DR. STEPHEN TERUNGWA HWANDE v. JOHN HINGAH BIEM & ORS
(2019)LCN/12803(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/15/2019
RATIO
ACTION: PARTY TO AN ACTION
“A necessary party in an action is a person who is not only interested in the subject matter of the proceedings but also who, in his absence, the proceedings cannot be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action instituted by the plaintiff. See Green v Green (1987) 3 NWLR (Pt. 61) 480, (also reported in (1987) LPELR – 1338 (SC), Okwu v Umeh (2016) 4 NWLR (Pt. 1501) 120 and Poroye v Makarfi (2018) 11 NWLR (Pt. 1599) 91.” PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
DR. STEPHEN TERUNGWA HWANDE Appellant(s)
AND
1. JOHN HINGAH BIEM
2. SOCIAL DEMOCRATIC PARTY (SDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
JOSEPH EYO EKANEM, J.C.A.(Delivering the Leading Judgment):
This appeal was consolidated with appeal No. CA/MK/11/2019 being that they both arose from the same judgment of the Federal High Court, Makurdi Judicial Division (the lower Court) delivered on the 17/1/2019 in suit No. FHC/MKD/CS/62/2018 and raise virtually the same issues between the same parties.
In the judgment, the lower Court granted all the reliefs sought by the 1st respondent (qua plaintiff) against the appellant, 2nd respondent and 3rd respondent (qua 3rd defendant, 2nd defendant and 1st defendant).
The facts of the case leading to this appeal may be summarized as follows:
‘The 1st respondent is a member of the Social Democratic Party (2nd respondent) a political party. He contested the primary election of the 2nd respondent held on 1/10/2018 for the selection of its candidate to contest the position of Governor of Benue State in the general election scheduled to hold in February 2019. According to him, he contested against two other candidates and emerged the winner. As a result, the 2nd respondent obtained from the 3rd respondent Form CF001 (affidavit in support of personal particulars of persons seeking election) and form EC4B (ii) (form for nomination of Governor). The respondent filled the same and handed them over to 2nd respondent for submission to the 3rd respondent. He later on heard that his name was substituted with that of the 3rd respondent who did not take part in the primary election.
Aggrieved by the turn of events, 1st respondent took out an originating summons at the lower Court seeking the determination of the following questions:
(1)Whether or not, upon a calm and dispassionate interpretation of Articles 1, 13 (2) (5), 16 (1) and (2) of the Constitution of the Social Democratic Party, Section 87 (1) (2) (3) and (9) of the Electoral Act 2010 (as amended) the 1st Defendant can validly submit or substitute the name of the 3rd Defendant, who did not take part in the Direct primaries of the 1st Defendant in an election that was won, as the 1st Defendant?s candidate to contest for the office of the Governor of Benue State in the 2019 General Elections.
(2)Whether or not, upon a calm and dispassionate interpretation of Article 1, 16 (1) and (2), 25 (5) of the Constitution of the Social Democratic Party of Nigeria, as amended in January, 2011 and May, 2012, the 3rd Defendant who did not participate in the Primary Election organized by the 1st Defendant can become nominated as a candidate of the party for election into any position in Government.
(3)Whether or not, the 1st Defendant is not bound to follow her Constitution in the nomination of a candidate of the party for election in any position in government.
The 1st respondent sought the following reliefs:
(1) A DECLARATION that the plaintiff was duly nominated screened and cleared for participation in the Social Democratic Party primaries for selection of the candidate of the party to contest for the office of the Governor of Benue State in the 2019 General Elections.
(2) A DECLARATION that the 1st Defendant, her officers, Committees and Organs were, and are bound to follow provisions of the Constitution of the Social Democratic Party, by virtue of Articles 1, 25 (5) in nomination of her candidate to contest any government position.
(3) A DECLARATION that the submission of the name of the 3rd Defendant who did not participate in the primary elections conducted by the 1st Defendant, as the candidate of the party to contest for the office of the Governor of Benue State in the stead of the Plaintiff, who won the primaries conducted democratically by direct Primaries is a violation of Article 16 (1) and (2) of the Constitution of the Social Democratic Party and the Electoral Act is illegal, null and void and of no legal effect whatsoever.
(4) AN ORDER of the Honourable Court directing the 1st Defendant to withdraw the name of the 3rd Defendant submitted to the 2nd Defendant as the candidate of the 1st Defendant to contest for the office of the Governor of Benue State in the 2019 General Elections.
(5)AN ORDER of the Honourable Court restraining the 2nd Defendant from recognizing the 3rd Defendant as the candidate of the 1st Defendant to contest for the office of the Governor of Benue State in the 2019 General Elections, and if the 3rd Defendant has been already recognized, an Order directing the 2nd Defendant to strike out the name of the 3rd Defendant from the list of candidates recognized by the 2nd Defendant as duly nominated to contest in the 2019 General Elections.
