstanding the facts of his ineligibility for the exercise according to the 1st Respondent.
3. The 1st Respondent deposed to the facts in the Affidavit in Support of his Originating Summons and averred in the Statement of Claim as follows among others:
(i) That the Appellant bought form for Kebbi North Senatorial District primary election.
(ii) That the Appellant attended the Senatorial Screening for Kebbi North Senatorial District of Kebbi State and was duly cleared to contest the Primary Election.
(iii) That the Appellant lost the Kebbi North Senatorial District primary election.
(iv) That the Appellant did not buy form for Arewa/Dandi Federal Constituency primary election and was accordingly not screened.
(v) That the 1st Respondent was surprised on 5th October, 2018 (the day of the said primary election) to see the Appellant’s name on the list of Aspirants for Arewa/Dandi Federal Constituency primary election of the 2nd Respondent.
4. Notwithstanding the facts that the 1st Respondent became aware according to him prior to and on 5th October, 2018 (The day of the said primary election) that the Appellant was not

eligible to have participated in the said primary election, he did not file Suit No. FHC/KB/CS/7/2019 to Challenge the party’s said decision which allowed Appellant to participate in the Primary Election within the limited 14 days from 5th October, 2019 but waited and filed same on 30th October, 2018 (the date) on which the 2nd Defendant forwarded Appellant’s name to the 3rd Respondent.
5. That as at 30th October, 2018 when Suit No. FHC/KB/CS/7/2019 was filed, same was filed outside the limited 14 days as stipulated by the provisions of Section 258(9) of the 1999 Constitution (As Amended) thereby robbing the trial Court jurisdiction to entertain the Suit.
6. Contrary to the conclusion of the learned trial Judge the 1st Respondent’s cause of action arose on 5th October, 2018 (The date of the said primary election) when he discovered that the Appellant’s name ought not to have been on the list of aspirant for the primary election but not on 18th October, 2018 when the 2nd Respondent forwarded Appellant’s name to the 3rd Respondent.
GROUND 2
The learned trial Judge erred in law and acted without jurisdiction when he entertained and delivered

judgment in respect of Suit No. FHC/KB/CS/7/2019 in the absence of locus standi proved and or established by the 1st Respondent as to his membership of the 2nd Respondent which error led to a transparent miscarriage of justice.
PARTICULARS OF ERROR
1. The main complaint of the 1st Respondent which led to filing of Suit No. FHC/KB/CS/7/2019 was that he participated in the indirect Primary Election of the 2nd Respondent as an aspirant for the Arewa/Dandi Federal Constituency of Kebbi State held on 5th October, 2018 which he claimed to have been won by him but his name was not forwarded to the 3rd Respondent rather the Appellant’s name was sent.
2. By the nature of the 1st Respondent’s Suit as summarised in (1) above, he had the burden of proving by credible evidence that ab initio he was qualified as a member of the 2nd Respondent to have participated in the said primary Election within the meaning of Article 9.1(iv) of the All Progressives Congress Constitution (October 2014 as Amended) and Guidelines for the Nomination of Candidate for the 2019 General Elections, 2019 indirect Primaries.
3. By the provisions of Article 9.1(iv) of the All

Progressives Congress Constitution (October 2014 as amended) membership of the party is established and or proved by membership card duly issued by the party upon enrolment.
4. By the combined provisions of Clause 2 and (b) i.e. ALL PROGRESSIVES CONGRESS REQUIREMENTS and Clause 3(a) and 1 i.e. QUALIFICATION AND CONDUCT all of the Guidelines for the Nomination of candidates for the 2019 General Elections 2019 indirect primaries an aspirant for any elective office on the platform of the 2nd Respondent to be qualified for indirect primary election must be a registered member of the party at the ward of his or her choice, and must submit evidence of membership of the party for at least one (1) year among other qualification requirements.
5. The 1st Respondent herein UMAR ABDULLAHI KAMBA failed woefully to prove or establish before the Lower Court that he is a registered member of the 2nd Respondent as no membership card issued to him by the party was submitted and none was produced before the trial Court.
6. The membership card attached to the Originating Summons as Exhibit Kamba 1 which was also admitted at the trial as Exhibit PW 5 “A” belongs to

one ABDULLAHI UMAR and not the 1st Respondent which was issued on the 23rd April, 2018 less than one year before the said primary election.
7. Exhibits PW 1 “C”, PW 5 “B”, PW 5 “C”, PW 1 “E”, PW 5 “D” and all other Exhibits tendered in support of the 1st Respondent’s case at the lower Court show clearly the name of the Plaintiff as UMAR ABDULLAHI KAMBA.
8. The 1st Respondent by his Witness Statement on Oath duly adopted at the trial Court deposed on oath that his name is UMAR ABDULLAHI KAMBA.
9. The 1st Respondent in paragraph 2 of his Witness Statement on Oath and Affidavit in Support of the Originating Summons claimed that he is a member of the 2nd Respondent and referred to membership registration document number 392322 but the membership registration document tendered and admitted as Exhibit PW 5 “A” has number: KB 392322 which bears the name or belongs to ABDULLAHI UMAR and not UMAR ABDULLAHI KAMBA.
10. The 1st Respondent did not give any evidence orally or by way of document at the trial Court that apart from his name i.e. UMAR ABDULLAHI KAMBA he is also known and called ABDULLAHI UMAR.
11. Failure of the 1st Respondent to

