EKPOUDOM v. APC & ANOR
(2022)LCN/16462(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, November 14, 2022
CA/ABJ/CV/1055/2022
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
UDOM UDO EKPOUDOM APPELANT(S)
And
1. ALL PROGRESSIVES CONGRESS 2.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO:
THE RULES OF COURT MUST BE OBEYED AT ALL TIMES
He submitted that it is trite law that Rules of Court as regards taking of procedural steps must be obeyed at all times. He however submitted that where there is non-compliance, the Court can still exercise its discretionary powers to extend time within which such procedural steps may be taken. He relied on the cases of Chigbu v Tonimas, (1999) 3 NWLR (pt 593)115 and Odutola v Lawal (2002)1 NWLR (Pt 749)633. He also referred the Court to the depositions in the affidavit in support of application and urge the Court to exercise its judicial discretion in favour of the 1st Respondent and grant the application. HARUNA SIMON TSAMMANI, J.C.A.
THE EFFECT OF TIMING ON INSTITUTION OF THE SUIT
see Aladejobi V. NBA (2013) LPELR 20940 and Bamaiyi V. AGF &Ors. (2001) 12 NWLR (Pt 727) 466 at 497. And to show the essence and importance of time in filing processes, whether in election or pre-election related matters, this Court in the case of OlaanimashaunHarimotOlubukola (Mrs.) & Anor. V. Attorney-General of Lagos State &Ors, (2016) LPELR 4145 held as follows:-
“One fundamental point that must be made at this stage is the effect of timing on institution of the suit. The sui generis nature of matters relating to election has unwittingly made time of taking steps an important element. An otherwise legitimate claim in ordinary civil action fails to fly in election matter for failure to act within certain timelines and this point was made clear in the case of Hassan v. Aliyu (2010) 17 NWLR (PT.1223) 547 S.C. where Onnoghen J.S.C, at page 599 said as follows; “In an election related matter time is of essence. The same applies to pre-election matters. Election matters are sui generis very much unlike ordinary civil or criminalproceedings.” Per Nimpar, J.C.A in Olubukola& Anor. v. A.G of Lagos State &Ors. (2016) LPELR-41451(CA) (Pp. 35 Paras. A)
See also Owuru V. Awuse & Ors. (2004) LPELR 7339 (CA) and Omisore & Anor. v. Aregbesola & Ors.(2015) LPELR 24803 (SC). HARUNA SIMON TSAMMANI, J.C.A.
ANY SPECIAL AND SPECIFIC STATUTORY PROVISION EXCLUDED THE GENERAL ONE
The law is that any special and specific statutory provision excludes the general one. In the case at hand, the specific provision of the Election Petition and Court Practice Directions specially provided for to regulate the instant suit must prevail over Order 8 of the Court of Appeal Rules which is a general provision on appeals to the lower Court. The special provision is interpreted as taking away the effect of the general provision. See Schroder v. Major (1989) 2 NWLR (Pt.101) 1 at 13, Kraus Thompson Organisation v. National Institute of for Policy and Strategic Studies (2004) LPELR – 1714 (SC); (2004) 17 NWLR (Pt. 90) 44 and Dr. Umar Ardo v. Admiral Murtala Nyako & Ors (2014) LPELR- 2287(SC); (2014) 10 NWLR (Pt. 1416) 591.” HARUNA SIMON TSAMMANI, J.C.A.
THE COURT JURISDICTION TO DETERMINE A SUIT IS DETERMINRD BY THE RELIEFS SOUGHT
In J.AAisowieren& Sons Ltd. 14 Osagiede& Anor. (2021) LPELR – 54141, this Court, BiikisuAHyu, JCA held thus:-
“It is the law, beyond any argument that the Court jurisdiction to determine a suit is determined by the reliefs sought therein, compared with the statutorily provided jurisdiction of the Court.”
In the case of Alalade V. President of The Ota Grade 1 Customary Court &Ors. (2021) LPELR – 55654, this Court held as follows:-
“I consider it well settled that jurisdiction is determined by the claim of the plaintiff. It is what the plaintiff submits to the Court for adjudication, that is to say, the subject matter and claim that determines whether the Court has jurisdiction to entertain the claim or not. Therefore, the process to be examined in determining if the Court has jurisdiction to hear and determine the matter submitted to it for adjudication is the plaintiff’s claim” HARUNA SIMON TSAMMANI, J.C.A.
THE EFFECT OF THE FAILURE OF THE DEFENDANT TO RESPOND TO ISSUES RAISED AGAINST THE BACKGROUD OF THEIR ROLE
I am of the view that the trial Court misconceived the position of the law to the effect that documents attached to an affidavit whether they are public documents or private documents require no certification as the documents are already part of theaffidavit which the trial Court can evaluate and ascribe probative value to. I therefore hold that, the finding of the trial Court at lines 17-24 of pages 377 – 378 of the record of appeal is erroneous and amounts to miscarriage of justice on the part of the Appellant. Therein, the trial Court held that:
“The comment on the mode of receiving Exhibits APC 10 and APC 11 pertains to 2nd defendant who is a party in this case. And the 2nd Defendant as a party to this suit has not come out to deny the contents on Exhibit APC 10 and APC 11. Plaintiff not being an administrative staff of the 2nd Defendant is not in a position to speak as the internal workings of the Defendant. The failure of the Defendant to respond to issues raised against background of their role, in this case, amounts to an admission. Exhibit FA4 attached to the Plaintiff’s further Affidavit as press release disclaiming that the 1st Defendant has made any submission to it in respect of the Akwa-Ibom North West Senatorial District; may be the position of the 2nd Defendant in the instant case but it is an uncertified document without evidential value being a public document.” HARUNA SIMON TSAMMANI, J.C.A.
