ECHENDU v. UGONNA & ORS
(2022)LCN/16393(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, November 03, 2022
CA/OW/335/2022
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
HON. KINGSLEY ECHENDU APPELANT(S)
And
1. HON. OZURIGBO UGONNA 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO:
WHEN DSECIDING WHETHER A CLAIM IS JUSTICIABLE
I also held that in deciding whether a claim is justiciable, a Court must determine whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially moulded. POWELL V. McCORMACK 395 U.S 486. RITA NOSAKHARE PEMU, J.C.A.
DUTY OF COURT TO A PARTY’S RELIEFS
No matter how surreptitiously and nicodemously couched the Court shall always lift the veil to see the spirit in the Reliefs sought’. Per Pemu JCA, in EDDY OLAFESO & ORS VS. MAKANJUOLA OGUNDIPE & ORS (Supra). RITA NOSAKHARE PEMU, J.C.A.
WHETHER THE COURT WILL MEDDLE WITH THE MEMBERSHIP OF A POLITICAL PARTY
The Courts will not be involved in deciding who the members of a political party are. ANYANWU V. OGUNEWE(2014) 8 NWLR (Pt. 1410) 437 AT 470
KEKERE EKIN JSC in ANYANWU V. OGUNEWE(supra) had this to say inter alia
“No member of a political party has the locus standi to question the party’s prerogative right on the issue of its choice of candidate for elective offices, not even in the face of breaching of its rules and regulations.
There is no doubt that membership of a political party is not justiciable”. RITA NOSAKHARE PEMU, J.C.A.
POSITION OF LAW DECLARATORY ACTIONS
The law is elementary, that in declaratory actions, it is the duty of the Plaintiff/Claimant seeking declaratory reliefs to prove his case on the strength of his case and not on the weakness of the Defendants’ case. MTN V. CORPORATE COMMUNICATION INVESTMENT LTD. (2019) LPELR – 47042. RITA NOSAKHARE PEMU, J.C.A.
WHEN THE APPELLATE COURT WILL INTERFERE WITH THE DECISION OF THE LOWER COURT
In WACHUKWU and ANOR. V. OWUNWANNE & ANOR (2011) LPELR – 3466 (SC) it was held that the appellate Court would ordinarily not infer with findings of facts from the lower Court, except where there is some miscarriage of justice, or where such decisions are perverse, or a violation of some principles of law. See IBRAHIM V. OSUNDE and ORS 2009 LPELR – 1411 (SC). OSOLU V. OSOLU (2003) 11. NWLR (Pt. 832) pages 608 AT 642; MOGAJI V. ODOFIN (1976) 4 SC. Page 91. RITA NOSAKHARE PEMU, J.C.A.
POSITION OF LAW ON ORIGINATING SUMMONS
Decidedly, Originating Summons is reserved for issues like the determination of questions of construction and not matters of controversy that the justice of the case would demand the setting of PLEADINGS. It is a procedure where the evidence is by way of documents and there is no serious dispute as to the existence of pleadings of parties to the suit. INAKOJU AND ORS. V. ADELEKE AND ORS. (2007) LPELR 1570 SC. RITA NOSAKHARE PEMU, J.C.A.
THE TERM CAUSE OF ACTION
The term “CAUSE OF ACTION ““Connotes facts or combination of facts which gives rise to a right to sue or institute an action in a Court of law or Tribunal. It also includes all things that are necessary to give a right of action and material facts which is to be proved to entitle the plaintiff to succeed.” UWAZURUONYE V. GOVERNOR OF IMO STATE & ORS (2012) LPELR-20604(SC), OWODUNNI V. REGISTERED TURSTEE OF CELESTIAL CHURCH OF CHRIST & ORS (2000) LPELR-2852 (SC). RITA NOSAKHARE PEMU, J.C.A.
WHEN DOES A “CAUSE OF ACTION” ACCRUE?
Decidedly, a cause of action is said to accrue when the event is complete and the aggrieved party can begin and maintain his action in Court. A.G LAGOS STATE V. EKO HOTELS LTD & ANOR (2006) LPELR- 3162 (SC). RITA NOSAKHARE PEMU, J.C.A.
POSITION OF LAW ON THE RULE OF COURT
The law is elementary, that rules of Court must be obeyed and this is so in the interest of fair and equitable administration of justice. KALU V. ODILI & ORS (1992) LPELR-1653(SC). RITA NOSAKHARE PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Owerri Division in Suit No. FHC/OW/CS/79/2022. HON. KINGSLEY ECHENDU V. HON. OZURIGBO UGONNA & ORS., delivered on the 29th of August, 2022.
SYNOPSIS OF FACTS:
On the 25th of March, 2022, the 1st Respondent Hon. Ozurigbo Ugonna had participated in the primary elections of the 2nd Respondent (Peoples Democratic Party) for the position of Member representing Isu/Njaba/Nkwere/Nwangele Federal Constituency, and had won in the said position.
The Appellant’s grouse as adumbrated in his Originating Summons filed on the 7th day of June, 2022 is that the 1st Respondent has breached the provisions of Section 65 (2) (b) of the 1999 Constitution of the Federal Republic of Nigeria.
This is because, as at the time he participated in the primaries he was a serving member of the House of Representatives representing Imo State on the Platform of the All Progressive Congress (APC). That the 1st Respondent having not resigned his membership of the 2nd Respondent, he cannot participate in the said primary election of the 2nd Respondent held on the 25th of May 2022, for the position of member representing Isu/Njaba Federal Constituency without first resigning as a member of All Progressive Congress Party. That the 1st Respondent is not qualified to participate in the primary election.
Dissatisfied with the decision of the Court below, and desirous of appealing same, the Appellant instituted this appeal by filing a Notice of Appeal on the 9th of September, 2022, encapsulating (7) seven Grounds of Appeal.
The Appellant filed his brief of argument on the 25th of September, 2022, it is settled by Dr. Obinna Onya; the 1st Respondent’s brief was settled by U.N. Isaac Esq., on the 29th of September 2022.
The 2nd Respondent filed his brief of argument on the 30th of September, 2022. It is settled by N.A. Nnawuchi, SAN, FCArb
The 3rd Respondents’ brief settled by Mohammed Kabir Abdullahi Esq., was filed on the 30th day of September, 2022.
The Appellant filed Reply briefs to the 1st, 2nd and 3rd Respondents’ brief respectively on the 5th of October, 2022.
The 1st Respondent had filed a Notice of Cross-Appeal on the 9th day of September 2022. He filed a Cross-Appellant’s brief of argument on the 23rd of September, 2022. It is settled by U.N. Isaac Esq.