establish or proof (sic) his qualification for the said primary election as a registered member of the 2nd Respondent robbed him of the necessary locus standi to file Suit No. FHC/KB/CS/7/2019 challenging the process and by extension, the trial Court lack jurisdiction to have entertained and or delivered judgment in respect of the Suit.
GROUND 3
The learned trial Judge erred in law and acted without jurisdiction when in the absence of locus standi shown by the 1st Respondent he held in his judgment that from the Originating Summons the 1st Respondent shows that he was the winner of the primary election but his name was not forwarded to the 3rd Respondent and that by the provision of Section 87(9) of the Electoral Act 2010 (As amended) the 1st Respondent has locus standi to file Suit No. FHC/KB/CS/7/2019, which error has caused great injustice to the Appellant.
PARTICULARS OF ERROR
1. As rightly held by the learned trial Judge the platform on which Suit No. FHC/KB/CS/7/2019 was filed at the Trial Court is the provision of Section 87(9) of the Electoral Act 2010 (As Amended).
2. By virtue of the above provision, before the 1st

Respondent could be said to have brought himself under the ambit of an aspirant, he must show that he is a registered member of the 2nd Respondent who was qualified to contest the said primary election.
3. Contrary to the decision of the learned trial Judge, on the face of the Originating Processes, the 1st Respondent failed woefully to establish his qualification for the said primary election as a registered member of the 2nd Respondent which entitled him to challenge the process vide Suit No. FHC/KB/CS/7/2019.
4. By the Originating Processes and documentary evidence tendered by the 1st Respondent i.e. Exhibit PW 5 “A?? the registered member of the 2nd Respondent who could be said to have locus standi to challenge the said primary election is ABDULLAHI UMAR if indeed he participated in the election but not the 1st Respondent, UMAR ABDULLAHI KAMBA.
GROUND 4
The learned trial Judge erred in law and acted without jurisdiction in entertaining and deciding issues in respect of Suit No. FHC/KB/CS/7/2019 when as at 30th October, 2018 the date the said suit was filed the 1st Respondent stood expelled from the party for contravening

the provisions of Article 21 A (x) and 0 (v) of the party’s Constitution thereby robbing him the necessary locus standi to file the suit which error occasioned miscarriage of justice against the Appellant.
PARTICULARS OF ERROR
1. By virtue of the provisions of Article 2 of the 2nd Respondent’s Constitution same is supreme and binding on all party members but subject to the provision of the Constitution of Nigeria 1999 (As Amended).
2. By virtue of the provisions of Article 21 C (1) of the 2nd Respondent’s Constitution, any member of the party that is dissatisfied with decision of the party, including but not limited to issues pertaining to Primary Election has the right of appeal against it within Seven (7) days.
3. By virtue of the provisions of Article 21 A(x) of the 2nd Respondent’s Constitution, it is an offence for any of the party members to commence an action in Court against the party without first exhausting all avenues for redress provided in the Constitution.
4. By virtue of the provisions of the Article 21 D (v) of the 2nd Respondent’s Constitution any member of the party that file action in Court against it or any of its

officers on any matter without first exhausting the avenue for redress provided for in the Constitution shall stands automatically expelled.
5. It is apparent from the 1st Respondent’s processes and evidence adduced at the trial Court that he failed to avail himself of the Party’s avenues for redress prior to filing of Suit No. FHC/KB/CS/7/2019.
6. The 1st Respondent having stood expelled as at 30th October, 2018 when Suit No. FHC/KB/CS/7/2019 was filed, he had lost locus standi to file the suit against the 2nd Respondent.
7. The provisions of the 2nd Respondent’s Constitution on steps to take before filing action in Court against the party is not Inconsistent with any of the provisions of the 1999 Constitution (As Amended) and or the Electoral Act, 2010 (As Amended).
8. The Internal Dispute Resolution mechanism provided by the 2nd Respondent’s Constitution was designed to prevent avoidable litigation against the party and to ensure discipline.
GROUND 5
The learned trial Judge erred in law and acted without jurisdiction when he entertained Suit No. FHC/KB/CS/7/2019 and delivered judgment thereon in the absence of locus standi on

the part of the 1st Respondent as to his participation in the party’s primary election conducted by the National Executive Committee of the 2nd Respondent and this has led to transparent miscarriage of justice against the Appellant.
PARTICULARS OF ERROR
1. The law is trite to the effect that it is the National Executive Committee of a political party that has the power to conduct primary election and forward candidate names to Independent National Electoral Commission.
2. The law is also settled beyond dispute that a party member challenging conduct of party primary election must proof (sic) before the Court that the said primary election he is challenging was organised and conducted by the National Executive Committee of his political party.
3. The 1st Respondent herein admitted at the trial Court that the primary election by which he was declared winner was conducted by the Kebbi State Executive Committee of the 2nd Respondent.
4. By the Court’s interpretation of Section 87(9) of the Electoral Act 2010 (As Amended) a candidate that did not participate in the primary election conducted by the National Executive Committee of his

party has not locus standi to challenge the exercise.
5. The 1st Respondent filed Suit No.: FHC/KB/CS/7/2019 challenging nomination of the Appellant as member representing Arewa/Dandi Federal Constituency of Kebbi which suit arose from the conduct of Primary election conducted on 5th October, 2018.
6. The respondent wasn’t an aspirant in the Primary Election that produced the Appellant as the sponsored candidate.
7. The 1st respondent emerged as a winner from a Primary Election conducted by the Kebbi State Executive Committee of the 2nd Respondent.
8. The 1st Respondent as PW5 admitted that he was declared winner from a Primary Election conducted by the Kebbi State Chapter of the 2nd respondent.
9. The 1st respondent admitted that Exhibit PW1A which appointed the members of the sub-committee that conducted the Primary election that declared him winner; was an appointment letter from the Kebbi State Chapter of the All Progressives Congress.
10. The Chairman of the Sub Committee that issued Exhibit PW1B admitted that he was appointed by the Kebbi State Chapter of the All Progressives Congress.
11. The Plaintiff admitted as PW5