FACTS DEPOSED TO IN AN AFFIDAVIT AND THE INTENTION OF DRAFTERS ON A LEGISLATION TO ENSURE CREDIBIILITY
In the case of Danladi v. Taraba State House of Assembly &Ors. (2014) LPELR – 24021, the Supreme Court of Nigeria held:-
“Where facts deposed to in an Affidavit on a crucial and material issue are not controverted or denied in a counter Affidavit such facts must be taken as true except they are moon shine. See Alagbe V Abimbola (1978) 2 SC P.39, Agbaje V Ibru S. F Ltd. (1972)5SC 50 at 55.
In the instant case, the 1st Respondent fully knows that the said Akpabio Godswill Obot took part in its Presidential Primary Election on 6th- 9th June, 2022, but still proceeded to expose the person of Akpabio Godswill Obot as its candidate in the AkwaIbom North West Senatorial District on 28th of May to 9th June, 2022 contrary to the clear provision of Section 35 of the Electoral Act, 2022 which provides as follows:-
“Where a candidate knowingly allows himself to be nominated by more than one Political party or in more than one Constituency his nomination shall be void.”
This provision of the Electoral Act, 2022 clearly stipulates the invalidity of multiple nominations and by the use of the word “shall” in the statute, it amounts to a command, a must, compulsion or an obligation or mandatory. See Aladejobi V NBA (2013) LPELR – 20940 (SC), Bamaiyi V Attorney General Federation &Ors. (2001) 12 NWLR (Pt. 727) 466 at 497. Thus, the intention of the drafters of this beautiful piece of legislation is to ensure credibility and integrity of the Electoral Process and yet the 1st Respondent Jettisoned same by nominating and attempting to forward the name of Akpabio Godswill Obot to the 2nd Respondent as its candidate for the Akwa Ibom North West Senatorial District for the 2023 General Election. HARUNA SIMON TSAMMANI, J.C.A.
BREACH OF THE RIGHT OF FAIR HEARING AND A PERVERSE DECISION AGAINST A PARTY IN PROCEEDING
A miscarriage of justice simply means judgment or Order of a Court rendered in flagrant breach of the right to fair hearing and a perverse decision against a party in proceeding which if not set aside will amount to a denial of justice to the party affected. In Olusola Adeyemi v The State, (2014)11 SCM1 at 20, the Supreme Court per Odili JSC said:
“To maintain the link in the discourse is to define what miscarriage of justice is which would render a Court of Appeal without option than to intervene and set aside what the Lower Court had done.”
On the other hand, Bode Rhodes-Vivour, JSC in the case of Dennis Akoma & Anor. v. Obi Osenwokwu & Ors. (2014)11 NWLR (pt 1419) 462 at 97 held that:-
“it however depends on fact and circumstances of each case. There would be miscarriage of justice when an error can be seen in the proceedings/judgment and had it not been for the error a decision more favourable to the party that lost would have been given. There is a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining.” HARUNA SIMON TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Abuja in Suit No. FHC/ABJ/CS/1000/2022 delivered on 23rd of September, 2022 by D. U OKOROWO, J.
The Appellant (as Plaintiff at the trial Court) commenced this suit by an Originating Summons calling for determination of the following:-
1. Whether by virtue of Sections 29(1), 33, 84(5)(c)(i) and (ii) of the Electoral Act 2022 (as amended) and Paragraph 5c and 22(ii) 2 of the 1st Defendant’s guidelines for the Nomination of Candidate for the 2023 General Elections, the 1st Defendant ought not to submit the name of the Plaintiff as the Senatorial Candidate of the 1st Defendant (ALL PROGRESSIVES CONGRESS) for the Akwa Ibom North West Senatorial District for the 2023 general election.
2. Whether by virtue of Section 29(1), 33, 82(1)(5) and 84(1)(5)(c)(i) and (ii) (13) of the Electoral Act 2022 (as amended) the 2nd Defendant can accept/publish the name of any other person as the candidate of the Akwa-Ibom North West Senatorial District: the plaintiff not having withdrawn his candidacy.
And if the above two questions are determined in his favour, he should be granted the following claims:-
1. A DECLARATION that by virtue of the provisions of Section 29(1), 33, 82(1) (5) and 84(1) (5)(c)(i) and (ii) (13) of the Electoral Act 2022 (as amended), and Paragraph 5c and 22 (ii)2 of the Defendant’s Guidelines for the Nomination of Candidates for the 2023 General Election, the Plaintiff who scored the highest number of votes (338) in the Primary Election of the 1st Defendant conducted on 27h May, 2022 is the validly elected candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 General Election.
2. A DECLARATION that by virtue of the provisions Sections 29(1), 33, 82(1) (5) and 84(1) (5)(c)(i) and (ii) (13) of the Electoral Act 2022 (as amended), the 2nd Defendant ought to accept/publish the name of the Plaintiff as the validly elected candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 general election.
3. AN ORDER directing the 1st Defendant to issue a Certificate of Return to the Plaintiff as the winner of the Primary Election conducted by the1st Defendant for the Akwa Ibom North West Senatorial District held on the 27th day of May, 2022 and submit his name to the 2nd Defendant as its candidate for the Akwa Ibom North West Senatorial District for the 2023 General Election.