The 1st Cross-Respondent filed his brief on 30th of September, 2022. It is settled by Dr. Obinna Onya; the Cross-Appellant filed a Cross-Appellants’ reply brief on the 5th of October, 2022. On the 6th of October, 2022, the parties adopted their respective briefs of argument in the main appeal and the cross-appeal.
I shall consider the main appeal first before I go on to consider the Cross-Appeal.
The Appellant proffered three (3) issues for determination from the Grounds of Appeal, which are as follows:
ISSUES FOR DETERMINATION
“1. WHETHER THE LOWER COURT WAS CORRECT AFTER HAVING FOUND THAT EXHIBITS E9 AND EXHIBIT E10 WERE GENUINE DOCUMENTS EMANATING FROM THE ALL PROGRESSIVES CONGRESS AND THAT 1ST RESPONDENT WAS STILL A MEMBER OF THE APC AT THE TIME HE PARTICIPATED IN THE PRIMARIES OF THE 2ND RESPONDENT, THE COURT FAILED TO HOLD THAT THE 1ST RESPONDENT WAS NOT QUALIFIED TO PARTICIPATE IN THE PRIMARIES OF THE 2ND RESPONDENT DESPITE THE OVERWHELMING DOCUMENTS PLACED BEFORE IT.
2. WHETHER THE LOWER COURT WAS CORRECT WHEN IT HELD THAT THE CLAIMANT’S CASE WAS NOT JUSTICIABLE AND THE COURT LACKED JURISDICTION TO ADJUDICATE OVER THE SUIT.
3. WHETHER THE LOWER COURT WAS CORRECT WHEN IT PROCEEDED TO ONLY ANSWER QUESTIONS 1 AND 4 OF THE QUESTIONS FOR THE DETERMINATION OF THE COURT FOR THE REASONS THAT QUESTIONS 2 AND 3 ARE NOT “ANCHORED ON LEGAL INSTRUMENTS”.
The 1st Respondent adopts the issues for determination as formulated by the Appellant, but with this addition viz:
ISSUES FOR DETERMINATION
(I) “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN AFTER HAVING PURPORTEDLY FOUND THAT EXHIBITS “E9” AND “E10” TO BE GENUINE DOCUMENTS FROM THE ALL PROGRESSIVES CONGRESS AND THAT THE 1ST RESPONDENT WAS STILL A MEMBER OF THE APC AT THE TIME HE PARTICIPATED IN THE PRIMARIES OF THE 2ND RESPONDENT, THE COURT FAILED TO HOLD THAT THE 1ST RESPONDENT WAS NOT QUALIFIED TO PARTICIPATE IN THE PRIMARIES OF THE 2ND RESPONDENT.
(II) WHETHER THE LOWER COURT WAS CORRECT WHEN IT HELD THAT THE CLAIMANT’S CASE WAS NOT JUSTICIABLE AND THAT THE COURT LACKED THE JURISDICTION TO ADJUDICATE OVER THE SUIT.
(III) WHETHER THE LOWER COURT WAS CORRECT WHEN IT PROCEEDED TO ANSWER QUESTIONS 1 AND 4 OF THE QUESTIONS FOR DETERMINATION OF THE COURT WITHOUT ALLEGEDLY ANSWERING QUESTIONS 2 AND 3 FOR THE REASONS THAT THEY ARE NOT “ANCHORED ON LEGAL INSTRUMENTS.”
The 2nd Respondent proffered 3 (three) issues for determination from the Grounds of Appeal. They are:
ISSUES FOR DETERMINATION
(A) “WAS THE COURT BELOW NOT RIGHT WHEN IT HELD THAT THAT THE APPELLANT FAILED TO PROVE THAT THE 1ST RESPONDENT WAS STILL A MEMBER OF THE ALL PROGRESSIVES CONGRESS (APC) AT THE TIME THAT HE CONTESTED IN THE PRIMARY ELECTION OF THE 2ND DEFENDANT FOR THE OFFICE OF MEMBER REPRESENTING ISU/NJABA/NKWERE/NWANGELE FEDERAL CONSTITUENCY OF IMO STATE IN THE HOUSE OF REPRESENTATIVES HELD ON THE 25TH MAY, 2022.
(B) WHETHER THE ISSUE OF MEMBERSHIP OF A POLITICAL PARTY IS NOT JUSTICIABLE SO AS TO OUST THE JURISDICTION OF THE COURT BELOW TO ENTERTAIN THE APPELLANT’S SUIT BEFORE IT.
(C) WHETHER THE APPELLANT’S SUIT BEFORE THE COURT BEFORE DID NOT FALL OUTSIDE THE SCOPE CONTEMPLATED BY SECTION 84 (14) OF THE ELECTORAL ACT, 2022.
The 3rd Respondent on his part distilled three (3) issues for the Grounds of Appeal, they are:
ISSUES FOR DETERMINATION
(A) “WHETHER THE LOWER COURT WAS CORRECT AFTER HAVING FOUND THAT EXHIBITS E9 AND EXHIBIT E10 WERE GENUINE DOCUMENTS EMANATING FROM THE ALL PROGRESSIVES CONGRESS AND THAT 1ST RESPONDENT WAS STILL A MEMBER OF THE APC AT THE TIME HE PARTICIPATED IN THE PRIMARIES OF THE 2ND RESPONDENT, THE COURT FAILED TO HOLD THAT THE 1ST RESPONDENT WAS NOT QUALIFIED TO PARTICIPATE IN THE PRIMARIES OF THE 2ND RESPONDENT DESPITE OVERWHELMING DOCUMENTS PLACED BEFORE IT.
(B) WHETHER THE LOWER COURT WAS CORRECT WHEN IT HELD THAT THE CLAIMANT’S CASE WAS NOT JUSTICIABLE AND THE COURT LACKED JURISDICTION TO ADJUDICATE OVER THE SUIT.
(C) WHETHER THE LOWER COURT WAS CORRECT WHEN IT PROCEEDED TO ONLY ANSWER QUESTIONS 1 AND 4 OF THE QUESTIONS FOR THE DETERMINATION OF THE COURT FOR THE REASONS THAT QUESTIONS 2 AND 3 ARE NOT ANCHORED ON LEGAL INSTRUMENTS.
I shall decide this appeal based on the issues proffered by the Appellant.
ISSUE NO. 1
The Appellant contends that the 2nd Respondent breached its guidelines when it allowed the 1st Respondent to participate in the primaries of the 2nd Respondent in the election for member representing the Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State held on the 25th of May, 2022, while still being a card-carrying member of the All Progressives Congress and 1st Respondent, having not resigned his membership of the All Progressives Congress (APC).
That the acts of the 1st and 2nd Respondents amount to a breach of the provisions of Section 65 (2) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which is amplified by Part IV, Section 13(h) of the Electoral Guidelines for Primary Elections of the 2nd Respondent which makes membership of a political party a condition precedent for a person to be eligible to participate in the primaries of the 2nd Respondent.