that Exhibit PW18 issued to him was issued by a sub – committee appointed by the Kebbi State Chapter of the All progressives Congress.
12. The Chairman of the Sub-committee that conducted the Primary Election that declared the 1st Respondent winner admitted that his Committee was not known to the National Working Committee of the All Progressives Congress.
13. The Chairman of the Sub – committee that declared the Plaintiff winner admitted that the result he declared was not known nor submitted to the National Working Committee of the All Progressives Congress.
14. Exhibit PW1A is a document from the Kebbi State Chapter of the All Progressives Congress which appointed the Sub-committee.
15. The Plaintiff is not challenging the Primary Election that returns the Appellant as the sponsored candidate of the 2nd Respondent.
GROUND 6
The learned trial Judge erred in law and failed in his duty as a judicial officer to properly evaluate parties’ evidence before awarding judgment to the 1st Respondent which error has occasioned a miscarriage of justice.
PARTICULARS OF ERROR
1. It is the judicial duty of a Judge to properly evaluate

parties evidence adduced before taking decision one way or the other.
2. All the learned trial Judge did was to reproduce testimonies of the witnesses as contained in the various Witnesses Statement on Oath and itemised the Exhibits tendered.
3. Contrary to the conclusion of the learned trial Judge, the 1st Respondent failed woefully to discharge the evidential burden placed on him to have warranted judgment in his favour.
4. The 1st Respondent failed woefully to proof (sic) that the primary election he claimed to have won was conducted by the National Executive Committee of the 2nd Respondent and that he participated in the same as a registered member to have warranted judgment in his favour.
5. The 1st respondent called five witnesses who testified as PW1- PW5 before the trial Judge.
6. The Appellant cross examined PW1-PW5 as appeared before the trial Judge.
7. The trial Judge refused to consider any of the Appellant’s cross examination of the 1st respondent’s witnesses before the Court.
GROUND 7
The learned trial Judge erred in law which has occasioned a transparent miscarriage of Justice when he shifted the burden

proving declarations claimed by the 1st Respondent on the Appellant.
PARTICULARS
1. The 1st Respondent claim is for various declaration arising from a Primary Election purportedly conducted on 5th October 2018.
2. By Section 87 (9) of the Electoral Act; the 1st respondent must proof (sic) that he was an aspirant in the said Primary Election.
3. 1st Respondent must also proof (sic) that he is an aspirant in a primary election conducted by the National Working Committee of the All Progressives Congress.
4. 1st Respondent must proof (sic) that the sponsored candidate is also an aspirant in the same primary election conducted by the National Working Committee.
5. 1st Respondent did not proof (sic) that he was an aspirant in a Primary Election conducted by the National Working committee of the All Progressives Congress.
6.1st Respondent did not proof (sic) that the Appellant was also an aspirant in the same Primary Election he was claiming.
7. The trial Judge shifted the burden of proof (sic) to the Appellant that he did not proof that he won the disputed election.
8.The trial Judge also shifted the burden to the Appellant

when the Court held that the Appellant did not proof (sic) that he purchased a nomination form.
GR0UND 8
The learned trial Judge erred in law which has occasioned miscarriage of Justice when he assumed Jurisdiction in respect of an incompetent Originating Process in Suit No.: FHC/KB/CS/7/2019 and exercised the Court’s inherent power of converting same to Writ of Summons.
PARTICULARS
1. The Originating Process in Suit No. FHC/KB/CS/7/2019 is manifestly incompetent before the trial Court.
2. The trial Court has the Power to only assume Jurisdiction on a Competent Originating Process.
3. The trial Court also has the Power to Order for exchange of pleadings on a Competent Originating Process.
4.The trial Court cannot assume Jurisdiction on an incompetent originating process.
5. The inherent Power of the trial Judge to convert an Originating summons to a Writ of Summons with an Order for exchange of pleadings is not extended to a transfer of an incompetent originating summons to the general cause list.
6. The trial Judge’s Order converting an incompetent Originating Summons to Writ of Summons is null and void and unknown to

law.
7. An incompetent originating summons cannot be revived with an Order converting same to a Writ of Summons.
8. Converting an incompetent Originating Summons to a Writ of Summons is an attempt to give life to a dead Originating Process.
9. The Federal High Court (Civil Procedure) Rules 2009 guides the procedure before the trial Judge.
10. The Federal High Court (Civil Procedure) Rules 2009 laid down the condition precedent for an Originating Process before the trial Judge.
11. The 1st Respondent approached the Court by an Originating Summons.
12. The Federal High Court (Civil Procedure) Rules 2009 made it a mandatory condition precedent that a Plaintiff in an Originating summons must submit questions for determination and relief Claim.
13. The Condition of Plaintiff submitting questions for determination and relief Claim; is a mandatory Condition Precedent for the Federal High Court to assume Jurisdiction in an Originating summons.
14. The Plaintiff in suit no. FHC/KB/CS/7/2019 did not submit any question for the determination of the Court upon which a relief can be granted.
15. The Submission of question for