4. AN ORDER directing the 2nd Defendant to receive/accept/publish the name of the plaintiff as the validly nominated candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 General Election.
5. AN INJUNCTION restraining the 1st Defendant from submitting the name of any other person whomsoever to the 2nd Defendant as the candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 General Election.
6. AN INJUNCTION restraining the 2nd Defendant from accepting/publishing the name of any other person whomsoever as the candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 General Election.
The Originating Summons is supported by an Eleven (11) paragraphs Affidavit duly deposed to by the Plaintiff himself. Attached to the supporting affidavit are Exhibits marked Exhibits A1, A2, B, C, D, E and F respectively.
In further support of the Originating Summons is a Written Address of Counsel on behalf of the Plaintiff.
On service of the Originating Summons on the Respondents (Defendants at the trial Court), the 1st Defendant, All Progressives Congress (APC), filed a Notice of Preliminary Objection on 13th July, 2022 praying the trial Court for an Order dismissing and/or striking out this suit for want of jurisdiction. On 20th July, 2022 the 1st Defendant filed a Further and Better Affidavit in support of its Preliminary Objection.
The Grounds for the objection are that:-
(1) The Plaintiff failed to join the person whose name was submitted by the 1st Defendant to the 2nd Defendant contrary to the mandatory provisions of Rules 3 of the Federal High Court of Nigeria (Pre-election) Practice Directions, 2022.
(2) This Hon. Court lacks the jurisdiction to enquire into which of the two alleged Party Primary Elections of May 27th, 2022 and June 9th, 2022 is the valid party primary Election of the 1st Defendant.
(3) The suit neither challenged the conduct of the 1st Defendant’s Primary Election for the Akwa-Ibom North West Senatorial District held on June 9th,2022 nor alleged that the 1st Defendant submitted false information to the 2nd Defendant, therefore, the jurisdiction under any provision of the Electoral Act.
The 1st Defendant, in opposition to the Originating Summons, filed a counter affidavit of 46 paragraphs sworn to by one Damilola Odusanya, Legal Officer in the Legal Department of the 1st Defendant. The counter affidavit has attached to it exhibits marked as exhibits 1 – 15, respectively. The 1st Defendant equally filed a Written Address in support of his Preliminary Objection and in opposition to the plaintiff’s Originating Summons.
The Plaintiff on the other hand filed a reply to the 1st Defendant’s Preliminary Objection on 15th July, 2022. On the same 15th July, 2022, the Plaintiff filed a Further Affidavit in support of his Originating Summons. The Further Affidavit is of 25 paragraphs duly deposed to by the Plaintiff himself with documents attached and marked as Exhibits FA1-FA6, respectively. The plaintiff filed on the 19th July, 2022 a Further and Better Affidavit and attached certified true copies of Exhibits FAB7 and FAB8 respectively. Then the 1st Defendant on 5th August, 2022 filed the 1st Defendant’s 2nd Further and Better Affidavit Opposing the Originating Summons. The 2nd Further and Better Affidavit is of 15 paragraphs.
The brief facts of this case is that the Plaintiff is a member of the 1st Defendant, All Progressive Congress (APC) and that he purchased the 1st Defendant’s Nomination Form to contest in the 1st Defendant’s Primary Election for the Akwa Ibom North West Senatorial District for the 2023 General Elections. According to the Plaintiff, the 1st Defendant set up a Screening Committee of all its aspirants for the National Assembly Elections. The Plaintiff was screened and cleared to contest the Primary Election in respect of the Akwa Ibom North West Senatorial District for the 2023 General Elections scheduled by the 1st Defendant on the 27th day of May, 2022 and that the Plaintiff won the said election having scored the highest number of lawful votes. The Plaintiff states that the 1st Defendant’s Primary Election of 27th day of May, 2022 that produced him as winner was monitored by the 2nd Defendant (INEC) and that he (the Plaintiff) was shocked and surprised when the 1st Defendant failed to submit his name to the 2ndDefendant as the validly nominated candidate of the 1st Defendant on the 17th day of June, 2022, the day stipulated by the 2nd Defendant as the deadline for the submission of names vide its nomination portal.
The 1st Defendant on the other hand states that it scheduled its primary election for purpose of electing its candidate for the Akwa Ibom North West Senatorial District on May 28th, 2022 but concluded same on the June 9th, 2022 with Akpabio Godswill Obot elected as her candidate. The 1st Defendant states that it notified the 2nd Defendant of the rescheduling of the Party Primary Election for the Akwa Ibom North-West Senatorial District on the 9th day of June, 2022 by a letter signed by its National Chairman and National Secretary. According to the 1st Defendant Akpabio Godswill Obot having emerged the candidate of the 1st Defendant for the said Akwa- Ibom North-West Senatorial District had his name and particulars submitted to the 2nd Defendant as the 1st Defendant’s nominated candidate for the Akwa Ibom North West Senatorial District.
The Plaintiff however states that the 1st Defendant never conducted any Primary Election for Akwa Ibom NorthWest Senatorial District on 28th of May, 2022 or the 9th of June, 2022 and that he never took part in any, having already won the only primary election conducted by the 1st Defendant for the Akwa Ibom North West Senatorial District on the 27th day of May, 2022. According to the Plaintiff, Akpabio Godswill Obot who is alleged to have participated in a Senatorial Election on the 9th of June, 2022 is the one and the same person who took part in the 1st Defendant’s presidential primary election which took place at the Eagle square in Abuja from the 6th to the 9th of June, 2022.