(6) AN ORDER of the Honourable Court compelling the 2nd Defendant to accept the name of the plaintiff from the 1st Defendant as the validly nominated candidate of the 1st Defendant to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(7) AN ORDER of the Honourable Court compelling the 2nd Defendant to accept the name of the Plaintiff from the 1st Defendant as the validly nominated candidate of the 1st Defendant to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(8) AN ORDER of the Honourable Court restraining the 1st and 2nd Defendant from fielding the 3rd Defendant as the candidate to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(9) AN ORDER of the Honourable Court restraining the 3rd Defendant from parading himself as the candidate of the 1st Defendant, Social Democratic Party to contest in the 2019 General Elections for the office of the Governor of Benue State on the platform of the 1st Defendant.
(10)The cost of this action.
The originating summons was supported by:
(i) an affidavit of 35 paragraphs with Exhibits JHBLI to JHB -11 attached;
(ii) a further affidavit of 5 paragraphs filed on 4/12/2018;
(iii) a further affidavit of 5 paragraphs filed on 4/12/2018;
(iv) a further affidavit filed on 13/12/2018
(v) a written address filed along with the affidavits;
and
(vi) written address opposing preliminary objections.
All affidavits were sworn to by the 1st respondent.
The appellant filed:
(i)a memorandum of appearance;
(ii)a counter – affidavit of 20 paragraphs with Exhibits 1 – 2 attached; and
(iii)a written address.
The 2nd respondent filed:
(i)a memorandum of conditional of appearance.
(ii)a counter – affidavit in opposition to the originating summons deposed to by Dr. Salisu Mohammed with Exhibit SDP1 attached;
(iii)a written address in support of the preliminary objection;
and
(iv)a written address opposing the originating summons.
The 3rd respondent filed:
(i)a memorandum of conditional appearance;
(ii)a counter – affidavit of 8 paragraphs
(iii)a written address in support of the preliminary objection and
(iv)a written address in opposition to the originating summons.
After hearing counsel on all sides, the lower Court, as earlier stated, found in favour of the 1st respondent and granted all the reliefs sought by him.
Aggrieved by the decision, the appellant filed two notices of appeal within time to this Court. At the hearing of the appeal on 28/2/2018, appellant’s counsel abandoned the notice of appeal that was filed on 29/1/2019. The same is hereby struck out thus leaving the notice of appeal filed on 30/1/2019 as the extant notice of appeal.
At the hearing of the appeal on 28/2/2019, Audu Anuga, Esq. for the appellant adopted appellant’s brief of argument filed on 5/2/2019 and the reply brief filed on 14/2/2019 in urging the Court to allow the appeal. He also referred to his list of authorities and additional authorities filed on 13/2/2019.
T. O. Aorabee, Esq. for 1st respondent adopted 1st respondent?s brief of argument filed on 1/12/2019 in urging the Court to dismiss the appeal. He informed the Court that the case of Joseph Hermen Boko v Hon. Benjamin B Nungwa (unreported Suit No. SC732/216 delivered by the Supreme Court on 13/7/208) cited at page 7 of his brief has now been reported in (2019) 1 NWLR (Pt.1654) 395. He finally referred to his list of additional authorities filed on 19/2/2019.
The 2nd and 3rd respondents did not file any brief of argument.
I have already stated that this appeal was consolidated with Appeal No. CA/MK/11/2019. Judgment in respect of that appeal has just been delivered this morning. I am bound to take judicial notice of it in the instant appeal. In that judgment this Court, concluded as follows:
However, having resolved issue 1 in favour of the appellant on the ground of non-compliance with Section 98 of the SCPA, I hold that the appeal has merit and it succeeds in part. The judgment of the lower Court is hereby set aside. The originating summons for service on the appellant is hereby set aside?.
The implication is that the 2nd respondent (Social Democratic Party) was not a party before the lower Court. This Court therefore called on counsel for the parties present to address it on whether there is in existence any judgment in Suit No. FHC/MKD/CS/60/19 to be considered in this appeal and, if yes, whether or not the judgment of the trial Court given in respect of who the candidate of the SDP is without the SDP (a necessary party) being a party to the suit could stand in the light of Section 36 (1) of the Constitution.
In his address, Tombowua, Esq. submitted that there was no judgment of the trial Court to be considered and that the SDP is a necessary party.
Aorabee, Esq. pointed out that this Court is not a final appellate Court and urged the Court to go ahead and deliver its judgment as there may be an appeal.
Ogundiran, Esq. stated that the judgment of the trial Court has been set aside and so there is nothing left before this Court.
RESOLUTION
By the terms of the judgment of this Court in Appeal No. CA/MK/11/2019, the judgment in Suit No. FHC/MK/CS/60/19 was set aside. The order of setting aside of the judgment was not restricted to SDP but it was total. The implication is that the judgment is no longer in existence for any purpose and for or against any party. That being so, the present appeal must abide that judgment.
In case I am wrong, I shall consider the other issue that counsel were called upon to address the Court.