determination in an Originating summons is what clothes a trial Court with the juridical power to act on the Plaintiff’s case.
GROUND 9
The learned trial Judge erred in law which has occasioned a miscarriage of Justice when he held that the Primary Election conducted by the sub-committee appointed by Exhibit PW1A is a primary election authorised by the National working committee of the 2nd Respondent.
PARTICULARS
1. The only primary election recognised by the National working committee of the 2nd Respondent is a Primary election conducted in accordance with the APC guidelines for primary election.
2. By the 2nd Respondent’s guidelines; a primary election is that which was conducted by seven (7) member committee appointed by the National working committee of the 2nd respondent.
3. By the 2nd respondent’s guideline a primary election accepted by it is a Primary election in which is in accordance with Article 15 (c) and (d) of the guideline.
4. The Primary Election that the 1st respondent won and for which he approached the Court is a primary election conducted by six (6) member committee and not seven (7).

5. The Primary election that produced Exhibit PW1b was a primary election conducted in contravention of Article 15 (c) and (d) of the APC guidelines.
GROUND 10
The learned trial Judge erred in law when after holding that there was an error on the originating process but still went ahead to describe it as a mistake of counsel that cannot affect the competence of the Originating process which error has caused injustice to the Appellant.
1. The 1st Respondent filed his case by way of originating summons.
2.The Originating summons did not state any question for determination in the name of the 1st Respondent.
3.The originating summons was taken out in the name of the Appellant and a question for determination was stated on the name of the Appellant.
4.The Originating summons challenges a Primary Election conducted by the 2nd respondent on 17th October 2018.
5.There was no any Primary Election conducted on 17th October 2018.
6.The Primary Election conducted by the 2nd respondent was held on 5th October 2018.

Parties have filed and exchange their respective Briefs of Argument. In addition to the Appellants Brief of Argument,

Learned Counsel for the Appellant also filed a motion on notice asking for the stay of execution and enforcement of the judgment of the lower trial Court; an order to restrain the Respondents as well as the National Assembly from giving effect to the said judgment.

In the Appellants Brief dated and filed on 8th May, 2019, learned Counsel submitted four (iv) issues of the determination of this Court, to wit:
(i) Whether Suit No. FHC/KB/CS/7/2019 filed by the 1st Respondent herein as Plaintiff at the trial Court on 30th October, 2018 was statute barred within the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) thereby ousting jurisdiction of the trial judge to entertain the suit. (Ground 1 of the 2nd Notice of Appeal).
(ii) Whether the 1st respondent herein as plaintiff at the trial Court had locus standi to file suit No. FHC/KB/CS/7/2019 capable of investing the learned trial judge with the necessary jurisdiction to entertain same (Grounds 2,3,4 and 5 of the 2nd Notice of Appeal).
(iii) Whether having regard to the evidence adduced by the parties, the learned trial judge was right

in awarding judgment in favour of the 1st Respondent. (Grounds 6,7 and 9 of the 2nd Notice of Appeal).
(iv)Whether the originating summons in Suit No. FHC/KB/CS/7/2019 filed by the 1st Respondent herein as plaintiff at the trial Court was competent to have validly and legally invoked the jurisdiction of the learned trial Judge. (Grounds 8 and 10 of the 2nd Notice of Appeal).

On issue number one, learned Counsel submitted that the 1st Respondents cause of action arose on 5th October 2018 and suit No. FHC/KB/CS/7/2019 was already statute barred thereby robbing the lower trial Court of jurisdiction to entertain same since it was filed outside the fourteen (14) days stipulated by Section 285 (9) of the 4th Alteration Act. He contended that the learned trial judge was wrong to have held otherwise. He referred the Court to the following authorities:
OLUWAROTIMI ODUNAYO AKEREDOLU V. DR. OLUSEGUN ABRAHAM (APPEAL NO./SC/138/2019).
DAVID UMAR V. ALL PROGRESSIVE CONGRESS & 2 ORS (APPEAL NO. CA/A/151/2019).

On the second issue, learned counsel submitted that going by facts which remained undisputed in this matter, the 1st Respondent

failed woefully to prove and establish his membership of the 2nd Respondent thereby failing to fulfil the condition precedent for filing the suit. He contended that membership of a political party is a matter of fact to be established by producing a membership card or other document to which the 1st Respondent failed to produce, rather Exhibit PW 5 A he tendered belonged to one Umar Abdullahi with No.KB/392322.

It was argued that failure on the part of the 1st Respondent to prove his membership of the 2nd Respondent and to show that he has been such a member for a period of one (1) year prior to his participation in the primary election without a waiver granted by the 2nd Respondent denied him the locus standi to file the suit. He cited the case of:
TARZOOR V. LORAER (2016) 3 NWLR (PT. 1500) 463 @ 505, B-C.

He also contended that the fact that the membership card tendered by the 1st Respondent carries a different number from the membership card he pleaded more so when the 2nd respondent denied 1st respondent as being its member, it will be wrong for the trial Court to assume or hold that Abdullahi Umar is the same as

Umar Abdullahi Kamba. He referred this Court to:
ESENOWO V. UKPONG (1999) 6 NWLR (PT. 608) 602 @ 617 E-G.