On 23rd the day of August, 2022, the plaintiff and the 1st Defendant through their respective Counsel, adopted their processes including the 1st Defendant’s Preliminary Objection. The trial Court subsequently adjourned for judgment to the 21st day of September, 2022. However, the ruling/judgment was delivered on the 23rd September, 2022 and the trial Court at paragraph 4 of page 375 and pages 376 – 387 of the Record of Appeal resolved the Preliminary Objection in favour of the 1st Defendant and in particular at paragraph 2 of page 387 of the Record of Appeal held thus:-
“Having heldthe plaintiff’s action is not justiciable, it follows that this Court has no jurisdiction to entertain the case. The plaintiff’s suit is hereby struck out.”
Dissatisfied with the judgment of the trial Court, the Appellant filed two Notices of Appeal. The first is dated and filed on 30th September, 2022 while the second was dated 2nd October, 2022 but filed on 4th October, 2022. Learned Senior Counsel to the Appellant, Solomon Umoh, SAN relied on the Notice of Appeal dated 2nd October, 2022 and filed on 4th October, 2022 as the extant Notice of Appeal of the Appellant. The said Notice of Appeal consists of five Grounds of appeal. The Record of Appeal was transmitted on the 7th October, 2022 and the Appellant filed its Brief of Argument on 14th October, 2022. The 1st Respondent filed its Respondent’s Brief of Argument out of time and then brought an application, i.e a Motion On Notice dated 24th September, 2022 and filed on 27th October, 2022 praying the Court for the following Orders:-
(1) An Order extending the time within which the 1st Respondent may file the 1st Respondent’s Brief of Argument
(2) An Order deeming the already separately filedand served 1st Respondent’s Brief of Argument as properly filed and served.
The Grounds for the Application are that:-
(1) The 1st Respondent is out of time within which to file the 1st Respondent’s Brief of Argument in accordance with the Rules of this Court;
(2) The 1st Respondent’s Brief of Argument has now been separately filed and served on the Appellant and the 2nd Respondent; and
(3) The leave of this Honourable Court is required to regularize the process filed by the 1st Respondent In support of motion is a 12 paragraph Affidavit. 1st Respondent also filed a written address in support of motion.
The Appellant on the 28th day of October, 2022 filed the Appellant’s Reply on Points of Law to the Written Address of the 1st Respondent in opposition of motion for extension of time. In the Written Address of the 1st Respondent in support of the application, Learned Counsel distilled the following issue for determination:-
“Whether this Honourable Court can grant this application?”
In proffering argument on the above issue, Learned Senior Counsel submits that the Court of Appeal, Election Judicial Proceedings PracticeDirections, 2022 prescribes the time limit within which the 1st Respondent may file the 1st Respondent’s brief of argument, and the 1st Respondent is out of time. He submitted that it is trite law that Rules of Court as regards taking of procedural steps must be obeyed at all times. He however submitted that where there is non-compliance, the Court can still exercise its discretionary powers to extend time within which such procedural steps may be taken. He relied on the cases of Chigbu v Tonimas, (1999) 3 NWLR (pt 593)115 and Odutola v Lawal (2002)1 NWLR (Pt 749)633. He also referred the Court to the depositions in the affidavit in support of application and urge the Court to exercise its judicial discretion in favour of the 1st Respondent and grant the application.
The Appellant’s Senior Counsel in his Reply on Points of Law submitted that the 1st Respondent was served with the Appellant’s Brief of Argument on the 14th day of October, 2022 and 1st Respondent’s Brief of Argument was filed on 27th October, 2022. He also posited that the efforts of the 1st Respondent is coming too little and too late having regard to the provisions of paragraph 12 readtogether with paragraph 14(c) of the Court of Appeal Election Judicial Proceedings Practice Direction, 2022 which prescribes that Respondent’s Brief of Argument to be filed within five (5) days of service of the Appellant’s Brief of Argument. He urged the Court to dismiss the application.
To resolve the instant application filed by the 1st Respondent, I hereby adopt the sole issue for determination as formulated by the 1st Respondent’s Senior Counsel. The issue is-
“Whether this Honourable Court can grant this application?”
The Learned Senior Counsel to the 1st Respondent referred to Order 6 Rule 9 of the Court of Appeal Rules, 2021 and submitted that this Court has discretionary powers to extend the time within which the 1st Respondent can comply with the Rules of this Court. I have also seen the facts deposed to in the affidavit in support as well as the Grounds upon which the application is premised. The learned senior counsel to the 1st Respondent admitted that the Court of Appeal Election Judicial Proceedings Practice Directions, 2022, prescribes the time limit within which the 1st Respondent may file the 1st Respondent’s Brief of Argument.There is no dispute that the suit that gave rise to the instant appeal is a pre-election matter. The Apex Court and indeed this Court had held severally that pre-election matters fall in the category of cases that are termed ‘sui generis’ which its Latinism connotes of a special class, kind or nature. In other words, pre-election related matters are time bound. Thus, because of the nature and importance of time in the disposal of pre-election related cases, by the Federal Republic of Nigeria official Gazette of July 2022 with short title:-
“Election Judicial Proceedings Practice Directions, 2022.”
