DR. MARTINS NWOGA v. IMO STATE INDEPENDENT ELECTORAL COMMISSION & ORS
(2019)LCN/13156(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of April, 2019
CA/OW/102/2019
RATIO
PRELIMINARY OBJECTIONS: WHETHER PRELIMINARY OBJECTIONS CAN BE USED IN PLACE OF AN APPEAL
The settled position of the law is that a respondents notice cannot be used in place of an appeal. It would appear that the 3rd Respondent being dissatisfied with the decision of the lower Court in respect of his preliminary objection should have appealed against same. See in this regard, the cases of LOPIN (NIG) LTD V. WEMA BANK PLC (2010) LPELR 4440 (CA) and IGP V. IKPILA (2015) LPELR ? 40630 (CA) amongst many others.PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
DR. MARTINS NWOGA Appellant(s)
AND
1. IMO STATE INDEPENDENT ELECTORAL COMMISSION (ISIEC)
2. ALL PROGRESSIVES CONGRESS (APC)
3. CHIEF ADOCTUS ONUOHA
4. IMO STATE GOVERNMENT
5. THE ATTORNEY-GENERAL OF IMO STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 21/2/2019 by the High Court of Justice, Imo State of Nigeria holding at Owerri Judicial Division and presided over by Hon. Justice I.M. Njaka (hereafter to be simply referred to as ?the lower Court? and learned trial Judge respectively). The lower Court in its judgment dismissed the action instituted by the Appellant herein as Plaintiff against the Respondents herein as 1st, 2nd, 3rd, 4th and 5th Defendants. The action was instituted by way of originating summons, seeking for the determination of the questions and seeking for the reliefs re-produced hereunder:-
?1. WHETHER from the combined reading of the provisions of Sections 78 of the Electoral Act that empowers the registration of Political Parties, Section 156 of the Electoral Act on Council elections, and the provisions of Section 221 and 222 of the 1999 Constitution of the Federal Republic of Nigeria as amended, the All Progressives Congress is not bound to follow its Constitution in selecting candidates for election into the
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office of Chairman Ahiazu Mbaise Local Government Council.
2. WHETHER from the provisions of Article 20 of the All Progressives Congress, APC Constitution and the provisions of Section 87 of the Electoral Act as amended the 3rd Defendant who did not participate in the Primaries of the Party is entitled to be presented as the nominated candidate of the Party for the Local Government Council Elections in Imo State for the office of Chairman, Ahiazu Mbaise LGA.
3. WHETHER from the clear provisions of Section 87 of the Electoral Act and Article 20 of the Constitution and the Party Guidelines of the All Progressives Congress, it is only persons that participated in the Party Primaries that can be nominated by the Party as its candidate for election into the office of Chairman, Ahiazu Mbaise Local Government Council.
RELIEFS SOUGHT
a. A DECLARATION that the failure to hold, adopt and present the Plaintiff as the candidate of the All Progressives Congress, APC for the 2018 Local Government Council Election for the office of Chairman, Ahiazu Mbaise Local Government Council is a nullity and of no effect whatsoever for being in breach of rules of natural
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justice, breach of fair hearing and in violation of the Constitution of APC and the Constitution of the Federal Republic of Nigeria that directs that Political Parties are to carry out its (sic) activities according to their Constitution.
b. A DECLARATION that the 3rd Defendant having not participated in and won the Primaries of the All Progressives Congress conducted over the office of Chairman, is not qualified in law, for the purposes of contesting election for the office of Chairman, Ahiazu Mbaise Local Government Council and therefore cannot validly stand election or be validly elected to the office of Chairman, Ahiazu Mbaise Local Government Council.
c. AN ORDER setting aside as null and void all arrangements, process, planning, engagement and all actions carried out and being carried out towards the presentation of the 3rd Defendant as the Ahiazu Mbaise candidate of the 2nd Defendant for the 2018 Imo State Local Government Council Elections for Ahiazu Mbaise Local Government Council for being contrary to the Constitution of the 2nd Defendant and Electoral Act.
d. AN ORDER setting aside for being a nullity and of no effect whatsoever the
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decision for the conduct of election and the election for the of Chairman, Ahiazu Mbaise of Imo State on 25th of August, 2018 with the participation of the 3rd Defendant as the Chairman, Ahiazu Mbaise Local Government Council.
d. AN ORDER restraining the 1st, 4th and 5th Defendants or any of them from returning or declaring the 3rd Defendant as elected, and from swearing in, or causing to the swearing in, inaugurating the 3rd Defendant as the Chairman of Ahiazu Mbaise Local Government Council at all or whatsoever.
f. AN ORDER restraining the 3rd Defendant from parading himself as candidate for 2018 Local Government Council Elections for Ahiazu Mbaise Local Government Council; or, participating in any election as a Chairmanship candidate or, operating, or presiding over any meeting, attending any meeting or carrying on, or attending to any function, or sitting in office, or functioning in any manner at all, or exercising any power or duty, or holding any property or paraphernalia of office, or presenting himself as elected Chairman, Ahiazu Mbaise Local Government Council.
g. AN ORDER restraining the 4th Defendant, by its officers, Legislative arm,
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the executive Governor, members of the Executive Council and any government functionary from regarding, holding, according or in any manner at all attending to, having regard to or giving effect to any election conducted by the 1st Defendant producing the 3rd Defendant as the Chairman, Ahiazu Mbaise Local Government Council.
h. AN ORDER recognizing the Plaintiff as the candidate of the All Progressives Congress for the office of Chairman, Ahiazu Mbaise Local Government Council for the Local Government Council Elections of the 25th of August, 2018 or any other date.
i. AN ORDER directing the swearing in and according the Plaintiff as Chairman of Ahiazu Mbaise Local Government Council following a successful election of All Progressives Congress at the Local Government Elections of the 25th of August, 2018 or any other date being the validly nominated candidate of the Party that participated in the election.
j. Any consequential order which in the circumstances of this matter the honorable Court deems fit to make.?