It was further submitted in argument that for failure to exhaust the 2nd Respondents Constitutional provisions for dispute resolution, the 1st Respondent stood expelled as soon as the suit filed on 30th October 2018, thereby robbing him of locus standi. Learned counsel referred the Court to:
PROSAFE PRODUCTION SERVICES LTD. V. ONDO STATE BOARD OF INTERNAL REVENUE & 2 ORS (2018) 18 NWLR (PT. 1650) 86 @ 110, B-E.

Learned Counsel further submitted that having admitted that the primary election claimed to have been won by the 1st Respondent was conducted by the Executive Committee of All Progressive Congress in Kebbi State as opposed to the National Executive Committee, he lacked locus standi to challenge the primary election that produced the Appellant. He referred to:
DANIEL V. INEC & 2 ORS. (2015) 9 NWLR (PT. 1463) 113 @ 155; C-F.
ODEDO V. OGUEGBEGO (2015) 13 NWLR (PT. 1476) 229 @ 265 para G; 267 Para A.

On the third issue, learned counsel submitted in argument that the learned trial judge did not

correctly and properly evaluate the evidence before him leading to a wrong conclusion. Learned Counsel drew the attention of the Court to Exhibit PW5 A as wrongly relied on by the learned trial judge in finding that 1st Respondent is a member of the 2nd Respondent; as well as the failure to rely on the evidence of the 1st Respondent under cross-examination that the primary election be claimed to have won was conducted by the Kebbi State Executive Committee of the 1st Respondent and not the one conducted by the National Executive Committee.

On the last issue, it was submitted that the failure of the 1st Respondent to issue the initial origination summons in the name of his name as the plaintiff treated as a defect that affects the competence of the suit making it liable to be struck out.
He finally urged this honourable Court to allow this appeal and set aside the judgment of the lower trial Court.

On the part of the 1st Respondent, in addition to their Respondents Brief, a Notice of Preliminary Objection was also filed to challenge the competence of this appeal on the ground that the same was not entered

within 14 days contrary to Section 285 (II) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He referred this Court to ISHOLA BALAGUN FULANI V. OSHIOMOLE & 5 ORS. (SC/214/2019)

On the main appeal, learned counsel for the 1st Respondent adopted the four (iv) issues submitted by the Appellant.

On the first issue, it was submitted in argument that the complaint of the 1st Respondent was against the forwarding of the Appellants name to the 3rd Respondent by the 2nd Respondent as against his own name having scored the highest number of votes at the primary election, learned counsel contended that the name was wrongly forwarded vide Exhibit KAMBA II and same was received on 18th October 2018, that was when the cause of action arose and the suit filed on the 30th October, 2018 is within time.

On the second issue, learned counsel submitted that as opposed to the arguments of the Appellant on this issue, the 1st Respondent had locus standi to institute the suit for the following reasons:
i. The Appellant in his statement of Defence did not deny that the 1st Respondent is a member of the All Progressive Congress

while the 2nd Respondent who joined issue on this did not call any evidence in that regard as none of its 2 witnesses testified against the membership of the 1st Respondent.
ii. That the issue of the 1st Respondents membership of the 2nd Respondent for one year is put to rest by Exhibits PW5 A and PW5 D showing that he was screened and cleared to contest the primary election by the 2nd Respondent.
iii. That there was no need to explore any internal remedy provided for grievances against the outcome of a primary election since it is not logical for the candidate who won to appeal against his own victory.
iv. That there was only one primary election conducted in respect of Arewa/Dandi Federal Constituency and same was won by the 1st Respondent.

On the third issue, it was submitted that the 1st Respondent called enough witnesses and tendered sufficient evidence in proof of his claim that he was validly declared winner of the only primary election conducted by the 2nd Respondent to which he is a member against three other aspirants including the Appellant but the Appellants name was wrongly forwarded

to the 3rd Respondent in place of his name.

On the last issue, it was submitted in argument for the 1st Respondent that what the Appellant is making heavy weather of is a mistake which should be treated as an irregularity by virtue of Order 52 Rule 1(1) of the Rules of this Court. He argued that parties would be allowed to complain of a procedural irregularity if it misleads the other parties or affects the merits of the case which is not the case in the instant suit. He referred to:
NALSA & TEAM ASSOCIATES V. NNPC (1991) 11 SCNJ 51, (1991) 8 NWLR (PT. 212) 652.
MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78.
He finally urged this honourable Court to resolve the issue in favour of the 1st Respondent and dismiss the appeal.

On the part of the 3rd Respondent, two issues were submitted for determination in their brief of argument dated 16th May 2019 and filed on 22nd May 2019. The two issues are reproduced as follows:
1. Whether the trial Federal High Court was right in assuming jurisdiction to hear and determine the 1st Respondents case.
2. Whether the trial Federal High Court was right in granting reliefs sought by

the 1st Respondent.

On the 1st issue, it was submitted in argument that the complaint of the 1st Respondent is not touching on the propriety of the 2nd Respondents primary election conducted on 5th October, 2018 where he was declared winner, what he was challenging was the submission of the Appellants name in place of his name to the 3rd Respondent as the 2nd Respondents candidate for the Arewa/Dandi Federal Constituency in total disregard of the primaries of October 5th 2018, which he won. It was further contended that the questions for determination, the reliefs sought the affidavit in support of the Originating Summons and the issues joined by the parties vindicate the position that the 1st Respondents cause of action clearly arose on the 18th October 2018 against the misconceived belief of the Appellant. It was further submitted that the cause of action for the purpose of Section 285 (9) of the Constitution will inure to a plaintiff who asserts that he won a primary on the day his name is substituted with the name of an alleged loser. This Court was referred to:
ENGR. ALIYU SULEIMAN LERE V. APC & 2 ORS.