Clause 12 or paragraph 12 of the said Election Judicial Proceedings Practice Directions, 2022 provides as follows:-
(12) The Respondent shall file in the Court his own Brief of Argument within five (5) days of service of the Appellant’s Brief of Argument. Paragraphs 11 (a) to (d) above shall apply mutatis mutandis, on the Respondent’s Brief of Argument.
Thus, a close look at paragraph 12 above, by the use of the word “shall” in the Practice Directions, it connotes mandatoriness, compulsion, a command, an obligation that the parties must file theirBriefs of Arguments within the time stipulated by the election judicial proceedings Practice Directions, 2022; see Aladejobi V. NBA (2013) LPELR 20940 and Bamaiyi V. AGF &Ors. (2001) 12 NWLR (Pt 727) 466 at 497. And to show the essence and importance of time in filing processes, whether in election or pre-election related matters, this Court in the case of OlaanimashaunHarimotOlubukola (Mrs.) & Anor. V. Attorney-General of Lagos State &Ors, (2016) LPELR 4145 held as follows:-
“One fundamental point that must be made at this stage is the effect of timing on institution of the suit. The sui generis nature of matters relating to election has unwittingly made time of taking steps an important element. An otherwise legitimate claim in ordinary civil action fails to fly in election matter for failure to act within certain timelines and this point was made clear in the case of Hassan v. Aliyu (2010) 17 NWLR (PT.1223) 547 S.C. where Onnoghen J.S.C, at page 599 said as follows; “In an election related matter time is of essence. The same applies to pre-election matters. Election matters are sui generis very much unlike ordinary civil or criminalproceedings.” Per Nimpar, J.C.A in Olubukola& Anor. v. A.G of Lagos State &Ors. (2016) LPELR-41451(CA) (Pp. 35 Paras. A)
See also Owuru V. Awuse&Ors. (2004) LPELR 7339 (CA) and Omisore& Anor. v. Aregbesola&Ors.(2015) LPELR 24803 (SC).
The above is not limited to only filing of either Pre-Election or post-election matters but it includes failure to act within certain timelines in filing processes where time limit is prescribed. Thus, the Court of Appeal Election Judicial Proceedings Practice Directions, 2022 having regulated or prescribed time for filing of Briefs of Argument, it automatically excludes the general provision of Order 6 Rule 9 of the Court of Appeal Rules 2021 that empowers the Court to extend the time to file the 1st Respondent’s Brief of Argument. And this point was made even clearer when in the case of Hassan V. Aliyu (supra), Onnoghen, JSC, was emphatic when he said:
“In an election related matter, time is of essence. The same applies to pre-election matters. Election matters are sui generis very much unlike ordinary civil or criminal proceedings.”
In the recent case of Maku V. Sule, (2022) 3NWLR (pt 1817)231 at 258 Paras A-D, the Supreme Court of Nigeria had cause to consider Order 8 Rule 4 of the Court of Appeal Rules, 2016 dealing with appeals and compilation and transmission of Record and held thus:-
“Again, one notes with tremendous discomfort that the decision of the lower Court the respondents insist this Court affirms emanates from the Court’s application of Order 8 Rule 4 of the Court of Appeal Rules, 2016, a general provision in respect of appeals, notwithstanding the existence of the more specific extant provision of the Election Tribunal and Court Practice Directions 2011 specially provided for to regulate appeals arising from Election Petition proceedings. The law is that any special and specific statutory provision excludes the general one. In the case at hand, the specific provision of the Election Petition and Court Practice Directions specially provided for to regulate the instant suit must prevail over Order 8 of the Court of Appeal Rules which is a general provision on appeals to the lower Court. The special provision is interpreted as taking away the effect of the general provision. See Schroder v. Major (1989) 2 NWLR (Pt.101) 1 at 13, Kraus Thompson Organisation v. National Institute of for Policy and Strategic Studies (2004) LPELR – 1714 (SC); (2004) 17 NWLR (Pt. 90) 44 and Dr. Umar Ardo v. Admiral Murtala Nyako&Ors (2014) LPELR- 2287(SC); (2014) 10 NWLR (Pt. 1416) 591.”
In the instant case, paragraph 12 of the Court of Appeal Election Judicial Proceedings Practice Directions, 2022 is crystal clear and admit of no ambiguity that the Applicant (1st Respondent) shall file his Brief of Argument within five (5) days after the service of the Appellant’s Brief of Argument. Thus, by this specific provision in the Election Judicial Proceedings Practice Directions, 2022, it excludes Order 6 Rule 9 of the Court of Appeal Rules, 2021. In other words, by paragraph 12 of the Practice Directions, no extension of time is envisaged or would be tolerated. It is a proactive piece of legislation to prevent litigants and their counsel from slumber and hallucination of yesteryears.
Therefore, the application of the 1st Respondent to file his Brief of Argument out of time is not grantable and it is accordingly refused and dismissed. In consequence, the 1st Respondent’s Brief ofArgument filed on the 27th October, 2022 out of time is incompetent and it is accordingly struck out.