That the 1st Respondent was a member of the APC at the time he participated in the primaries of the 2nd Respondent.
That Exhibits G, I, E9, E10 are the documents relied upon by the lower Court in reaching the findings of the Court that Exhibit G is a document dated 18th March, 2022, captioned “A vote of confidence on R.T. HON. UGONNA OZURIGBO “OZB” accompanied by the attendance list of the said meeting wherein a vote of confidence was passed on the 1st Respondent.
He submits that Exhibits GA, GB and GC are documents of the 1st Respondent were contrived by the 1st Respondent to show that he resigned his membership of the APC before the primaries of the PDP.
The Court below did not believe the documents after an analysis of same. It believed that Exhibits E9 and Exhibit E10 were genuine documents emanating from the All Progressives Congress in proof that a vote of confidence has passed on the 1st Respondent at his ward and that 1st Respondent was still a member of the APC at the time he participated in the primaries of the 3rd Respondent.
Submits that despite the overwhelming effect of Exhibits E9 and Exhibit E10, the Court below still proceeded to hold that these documents though credible were not “conclusive proof” that the 1st Respondent did not resign his membership of the APC.
That the 1st Respondent failed to discharge the burden which had shifted to him that he resigned his membership of the APC before participating in the primaries of the PDP.
The Appellant submits that the Court below did not consider all the Exhibits placed before it by the Appellant in reaching its conclusion that the lower Court failed to consider Exhibits D2 and D3 which are documents emanating from the APC confirming the 2nd Respondents’ membership of the APC at the date of the 2nd Respondents’ primary.
That the Court below also failed to consider Exhibits D4 and D5 which were documents confirming that the 1st Respondent was listed as a delegate in the APC National Convention, that Exhibit D6 in the proceedings of the National Assembly of 24th February, 2022 showing that the 1st Respondent never communicated his purported defection to the 2nd Respondent at the floor of the National Assembly, that the lower Court did not also consider Exhibit D7 which is the list of the members of the National Assembly showing that the 1st Respondent was still a member of the APC in the record of the National Assembly.
That the Court below failed to consider the affidavits of the Umuozu Ward Executives of the APC who were present when the vote of confidence was passed on the 1st Respondent in further proof of the fact that the 1st Respondent never resigned his membership of the APC at his Ward.
Submits that, the Court’s failure to consider that documents led to the erroneous conclusion by the Court below. He submits that there is no evidence placed by the Respondents controverting the Exhibits tendered by the Appellants.
Submits that the Court below ignored the Exhibits which if considered by the lower Court, proved conclusively that the 1st Respondent did not resign his membership of the APC as at the date of the primaries in issue
Urges Court to hold that the lower Court erred when it held that the documents placed before it by the Appellants do not provide “conclusive proof’’ that the 1st Respondent did not resign his membership of the APC at the time he participated in the primaries of the 2nd Respondent.
ISSUE NO. 2
The Appellant submits that a combined reading of the provisions of Section 65 (2) (b) and Part IV Section 13 (h) of the 2nd Respondent’s Guidelines makes membership of a political party a mandatory requirement for the participation of any person in the primaries of the 2nd Respondent.
Submits that the effect is that issue of qualification of a person to participate in the primaries of a political party is both a pre and post-election issue and the interpretation of the constitution and guidelines of a political party with respect to qualification of an aspirant to participate in the primaries of a political party is both a pre and post-election matter.
Submits that the Court below had jurisdiction to entertain the suit, because Section 65 (2) (b) of the Constitution and the Guidelines of the 2nd Defendant allows only members of the PDP to participate in the primaries of the PDP. That the Appellant had exhibited the guidelines of the 2nd Respondent to show that only a member of the 2nd Respondent can participate in the primaries of the 2nd Respondent.
Submits that a political party must not be allowed to act arbitrarily. That the Court has jurisdiction to intervene where a political party is in breach of its Constitution or Guideline.
Submits that the suit, the subject matter of this Appeal is one predicated on a breach of the Guidelines of the 2nd Defendant (Respondent in this Appeal).
Submits that the Appellant, being an aspirant at the primaries in issue, by virtue of the provisions of the Electoral Act, 2022 had the locus to challenge the qualification of the 1st Respondent to participate in the primaries in issue.
He submits that the provisions of Section 84 (14) of the Electoral Act, 2022, is applicable to the Primaries of a Political Party irrespective of the method chosen by the party for the conduct of the election, as this provision does not draw a distinction between Direct and Indirect Primaries.
That the Court below had jurisdiction to adjudicate over the suit for the reason that the Primaries complained about is one contemplated by Section 84 (14) of the Electoral Act 2022.
That the Court below was in error to have declined jurisdiction.
ISSUE NO. 3:
Submits that it is not correct as held by the Court below that Originating Summons is restricted to interpretation of only “legal instrument”.
That the provision of Order 3(6) of the Federal High Court Rules is to the effect that originating summons procedure is not restricted to the interpretation of what the honourable Court termed “legal instrument” but it includes a deed will, questions, enactment or other written instrument as provided by the Rules of the Federal High Court.
Submits that the decision of the Court below to restrict itself to questions 1 and 4 of the questions for determination was in breach of the Appellant’s right to fair hearing.
That the questions for determination which were unanswered by the Court below were
2) Whether the 1st defendant who is a serving member of the House of Representatives representing Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State on the Platform of the All Progressives Congress (APC) can validly at the same time, be a member of the 2nd Defendant without first resigning his membership of the All Progressive Congress.
3) Whether the 1st Defendant while being a serving member of the House of Representatives representing Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State, could validly have participated in the primary election of the 2nd Defendant held on 25th May, 2022, for the position of member representing Isu/Njaba/Nkwere/Nwangele Federal Constituency held in 25th May, 2022, without first resigning as member of the All Progressives Congress”.
He submits that questions 2 and 3 were fundamental to the Appellant’s case. That the failure of the Court below to answer them was fatal to the case of the Appellant and amounted to a breach of the Appellant’s right to fair hearing.
RESOLUTION OF ISSUES
ISSUE NO. 2
I find it pertinent, indeed desirable to consider Issue No. 2 first as same goes to jurisdiction. For purpose of elucidation, I shall reproduce that issue.
“WHETHER THE LOWER COURT WAS CORRECT WHEN IT HELD THAT THE CLAIMANT’S CASE WAS NOT JUSTICIABLE AND THE COURT LACKED JURISDICTION TO ADJUDICATE OVER THE SUIT.”
In the case of EDDY OLAFESO AND ORS. VS. MAKANJUOLA OGUNDIPE AND ORS. (2018) LPELR 44305 (CA), this Court held per Pemu, JCA that the word “JUSTICIABLE” has been aptly defined as a case or dispute properly brought before a Court of justice, capable of being disposed of judicially. SPDC Vs. OKONEDO (2008) 9 NWLR (Part 1091) 85 AT 118.