(APPEAL NO. CA.K/40/2019)
MUSTAPHA HALILU LAMORDE V. BARR. (MRS) AMANDA PAM & 2 ORS. (APP. NO.CA/A/110/2019).

On the second issue, it was submitted that the 1st Respondent was entitled to the reliefs sought and the trial Court was right to have granted same. It was contended that the 3rd respondent, in line with its constitutional duty of monitoring the conduct of political parties pursuant to Section 153(2) and Paragraph F15 (C) of the Constitution of the Federal Republic of Nigeria, as well as Section 85(1) & (2) of the respondents Primary Elections in respect of Arewa/Dandi Federal Constituency conducted on 5th October 2018, report of which was admitted as Exhibit DW3 A clearly shows that the 1st Respondent was declared the winner of the said primary election. The 3rd Respondent finally urges this Court to dismiss this appeal and affirm the decision of the trial Court.

In reply, the Appellant filed a reply Brief of Argument dated 21st May, 2019 and filed the same day.

With regard to the preliminary objection of the 1st Respondent, it was submitted that Appellants Notice of Appeal was filed on 26th

April 2019 which is within 10 days from the date of the lower Courts judgment in strict compliance with the provision of Section 285 (11) of the Fourth Alteration Act. It was contended that what Section 285(11) deals with is filing of an Appeal and not entrance of an Appeal as being argued by the 1st Respondent. This Court was urged to dismiss the preliminary objection of the 1st Respondent for lacking in merit.

It was alternatively argued that even if the said Section 285 (II) contemplates enterence of Appeal, the objection will still not hold water because the fault of non-compilation and transmission of the record to this honourable Court is that of the Court, not the Appellant; and the Appellant will not be punished for the wrong of the Court. He referred to:
WAZIRI V. GEIDAM (2016) 11 NWLR (PT. 1523) 230 @ 258 C, 259, E.

The Appellant also submitted with regard to the issue of the Appellant abandoning their challenge on the 1st respondents membership of the 2nd Respondent, it was submitted that such will still not relieve the 1st respondent of the burden of proof since the party itself denied his membership. It was contended

that the 1st Respondent failed to prove his membership through credible evidence.
The Appellant finally urged this Court to dismiss the preliminary objection, and allow this appeal.

I have first to deal with the Notice of Preliminary Objection filed by the 1st Respondents before considering the appeal on its merits. Section 285 (11) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides thus:
An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
The plain language of this legislation is very clear and does not require any interpretation. It says clearly what the legislatures require of an appellant. It is the filing of an appeal as opposed to the entrance of an appeal in an appellate Court.
In the instant case I hold that the Notice of Appeal, filed on the 26th day of April, 2019, was filed within 14 days of the delivery of the judgment appealed against, the entrance of the appeal is within the domain of the registry of the lower Court which is outside the intendment of Section 285 (11) of the Constitution

The Appellant raised objection, in the course of arguing the appeal, to the 3rd Respondents Brief of Argument on the ground that issues formulated in the brief are not tied to any of the 10 grounds of appeal. In response, learned counsel for the 3rd Respondent submitted that the two issues flowed from the issues as formulated by the Appellant. No one is left in doubt that the two issues do not depart from the issues distilled by the Appellant in his brief of argument. I see the objection as a resort to mere technicality which will not lead to the resolution of the dispute between the parties on the merit.

In the premise, I see no reason why I should discountenance the 3rd Respondents Brief of Argument. Instead, I allow it to stand on and will make use of it in the determination of the appeal.

All the preliminary issues having been dealt with, I will now proceed to consider the appeal proper. I will base my judgment on the four (4) issues distilled by the Appellant from the 10 grounds of Appeal. Both the grounds of appeal and the issues for determination have been earlier reproduced in this judgment, but for purpose

of emphasis, I will still reproduce the issues, namely:
i. Whether Suit No. FHC/KB/CS/7/2019 filed by the 1st Respondent herein as Plaintiff at the trial Court on 30th October, 2018 was statute barred within the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) thereby ousting jurisdiction of the trial judge to entertain the suit. (Ground 1 of the 2nd Notice of Appeal).
(ii) Whether the 1st respondent herein as plaintiff at the trial Court had locus standi to file Suit No. FHC/KB/CS/7/2019 capable of investing the learned trial judge with the necessary jurisdiction to entertain same (Grounds 2,3,4 and 5 of the 2nd Notice of Appeal).
(iii) Whether having regards to the evidence adduced by the parties, the learned trial judge was right in awarding judgment in favour of the 1st Respondent. (Grounds 6,7 and 9 of the 2nd Notice of Appeal).
(iv) Whether the originating summons in Suit No. FHC/KB/CS/7/2019 filed by the 1st Respondent herein as plaintiff at the trial Court was competent to have validly and legally invoked the jurisdiction

of the learned trial judge. (Grounds 8 and 10) of the 2nd Notice of Appeal).

The 1st Respondent adopted these issues while the 3rd Respondent identify two issues as arising from the four issues formulated by the Appellant. The 2nd Respondent did not file a brief.