As I said earlier, the Appellant filed its Brief of Argument on 14th of October, 2022. Both the 1st and 2nd Respondents have no Brief of Argument in this appeal. Thus, this appeal shall be determined on the Appellant’s Brief of Argument alone. Therein, three issues were distilled for determination as follows:
(1) Whether from the facts and surrounding circumstances of this case the learned trial Court was right to have decided and determined its jurisdiction to entertain the Appellant’s case by relying heavily on the defence put forward by the 1st Respondent rather than the plaintiff’s claims as contained in his Originating Summons, (Distilled from Grounds 1 and 3 of the Notice of Appeal)
(2) Whether the trial Court approbated and reprobated in this case when after it rejected and refused to evaluate Exhibit FA4 (INEC Press Release) on the grounds that it is an uncertified public document but however in another breadth proceeded to accept and evaluate Exhibits APC10 and APC11 which were also uncertified public documents. (Distilled from Groundsof the Notice of Appeal).
(3) Whether the learned trial Court was right when it struck out the Appellant/Plaintiff’s suit relying on the case of Lado V. CPC (2011)48 NSCQR 501 at 541 and concluded that the issue involved in Appellant/Plaintiff’s case borders on who is the rightful candidate of the 1st Defendant emanating from conflicting primaries alleged to have been conducted by the party and that same is not justiciable. (Distilled from Ground 4 and 5 of the Notice of Appeal).
I will consider the arguments of counsel on each issue for determination and resolve same.
On issue one, Learned Senior counsel submitted that, the law is beyond peradventure that the jurisdiction of a Court in determining a case before it is primarily determined based on the plaintiff’s claims/reliefs as contained in his Originating process before the Court. Learned Senior Counsel cited the cases of Abdulraheem V Oduleye, (2019) 8 NWLR (Pt 1674), Titiloye V. O.S.B.I.R (2020)4 NWLR (Pt 1715) 445, Globe Motors Holding (NIG) Ltd. 14 Westar Associates Ltd. (2021) LPELR 56225 (CA), Dec OIL & Gas Ltd V. Shell (NIG) Gas Ltd. (2019)LPELR 49347 (SC). He then submitted thatthe Appellant as the Plaintiff at the trial Court claimed that despite having emerged as the winner of the 1st Respondent’s Primary Election conducted on 27th May, 2022 for the nomination of the 1st Respondent’s senatorial candidate for the Akwa Ibom North West Senatorial District, which primary election was monitored by the 2nd Respondent, the 1st Respondent, nevertheless, failed and refused to forward his name to the 2nd Respondent for publishing as its nominated candidate as required by law.
Learned Senior Counsel then referred to the questions nominated for determination and the claims or reliefs sought. Learned Senior Counsel also posited that the learned trial Judge placed heavy reliance on the Defendants’ defence rather than the Plaintiff’s claim as contained in his Originating Summons, thereby arriving at an erroneous finding at pages 380-381 of the Record of Appeal. He contended that the Appellant’s case before the trial Court did not at any time claim that a person’s name other than his own, as the winner of the primary election for the 1st Respondent’s Akwa Ibom North-West Senatorial District seat be forwarded/published orattempted to be published by the 1st Defendant, in which case, it would have been mandatory for the Appellant by virtue of Rule 3 of the Federal High Court of Nigeria (Pre-Election) Practice Directions, 2022, to have joined the said person as a Defendant in this case. He also submitted that it is apparent on the portion of the judgment of the Court above that it was the 1st Respondent in its defence to the Appellant’s case that introduced the allegation that another person’s name i.e Godswill Obot Akpabio was submitted and/or attempted to be submitted by the 1st Respondent to the 2nd Respondent for publishing and not the Appellant. Learned senior counsel therefore argues that the learned trial Court not only considered the allegation introduced in the case by the 1st Respondent in its defence, it accepted same and declined jurisdiction to entertain this matter on the ground that the provision of Rules 3 of the Federal High Court of Nigeria (pre-Election) Practice Directions, 2022 was not complied with by the Appellant for not joining Godwill Obot Akpabio as a party to this case.
At paragraphs 1.20-1.27 of the Appellant’s Brief of Argument, learned senior counsel submitted that though the trial Court relied on the 1st Respondent’s defence to determine its jurisdiction contrary to the established position of the law and also that it is not the case of the Appellant at the trial Court that a name was forwarded/published or attempted to be published by the 1st Respondent rather than his own name that won the primaries. He further posited that, rather than driving away the Appellant from the seat of judgment, the trial Court by virtue of Order 9 Rule 14 (2)(b) of the Federal High Court Rules 2019 had jurisdiction to join Godswill Obot Akpabio whose name was introduced by the defence or the 1st Respondent who was in a position to fight for the said Godswill Obot Akpabio.
In conclusion, Learned Senior Counsel then urged us to resolve issue one in the Appellant’s favour and proceed to determine the questions as contained in the Originating Summons and grant the reliefs.
It is clear that issue one is appropriate and arises from the complaints in grounds 1 and 3 of the Notice of appeal. Firstly, in determining jurisdiction of a Court, it is the claim or reliefs in the Originating process that the Court shall view and consider. In J.A Aisowieren & Sons Ltd. 14 Osagiede & Anor. (2021) LPELR – 54141, this Court, Biikisu AHyu, JCA held thus:-
“It is the law, beyond any argument that the Court jurisdiction to determine a suit is determined by the reliefs sought therein, compared with the statutorily provided jurisdiction of the Court.”