Being aggrieved with the judgment of the lower Court dismissing his action, the Appellant initiated the instant appeal by
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lodging at the registry of the lower Court on 25/2/2019 a notice of appeal dated 23/2/2019. The notice contains 16 grounds of appeal. The grounds of appeal shorn of their respective particulars read thus: –
?GROUNDS OF APPEAL
GROUND ONE
ERROR IN LAW
The learned trial Judge erred in law by relying on the 3rd Defendant?s 2nd Further Counter Affidavit to the originating summons and failing to hold that the said 2nd Further Affidavit (sic) is incompetent.
GROUND TWO
ERROR IN LAW
The learned trial Judge erred in law by failing to hold that the 3rd Defendant?s counter affidavits to the originating summons are incompetent.
GROUND THREE
ERROR IN LAW
The learned trial Judge erred in law by failing to pronounce on the point that the defendants did not comply with the provisions of the law on how to respond to originating summons of the Court.
GROUND FOUR
ERROR IN LAW
The learned trial Judge erred in law by failing to give effect to the admitted facts in line with the provisions of the Evidence Act.
GROUND FIVE
ERROR IN LAW
?The learned trial Judge erred in law by holding
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that the processes filed by the 1st Defendant were proper in law.
GROUND SIX
ERROR IN LAW
The learned trial Judge erred in law in allowing the 3rd Defendant?s 2nd Further Counter Affidavit and by holding that in a matter fought on affidavit evidence, the parties have the right to file affidavit be it further or further counter affidavit.
GROUND SEVEN
ERROR IN LAW
The learned trial Judge erred in law by failing to consider the Plaintiff?s issues before the Court for the determination of the originating summons.
GROUND EIGHT
ERROR IN LAW
The learned trial Judge erred in law by failing to evaluate and give effect to Exhibits forming part of the Plaintiff?s evidence before the Court.
GROUND NINE
ERROR IN LAW
The learned trial Judge erred in law by breaching the right of fair hearing and rules of natural justice of the Plaintiff by relying solely only on the facts of the 3rd Defendant and ignoring the case of the Plaintiff.
GROUND TEN
ERROR IN LAW
The learned trial Judge erred in law by suo motu raising an issue challenging the undisputed position before the Court that the
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National Executive Council of the All Progressives Congress conducted the Party Primaries in Imo State for Local Government Council election.
GROUND ELEVEN
ERROR IN LAW
The learned trial Judge erred in law when the Court held allowing the disputed cancellation of Party Primaries by the State Secretary of the Party.
GROUND TWELVE
ERROR IN LAW
The learned trial Judge erred in law when the Court held that by virtue of Section 9 of the Imo State Independent Electoral Commission (Amendment) Law No. 12 of 2006 and No. 14 of 2009, the ISIEC position that it did not monitor the Primaries of 6th June, 2018 and the absence of evidence from Law Enforcement Agencies affected the Party Primaries.
GROUND THIRTEEN
ERROR IN LAW
The learned trial Judge erred in law when the Court failed to hold that the purported cancellation of the APC Party Primaries of 16th June, 2018 for the election of Chairman Ahiazu Mbaise LGA is a nullity.
GROUND FOURTEEN
ERROR IN LAW
The learned trial Judge erred in law when the Court held that the Plaintiff would have made Alfred Obi a party to the proceedings.
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GROUND FIFTEEN
ERROR IN LAW
The learned trial Judge erred in law when the Court held that there is nothing to show that the Plaintiff?s name was forwarded to the 1st Defendant with a certificate of return and it is only the winner of a Primaries that can challenge the election.
GROUND SIXTEEN
ERROR IN LAW
The learned trial Judge erred in law when the Court dismissed the suit of the Plaintiff and relied on facts of the defendants who did not counter claim.?
The appeal was entertained on 17/4/2019 with learned leading counsel I.F. Akponye adopting and relying on Appellant?s brief of argument dated 28/3/2019 and filed 2/4/2019 but deemed as properly filed and served on 17/4/2019, in urging the Court to allow the appeal.
?In the same vein, learned counsel for the 1st, 3rd and 4th and 5th Respondents respectively, adopted and relied on their briefs of argument in urging the Court to dismiss the appeal. 1st Respondent?s brief of argument is dated 16/4/2019 and filed on the same date but deemed as having been properly filed and served on 17/4/2019; 3rd Respondent?s brief of argument is dated 16/4/2019 and filed on 17/4/2019 but
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deemed as properly filed and served on 17/4/2019; and the brief of argument of the 4th and 5th Respondents is undated but filed on 17/4/2019 and deemed as properly filed and served on the same date.
At the hearing of the appeal, learned leading counsel for the Appellant duly responded orally to the Respondent?s Notice filed by the 3rd Respondent and what he considered to be new issues raised in the briefs of argument of all the Respondents that filed same. This is because, all the briefs of the parties that participated at the hearing of the appeal were deemed as properly filed and served on the day the appeal was entertained (i.e. 17/4/2019) as the delivery of judgment in the appeal is time bound.
The Appellant formulated two issues for the determination of the appeal in his brief of argument and they read thus: –
?1. Whether the lower Court was right in ignoring and refusing to allow the objections against the incompetent processes of the Defendants, which impugns on the jurisdiction of the Court, despite the Defendants admissions to the objections, but rather relied on these incompetent processes of the Defendants in coming to the
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decision dismissing the suit.