A necessary party in an action is a person who is not only interested in the subject matter of the proceedings but also who, in his absence, the proceedings cannot be fairly dealt with. In other words, the question to be settled or determined in the action between the existing parties must be a question which cannot be properly and fairly settled unless he is a party to the action instituted by the plaintiff. See Green v Green (1987) 3 NWLR (Pt. 61) 480, (also reported in (1987) LPELR – 1338 (SC), Okwu v Umeh (2016) 4 NWLR (Pt. 1501) 120 and Poroye v Makarfi (2018) 11 NWLR (Pt. 1599) 91. The issue at stake in the matter at hand is as to who the Social Democratic Party is to sponsor as its candidate for the governorship election in Benue State. Basically that is the domestic affair of the party with the only exception being Section 87(9) of the Electoral Act, 2010 (as amended). Certainly, the SDP is interested in the dispute for it is the party that is sponsoring the candidate that the Court will decide in favour of. The suit cannot fairly be determined in the absence of the party who is to sponsor the candidate. The essence of joining a party in a suit is so that he should be bound by the result of the action Green v Green supra. A decision by the Court as to who the candidate of the SDP is for the Governorship election in Benue State will in the circumstances not be binding on the SDP who in essence is not a party to the proceedings.
It is no doubt the law that non-joinder or misjoinder of parties cannot defeat a suit. Order 9 Rule 14 (1) of the Federal High Court (Civil procedure) Rules states:
No proceeding shall be defeated by reasons of misjoinder or non-joinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.
However, where an order is made in a suit that affects the interest of a person who is not a party to the suit, such an order or decision cannot be allowed to stand as it infringes the right of that person to be heard guaranteed in Section 36 of the Constitution of Nigeria, 1999 (as amended).
In the case of Okwu v INEC (2016) 4 NWLR (Pt. 1501) 120, the controversy was as to who the National Leader of All Progressives Grand Alliance (APGA) was. APGA was not a party to the suit which was determined by the Court. At pages 143 – 144, Okoro JSC, stated as follows:
‘However, while it is the law that no cause or matter shall be defeated by reasons of the misjoinder or non-joinder of any party, yet, in the absence of a proper party or necessary party before the Court, it appears an exercise in futility for the Court to make an order or decision which will affect a stranger to the suit who was never heard or given an opportunity to defend himself. This will certainly be against the tenets and tenor of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the instant case, there is no way the question posed by the appellant for determination would be effectually and completely answered in the absence of APGA, the ultimate beneficiary of the outcome of the decision. Also, without APGA as a party, the reliefs sought would not have any effect as APGA cannot be bound by an order of a Court in a matter it was not a party ‘
The end result of what I have said above is that although the trial Court had the jurisdiction to hear the suit as constituted, the judgment generated thereby which had massive impact on the activities of APGA ‘cannot be allowed to stand’. See also Bello v INEC (2010) 8 NWLR (Pt. 1196) 342, 388 ? 389 and Poroye v Makarfi (2018) 1 NWLR (Pt. 1599) 91, 142 -143.
In the light of the above, it is my view that the judgment the subject of the appeal cannot stand. I hereby set it aside.
In the appellant?s brief of argument, the following issues are formulated for the determination of the appeal:
(1) Whether the trial Court had the jurisdiction to entertain the suit before it upon the incompetent Originating Summons of the plaintiff (Distilled from Ground 1).
(2) Whether trial Court was right to exercise jurisdiction over the suit of the plaintiff before it when the principal relief of the plaintiff was not against an agent of the Federal Government of Nigeria (Distilled from Ground 2).
(3) Whether the trial Court was right to hold that the Appellant admitted the claim of the 1st Respondent on the date that the Appellant joined the party, his nomination and close of members (register) and other substantive claims of the 1st Respondent, in the light of the deposition in the Appellant’s counter – Affidavit and unchallenged documentary evidence in support (Distilled from Ground 3).
(4) Whether the trial Court was right to resolve the discrepancies with respect to, dates of completion of nomination forms, screening and clearance of the Appellant and conflicting affidavits and documentary evidence of parties without calling oral evidence (Distilled from Grounds 4, 5, 6, 7, 9 and 10)
(5) Whether the trial Court was right when it held that the Appellant did not participate in the primary election conducted by the 2nd Respondent and cannot become nominated as a candidate of the 2nd Respondent for election into any position in government (Distilled from Ground 8).
1st respondent’s counsel adopted the issues above but with slight modifications. I will however be guided by appellant’s issues in determining the appeal.
ISSUE 1 Whether the trial Court had the jurisdiction to entertain the suit before it upon the incompetent originating summons of the plaintiff.
Appellant’s counsel, citing Madukolu v Nkemdilim (1962) 2 SCNLR 341, submitted that one of the key determinants of competence of any Court to adjudicate on a matter brought before it is that the matter must have been initiated by due process of law. He contended that the suit before the trial Court was not commenced in compliance with due process of law on account of failure to seek leave of the lower Court to serve the originating summons out of jurisdiction and failure to mark the originating summons as concurrent originating summons as required by Section 98 of the Sheriffs and Civil Process Act (SCPA) and Order 3 Rule 20 of the Federal High (Civil Procedure) Rules. He added that the failure is fatal, relying on the Owners of the MV ‘MSC Agata’ v Nestle Nigeria Plc (2012) LPELR 9851(CA) and Offiah v Offiah (2016) LPELR 42431(CA). He noted that the originating summons was to be served on the 2nd and 3rd respondents outside Benue State where the process was issued. He also stressed that Section 97 of the SCPA was not complied with.