I also held that in deciding whether a claim is justiciable, a Court must determine whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially moulded. POWELL V. McCORMACK 395 U.S 486.
The Court below had held inter alia that the suit, the subject matter of this appeal was not justiciable. This is because the chastisement of erring members of a Political Party is purely an internal affair of a political party which the Court has no jurisdiction to venture into. It is apparent that it was the Appellant that asked the Court to interpret the provisions of Section 59 (1) (d) and (g) of the Peoples Democratic Party constitution which prescribes punishment on persons who engage in anti-party activities. The Court below further held that such matters are within the exclusive preserve of the parties which no Court can delve into.
The Court below went on to state that no member of a Political Party has the locus to question the parties, prerogative right on the issue of choice of candidates for elective offices, not even in the face of breaching of its rules and regulations ANYANWU VS. OGUNEWE (2014) 8 NWLR (Pt. 1410) 437 AT 471.
The reliefs sought by the Appellant (Applicant) in his Originating Summons in the main were Declaratory. – see page 4 of the Record of Appeal. See Relief 1 at page 4 of the Record of Appeal).
In relief (1) it is for ’’A DECLARATION that having regard to Section 65 (2) (b) of the Constitution of the Federal Republic of Nigeria, the 1st defendant cannot validly belong to more than one political party.’’
In relief (4) A DECLARATION that having regard to Article 59 (1) (d) & (g) of the Peoples Democratic Party’s Constitution, the 1st defendant, being a member of the All Progressive Congress, and representing the Isu/Njaba/Nkwerre/Nwangele Federal constituency at the house of Representative for Imo State, on the platform of the All Progressive Congress, could not have validly been declared winner of the primary of the 2nd Defendant held on the 25th of May 2022 for member representing Isu/Njaba/Nkwerre/Nwangele Federal Constituency at the House of Representatives for Imo state, having not resigned its membership of the All Progressive Congress.
Pertinent to note that the issue which the Court below considered i.e. issues 1 and 4 premised on these Reliefs 1 and 4.
From the above reliefs particularly Relief 4 sought, what the Appellant is asking the Court to do is to pry into the domestic affairs of the 2nd Respondent.
Decidedly, ’the issue of inviting the Court to make declarations as to the provisions of the PDP Constitution, which provisions regulate the internal workings of the party, would amount to the Court prying into the domestic affairs of the party. No matter how surreptitiously and nicodemously couched the Court shall always lift the veil to see the spirit in the Reliefs sought’. Per Pemu JCA, in EDDY OLAFESO & ORS VS. MAKANJUOLA OGUNDIPE & ORS (Supra).
Decidedly, membership of a political party is not for the Courts to decide, as such matters are within the exclusive preserve of the party concerned. It is a domestic affair of the party concerned. The Courts will not be involved in deciding who the members of a political party are. ANYANWU V. OGUNEWE(2014) 8 NWLR (Pt. 1410) 437 AT 470
KEKERE EKIN JSC in ANYANWU V. OGUNEWE(supra) had this to say inter alia
“No member of a political party has the locus standi to question the party’s prerogative right on the issue of its choice of candidate for elective offices, not even in the face of breaching of its rules and regulations.
There is no doubt that membership of a political party is not justiciable”.
The Court below was right to have held that the suit was not justiciable and I so hold. That knocks the bottom off this appeal. Indeed, the Court below in the face of this, had no business considering the other issues, as it had the duty to first consider the issue of non-justiciability in the face of some of the reliefs sought.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO. 1
The law is elementary, that in declaratory actions, it is the duty of the Plaintiff/Claimant seeking declaratory reliefs to prove his case on the strength of his case and not on the weakness of the Defendants’ case. MTN V. CORPORATE COMMUNICATION INVESTMENT LTD. (2019) LPELR – 47042.
Decidedly, faced with declaratory reliefs, the Court draws inspiration from consecrated principles, one of which is that the party seeking the relief, must lead evidence upon which the relief is granted or denied, notwithstanding any admission in the defendants’ pleadings. The Court has to be satisfied with the evidence led by the plaintiff that he is entitled to the relief he seeks.
Exhibits E9 and E10 are affidavits deposed to by one Remigus Nnamdi Anyaehie (Secretary to the All Progressive Congress, Umuozo Wards) and Francis Onumajuru Onyemeche (Ward Chairman of the All Progressive Congress) Umuozo Ward respectively.
Therein they stated on the affidavit that the 1st Respondent still belonged to the APC. These exhibits were from record tendered by the Appellant.
The 1st Respondent, on his part, tendered the following documents.
1. Exhibit GA – letter of his expulsion from the All Progressive Congresses dated 10th February, 2022.
2. Exhibit GB – letter of resignation from the All Progressive Congress dated 10th February, 2022
3. Exhibit GC – acknowledgement letter from the All Progressive Congress dated 14th February, 2022.
4. Exhibit GD – Application by the 1st Respondent to join the Peoples Democratic Party (2nd Respondent) dated 16th February, 2022.
5. Exhibit “GF” – Notice of Change of Political Party dated 24th February, 2022.
6. Exhibit “GH” – membership of the 1st Respondent as a member of 2nd Respondent.
7. Exhibit “GH I” – membership register of Umuazu PDP Ward with the Appellants’ name therein as No 302.
8. Exhibit “GJ” – Expression of Interest Form for the Office of member House of Assembly dated 23rd March, 2022.
9. Exhibit “GJ I” Nomination Form for the House of Representative, with 1st Respondent’s name thereon, dated 23rd March 2022.
10. Exhibit “GK” General Receipt dated 23rd March, 2022.
11. Exhibit “GK I” – Deposit slip for Imo Peoples Democratic Party.
12. Exhibit “GL” – Provisional Clearance Certificate issued by the 2nd Respondent.
13. Exhibit “GM” is an affidavit deposed to by one Onumajuru Francis (the elected chairman of the All Progressive Congress) stating that he received the resignation letter from the 1st Respondent on the 12th of February, 2022.
14. Exhibit “GMI” is an affidavit deposed to by one Remigus Nnamdi Anyaehie who is the elected Secretary of the All Progressive Congress, stating that he received a letter of resignation from the 1st Respondent on 11/2/2022.
The 2nd Respondent also tendered documents to show that the 1st Respondent is a member of the Peoples Democratic Party.
I am of the view that the fact that both the 1st and 2nd Respondents, having been able to tender the 2nd Respondents’ membership register which is prima facie unrebutted evidence that the 1st Respondent is a member (howbeit a card-carrying member) of the 2nd Respondent – putting this piece of evidence side by side Exhibits E9 and E10, and indeed putting both sets of evidence on an imaginary scale, the evidence adduced by the 1st Respondent in conjunction with 2nd Respondent, outweigh that put forth by the Appellant.