2. Whether from the entire circumstances of this suit as conceded to by the 2nd and 3rd Defendants and the various provisions of the Electoral Act, the lower Court was right in dismissing this suit as unmeritorious instead of finding for the Plaintiff and granting all the claims.?
The 1st Respondent formulated two issues which were not tied to the grounds of appeal in the notice of appeal for the determination of the appeal. The issues read thus: –
?1. Whether the processes filed by the 1st Respondent at the trial Court are incompetent.
2. Whether the Plaintiff did prove his case to entitle him to the reliefs sought.?
Having regard to the flow of the 3rd Respondent?s brief of argument, it would appear that he adopted Appellant?s issue 1; he however clearly adopted issue 2 formulated by the Appellant for the determination of the appeal as the said issue was specifically set out word for word as his (3rd Respondent?s) issue 2.
?
The 4th and 5th Respondents (hereafter to be simply referred to as ?the Respondents) formulated a lone issue for the determination of the
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appeal. It reads thus: –
?Whether the plaintiff has made out a case to warrant the grant of his reieves (sic).
I am of the considered view that as the issues formulated by the 1st, 3rd, and 4th and 5th Respondents, can conveniently be considered along with one or the other of the two issues formulated by the Appellant, the appeal will be better decided on the issues for its determination as formulated by the said Appellant.
APPELLANT?S ISSUE 1 ? WHETHER THE LOWER COURT WAS RIGHT IN IGNORING AND REFUSING TO ALLOW THE OBJECTIONS AGAINST THE INCOMPETENT PROCESSES OF THE DEFENDANTS, WHICH IMPUGNS ON THE JURISDICTION OF THE COURT, DESPITE THE DEFENDANTS ADMISSIONS TO THE OBJECTIONS, BUT RATHER RELIED ON THESE INCOMPETENT PROCESSES OF THE DEFENDANTS IN COMING TO THE DECISION DISMISSING THE SUIT.
Dwelling on this issue, the Appellant disclosed that he raised objections to the competence of the counter affidavits filed by the Respondents in the instant suit. That the lower Court not only failed to consider all the objections, but that the said Court proceeded to rely on the said processes in dismissing his suit. That the lower
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Court did this, even though the Respondents admitted the objections by not responding to the same. Suffice it to say that the Appellant in arguing this issue in my considered view ?substantially? (which word I have used most advisedly) engaged in a rehash of the submissions he made before the lower Court regarding his objections to the competence of the counter affidavits of some of the Respondents as contained in his written addresses on pages 71 ?78 which though is titled ?WRITTEN REPLY ADDRESS OF THE PLAINTIFF TO THE WRITTEN ADDRESS OF THE 2ND ? 3RD DEFENDANT? (dealt solely with the counter affidavit filed by the 1st Respondent herein); and the process titled ?WRITTEN ADDRESS OF THE PLAINTIFF TO THE WRITTEN ADDRESS OF THE 3RD ? 5TH DEFENDANTS? on pages 150-153 of the record. I used the word ?advisedly? because while Appellant in dwelling on his issue 1 in the instant appeal escalated or elevated his arguments to the realm of jurisdiction (and which I believe that he can properly do), he also introduced a new ground of objection and argued the same to wit: ?incompetence of the counter
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affidavit of the 1st Respondent on the ground that the deponent is a person who lacked the knowledge of the facts deposed to? (and this I am of the considered view, he cannot do willy-nilly). This ground of objection was never raised nor argued before the lower Court (as it will be demonstrated shortly by re-producing relevant portion of the judgment of the lower Court) by the Appellant; and I am of the considered view that inasmuch as the said correctness of the position of the lower Court in respect of the 1st Respondent?s counter affidavit,is before this Court on appeal, the Appellant cannot properly argue a new ground of objection as if this Court is the Court entertaining the preliminary objection challenging the competence of the counter affidavit of the 1st Respondent. Re-produced hereunder is the portion of the judgment of the lower Court from page 211 of the record which captured the objections of the Appellant to the counter affidavits filed in the instant case by the 1st and 3rd Respondents (and not all the Respondents), the grounds of objection; and the findings of the lower Court in respect of the said grounds of objections. It goes
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thus: –
?On the 1st day of February, 2019, parties adopted their processes. Akponye Esq.; for the plaintiff moved his originating motion dated 18-8-2018 and filed on 24-8-18, accompanied by a 28 paragraphs affidavit. Annexed is Exhibits IFA1 and a written address. The plaintiff filed affidavit in reply to the counter affidavit of the 1st Defendant on 27-11-18. It is of 18 paragraphs. He annexed a set of documents marked Exhibit IF 2. It is accompanied by a written address. He also filed further affidavit in reply to the counter and further counter affidavit of the 3rd Defendant and joint affidavit of 4th & 5th Defendants accompanied by written address. He also filed 7 paragraphs counter affidavit in reply to the 3rd Defendant?s preliminary objection accompanied by a written address. He urged the Court to dismiss the preliminary objection for being incompetent and allow the suit and grant claims of the plaintiff.
He urged the Court to discountenance the 2nd further counter affidavit of the 3rd Defendant with the annexure therein. It is contrary to Order 17 Rule 16 of the High Court Rules. He asked the Court to set it aside for
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been in breach of fair hearing. By Order 18, the 3rd Defendant cannot file further processes.
—The plaintiff has attacked the counter affidavit of the 1st Defendant and 3rd Defendant. He has also said that the 1st Defendant ought not to have filed the processes but remain neutral. He also argued that the counter affidavit of the 1st Defendant was filed after 82 days as against 21 days required by law so also that of the 3rd Defendant was filed outside the time stipulated by law.