In the case of Alalade V. President of The Ota Grade 1 Customary Court &Ors. (2021) LPELR – 55654, this Court held as follows:-
“I consider it well settled that jurisdiction is determined by the claim of the plaintiff. It is what the plaintiff submits to the Court for adjudication, that is to say, the subject matter and claim that determines whether the Court has jurisdiction to entertain the claim or not. Therefore, the process to be examined in determining if the Court has jurisdiction to hear and determine the matter submitted to it for adjudication is the plaintiff’s claim”
Now, I have perused the questions nominated for determination by the Appellant at the trial Court and I have also carefully looked at the reliefs claimed by the Appellant before the trial Court. By the said two questions for determination and the reliefs claimed, and the Affidavit of the Appellant in support of his Originating Summons, the Appellant, as plaintiff at the trial Court claimed that despite having emerged as the winner of the 1st Defendant’s primary election conducted on the 27th day of May, 2022 for the nomination of the 1st Defendant’s senatorial Candidate for the Akwa Ibom North West Senatorial District, monitored by the 2nd Respondent, (INEC) the 1st Defendant failed and/or refused to forward his name to the 2nd Defendant (INEC) for publishing as its nominated candidate as stipulated by law. This is simply the grouse and crux of the Appellant’s case at the trial Court and the Appellant approached the trial Court to protect and enforce his legal right as winner of the 27th May, 2022 primary election of the 1st Respondent. Therefore, as it is, the only processes to be looked at by the trial Court in determining its jurisdiction are the questions submitted for determination by the Plaintiff/Appellant and the claims as contained in the Originating Summons as well as Affidavit in support thereof. The trial Court has no business perusing the processes filed by the 1stDefendant in its defence. In the case of Reptico S.A Geneva v. Afribank (NIG) PLC, (2013)LPELR 20662, the Supreme Court of Nigeria held thus:-
“The only and primary duty of Court is to ensure that plaintiff’s claim or case is cognizable. That is, capable of being judicially tried or examined by the Court. As a result in considering whether or not a Court has jurisdiction to try or examine a claim brought by a plaintiff, only the claim endorsed on the writ of Summons and statement of claim should be considered. No reference is to be made to whatever defence the defendant may put up against the plaintiff’s claim. In Alphonsus Nkuma V Joseph Otunuya Odili, (2006)4 SCM 127 AT 135, this Court opined as follows: “It is a plaintiff who brings a suit that also nominates the issues for decision in the case. Once a plaintiff’s suit is based on a right, which is cognizable under the law, it is not for the Court to dictate to such plaintiff the manner by which to frame the remedy being sought. The crucial question is has the plaintiff called sufficient evidence that will enable the Court grant him the relief being sought. What is material for consideration is the case as presented by the plaintiff before the Court. The Court cannot formulate a different case for the plaintiff. See S.D Ilodibia V Nigerian Cement Company Limited (1997)7 NWLR (Pt 512)54-55; Ekpenyong V Nyong, (1975)2SC 71 at 80.”
Thus, by the Affidavit evidence of the plaintiff in support of his Originating Summons especially paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 10, the Plaintiff/Appellant deposed to facts that warrant the trial Court to consider the questions and determine same in the light of the provisions of Sections 29 (1), 33, 84(5)(C)(i) and (ii) of the Electoral Act, 2022 and paragraphs 5c and 22(ii) of the 1st Respondent’s Guidelines for nomination of candidates for the 2023 General elections pursuant to Section 84(14) of the Electoral Act, 2022 to determine the complaints of the plaintiff. Instead of situating the claims of the plaintiff in the Originating Summons and Affidavit, the trial Court at page 380, lines 15-23 to page 381 of the Record of Appeal held as follows:-
“The 1st Defendant submitted that this suit is incompetent in the face of the non-joinder of Akpabio Godswill Obot, whom the 1st Defendant alleged to be the winner of the primary and whose name to the plaintiff’s knowledge was forwarded or attempted to be forwarded to INEC as the candidate of the 1st Defendant for the Akwa-Ibom North West Senatorial District makes the plaintiff’s case incompetent, for the failure of the plaintiff to comply with Rule 3 of the Federal High Court of Nigeria (pre-election) Practice Directions, 2022. His submission accords with the decision of the Supreme Court in PDP V Ezeonwuka (supra). This issue is resolved in favour of the 1st Defendant.”
I have perused once again the Affidavit evidence of the Appellant in support of the Originating Summons, the Appellant never at any point in time claim that a person’s name other than his own, who won the primary election of the 1st Respondent for Akwa Ibom North West Senatorial District seat was forwarded or published or attempted to be published by the 2nd Respondent. If that was the case (it was not), it would have been mandatory for the plaintiff to comply with Rule 3 of the Federal High Court of Nigeria (pre-election) Practice Directions, 2022. The case of Achu Takim Achu V Civil Service Commission of Cross River State & Anor. (2009)3 NWLR (Pt1129) Page 45 at Pages 507-508 Para E- B cited by the Appellant’s Senior Counsel is very instructive in determining the competency or otherwise of a case before the Court vis-a-vis its jurisdiction. The Court held as follows:-
“In suits commenced by way of Originating Summons, it is for the plaintiff to formulate the issues for determination and not the defendant. However, a defendant to an action began by Originating Summons who has entered appearance to the Summons and who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter may make a counter-claim and not formulate issues. In the instant case, by virtue of Order 6 Rule 3 of the Cross River State High Court (Civil Procedures), the duty is on the appellant to include a statement of the question of the Court. The trial Court therefore is in error in not placing the appellant’s case in the proper perspective. The real issues placed before the trial Court for adjudication were those raised in the Originating Summons and those are the issues the trial Court ought to have addressed. The trial Court wrongly abandoned the main questions as raised by the appellant for determination in the Originating Summons and proceeded to consider issues purportedly formulated by the respondent.”