On the 1st issue the submissions of learned counsel for the appellant centre around the fact that the 1st Respondents complaint at the trial Court was against the conduct of the primary election which he alleged to have won. It is clear beyond any peradventure that the 1st Respondents claim was that after having won the primary election and after having been issued with the Independent National Electoral Commission Form CF001 which he filled and duly returned to the 2nd Respondent, the latter, on the 18th day of October, 2019, submitted the name of the Appellant instead of his own name to the 3rd Respondent as its candidate for the House of Representatives in respect of Arewa/Dandi Federal Constituency for the General Election of February, 2019. The learned trial Judge in Kebbi invited parties to address him on the propriety of trying the case based on conflicting

affidavit evidence. He was so addressed and he transferred the case to the general cause list thereby ordering parties to file pleading, parties complied and filed their respective pleadings except that the Appellant was dissatisfied by the Ruling and appealed the ruling.

In his pleading starting from page 704 of the record of appeal, the Appellant denied virtually every paragraph of the 1st Respondents statement of claim. He filed a list of 71 witnesses he intended to call and testify for him, 5 witnesses testified for the 1st Respondent; two 2 witnesses testified for the 2nd Respondent; while only one witness testified for the 3rd Respondent. The Appellant chose not to call any witness and he did not himself, testify at the trial of this case. He rested his case on that of the plaintiff (1st Respondent herein).

support. A matter that is pleaded but not traversed remains a fact against the other side. Thus, where the plaintiff pleads negligence and went on to specifically prove the averment by evidence in Court and the defendant offers no evidence whatsoever, the pleading remains uncontroverted and might be held against the defendant. See FRANCIS OSAWE ESEIGBE V. FRIDAY AGHOLOR & ANR. (1993) 12 SCNJ 82 @ 91. Also in FEDERAL CAPITAL DEVELOPMENT AUTHORY V. ALHAJI MUSA NAIBI (1990) 5 SCNJ 186, it was held that pleadings cannot constitute evidence and defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff notwithstanding his general traverse. If the defendant does not give evidence in support of his pleadings, the averments therein are taken as having been abandoned for they stand as no more than mere averments which have not been supported.

In the instant case there are certain areas of the 1st Respondents case pleaded to the effect that the Appellant participated in the primary election but he was neither screened nor cleared for the election that produced the 1st Respondent as the winner.

This was traversed by the Appellant but he did not offer any evidence in support of his pleadings. I will come back to this point anon.

Going back to issue No. 1 there is no doubt that the Appellants counsel misconceived the tenor of the 1st Respondents case. The conduct of the primary election which produced him as the winner was not his bone of contention, his grouse is with the submission by the 2nd Respondent to the 3rd Respondent the name of the Appellant instead of himself who had won the primary election. To that extent, the issue of the cause of action, arising on the 5th day of October, 2018 when the primary election was held does not arise. The cause of action arose on the 18th day of October, 2018 when the 2nd Respondent forwarded the name of the Appellant to the 3rd Respondent as its candidate in the House of Representative for Arewa/Dandi Federal Constituency instead of the name of the 1st Respondent who won the election. That informed the filing of the Originating Summons on the 30th day of October, 2018, challenging the substitution of the Appellant for the 1st Respondent on the 18th day of October, 2018.

The Appellants case in this respect is that the suit was filed in contravention of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, (as amended), (Fourth Alteration Act, No. 21, 2017. Section 285 (9) provides as follows:-
Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
In this case, the learned trial judge found as a fact that the decision or action of the 2nd Respondent in submitting the name of the Appellant who did not win the primary election to the 3rd Respondent constituted the cause of action. This event occurred on the 18th day of October, 2018. The learned trial Judge held that, that was the date when the cause of action arose contrary to the view held by learned Counsel for the Appellant that the cause of action arose on the 5th day of October, 2018 when the primary election was conducted. I am totally in agreement with the learned trial Judge. See KASIMU BELLO MAIGARI V. HON AMINU IBRAHIM AMME & 2 ORS in SC/454/2019

delivered by His Lordship NWEZE, JSC on the 13th day of June, 2019. I hold that the suit of the 1st Respondent before the trial Court was not statute barred as argued for the Appellant the suit was filed within 14 days prescribed by Section 285(9) of the Constitution, Fourth Alteration Act, No. 21, 2017.
The decision of this Court in Appeal No. CA/A/126/2019 between DAVID UMAR V. ALL PROGRESSIVE CONGRESS & 2 ORS delivered on the 8th day of April, 2019, heavily relied upon by learned counsel for the Appellant as authority that in pre-election matter, the occurrence of event, decision or and action and the cause of action arose on the primary election date was conducted, has been set aside by the Supreme Court on the 13th day of June, 2019 in Suits NO.SC/454/2019, NO. SC/405/2019 and the date when the political party wrongly submits the name of a person who did not win the primary election is the date of accrual of cause of action.
This issue is resolved against the Appellant and in favour of the 1st Respondent.

On the second issue, I hasten to state that this issue is not available to the Appellant. Only the 2nd Respondent can complain that

the 1st Respondent is not its member. Indeed, the 2nd Respondent is estopped from raising the issue of the 1st Respondents after his screening and clearing as being qualified to participate in its primary election. It will be wreaked and callous act on the part of the 2nd Respondent to complain at this stage the membership status of the 1st Respondent.
Earlier in this judgment, I stated that the Appellant who submitted a list of 71 witnesses ended up not calling even one witness. He did not testify and his sworn witness statement on Oath was discountenanced by the learned trial Judge on the ground that he did not show up in Court to adopt the statement as his evidence and he did not make himself available for cross-examination to enable the Court establish the veracity of the sworn statement on oath.
The 1st Respondent produced and tendered his APC membership card, Exhibit PW5 A with Registration No. KB 392322 which bears the name of ABDULLAHI UMAR which the Appellants Counsel contended to be different from the 1st Respondents name, UMAR ABDULLAHI KAMBA.
The learned trial Judge accepted the exhibit as