The Constitution makes provisions for the bodies to organize election at the Federal, State and Local Government levels. Section 197(1)(b) of the Constitution created a State Independent Electoral Commission for each State of the Federation. —
Section 9(1)(a), (b) and (f) of the Imo State Independent Electoral Commission (Amendment) Law No. 12 of 2006 provides:
The Commission shall have the duty of
(a) —
(b) —
(f) —
This Law was further amended by Independent Electoral Commission Law No. 14 of 2009(1)(i)(ii) provides:
(i) —
The neutrality of the 1st Respondent as put across by the plaintiff is only to the extent that the
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duty is to monitor and report or document what it monitored and when called upon as in this case by any party, to put across what it observed. So it is expected to file something and not sit on the fence. So I do not agree with the plaintiff that the process filed by the 1st Defendant should be discountenanced on the ground that it ought to be neutral as an unbiased umpire.
It is also the contention of the plaintiff that the counter affidavit of the 1st Defendant and the 3rd Defendant was filed out of time and this contravenes Order 17 Rule 16 of the Imo State High Court (Civil Procedure) Rules. In my view, the parties have joined issues on the facts contained in the various affidavits. The plaintiff went on to file further affidavit and reply to counter affidavit of the 1st Defendant as well as that of the 3rd Defendant.
I do not think it will best serve the interest of justice for this Court to ignore processes in its case file that were filed out of time more so when the other parties have reacted to the processes as in this case. In AVZAT INTL LTD & ANOR V. ECOBANK (NIG) LTD (2018) LPELR ? 44851 (CA) — In UNITED BANK FOR AFRICA LTD V
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DIKE NWORA (1978) 11-12 SC 1 AT 6-7 the Supreme Court relying on the similar provisions with Order 5 of the Imo State High Court (Civil Procedure) Rules referred to by Otti Esq. stated:
—
See also OJEMITAN ETUWEWE V BOLA ETUWEWE & ANOR. FCCA/B/26/78 delivered on 17th day of May 1979.
From all I have said so far in this respect, the counter affidavit of the 1st Defendant and that of the 3rd Defendant are void.
Another thing is that the plaintiff filed joint further affidavit in reply to the counter & further affidavits of the 3rd Defendant and joint counter affidavit of the 4th and 5th Defendants. The implication is that if the counter affidavit of the 3rd Defendant is discarded as being invalid, then the plaintiff?s reply to the counter affidavit of the 4th and 5th Defendant will also be discountenanced as invalid because he replied to a valid and invalid counter affidavit together. This will then mean that there is no reply to the counter affidavit of the 4th and 5th Defendants.
The plaintiff said that the 2nd affidavit of the 3rd Defendant is invalid because according to him, the 3rd Defendant has no right to file 2nd
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further counter affidavit. I am of the view that in matter fought on affidavit evidence the parties have the right to file affidavit be it further or further counter affidavit in support of their case. In this case, the plaintiff had the opportunity to respond to the 2nd further affidavit. In my view the 2nd further affidavit is proper.
Having stated as above, I wish to also state that even if the counter affidavit of the 1st and 3rd Defendants are discountenanced for whatever reason, it does not remove the burden on the plaintiff to prove his case…”
In resolving Appellant?s issue 1, I must observe right away that the finding or conclusion of the lower Court in the portion of its judgment re-produced above to wit: ?From all I have said so far in this respect, the counter affidavit of the 1st Defendant and that of the 3rd Defendant are void? cannot but be a slip having regard to all the lower Court had said prior to arriving at its conclusion and particularly the cases cited in support of its reasoning. The position of the law regarding any slip made by a Court would appear to have been sufficiently enunciated by the Supreme
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Court in the case of ADEGBUYI V. APC (2014) LPELR ? 24214 (SC) wherein Fabiyi, JSC; stated thus: –
?The Court below found that ‘the trial judge could not have intended to use the word ?dismissal? after stating clearly that the issues are triable and evidence would have to be taken.’ It rightly found that it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against. The case of Onajobi v. Olanipekun (1985) 11 SC (Pt. 2) 156 is in point. This Court said it clearly in Adebayo v. Attorney-General, Ogun State (2008) 2 SCNJ 352 at 366-367 per Niki Tobi, JSC that:-
“In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient instalments to underrate or run down the judgment.?
I cannot fault the approach of the Court below. The reasoning process of the judge before the
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use of the of the word ‘dismissed’, to my mind, after a slow and careful reading of same, shows that it is a slip. The law allows a Court to rectify any slip in a judgment as long as it does not amount to a miscarriage of justice. See Yakubu v. Omolaboje (2006) WRN 23 at 176. A party should not employ technicality to frustrate the justice of a case. See Falobi v. Falobi (1976) 9-10SC. 1, (1976) 1 NMLR 169. The Court below was right when it found that the word ‘dismissal’ employed by the trial judge at the material point in her Ruling is a mere slip. xxxxx?
?Guided by the above cited authority and the other cases relied on therein, I am therefore of the considered view that the word ?not? was omitted before the word ?void? in the conclusion of the lower Court and that it is against the backdrop of the fact that the lower Court found the counter affidavits of the 1st and 3rd Respondents respectively, not to be void that the said Court relied on them in coming to its decision in the instant case and which decision the lower Court also stated would have been the same even if it had not countenanced the said counter affidavits.
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Suffice it to say that the lower Court having regard to its Rules in Orders 1 Rule 1(3) and 5 Rule 1(1) eminently has the power to have countenanced the counter affidavits of the 1st and 3rd Respondents. The provisions of these rules read thus:
?Order 1 Rule 1(3)
Application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.
Order 5 Rule 1(1)
Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps.?