Any piece of evidence can be admitted by a Court of law. It however has to be evidence that is RELEVANT, and the weight to be attached to the evidence is another matter.
Noteworthy is that the 1st Respondent vide Exhibits PDP 5 (b) – letter dated 10th February, 2022, addressed to and received by the Ward Chairman of APC Umuozu Ward, Nwangele Local Government Area, Imo State. The 1st Respondent applied vide Exhibit “PDP 1 (b)” to rejoin the 2nd Respondent – letter dated 16th February 2022. The Membership Card of the 1st Respondent is Exhibit “PDP 1c”.
Exhibit GHI” as earlier stated is Peoples Democratic Party Membership Register for Umuozu Ward, Nwangele Local Government Area Imo State, and shows that the 1st Respondent is No 302 with his Membership Number 0929841.
It is my view that the Court below took in Exhibit “E9” and “E10” as relevant documents, but found no weight in them sufficient enough to dislodge the defence of the defendants. The standard of proof in civil cases is on a preponderance of evidence.
In WACHUKWU and ANOR. V. OWUNWANNE & ANOR (2011) LPELR – 3466 (SC) it was held that the appellate Court would ordinarily not infer with findings of facts from the lower Court, except where there is some miscarriage of justice, or where such decisions are perverse, or a violation of some principles of law. See IBRAHIM V. OSUNDE and ORS 2009 LPELR – 1411 (SC). OSOLU V. OSOLU (2003) 11. NWLR (Pt. 832) pages 608 @ 642; MOGAJI V. ODOFIN (1976) 4 SC. Page 91.
The 2nd Respondent had argued that in order to be eligible to contest for nomination for public office, such as the primary election of the 2nd Defendant for the office of member representing Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State in the House of Representative held on the 25th May, 2022, an intending aspirant MUST have been a member of the 2nd Respondent for a minimum period of one(1) month. (Constitution of the Peoples Democratic Party (as amended in 2017).
The 2nd Respondent submits that the provision of Article 50 (4) 5(b) of Exhibit “A” (Constitution of the Peoples Democratic Party (as amended in 2017) and Exhibit PDP4(a)” (Letter dated 3rd March 2022 – operate to “cure any irregularity in the 1st Respondents’ membership of the 2nd Respondent and subsequent participation in the primary election of the 2nd Respondent for the office of member representing Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State in the House of Representatives.
For purposes of elucidation, I shall reproduce the provisions of Article 50 (4) (Exhibit A)
“There shall be a minimum of one (1) month, membership span for a member to her eligible to stand for election into any public officer, unless the appropriate executive committee gives a waiver or rules to the contrary.”
The above quoted portions of Exhibit “A” portends that in order to be eligible to contest for nomination for public office, such as the primary election if the 2nd Respondent (2nd Defendant) for the office of member representing Isu/Njaba Nwere/Nwangele Federal Constituency of Imo State in the House of Representatives held on the 25th of May 2022, an intending aspirant MUST have been a member of the 2nd Respondent for a minimum period of one (1) month.
The answer to issue No. 1 is in the affirmative. This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO. 3
A perusal of the said questions 2 and 3 shows that it borders on the complaint that the 1st Respondent allegedly did not resign from his membership of the APC before participating in the primary election of the 2nd Respondent.
The Court below rightly observed that the facts inherent in questions 2 and 3 are facts which should have been a subject of Writ of Summons and not Originating Summons.
The Appellant argued that the Court below was bound to answer all the questions for determination as formulated and to evaluate all the documents placed before it. It is further argued that the decision of the lower Court to restrict itself to questions 1 and 4 of the questions for determination was in breach of the Appellant’s right to fair hearing, is grossly misconceived.
I shall reproduce questions 2 and 3 of the questions for determinarion which were unanswered by the Court below.
2) Whether the 1st Defendant who is a serving member of the House of Representatives representing Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State on the platform of the All Progressives Congress (APC) can validly at the same time, be a member of the 2nd Defendant without first resigning his membership of the App Progressives Congress.
3) Whether the 1st Defendant while being a serving member of the House of Representatives representing Isu/Njaba/Nkwere/Nwangele Federal Constituency of Imo State, could validly have participated in the primary election of the 2nd Defendant held on 25th May, 2022 for the position of member representing Isu/Njaba/Nkwere/Nwangele Federal Constituency held on 25th May 2022, without having first resigning as member of the All Progressive Congress.
What the Court below observed in effect was that questions 2 and 3 involved dispute of facts which can only be resolved by Writ of Summons, and not by Originating Summons.
Decidedly, Originating Summons is reserved for issues like the determination of questions of construction and not matters of controversy that the justice of the case would demand the setting of PLEADINGS. It is a procedure where the evidence is by way of documents and there is no serious dispute as to the existence of pleadings of parties to the suit. INAKOJU AND ORS. V. ADELEKE AND ORS. (2007) LPELR 1570 SC.
The suit, the subject matter of this appeal is pervaded by serious disputes of facts.
This issue is resolved in favour of the Respondents and against the Appellant.
The appeal fails and same is hereby dismissed in its entirety.
3The judgment of the Federal High Court, Owerri Division in Suit No FHC/OW/CS/79/2022 HON KINGSLEY ECHENDU V. HON. OZURUIGBO UGONNA & ORS delivered on the 29th of August 2022 is hereby affirmed. Parties to bear their respective costs.
THE CROSS-APPEAL
Vide Notice of Cross-Appeal filed on the 9th September 2022, by the Cross-Appellant, the Notice of Cross-Appeal encapsulates seven (7) Grounds of Appeal (pg. 974 of the Record of Appeal vol. 11).
The Cross-Appellant HON. Ozurigbo Ugonna filed his brief of argument on the 23rd of September 2022, it is settled by U.N. Isaac Esq. the 1st Cross-Respondent filed his brief on the 30th September, 2022. Same is settled by DR. Obinna Onya. The Cross-Appellant filed his Cross-Appellant reply brief on the 5th of October 2022.
The 2nd and 3rd Cross-Respondents filed no briefs of arguments.