Counsel argued that, contrary to the position of the trial Court, the provisions of the SCPA applies to the Federal High Court.
Counsel for the 1st respondent submitted that the 1st respondent was not under any obligation to seek leave of the lower Court or mark the originating summons as concurrent originating summons. He stated that as far as the Federal High Court is concerned, the whole country is within the coverage of its jurisdiction and therefore only processes for service outside the country are required to be marked as concurrent. He cited in support Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rules, 2013. He stressed that the provisions of the SCPA do not apply to the Federal High Court. He relied on Boko v Nungwa supra, and Sections 252 and 254 of the Constitution of Nigeria, Sections 9 and 44 of the Federal High Court Act. He pointed out that the originating summons was endorsed albeit erroneously with the endorsement required by Section 97 of the SCPA.
In his reply, appellant?s counsel argued that the case of Boko v Nungwa supra, is not relevant to the instant appeal as the issues in the matters are not the same.
RESOLUTION
The address for service of the originating summons on the appellant is –
C/o His Residence
Makurdi Township
Makurdi Local Government Area of Benue State.
There is no complaint that he was served outside Benue State. It is the addresses for service on the 2nd respondent and 3rd respondent that are in Abuja, outside Benue State. The appellant is not therefore entitled to the benefit of the provisions of Sections 97 and 98 of the SCPA. In the case of Odu?a Investment Company Ltd v Talabi (1997) 52 LRCN 2107, 2183 Ogundare JSC, considering Sections 97 and 99 of the SCPA 1990, stated:-
‘Reading carefully the wordings of Sections 97 and 99 of the Act I am of the firm view that the provisions of these sections are for the benefit of the defendants alone rather than of the general public. The purpose of Section 99 is to give a defendant served in a state outside the one in which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by Section 97 informs him that the writ was issued in another state.’ (Underlining is mine for emphasis).
It needs be added that the same reasoning applies to Section 98 of the SCPA. The party whose address for service is within the state where the originating process was issued is not a beneficiary of the provisions. It therefore does not lie in his mouth to raise the issue of non – compliance with Sections 97, 98 and 99 of the SCPA or the issue of failure to obtain leave to issue or serve such writ. In Zakirai v Muhammad (2017) 17 NWLR (Pt. 1594) 181, appellant resided within Kano State where the originating summons was issued and served on him. The 2nd and 3rd respondents’ addresses for service were in Abuja but they were eventually served in Kano State. Appellant raised the issue that the originating summons was not endorsed as requires by the SCPA and that it was not served at Abuja. At pages 231 -232, Augie, JSC, opined thus:
‘It is the appellant who was not affected by the service within jurisdiction instead of outside jurisdiction; as specified in the process, that took the challenge and fought the battle from the trial Court to the Court below, and finally to this Court. Was he right? I will just say that it was none of his business
At page 232, His Lordship added that –
‘In this case, the appellant is not a Knight in Shining armour and the 2nd and 3rd respondents did not need him to fight their battles.”
I adopt the position of the Supreme Court above and only add that the appellant is not entitled to fight a battle that is not his own as he has done under this issue.
I therefore resolve issue 1 against the appellant.
ISSUE 2 – Whether the trial Court was right to exercise jurisdiction over the suit of the plaintiff before it when the principal relief of the plaintiff was not against an agent of the Federal Government of Nigeria.
Appellant’s counsel referred to Section 87 (9) of the Electoral Act, 2010 (as amended) and contended that in determining the jurisdiction of the Federal High Court, the Court must consider the parties and the subject matter of the principal or main claim in the light of Section 251 of the Constitution of Nigeria. He referred to Kakih v PDP (2014) LPELR ? 23277 (SC). He submitted that though the 3rd respondent is an agency of the Federal Government, the principal claims in the suit did not fall under the jurisdiction of the lower Court under S.251 of the Constitution. He further supported his position with the case of PDP v Sylva (2012) LPELR – 7814 (SC) 52.
For the 1st respondent, it was submitted that the lower Court can exercise concurrent jurisdiction in pre – elections matters irrespective of whether or not an agency of the Federal Government is sued or whether the claims against such agency are principal or ancillary. Reliance was placed on Olugbemi v Lawrence (2017) LPELR ? 42361 (SC), Agi v PDP (2016) LPELR 42578 (SC) and Lau v PDP (2017) LPELR 42800 (SC).
In his reply, appellant’s counsel distinguished the case of Olugbemi v Lawrence supra. from the instant matter.
RESOLUTION
Section 251 (1) of the Constitution of Nigeria, 1999 (as amended) provides:
Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters .”