The instant case having regard to the record was instituted by the Appellant by way of an originating summons dated 18/8/2018 and which issued on 24/8/2018. At pages 170-171 of the record, the note of proceedings of the lower Court for 1/2/2018 (sic), reads thus: –
?Plaintiff in Court others absent
I.F. Akponye for plaintiff<br< p=”” style=”font-size: 14px;”
</br<
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O.C. Olumba for 1st Defendant
M.C. Otti for 3rd defendant holding brief for T.O. Ezebiro For 2, 4 & 5 Defendants absent
Akponye: The matter for today hearing. We are ready to proceed.
Otti: We were just served many counter affidavit this morning.
Akponye: The counsel acknowledged that he has problem with his secretary and that the office has not been opened for some time. And over week now he has been in Abuja. He informed me that he has filed a processes (sic) in reaction to what we filed few seconds ago I was served a process.
Otti: In view of counter affidavit received now in reaction, to on preliminary objection. We ask for date to file. Where we served plaintiff this morning is served in hesitation to the plaintiff substation (sic) suit. There is counter affidavit we served this morning relating to on preliminary objection reserved now issue counter need to report to it (sic).
Olumba: The counter affidavit of plaintiff was served on us yesterday by 3.45pm. In the interest of justice, it will be right to give us time. I assign (sic) with 1st defendant.
Akponye: Section 285 of the ?Fourth Alteration stated that
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Pre election matters should be heard expeditiously.”
Court: I have listened to the application. In view of Section 285 relied upon by the plaintiff, the parties can adopt their processes.?
I am of the considered view that the lower Court given its powers (albeit discretionary) under Order 5 Rule 1(1) supra, and the purpose of its Rules as stated under Order 1 Rule 1(3) (supra), properly proceeded with the trial in the instant case (despite any shortcoming in the affidavits of the parties) as learned counsel for the Appellant, himself brought to the notice of the lower Court the need for the said Court to expeditiously attend to the Appellant?s suit as the Fourth Alteration applied to it. Indeed, I am also of the considered view that it is uncharitable and unconscionable for the Appellant having railroaded as it were, the lower Court into accepting that this case (which is a pre-election matter in respect of Local Government elections in Imo State and which is not an election being conducted/or conducted by INEC pursuant to the Electoral Act, 2010 as amended) needed to be given expeditious hearing, to turn round to challenge the
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processes adopted at the hearing of the case and which were all available to him (and to which he responded) prior to the said hearing. This is more so in the light of the provisions of the rules of the lower Court referred to hereinbefore. I consider it appropriate to say that I do not consider the lower Court to be laying down a new principle of law when it said that parties in the instant case were free to file affidavits; whether further or further counter affidavit. The position of the lower Court in this regard must be appreciated against the backdrop of the manner in which the said Court was compelled to entertain the instant case which as portrayed by the Appellant, was time bound and which would appear not to allow for much technicalities. This is because the lower Court in my considered view did not violate the position of the law regarding affidavits to the effect that any affidavit that is filed after a reply affidavit in response to new issues raised in a counter affidavit, can only be used with the leave of Court. The lower Court by its statement that parties were free to file further affidavits or further counter affidavits, in my considered view
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only tacitly gave its leave for parties to use their various affidavit before it at the hearing of the case; and I am of the considered view that the decision of the said Court in this regard was unassailable having regard to its powers under Order 5 Rule 1(1) of its Civil Procedure Rules. This is more so as the decision of this Court in the case of IWUAGWU V. OKOROAFOR (2012) LPELR ? 20829 (CA) supports the position of the lower Court that parties were free to file affidavits of whatever description in the instant case. In the case under reference this Court per Tsammani, JCA; stated thus: –
?What is instructive to note in that case is that the order to file a further affidavit was made after argument in the motion for contempt had commenced. Similarly, this Court held in the case of RAMON v. JINADU (supra) that it is grossly irregular for a party to file an affidavit in support of a motion when addresses on the motion has closed or opened without the leave of Court as that would offend the audi alteram partem rule. The general rule as enshrined in the cases cited by the Applicant is therefore that, after argument had commenced on a motion or
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matter determined on affidavit evidence, a party is not permitted, except with the leave of Court, to file any affidavit.”
?No affidavit filed and used by parties in the instant case has been shown to have been filed after the Appellant argued his case.
Flowing from all that has been said and as the lower Court had enormous powers to do whatever it considered necessary in the interest of justice to hear the instant case which the Appellant had touted as a pre-election matter, I simply do not see how the lower Court can be properly accused of having done anything wrong in relation to the counter affidavits of the 1st and 3rd Respondents respectively, and any other affidavit that they filed. Accordingly, Appellant?s issue 1 is resolved against him.
APPELLANT?S ISSUE 2 ? WHETHER FROM THE ENTIRE CIRCUMSTANCES OF THIS SUIT AS CONCEDED TO BY THE 2ND AND 3RD DEFENDANTS AND THE VARIOUS PROVISIONS OF THE ELECTORAL ACT, THE LOWER COURT WAS RIGHT IN DISMISSING THIS SUIT AS UNMERITORIOUS INSTEAD OF FINDING FOR THE PLAINTIFF AND GRANTING ALL THE CLAIMS.?