The Cross-Appellant distilled seven issues for determination from the Notice of Cross-Appeal which are:
1. Whether the learned trial Judge was right when he held that the suit was not statute-barred and that the Cross-Appellants counsel admitted that the Plaintiff (now Appellant/Cross-Respondent) did not protest against the Cross-Appellant’s participating in the 2nd Cross-Respondent screening exercise? (GROUND ONE)
2. Whether the learned trial Judge was right when he held that extension of time within which to file a process, such as a further- affidavit in the substantive suit in Election matters is contemplated under the extant Federal High Court (Pre-Election) Practice Directions, 2022? (GROUND TWO)
3. Whether the learned trial Judge was right when he held that a Further Affidavit can be corrected via a Further and Better Affidavit when there was no motion on notice for leave to correct the purported errors in the further affidavit (GROUND THREE)
4. Whether the learned trial Judge was right when he held that exhibits “G’’, ’’I’’, ’’E9’’, and ’’E10’’ showed strong indications that as of March 2022, the Cross-Appellant was still an active member of the APC and that EXHIBITS ’’E9’’ and ’’E10’’ constituted the most credible of Plaintiff’s rebuttals of the Cross-Appellant’s EXHIBITS ’’GB’’ and ’’GC’’? (GROUND FOUR)
5. Whether the Learned trial Judge was right when he held that EXHIBITS “GB” and “GC” seemed more like private “billet doux’’ exchange between cronies when there was no such evidence before the Court? (GROUND FIVE)
6. Whether the learned trial Judge was right when he held that EXHIBITS ’’E9’’ and ’’E10’’ were deposed to in the registry of the trial Court while EXHIBITS ’’GM’’ and ’’GM1’’ were deposed to in the registry of the State High Court and did not have the deponent’s passport and that the said EXHIBITS ’’GM’’ and ’’GM1’’ were of doubtful source and appear concocted for the purpose of the proceedings in the suit. (GROUND SIX)
7. Whether the learned trial Judge was right when he held that on the issue of the effective date of resignation, the Plaintiff’s EXHIBITS ’’E9’’ and ’’E10’’ was a lot more compelling than the Cross-Appellant’s EXHIBITS “GA”, “GB”, “GC”, “GC”, “GM” and “GM1”? (GROUND SEVEN)
The 1st Cross-Respondent proffered 4 issues for determination. They are:
1. Whether the lower Court was correct when it held that the suit was not statute-barred and no cause of action can arise from the screening exercise of a political party. (Ground 1)
2. Whether the lower Court had the power to extend time for a party to file a further affidavit and plaintiff’s reply in the suit being a pre-election matter. (GROUND 2)
3. Whether the learned trial Judge was correct when he held that an error in an affidavit can be corrected via a further and better affidavit without necessarily filing a motion for leave to file the further and better affidavit (GROUND 3)
4. Whether the learned trial Judge was correct when after an evaluation of the evidence agreed with 1st Cross-Respondent’s Exhibit “G”, “I”, “E9” AND “E1O” and disbelieved Cross-Appellant’s EXHIBITS “GA” “GB”, “GC”, “GC”, “GM” and “GM1”? (Ground 4,5,6,7).
I shall consider this Cross-Appeal based on the Cross-Appellant’s issues proffered for determination.
SUBMISSION ON ISSUES
ISSUES 1
It is the contention of the Cross-Appellant that the suit the subject matter of this appeal is statute-barred. That the cause of action having arisen on the 27th of April 2022, when both the Cross-Appellant and the 1st Cross-Respondent were screened for participation in its primaries, that the 1st Cross-Respondent had fourteen days from the 27th day of April 2022 to have commenced an action if he verily believed that the Cross-Appellant have not resigned it membership of the All Progressive Congress and was not legible to participate in the 2nd Respondents’ screening exercise. That from the 27th of April, 2022, when the Cross-Appellant participated in the 2nd Cross-Respondent screening exercise to the 7th of June 2022 when the suit was instituted is a period of over 42 days.
ISSUE 2
That the Court below was wrong when he held that the extension of time within which to file a process such as a further affidavit in the substantive suit in election Matters is Contemplated Under The Extant Federal High Court (Pre-Election) Practice Directions, Submits that the provisions for extension of time is not contemplated in substantive matters but in interlocutory application. That this is the reason why the provisions of paragraph 7 of the Federal High Court (Pre-Election) Practice Direction 2022 is Captioned INTERLOCUTORY APPLICATION.
That the further affidavit being in support of the Originating Summons ought to have been filed within 3 days as provided in Rule 4 (5) of the said Practice Direction of 2022 and the time for doing so cannot be extended.
Submits that the Court below was wrong to hold that the time within which to file a substantive process in respect of the Originating Summons can be extended.
Submits that on the 29th of June 2022, the 1st Respondent was served with the Cross-Appellant counter affidavit and other accompanying document in opposition to the originating summons in suit No: FHC/OW/CS/79/2022 filed by the 1st Cross-Respondent as the Plaintiff therein, who then filed a further affidavit/reply in response to the Cross-Appellant counter-affidavit on the 6th day of July 2022 (a period of eight days) from the 29th June when he was served with the said counter-affidavit.
That by the provisions of Order 4 Rule 5 of the Federal High Court (Pre-Election) Practice Direction 2022, the 1st Cross-Respondent had only 3 (three) days within which to file the said further-affidavit (Reply) from the 29th day of June, 2022, when he was served with the said counter affidavit.
That decidedly, the time within which to file processes in pre-election matters and other electoral matters cannot be extended.
ISSUE NO. 3
Submits that the learned trial Judge was wrong when he held that a further affidavit can be corrected by a further and better affidavit when there was no motion on notice for leave to correct the purported errors in the further affidavit. That there was no application for leave to correct the alleged errors in the further affidavit before filing the said further and better affidavit.
That failure of the 1st Cross-Respondent to make an application to file a further and better affidavit which is an amendment to the further affidavit is contrary to the provisions of Order 7 Rules 2 and 6 of the Federal High Court Procedure Rules, 2019. That the word “shall” used in the rules connotes mandatoriness.
ISSUE NO 4
The Cross-Appellant submits that the learned trial Judge was wrong when he held that exhibits “G” “I” “E9” and “E10” showed strong indication that as of March 2022, the Cross-Appellant was still an active member of the APC and that Exhibit “E9” and “E10” constituted the most credible of plaintiff/Cross-Respondent’s rebuttal of the Cross-Appellant’s Exhibit “GB” and “GC”.
That the Court below did not avert his mind to Exhibits “C” and “D” and that if he had done so, he would not have held that the said Exhibit “E9” AND “E10” constituted the most credible of Plaintiff’s/Cross-Respondent rebuttal of the Cross-Appellant Exhibits “GB” and “GC”.
That the Court below agreed that the said Exhibit “E9” and “E10” were more credible because they were made on oath. But that the purported makers of Exhibit “E9” AND “E10” deposed to affidavit on oath before the trial Court in Exhibit “C” AND “D” attached to the affidavit in support of the Cross/Appellant’s application dated and filed on the 15th of July 2022 and denied making Exhibit “E9” and “E10”.