The provisions contemplate that the Federal High Court has two categories of jurisdiction:
(i) jurisdiction as conferred on it by Section 251 (1), and
(ii) Other jurisdictions as may be conferred on it by an Act of the National Assembly.
The latter category of jurisdiction is not controlled, circumscribed or hemmed in by the former as it is donated in addition to it.
An example of category (11) is the jurisdiction conferred in Section 87 (9) of the Electoral Act, 2011 (as amended) in the following terms:
‘Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory for redress.’
From the provisions above, it is clear that the Federal High Court has concurrent jurisdiction with the High Court of a State or High Court of the Federal Capital Territory over a suit brought pursuant to the provision. It is immaterial that none of the parties is an agency of the Federal Government or that the claims, principal or ancillary, do not fall under the provisions of Section 251 (1) of the Constitution of Nigeria.
Appellant’s counsel relied on the cases of Kakih v PDP supra and PDP v Sylva to support his position. The answer to that stance is to refer to the case Lokpobiri V Ogola (2016) 3 NWLR (pt. 1499) 328 where a full panel of the Supreme Court dealt decisively and definitively with the issue under consideration. I shall take the liberty to quote in extenso the enlightening opinion of Onnoghen, JSC, as he then was, at pages 364 -365 hereunder:
‘In terms of election or election related matters, the jurisdiction of the Federal High Court to hear and entertain such matters, is rooted in the relevant provisions of Electoral Act, 2010 (as amended)’ If we insist on the jurisdiction of the Federal High Court on pre?election and/or post election matters being exercisable only where the main claim(s) is/are within the exclusive jurisdiction of the Federal High Court, it will result in injustice on the litigants which is clearly not the intention of the legislature. It is therefore very clear that the concurrent jurisdiction conferred on the Federal High Court to hear and determine pre – election and even post election matters is clearly outside the exclusive jurisdiction of the Court under Section 251 of the 1999 Constitution (as amended) but in addition to the exclusive jurisdiction and consequently subject to different considerations.
It is therefore my considered opinion when the Federal High Court’s pre – election jurisdiction is invoked, the parties claim (s) and relief (s) must be in the conformity with the provisions of the Electoral Act 2010, (as amended), not under the provisions of Section 251 of the 1999 Constitution (as amended). In fact INEC may be a nominal party or be liable to an ancillary claim in a pre ? election or post election or post election jurisdiction of the Federal High Court.
His Lordship at pages 365 -368 considered PDP v Sylva supra and Kakih v PDP supra. and held that they did not support the position canvassed by appellant’s counsel in this instance.
A plethora of other cases fortify the position expounded above. See Emeka v Okadigbo (2012) 18 NWLR (Pt. 133) 55, Osude v Azodo (2017) 15 NWLR (Pt. 1588) 293, Olugbemi v Lawrence (2017) LPELR ? 42361 (SC); Garba v Mohammed (2016) LPELR 40612 (SC) and Lau v PDP (2017) LPELR ? 42800 (SC).
I therefore resolve issue 2 against the appellant.
ISSUE 3 Whether the trial Court was right to hold that the Appellant admitted the claim of the 1st Respondent on the date that the Appellant joined the party, his nomination and close of register of members and other substantive claims of the 1st Respondent, in the light of the depositions in the Appellant’s counter -affidavit and unchallenged documentary evidence in support.
Appellant’s counsel submitted that for there to be a valid admission, the statement of the party said to have made the admission must be certain, to draw such inference. He submitted further that there was no admission by the appellant of facts (deposed to by 1st respondent). He referred to paragraphs 3 and 5 – 12 of appellant’s counter -affidavit which he said amounted to sufficient denial.
1st respondent’s counsel supported the trial Court?s finding that the appellant had admitted the claims of the 1st respondent for failure to specifically deny specific allegations contained in the supporting affidavit.
RESOLUTION
To determine if there is an admission, a Court must consider the totality of the depositions in the affidavit of the parties. See Ngige v Obi (2006) 14 NWLR (Pt. 999) 1 117. When a deponent makes a general denial and thereafter states his side of the story, contrary to that of his opponent, which he wants the Court to believe, that is sufficient denial. See Torno Internazionale Nig Limited v FSB International Bank Plc (2013) LPELR 22616 (CA) 36.
The 1st respondent in paragraphs 9, 10, 19, 20 etc of his affidavit in support of the originating summons deposed that he contested and won the primary election of the SDP with two other candidates; that the appellant did not contest the election; that he (appellant) was not a member of the SDP at the relevant time; that he was not screened and cleared to contest the primary election and did not contest.
In paragraph 9 of the counter – affidavit of the appellant , he generally denied paragraphs 9, 10, 19, 20 etc. of 1st respondent’s counter – affidavit. He thereafter proceeded to depose to his own side of the story contrary to the deposition of the 1st respondent, viz; that he was a member of the SDP; that he contested the primary election and won subsequent to his being screened and cleared; that he filled the relevant INEC forms etc. He attached documents as exhibits to his counter – affidavit to vindicate his position. See paragraph 8, 9, 10, 11, 12 and 13 of appellant-s counter – affidavit at pages 363 – 365 of vol. 1 of the record of appeal. This in my view was sufficient denial of 1st respondent’s case. The trial Court was therefore not right in holding that the appellant admitted the case of the 1st respondent.