Dwelling on this issue, the Appellant in the main submitted to the effect that it
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was wrong for the lower Court to have dismissed his suit as there was no cross action and as his stance is that he (Appellant) emerged as the candidate of the party (APC) after participating in the only primary the said party held on 16/6/2018. The Appellant stated that his position at trial is that the party is bound by her Constitution and guidelines for primaries which the party held on 16/6/2018. That the 3rd Respondent did not pass the screening of the party and that the name of the said 3rd Respondent was not published by the party for the office of chairman of Ahiazu Mbaise Local Government. That the 3rd Respondent did not appeal against his failed screening or the primaries. That he (Appellant) participated in the primaries from which he emerged as the candidate of the party as declared by the said party, while the 3rd Respondent did not participate in the primaries. It is the contention of the Appellant that while he was busy campaigning for the election, he was barely informed on 20/8/2018 that the 3rd Respondent?s name is the one now for the election for the Ahiazu Mbaise Local Government Chairmanship election. Having referred to depositions in
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the supporting affidavit of the originating summons he considered relevant, the Appellant submitted to the effect that the lower Court was wrong in its judgment to have found to the contrary of his position.
The common position of the 1st, 3rd and 4th and 5th Respondents respectively, on this issue in their briefs of argument, in the main is that the lower Court was right in its judgment dismissing the Appellant?s suit.
I consider it expedient to re-produce portions of the judgment of the lower Court to expose the reasoning of the lower Court in order to see if the challenge to the correctness of the said judgment by the Appellant has any basis even if the depositions in the supporting affidavit of his originating summons are taken as uncontroverted. From page 217 of the record the lower Court stated thus: –
?Having stated as above, I wish to also state that even if the counter affidavit of the 1st and 3rd Defendants are discountenanced for whatever reason, it does not remove the burden on the plaintiff to prove his case. It is general principle of law that in the event that there is no counter affidavit in opposition, full weight
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should be given to the affidavit of the applicant. The presumption does not hold in all situations. For such a presumption to be correct, the facts on the affidavit must have properly been put before the Court. Like in the pleadings, the applicant must succeed on the strength of his affidavit and not on the weakness of the counter affidavit. —
Now coming to the claim of the plaintiff, the issue here seems to be of the primaries alleged to have taken place on 16th June 2018 and 6th August 2018. While the plaintiff alleged that there was primaries on 16th June, 2018 in which he emerged 2nd, the other parties are saying that there was primaries of 6th August, 2018 in which the 3rd Defendant emerged as a winner.
—I also observed that the letter from the All Progressives Congress (APC) dated 16th November 2018 in response to the plaintiff?s letter of 15th November, 2018 was signed by one Chief Cletus Onwuegule. The same Chief Cletus Onwuegbule who the 3rd Defendant alleged also was suspended since 25th August, 2017.
It is the duty of the plaintiff to prove that there was primaries on 16th June, 2018. It is also his duty to prove that in the
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said primaries he emerged as a winner. And as a winner his name was submitted to the 1st Defendant by the 2nd Defendant. It is only after he has done this he will get to prove that his name was wrongly or fraudulent (sic) substituted with another?s name, in this case the 3rd Defendant.
Now apart from the evidence of the plaintiff that there was a party primary on the 16th June, 2018 there is no other evidence given credence to that. The only evidence that would have supported the assertion of the plaintiff to this effect is the letter from one Chief Cletus Onwuegule said to be Ahiazu Mbaise Local Government Chairman of APC, but the said Owuegbule is said to have been suspended from the party since 27th August, 2017. The said Chief Onwuegbule?s evidence is not before the Court. Another piece of evidence is exhibit CA4 of the 3rd Defendant dated 1st August, 2018 allegedly cancelling the primaries of the 16th June, 2018. By Exhibit CA4 there was, indeed primaries of 16th June 2018 but same was cancelled over a month after. So it does not support the case of the plaintiff. The plaintiff has submitted that there was no cancellation of the primaries of
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the 16th June, 2018 and that there was no rescheduled primaries on the 6th of August, 2018 or any other date. The State Executive of the party did not cancel any election conducted by the National Executive of the party. Even the national cannot cancel party primaries without following due process as provided by the constitution particularly when the 3rd defendant did not appeal in line with the constitution of the party. As I said, the plaintiff is not contesting that the person who signed the cancellation is or was not the State secretary of the 2nd Defendant. Also if the plaintiff is alleging that the National Executive Council of the 2nd Defendant conducted the primaries of 16th June, 2018, one would have expected him to exhibit any document to that effect. Was there no document signed or issued by the National Executive Council of the 2nd Defendant in the course of conducting the election. I will also refer to ?Guideline for the Primaries? which was signed by the same State Secretary. I am of the view that if the National Executive Counsel (sic) is organising the primaries, it follows that the guideline should be signed by the National Executive
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Counsel (sic) and not the State Executive Secretary.
Further, the body, the 1st Defendant, saddled with the responsibility as marshalled out in Section 9(1)(a), (b), (f) and (i) of Imo State Independent Electoral Commission (Amendment) Law No. 12 of 2016 and No. 14 of 2009 has said it did not supervise/monitor the alleged primaries of 16th June 2018. This clearly contradicts and negates the averment of the plaintiff that the primaries election was observed and monitored by the Police and other law enforcement agents including the Imo State Independent Electoral Commission (ISIEC). In addition there is no evidence from the Police or any other law enforcement agents confirming or supporting the conduct of the 16th June, 2018 primaries.
The 3rd Defendant exhibited what he called certificate of return. He argued that the plaintiff was not issued with certificate of return. According to the plaintiff, the party does not necessarily issue certificate of return, neither has the issuance of certificate of return obliterated the conduct of primaries nor sacrosanct to the conduct of the primaries. On the same issue he submitted that certificate of returns is
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only issued by the National Executive Council of the party.
I do not think that after primaries the name of the winner is sent to the 1st Defendant orally. Again if the plaintiff won the primaries of 16th June, 2018, he ought to have been given certificate of return. He has not shown any.