That the learned trial Judge at this point ought to have called for oral evidence to verify the authenticity of the said Exhibits, but this he failed to do. But that the Court eventually concluded rightly. Submits that the holding of the Court below was not appealed by the plaintiff/1st Cross-Respondent the facts are deemed admitted by the Plaintiff/ Cross-Respondent.
ISSUE NO 5
He submit that Exhibit “GB” received and stamped by the relevant officer of the APC. That Exhibit “GC” was written by the relevant officers of the APC acknowledging receipt of exhibit “GB” that the decision of the Court below this regard is perverse.
ISSUES NO.6
The Cross-Appellant submits that the Court below was wrong when he held that Exhibit “E9” AND “E10” were deposed to in the Registry of the trial Court while Exhibit “GM” and “GM1” were deposed in the registry of the State High Court and did not have the deponent passport and that the said Exhibit “GM” and “GM1” were of doubtful source and appear concocted for the purpose of the proceeding in this suit.
That it was Exhibit “E9” and ”E10” that were deposed to at the registry of the State High Court and without the passport of the deponent.
That affidavit attached to Exhibit “C” and “D” and attached to the affidavit in support of the Cross-Appellant application dated and filed 15th day of July 2022 was deposed to at the registry of the Federal High Court, Owerri with the passport of their makers/deponent alleged to have made the said Exhibit “E9” and “E10”. They denied making the said Exhibit “E9” and “E10”.
ISSUES NO.7
He submits that the Court below was wrong when he held that on the issue of the effective date of resignation the plaintiff/1st Cross-Respondent exhibit “E9” and “E10” were a lot more compelling than the Cross-Appellants Exhibit “GA” “GB” “GC” “GM” and “GM1”. The Cross/Appellant adopts his argument in respect of issues 4, 5 & 6 herein above.
RESOLUTION OF ISSUES
ISSUE NO 1
The term “CAUSE OF ACTION“ “Connotes facts or combination of facts which gives rise to a right to sue or institute an action in a Court of law or Tribunal. It also includes all things that are necessary to give a right of action and material facts which is to be proved to entitle the plaintiff to succeed.” UWAZURUONYE V. GOVERNOR OF IMO STATE & ORS (2012) LPELR-20604(SC), OWODUNNI V. REGISTERED TURSTEE OF CELESTIAL CHURCH OF CHRIST & ORS (2000) LPELR-2852 (SC).
When does a “Cause of Action” accrue? Decidedly, a cause of action is said to accrue when the event is complete and the aggrieved party can begin and maintain his action in Court. A.G LAGOS STATE V. EKO HOTELS LTD & ANOR (2006) LPELR- 3162 (SC).
It is the argument of the cross-appellant that the suit is statute-barred having regard to the fact that both the plaintiff/1st Cross-Respondent and the Cross- Appellant both participated in the screening exercise conducted by the 2nd Cross-Respondent on the 27th day of April 2022 as shown in Exhibit “GO” and “GP” attached to the 1st Defendant/Cross-Appellant’s counter affidavit.
When can it be said that the cause of action accrues in respect of pre-election matters? In the absence of any definition of same in the Electoral Act 2022, one would be compelled to lean on the definition referred to in this judgment. In other words, that a cause of action is said to accrue when the event is complete and the aggrieved party can begin and maintain his action.
No doubt the event cannot be said to be complete in the circumstance of this case at the stage of screening candidates.
The action can only have accrued at the conclusion of the primaries when the winner is declared.
In the present case, the Cross-Appellant was declared winner on the 25th of May 2022, the suit the subject matter of this appeal was instituted vide originating summons filed on the 7th June 2022 a period of (8) days from the accrual of the cause of action and I so hold.
This issue is misconceived and same is resolved in favour of the 1st Cross-Respondent and against the Cross-Appellant.
ISSUES 2 & 3
The plank of these two issues has to do with the further affidavit filed by the 1st Cross-Respondent and his attempt to file a further and better affidavit.
By virtue of the provisions of the Federal High Court (Pre-election) Practice Direction 2022, the provision for extension of time is not contemplated in substantive matters such as the matter in issue, but in interlocutory applications. A look at the heading of Paragraph 7 of the Federal High Court (Pre-election) Practice Direction, 2022, is the term “INTERLOCUTORY APPLICATIONS”.
From records, the Originating Summons instituted by the 1st Cross-Respondent was filed on the 7th of June, 2022. Of course, there was an affidavit in support of the Originating Summons – pages 3-13 of the Record of Appeal. A further Affidavit was filed on the 6th of July 2022 – pages 432-435 of the record of appeal.
The Cross-Appellant filed his Counter affidavit/reply to the Originating Summons on the 24th of June 2022. If the cross -Respondent desired to file a reply, he had three days to do so pursuant to the provisions of Order 4 Rule 5 of the Federal High Court Practice Direction for Pre-election matters 2022. This he failed to do.
The only processes which may be extended are those pertaining to interlocutory application such as raising preliminary objection to the suit.
It is on record that the 1st Cross-Respondent was served with the Cross-Appellant’s counter-affidavit and other documents in opposition to the Originating Summons in Suit No. FHC/OW/CS/79/2022 filed by the 1st Cross-Respondent.
On the 6th of July 2022, the 1st Cross-Respondent filed a further affidavit/Reply in response to the Cross-Appellant’s counter affidavit and this gave a period of 8 (eight) days from the 29th of June 2022. This contravened the provisions of Order 4 Rule 5 of the Federal High Court (Pre-election) Practice Direction 2022 which provides for three (3) days within which to file the said further affidavit/Reply from the 29th of June 2022 when he was served with the counter affidavit.
The law is elementary, that rules of Court must be obeyed and this is so in the interest of fair and equitable administration of justice. KALU V. ODILI & ORS (1992) LPELR-1653(SC)
The suit, the subject matter of this appeal, being a substantive suit and not an interlocutory application, the 1st Cross-Respondent’s further affidavit having been filed out of time stipulated by the extant rules of Court, filed about 8 days after the three days period stipulated in the Practice Direction, same was filed out of time and the time cannot be extended. The Court below was wrong to have held that extension of time within which to file process such as a further affidavit in the substantive suit in election matters is contemplated under the extent Federal High Court (Pre-election) Practice Direction 2022. In pre-election matters, time is of the essence. It cannot be extended for whatever reason.
Issue No. 2 is answered in the negative and same is resolved in favour of the Cross-Appellant and against the 1st Cross-Respondent.
I deem it pertinent to reproduce the Provisions of Order 17 Rules 2 and 6 of the Federal High Court (Civil Procedure Rules) 2019. I hereby reproduce same verbatim.