I therefore resolve issue 3 in favour of the appellant.
ISSUE 4 – Whether the trial Court was right to resolve the discrepancies with respect to dates of completion of nomination forms, screening and clearance of the appellant and the conflicting affidavits and documentary evidence of parties without calling oral evidence.
Appellant’s counsel argued that where affidavit evidence of parties is irreconcilably in conflict, the Court is required to call oral evidence to reconcile the conflict. He stated that there were irreconcilable conflicts in affidavit evidence as to whether or not:
(i)the appellant was an aspirant that contested in the primary election;
(ii) the appellant was a member of the 2nd respondent;
(iii) the appellant purchased the nomination form or expression of interest form.
He submitted that the lower Court ought to have called oral evidence to resolve the conflict especially as, according to him, the documents which would have been used to resolve the conflict were also conflicting.
Counsel for the 1st respondent contended that there were documents attached to the contending affidavits on which the lower Court could resolve the conflict in affidavit evidence. He submitted that the lower Court was therefore right in resolving the issues raised without calling oral evidence.
In his reply, appellant?s counsel referred to Asogwa v PDP (2012) LPELR ? 8575 to buttress his position that oral evidence ought to have been called since documentary evidence was also conflicting.
RESOLUTION
The law is that when a Court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case should call for oral evidence from the parties in order to resolve the conflict. Where however there are documents annexed to the affidavits of the parties which can be effectively used to resolve the conflict, the need to call oral evidence does not arise. See Jev v Iyortyom (2014) 4 NWLR (Pt. 1428) 578 and Magnusson v Koiki (1991) 4 NWLR (Pt. 183) 199. As rightly submitted by 1st respondent?s counsel, this will not be the position where the documents are in themselves conflicting.
I have looked at the various affidavits of the parties and the documents attached thereto. It is my view that the documents were sufficient for the trial Court to resolve the conflicts. As regards the conflict in Exhibit JHB -7 (in 1st respondent?s affidavit) and Exhibit SDP 1 (in 2nd respondent’s counter – affidavit) which are conflicting copies of the result sheet of the primary election said to be signed by the same person, there is enough evidence, affidavit and documentary, to resolve the conflict.
I therefore resolve Issue 4 against the appellant.
ISSUE 5 – Whether the trial Court was right when it held that the appellant did not participate in the primary election conducted by the 2nd respondent and can not be nominated as a candidate of the 2nd respondent for election into any position in government.
Appellant’s counsel argued that once it is shown that a political party adhered to the provisions of the Electoral Act and its guidelines in conducting primary election into any office, no person has the locus to challenge the said primary election on any other ground. He submitted that the 1st respondent was unable to show how the discrepancies in dates of submission of the relevant forms constituted an infraction of the Electoral Act or the guidelines of the 2nd respondent. He lamented that it was on that basis that the trial Court arrived at its decision that the appellant did not participate in the primary election. He added that 1st respondent failed to show that the expression of interest and nomination forms are required to be submitted to the 2nd respondent before the conduct of the primary election.
Counsel submitted that where a political party clears a candidate and declares him winner, the decision is binding. He relied on Agi v PDP (2016) LPELR ? 42578 (SC) to buttress his submission. He stated that the appellant showed that he is a member of the 2nd respondent and that where two candidates claim to have won a primary election, it is the responsibility of their political party to inform the Court as to who the true winner is, as was done by the 2nd respondent in the favour of the appellant. He submitted further that the 1st respondent did not show that the result sheet exhibited by him (Exhibit JHB7) was the authentic result sheet.
1st respondent’s counsel referred to Section 87(1) (2) (3) (g) and (9) of the Electoral Act, 2010 (as amended) and Article 16 of the Constitution of the SDP and contended that the 1st respondent having proved that the appellant did not contest the primary election of the 2nd respondent, the lower Court was duty bound to interfere. This, he said, is because a political party must not be allowed to breach its own constitution. It was his submission that the issue went beyond membership of a political party.
RESOLUTION
Evaluation of evidence with the attendant duty of ascribing probative value to it is the primary responsibility of a trial Court. An appellate Court will not interfere with it unless there is compelling reason to do so. Where however evidence is affidavit evidence and documentary in nature, an appellate Court is in as good a position as the trial Court to undertake its own evaluation. See Ebba v Ogodo (1984) 1 SCNLR 372 and Okoro v Okoro (2018) 16 NWLR (Pt. 1646) 566.
It was the case of the 1st respondent that the appellant was not a member of the SDP as at the time of the close of nomination and membership register. The 3rd respondent deposed that he is a card carrying member of the SDP. He exhibited his membership card and excerpt of register of members of the SDP as Exhibits 1 and 2, respectively. In Exhibit 2, appellant?s name appears as No. 185. The excerpt bears the stamp of the SDP, Benue and is dated 18/9/18. The appellant, in his further affidavit, did not counter those depositions or challenge the document. He is therefore deemed to have admitted the same. See Ajomale v Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266, 283.