Again there seems to be some complications in the claims of the plaintiff. The plaintiff said somebody else scored the highest number of votes in the primaries he participated in. According to him after the election, the results were collated and announced from each of the wards that make up the Ahiazu Mbaise Local Government Council with the scores being as follows ALFRED OBI ? 4425, MARTIN NWOGA ? 1567, OTUECHERE ? 1296 he was declared the winner after Alfred Obi alias ?Abuja? declined not to continue with the election due to the question on academic standing.
Alfred Obi said to have participated and scored 4425 as against the plaintiff?s 1567 is not made a party in this suit as to allow him confirm the deposition of the plaintiff that though he garnered the highest number of votes cast, he declined to continue with
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election due to the question on academic standing. Was this declining at the point of announcing the result or was it days, weeks or months after the result was announced.
Since he is not a party it is wrong for the plaintiff to build his case on this ground. I am of the view that it may affect the future aspiration of Alfred Obi to state that he declined participation on the ground of academic standing without hearing him. Since this is the bases the Plaintiff is claiming to be the winner he ought to have been made a party and be heard. I think the counsel to the 4th and 5th Defendants put it succinctly when he submitted that there is nothing before the Court to show that the plaintiff won the primaries election. Also the Plaintiff has not put enough facts before this Court to show that the person whom he said that purportedly won the primaries election (one Alfred Obi) declined to continue with the election. To me, even if there is any evidence on which to hold that there was primary conducted on the 16th June 2017 (sic), the way will stay (sic) not be clear for the plaintiff. He still needs to prove that the person who scored the highest
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number of votes ought to be side-lined and the medal for the race handed over to him.
On the other hand, the 3rd defendant has averred that at the re-scheduled primaries of 6th August, 2018, he polled a total of 3256 votes while Alfred Obi polled a total of 3042 while the plaintiff, Martin Nwoga polled 1043 votes. The same Alfred Obi appeared here again and he is not a party.
I had earlier mentioned that the name of the person who emerged a winner in the primaries cannot be sent orally to the 1st Defendant. All the assurances given to the plaintiff orally does not translate to sending his name to the 1st Defendant. I agree with the vital submission of counsel to the 4th ? 5th Defendants that there is nothing to show that the name of the plaintiff was ever submitted to the 1st Defendant. This is vital because there can never be a substitution without the name being substituted having been earlier submitted and received by the 1st Defendant.
If in actual fact the primaries of 16th June, 2018 took place what is the function of the List of Imo APC Chairmanship aspirant for LG Election as published in Trumpeta. In the publication under Ahiazu
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Mbaise LGA, three names were listed: via Chinedum Goeferry Otuechere, Dr. Martins Nwoga and Alfred Obi. Primaries having been conducted on 16th June 2018 as alleged by the plaintiff, the publication should have only one name of the contestant, contesting as a candidate under the 2nd Defendant for the Chairmanship of Ahiazu Mbaise LGA. At the primaries the interested persons are aspirants. Whoever emerges at the primaries become the candidate for the party in that particular election.
…. Now, in view of what I have said concerning the counter affidavit of the 1st and 3rd Defendants, it is important that I state that even in the absence of the counter affidavits of the 1st and 3rd Defendants, the plaintiff has not shown that he won the primary and that his name was submitted by the 2nd Defendant and was later substituted. I am of the view that the plaintiff has not put a (sic) materials to enable the Court grant him the reliefs south….?
(Underlining by me)
?The need for a respondent in a proceeding that is being fought on affidavit evidence to file a counter affidavit where the said respondent does not agree with the
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depositions in supporting affidavit filed in the proceeding, was clearly brought out in the case of BEDDING HOLDINGS LTD V. NATIONAL ELECTORAL COMMISSION (1992) 8 NWLR (Pt. 260) 428. Therein, Tobi, JCA; (as he then was) stated thus: –
?A counter affidavit, true to its name, is expected to counteract or depose to contrary, or opposing facts, vis-a-vis the affidavit in support. While a deponent of a counter affidavit is free to admit certain depositions in the affidavit in support, like a statement of defence in relation to a statement of claim, the main function of a counter affidavit is to be in opposition to the affidavit in support as far as the main issues of dispute are concerned.?
There are also many decisions to the effect that where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine. Similarly, material facts in a counter-affidavit not denied by a reply affidavit, are the true position. See the case of AKITI V.
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OYEKUNLE (2018) LPELR ? 43721(SC) amongst many others.
It would thus appear that the Appellant has underplayed the necessity for the filing of counter affidavits by the Respondents in the suit he brought against them inasmuch as the Respondents do not accept the depositions in the supporting affidavit of the originating summons as correct. Inasmuch as the Respondents wanted to place their own versions of the events deposed to in the supporting affidavit of the originating summons before the Court, the Respondents in my considered view, need not have a counter action before they can properly file their respective counter affidavits in the instant action. It would therefore appear that though the Appellant predicated his claims on a primary that took place on 16/6/2018, the 1st and 3rd Respondents respectively who denied that any primary of the APC took place on the said 16/6/2018, were eminently on firm grounds to have joined issues with the Appellant in their respective counter affidavits regarding the non-holding of any primary of the APC on 16/6/2018 but that it was on 6/8/2018 that the APC held its primary for the purpose of selecting its
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candidates to participate in the Local Government elections in Imo State that held on 25/8/2018.