Order 17
Rule 2 “An application to amend may be made to a Judge and such application SHALL be supported by an Affidavit exhibiting the proposed amendment with a written address and may be allowed upon such terms as to costs or otherwise as may be just”
Rule 6
“Where an endorsement or pleading is amended, it shall be marked in the following: “Amended … day … pursuant to Order of (name of Judge) dated the … day of … 20…”
According to the Cross-Appellant, there is no motion for leave to correct by further and better affidavit any errors in the further affidavit. But I am of the view indeed that leave can in this circumstance even be sought orally and granted in appropriate cases.
I am of the view that the filing of a further or further and better affidavit does not have to come by way of motion, it is not one contemplated under the Provision of Order 17 Rules 2 and 6 of the Federal High Court (Civil Procedure) Rules 2019, as the provisions deal with situations where a process is sought to be amended.
This issue is misconceived and same is resolved in favour of the Cross-Respondent and against the Cross-Appellant.
ISSUE 4
Exhibits GM and GM1 are affidavits of Onumajuru Francis and Remigus Nnamdi Anyaehie – (Chairman and Secretary respectively of the All Progressive Congress Umuozu Ward.
Exhibit E9 and E10 are affidavits deposed to by the same people, denying the contents of Exhibits G and GM1.
The Court had held that exhibits E9 & E10 was a rebuttal to the Cross-Appellants Exhibits GM; GM1, GB and GC. The Court below later proceeded to hold that Exhibits E9 and E10 were not conclusive proof that the Cross-Appellant did not resign his membership of the All Progressive Congress. The Court in the face of those conflicting affidavits should have called for oral evidence but did not.
A painstaking perusal of the Courts’ evaluation of these conflicting affidavits shows that it mixed up all the facts. His reasoning was clearly perverse from record, Exhibits E9 and E10 have no passport photographs attached and were deposed to at the High Court Registry contrary to what the Court below had said.
The Cross-Respondent concedes at paragraph 8.04 of his 1st Cross-Respondents’ brief of argument that the Court below came to a wrong conclusion. The Cross-Appellant on the other hand argued that the Court below came to a right conclusion albeit having made adverse comments about paragraph 3.49 of the Cross-Appellants’ brief of argument.
Exhibits “GB” “GC” dated 10th February, 2022 and 14th February 2022 respectively shows that the Cross-Appellant resigned from the APC and that the APC received the said letter of resignation on the 11th of February, 2022.
Exhibit “GA” showed that the Cross-Appellant was expelled from the APC on the 10th of February, 2022.
The Appellant/1st Cross-Respondents’ Exhibits G, I, E9 and E10 were not membership card, nor membership register to show Cross-Appellant’s alleged continuous membership of the APC after his expulsion and resignation from the APC in February, 2022.
Exhibits C and D in the affidavit in support of the Cross-Appellants’ application filed on the 15th of July 2022 are Exhibits which the Court below did not avert his mind to. If he had done so, he would have arrived at a different conclusion and not hold that Exhibits E9 and E10 constituted the most credible of Plaintiffs/1st Cross-Respondent rebuttal of the Cross-Appellant’s Exhibits “GB” and “GC”.
Indeed, the Cross-Appellant’s letter of resignation from the APC- Exhibit “GB” was received by the addresses on the 11th day of February 2022. The effective date of a Notice of resignation is on the date the notice is received. – ADEFEMI V. ABEGUNDE (2004) 15 NWLR. Part 895 – pages 1 and 6, YESUFU V. GOV. EDO STATE (2001) 13 NWLR Part 731 page 17. AT 537. Paragraph 9 – h.
It is my view that when the makers of Exhibits E9 and E10 denied same in Exhibits C and D, the Court below should have called for oral evidence to verify the authenticity of the said Exhibits.
In all this confused state of mind of the Court below, it now observed as follows:
“Exhibits “E9” and “E10” to my mind were not conclusive proof that the 1st Respondent did not resign from the party. The Plaintiff shall have the additional onus of proving conclusively that the 1st Respondent still retained full membership of APC as of the time he contested the election in PDP. The law is that he who asserts must prove”.
A careful perusal of the Exhibits tendered by the Cross-Appellant, shows that he was no longer a member of the APC as at the time he took part in the Primaries.
A Court of law should not speak from the two sides of is month. This issue is resolved in favour of the Cross-Appellant and against the 1st Cross-Respondent.
ISSUE NO. 5
The Court below was clearly wrong to hold that Exhibits “GB” and “GC” seemed to be “billet doux” (love letter). To say that such vital documents are like love letters is ludicrous and the Court below was wrong to have cast such aspersion on such important documents before it. Such observation is perverse in all its ramifications and highly deprecated.
This issue is resolved in favour of the Cross-Appellant and against the 1st Cross-Respondent.
ISSUE NO. 6
From my reasoning in Issues 4 and 5, at the expense of repetition, it is clear that the Court below got itself muddled up as to the facts in the case regarding exhibits. It is the duty of a Court of law, while appraising and evaluating evidence, to say which one is proper and which one is not proper. But the conclusion of the Court must not be perverse or exhibit a misunderstanding of the facts before it. That would amount to a gross miscarriage of justice.
There is nothing wrong when affidavits are deposed to. As long as it is under oath.
Ideally, an affidavit is not supposed to carry the deponent’s passport photograph. Absence of passport photograph in an affidavit properly deposed to and sworn to does not vitiate the affidavit. The Court below was therefore wrong in its holding that Exhibits “GM” and GM1” were of doubtful because they did not have the deponents’ passport and I so hold.
This issue is resolved in favour of the Cross-Appellant and against the 1st Cross-Respondent.
ISSUE NO. 7
The issue raised on issue 7 can rightly be said to have been treated extensively in issues 4 – 6. The Court below was wrong to have held that the effective date of resignation was not in February 2022.
This issue is resolved in favour of the cross-appellant and against the 1st cross Respondent.
The Cross-Appeal succeeds in part and I so hold. Parties shall bear their respective costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in advance, the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA., where the facts and the issues in contention have been succinctly determined.
I am in agreement with my learned brother’s exhaustive determination of the issues and I also dismiss the substantive appeal, and affirm the judgment of the lower Court.
The Cross-Appeal, I also agree, succeeds in part, as determined in the lead judgment.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother R.N. Pemu JCA. I must say his lordship has clearly resolved all the issues in this appeal and the appeal apparently is without merit. I too dismiss same. I abide by the Orders made therein.
CROSS APPEAL
On the cross-appeal, I agree with his lordship Pemu, JCA that it is also lacking in merit and should also suffer the same fate as the main appeal. Same is hereby dismissed as well.
Appearances:
K.C. Ehujuo, Esq., with him, Obinna Onyia, Esq. For Appellant(s)
K.C. Nwufo, SAN, with him, E.R. Iremeka, Esq. and U.N. Isaac, Esq. – for 1st Respondent
I.K. Ujah, Esq. – for 2nd Respondent.
M.K. Abdullahi, Esq. – for 3rd Respondent For Respondent(s)