belonging to the 1st Respondent. The Appellant has no pleading on which to hang this issue as his pleading has no evidence in support. It remains mere averment and cannot take the place of evidence. Indeed, the Appellant did not plead the issue of membership of the 1st Respondent. The learned trial Judge has this to say regarding the witness for the 1st Respondent
I am satisfied that the witnesses for the plaintiff are truthful witness.
In respect of the Appellant, the learned trial Judge stated thus
The 2nd Defendant who claimed to have won the primary election of the 1st Defendant on 5th October, 2018 for the Arewa/Dandi Federal Constituency did not attend the hearing, did not testify and was not cross-examined. He was however, represented by counsel during the proceeding. The Court can only act on evidence before it.
The Appellant relies on Supreme Court authority in TARZOOR V. LORAER (2016) 3 NWLR (PT. 1500) 463 @ 505, but the 2nd Respondent did not produce its membership register to demonstrate that the 1st Respondent is not its member as established by the Supreme Court authority

relied upon.
As stated earlier only the 2nd Respondent can question the 1st Respondent as to his membership of the APC. It is non-business of the Appellant to do that.
The 1st Respondent pleaded and testified that he joined the APC in 2014 and that his membership card was issued to him in April, 2018. To a question whether he was granted waiver, he said NO. If he joined the party in 2014, he does not require a waiver. Anyway, there is no contrary evidence. The 2nd Respondents two witnesses gave no evidence concerning the membership of the 1st Respondent.
I hold that from the pleadings and evidence before the lower Court, the 1st Respondent is member of the 2nd Respondent.
As to the point that the 1st Respondent did not prove that prior to the filing of the suit, he exhausted the 2nd Respondents constitutional provisions for dispute resolution.
I must state that the submissions of learned counsel for the Appellant in this regard is untenable and unacceptable in the face of the attitude of the 2nd Respondent to the 1st Respondent and in the face of the Fourth Alteration Act, No. 21, 2017 which limits the period when an

aggrieved member or an aspirant in a pre-election matter can approach a Court of law. The period is limited by Section 285(9) to 14 days. It is however, appreciated that learned Counsel for the Appellant recognise the fact that the 2nd Respondents constitution is subject to the Constitution of the Federal Republic of Nigeria. Section 285 (9) is superior to any provisions of the 2nd Respondents constitution in respect of dispute resolution.
With regard to the allegation that the primary election that produced the 1st respondent as the winner was conducted by Kebbi State Executive Committee, the evidence abound and remain uncontroverted that it was conducted not by the State Executive Committee but by a subcommittee appointed by the National Election Committee for Kebbi State. It is clear from the record of appeal that the Kebbi State Executive Committee of the 1st respondent did not conduct the Arewa/Dandi Federal Constituency Primary Election that produced the 1st Respondent as the winnerThe finding by the Learned Trial Judge that the 1st Respondent has locus standi to institute the action has not been successfully negated by the

submission of the Appellants counsel.
I hold that the 1st Respondent has the locus standi to institute the action leading to this appeal and this issue is resolved against the Appellant.

With regard to issue No. 3 it will be preposterous to contend that the learned trial Judge did not evaluate or properly evaluate the evidence adduced by the parties before him.

It is true that a party can elicit evidence under cross-examination but in the instant case the Appellants counsel is only exaggerating the evidence he elicited during cross-examination of the various witnesses. The evidence he elicited does not meet the standard to demolish the case of the 1st Respondent before the trial Court.

The evidence that demolished the defence of both the Appellant and the 2nd Respondent is that of the 3rd Respondent to the effect that it monitored the election conducted by the 2nd Respondent for Arewa/Dandi Federal Constituency that produced the 1st Respondent as the winner, on the invitation of the 2nd Respondent. It is also the pleading of the 3rd Respondent at pages 686 to 703, Vol. 1 of the record of appeal and the evidence adduced in

respect therefor that apart from this primary election of the 5th day of October, 2018, the 2nd Respondent did not conduct any other primary election for Arewa/Dandi Federal Constituency. Both the Appellant and the 2nd Respondent have not been able to discredit this evidence of the body statutorily charged with the Responsibility to monitor the conduct of election by political parties for nomination of members into various elective offices.

In the premises, I hold that the learned trial Judge was right to have awarded/granted the reliefs sought by the 1st Respondent.

On the 4th issue the learned trial Judge holds that what the Appellant regarded as defect in the Originating Summons was mere irregularity curable by the Rules of the Federal High Court. Moreover, the Appellant has not shown what disadvantage he has suffered by the so-called defects.
This issue is resolved against the Appellant.
On the whole, this appeal fails and it is accordingly hereby dismissed.

AMINA AUDI WAMBAI, J.C.A.: I agree.

FREDERICK OZIAKPONO OHO, J.C.A.: I agree.

Appearances:

O. A. Dada Esq., with him Hussaini Zakariyau Esq., and M. A. ShariffFor Appellant(s)

I. K. Bawa, SAN with him A. A. Fingilla Esq., Farida Ibrahim Esq., M. Sale Esq., and Rabiu Bawa for the 1st Respondent.
Babatunde John Kwame Ogala Esq., with him Abdulghani Aroba Esq., for the 2nd Respondent.
I.S. Mohammed Esq., for the 3rd Respondent.For Respondent

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