I have before now re-produced virtually the review of the affidavit evidence of the parties, the evaluation of the same and the conclusion reached by the lower Court and I cannot but say that it is clear ex-facie the judgment of the said Court that none of the slanted submissions of the Appellant has in any way shown the lower Court to be wrong that the Appellant has the duty (i) to prove that there was primary on 16/6/2018; and (ii) that he emerged as the winner with his name having been submitted to the 1st Respondent by the 2nd Respondent; and that the Appellant did not establish these facts. Aside from the consideration of the case of the Appellant on the basis of the affidavit evidence before it, the lower Court in a display of thoroughness, even considered whether or not the affidavit evidence of the Appellant by itself or standing alone, established whether he won the primary of 16/6/2018 and whether his name was submitted by the 2nd Respondent to the 1st Respondent and was later substituted; and again came to the conclusion that the evidence in the
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supporting affidavit did not establish these. I have myself read the supporting affidavit to the Appellant?s originating summons painstakingly and I cannot but agree with the lower Court that the Appellant given the affidavit evidence in support of his originating summons and the exhibits attached thereto, clearly did not establish the fact that he emerged the winner of the primary of the APC held on 16/6/2018 as contended by him and also did not establish the fact that the APC at any time forwarded his name to the 1st Respondent as its candidate in the Local Government election of 25/8/2019, talk less of his having been substituted with another person. The instant case is one erected on the facts set up in the supporting affidavit of the originating summons and which also constitute evidence in support of the said facts. It is therefore obvious that whenever there is/are gaps in the case set up by a plaintiff in the supporting affidavit of an originating summons, the position of the law that a plaintiff is entitled to judgment upon the unchallenged and uncontroverted evidence, cannot be invoked. This is because the position of the law as enunciated in
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the case of OKOEBOR V. POLICE COUNCIL (2003) LPELR ? 2458 (SC) is to the effect that wherever any evidence, whether affidavit or oral stands uncontradicted, unless the evidence is patently incredible, the Court ought to regard the matter to be proved by that evidence as admitted by the adverse party. This would appear to be the situation in the instant case inasmuch as the Appellant in the supporting affidavit of the originating summons failed to deposed to cogent facts to establish that he emerged winner at the election of the APC held on 16/6/2018 for the Chairmanship election into the Ahiazu Mbaise Local Government; that his name was forwarded to the 1st Respondent by the 2nd Respondent and that his name was substituted thereafter. It therefore becomes obvious that the lower Court was very correct in its conclusion that ?it is important I state that even in the absence of the counter affidavit of the 1st and 3rd Defendants, the plaintiff has not shown that he won the primaries and that his name was submitted by the 2nd Defendant and was later substituted. I am of the view that the plaintiff has not put enough materials to enable the Court grant
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him the reliefs sought? and dismissing the Appellant?s case. This too, is eminently correct and cannot be faulted. This is more so as the missing gaps cannot now be provided by the submissions in the Appellants brief no matter the slant given to the facts deposed to in the affidavit in support of the originating summons.
Flowing from all that has been said is that no matter the angle from which the instant case is considered, the lower Court was eminently correct in its decision dismissing the Appellant?s case. Accordingly issue 2 as formulated by the Appellant is resolved against him.
Given the resolution of the two issues formulated for the determination of the appeal against the Appellant, there would appear to be no need for an elaborate consideration of the Respondent?s notice filed by the 3rd Respondent. This is particularly so as learned leading counsel for the Appellant at the hearing of the appeal, raised salient points in urging the Court to strike out the said notice. The points include the fact that the 3rd Respondent is by the notice raising issues that had been disposed of against the 3rd Respondent by the lower
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Court in the course of the proceedings before the said Court.
I have painstakingly read the Respondents notice filed by the 3rd Respondent and I cannot but say that the two issues formulated therein are clearly not suited for a respondent?s notice, the issues having been earlier disposed of against the said 3rd Respondent. The issues raised in the respondent?s notice read thus: –
a) Whether the Court has jurisdiction to entertain this suit in the light of the two contending primaries of 16th June, 2018 and 6th August (the remaining portion not legible)
b) Whether in the face of the fact that the Appellant did not poll the highest votes casts in the so-called 16th June, 2018 primaries, he has the locus standi to bring this suit.?
The 3rd Respondent undoubtedly has brought the same issues (if not word for word, but definitely analogous to the ones raised in his notice of preliminary objection before the lower Court) up in his Respondent?s Notice. The lower Court on page 213 of the record dismissed the preliminary objection. The settled position of the law is that a respondents notice cannot be
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used in place of an appeal. It would appear that the 3rd Respondent being dissatisfied with the decision of the lower Court in respect of his preliminary objection should have appealed against same. See in this regard, the cases of LOPIN (NIG) LTD V. WEMA BANK PLC (2010) LPELR 4440 (CA) and IGP V. IKPILA (2015) LPELR ? 40630 (CA) amongst many others. Given all that has been said is that the Respondent?s notice filed in the instant appeal by the 3rd Respondent is hereby dismissed without ado.
In the final analysis and as Appellants issues 1 and 2 have been resolved against him, the instant appeal is unmeritorious and is hereby dismissed. The judgment of the lower Court appealed against, is hereby affirmed.
Costs in the sum of N100,000.00 is awarded in favour of the 3rd Respondent only and against the Appellant.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment delivered by my learned brother, A.O. Lokulo-Sodipe JCA and I agree with his reasoning and conclusion that the appeal should be dismissed for lacking in
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merit, I also agree with his consequential orders, and abide with same, in dismissing the appeal.
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Appearances:
I.F. Akponye with him, A.I. IbeFor Appellant(s)
O.C. Olumba for 1st Respondent.
Chief Tony Ezebiro for 3rd Respondent.
Ray I. Okorie (State Counsel, Imo State) for 4th and 5th Respondents.
2nd Respondent absent and not represented by CounselFor Respondent(s)
Appearances
I.F. Akponye with him, A.I. IbeFor Appellant
AND
O.C. Olumba for 1st Respondent.
Chief Tony Ezebiro for 3rd Respondent.
Ray I. Okorie (State Counsel, Imo State) for 4th and 5th Respondents.
2nd Respondent absent and not represented by CounselFor Respondent