A document attached to an affidavit is automatically part of it. See Attorney – General of Enugu State v Avop Plc (1995) 5 NWLR (Pt.399) 90, 125. That being so the date ’18/9/18/’ on Exhibit 2 shows that as at 18/9/2018, the appellant was a member of the SDP.
In any event, membership of a political party is the internal affair of the political party and is not justiciable. See Ukachukwu v PDP (2014) 17 NWLR (Pt. 1435) 154, Anyanwu v Ogunewe (2014) 8 NWLR (Pt. 1410) 437 and Agi v PDP supra.
It was the case of the 1st respondent that as at 1/10/2018 when the primary election was conducted the appellant was not screened and cleared to participate in the said election and that his name was not listed to participate in the said election nor did he participate in it. The appellant contended that he bought and submitted the expression of interest and nomination forms for the said primary election.
It is clear that the primary election was held on 30/9/2018, 1/10/2018 or 3/10/2018. The nomination form of the appellant for primary election (Exhibit 6 attached to his counter -affidavit at pages 377 -392 Vol. 1 of the record) was paid for and sworn to on 1/11/2018 at the Federal High Court. The implication is that the primary election was conducted long before appellant indicated his interest to contest the election which he magically won before being a contestant by indicating his interest to contest.
It was contended by appellant’s counsel that the 1st respondent failed to show that Exhibits 5 and 6 are required by law to be submitted to 2nd respondent before the conduct of the primary election. By Section 167 of the Evidence Act, the Court may presume the existence of any fact which it deems likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case. It is not in the common course of human affairs or the affairs of a political party for one to contest an election for which he showed interest to contest after the election. It is not just logical.
The case of Agi v PDP supra. relied upon by appellant’s counsel is distinguishable from the instant case as in that case the issue was that the contestant at the primary election was not a member of the party but in this case the pivotal point is that the appellant did not contest the primary election. A person who did not contest a primary election cannot be a candidate of the party in the general election. See Section 87 (1), (3) (4) (b) (i) and (ii) of the Electoral Act, 2010 (as amended) and Article 16(1) of the Constitution of the SDP at P. 50 Vol. 1 of the record which provides:
All elective party positions, shall be filled and nominations of candidates to contest any position in government shall be made and no person shall assume any elective party position or become nominated as candidate of the party for election into any position in government except by democratic process or open secret ballot system.
See also Osude v Azodo (2017) 15 NWLR (Pt. 1588) 293, 324 – 325 and Uzodinma v Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30, 60.
The 1st respondent attached Exhibit JHB -7 (the state governorship primaries collation result sheet) to his affidavit. This shows that the appellant did not contest the primary and that the 1st respondent defeated two other candidates. The SDP in its counter – affidavit exhibited Exhibit SDP 1 (See page 519 of Vol. 2 of the record). This shows that the appellant contested the primary and won against three other candidates including the 1st respondent. In Exhibit 8 attached to the appellant’s counter affidavit, viz; Benue State Electoral Committee report signed by the deponent of the 2nd respondent’s counter- affidavit, it is stated that,
Before the meeting we spoke with one governorship aspirant who was unavoidably present and letter (sic, later) had a meeting with all 3 aspirants present (underlining mine for emphasis)
The clear meaning is that only three aspirants contested the governorship primary election. This confirms the position of the 1st respondent that there were only three candidates and that the appellant was not one of them as shown in Exhibit JHB 7. By Exhibit 6, the deponent of the affidavit of the SDP showed clearly that his result sheet Exhibit SDP-1 was unreliable.
It is no doubt the law that a plaintiff in a declaratory action must succeed on the strength of his case and not on the weakness of his opponent?s case. Nevertheless, the plaintiff is entitled to rely on the weakness of his opponent?s case where it supports its case as in the instance. See Nruamah v Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474, 494 and Oguanuhu v Chiegboka (2013) 6 NWLR (Pt. 1351) 588, 604 and 609.
It is no doubt correct to say that where two aspirants claim to have won the primary election of a party, the party?s evidence as to the true winner carries much weight. But where the person said to be the winner by the party is shown not to have contested the primary election, as in this instance, the Court will see through the ?Shenanigans? of the party and attach no weight to its evidence designed to mislead the Court. The Court will also similarly treat any certificate of return to the offending party by the political party.
I therefore resolve issue 5 against the appellant.
Although I have resolved issues 1, 2, 4 and 5 against the appellant, yet in the light of my resolution of the issues that this Court raised suo motu and received addresses from counsel, the grim conclusion I must come to in this appeal is, as I have already stated, that the judgment of the lower Court must be and is hereby set aside in view of the decision of this Court in Appeal NO. CA/MK/11/2019 between Social Democratic Party and John Hingah Biem & 2 Ors delivered today. The parties shall bear their costs.
JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege of reading in draft form the Judgment just delivered by my learned brother, Ekanem, JCA. My lord’s reasoning and conclusions are in tandem with my consideration of the issues arising therein.
This Appeal was consolidated with Appeal No. CA/MK/11/2019, both Appeals having arisen from the same Judgment of the Federal High Court, Makurdi judicial Division delivered on 17-01-19 in Suit No. FRC/MKD/CS/62/2018, and which essentially raise the same issues between the same parties.
In the light of the Judgment of this Coult earlier delivered in the sister- Appeal No. CA/MK/11/2019, wherein the Judgment giving rise to that Appeal (as well as this Appeal) was set aside, there is no longer in existence any Judgment to hinge this Appeal upon. In addition, since the Originating Summons for service on the Social Democratic Party, (the Appellant in the sister-Appeal and the 2nd Respondent herein), has been set aside, it implies that SDP, as a necessary party in the suit, was never a party to the suit before the lower Court giving rise to this Appeal.
The consequence of the findings of this Court in the sister-Appeal referred to (for which I take judicial notice by virtue of Section 122 of the Evidence Act, 2011), is that there is no longer in existence any Judgment in Suit No. FHC/MKD/CS/60/19, left to be considered in this Appeal. This Court is therefore necessarily handicapped and/or precluded from determining this Appeal on its merits.
However, notwithstanding this state of affairs (which was duly pointed out in the lead judgment), my learned brother, abundanta cautela being a penultimate Court, still proceeded to consider and determine the issues for determination canvassed therein on their merits, as if the Judgment had not been set aside in a previous Appeal before this Court.
Thus, barring this grave impediment, to wit: the setting aside of the Judgment in a previous Appeal, also agree that issues 1, 2, 4 and 5 for determination in this Appeal would have been rightly resolved against the Appellant.
Nonetheless, the Judgment of the lower Court having been already set aside, I endorse and abide by the consequential orders made in the lead Judgment.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph Eyo Ekanem, JCA made available to me in advance the draft copy of the Judgment just delivered. I agree with the reasoning and conclusions. I will only make few comments in support.
By the Judgment of this Court in Appeal No CA/MK/11/2019, the originating summons in Suit No FHC/MK/CS/60/19 issued and served on the 2nd Respondent herein, which was the appellant in CA/MK/11/2019 was set aside. By virtue of the said Judgment in CAIMK/11/2019, the decision in Suit No FHC/MK/CS/60/19 no longer exists against the 2nd Respondent herein. The instant appeal stems from the said judgment of the lower Court in Suit No FHC/MK/CS/60/19, which has been aborted insofar as the 2nd Respondent herein is concerned.
The case of the Appellant is that he was the winner of the primary election conducted by the 2nd Respondent and thereby its candidate. By this assertion, the 2nd Respondent which was the alleged sponsor of the Appellant is a necessary party; Azubuike v. PDP & Ors (2014) LPELR-22258(SC); Poroye & Ors v. Makarfi & Ors (2017) LPELR-42738(SC). Where there is a failure to hear all the necessary parties to the dispute before a decision is reached; there is a breach of Section 36(1) of the 1999 Constitution as amended which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting there from a nullity and void, without any legal effect; Akpamgbo-Okadigbo vs Chidi (No. 1) (2015) LPELR-24564(SC) at page 39 of E-Report. This appeal cannot therefore be determined judicially and judiciously in the absence of the 2nd Respondent, a necessary party; Peenok Investments Ltd v. Hotel Presidential Ltd (1982) LPELR-2908(SC); Green v. Green (1987) 7 SCNJ 269; NDP V. INEC (2012) LPELR-19722(SC). I would however also make few comments on the merits of the appeal, as my learned Brother has done.
Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings; Zakirai v. Muhammad & Ors (2017) LPELR – 42349 (SC); Sani v. Kogi State House of Assembly & Ors (2019) LPELR- 46404(SC). This procedure is best suited for cases where there are no substantial disputes of facts or likelihood of such dispute.It is usually heard on affidavit evidence.
There may be instances where disputes arise in originating summons procedure which cannot be resolved by affidavit or documentary evidence. These include cases where there are contentious issues of facts. Where it is obvious from the state of the affidavit that there would be an air of friction or hostility in the proceedings, Originating Summons is not an appropriate procedure. The Court would, in such event, order pleadings and hear oral evidence. In the event where, as in this case, conflicts in the affidavit evidence may be resolved by documentary evidence, the matter may be heard under the originating summons procedure;Union Bank of Nigeria v. Awmar Properties Ltd (2018) LPELR- 44376(SC).
For these reasons and for the more detailed reasons given in the lead Judgment, I also allow this appeal and abide by the orders made by my learned Brother.
Appearances:
Audu Anugu, Esq. with him, Messrs Terlumun Tombowua and Terhemen GbashimaFor Appellant(s)
T. O. Aorabee, Esq. with him, Messrs T.D. Pepe, K.C. Vernimbe and K. K. Lorzenda for 1st Respondent.
Shuaibu E. Aruwa, Esq. for 2nd Respondent.For Respondent(s)