Thus, the finding of the trial Court at pages 380-381 of the Record of Appeal is erroneous as the issue of necessary parties or failure of the Appellant to join Akpabio Godswill Obot is not the case of the Appellant. The finding is extraneous to the case of the Appellant and it is accordingly resolved in favour of the Appellant and against the Respondents.
On issue two (2), it is the submission of learned senior Counsel to the Appellant at paragraphs 1.29-1.33 of the Appellant’s Brief of Argument to the effect that the acceptance of the extraneous allegation of the 1st Respondent that a name other than the Appellant who won the said Primary Election was either forwarded or attempted to be forwarded to the 2nd Respondent for publishing was based on the acceptance and evaluation of statutorily inadmissible evidence, that is, uncertified Public documents, Exhibits APC 10 and APC 11. According to the Learned Senior Counsel, the trial Court in coming to the finding that the 1st Respondent submitted the name of Akpabio Godswill Obot as its candidate for Akwa Ibom North West Senatorial District, relied on Exhibit APC 10 and APC 11 which are uncertified Public documents. He then submitted that the trial Court however refused to accept and evaluate exhibit FA4 (the Press Release by the 2nd Respondent (INEC), relating to primary election in Akwa-Ibom North West Senatorial District on the Ground that it is an uncertified Public document. He submits that the attitude of the trial Court amounted to approbating and reprobating at the same time which the law does not support. He relies on the case of SCOA (Nig.) PLC v. TAAN Ors. (2018) LPELR 4454 (CA).
Learned Counsel went on to submit that, this Court as an appellate Court has the main function of re-evaluating the evidence at the trial Court by examining the evidence on record. He relied on the case of Dada & Ors. v. Bankole &Ors. (2008) LPELR 907(SC). Learned Senior Counsel further urge us to expunge exhibits APC 10 and APC 11 for being statutorily inadmissible in evidence. The case of Nwaogu V Atuma (2013) 11 NWLR (PT 1364) 117 at Page 137 Para B; 154-155 Paras. H-A. was also cited in support.
The grouse of the Appellant in issue two is that the trial Court placed reliance on Exhibits APC 10 and APC 11, which documents are Public documents and not certified by law and he urge me to expunge same. Now, the law is that matters or cases fought in Court on the basis of affidavit evidence that does not require hearing witness(es), therefore, whether such documents are Public documents or not need not be certified. In the case of PDP V Amin & Anon (2019) LPELR – 50987, this Court held as follows:-
“It is now trite that uncertified Public documents attached to affidavit are admissible. A document attached or exhibited in the affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court and to be used once the Court is satisfied that it is credible.
Being already an evidence before the Court, the formality of certification for admissibility is usually dispensed with.”
See also NEC & Ors. V Wodi (1989) LPELR 14 331(CA), South Eastern State Newspaper Corporation & Anor. V Edet Asuquo Anwara (1975)1 ALL NLR (pt 11) page 38 at 44 and Boko V Nungwa (2018) LPELR 45890(CA).
In the instant case, Exhibits APC10 and APC 11 attached to the counter affidavit of the 1st Respondent alleged by the Appellant to be public documents require no certification because they are already part of the Affidavit evidence contested or fought on the suit or action commenced by Originating Summons. I therefore reject or refuse the invitation by the Appellant to expunge Exhibits APC 10 and APC 11 respectively. In the same breadth, as rightly submitted by the Learned Senior Counsel to the Appellant, the main function of this Court is to revaluate the evidence tendered at the trial Court by examining the whole record of appeal. See Dada & ORS If Bankole &Ors. (supra). The complain of the Appellant is that the trial Court relied on Exhibits APC 10 and APC 11 but failed to evaluate and rely on exhibit FA4 (the 2nd Respondent’s (INEC) Press Release, on the ground that the said exhibit FA4 was not certified being a public document.
I am of the view that the trial Court misconceived the position of the law to the effect that documents attached to an affidavit whether they are public documents or private documents require no certification as the documents are already part of the affidavit which the trial Court can evaluate and ascribe probative value to. I therefore hold that, the finding of the trial Court at lines 17-24 of pages 377 – 378 of the record of appeal is erroneous and amounts to miscarriage of justice on the part of the Appellant. Therein, the trial Court held that:
“The comment on the mode of receiving Exhibits APC 10 and APC 11 pertains to 2nd defendant who is a party in this case. And the 2nd Defendant as a party to this suit has not come out to deny the contents on Exhibit APC 10 and APC 11. Plaintiff not being an administrative staff of the 2nd Defendant is not in a position to speak as the internal workings of the Defendant. The failure of the Defendant to respond to issues raised against background of their role, in this case, amounts to an admission. Exhibit FA4 attached to the Plaintiff’s further Affidavit as press release disclaiming that the 1st Defendant has made any submission to it in respect of the Akwa-Ibom North West Senatorial District; may be the position of the 2nd Defendant in the instant case but it is an uncertified document without evidential value being a public document.”
The finding of the trial Court that exhibit FA4 is an uncertified document without evidential value being a public document is erroneous in law and it is accordingly set aside. Issue two (2) is also resolved in favour of the Appellant.
On issue three (3), it is the submission of the Learned Counsel for the Appellant that the case of Lado V. CPC (2011)48 NSCQR 501 at 541 which the trial Court relied upon in its judgment in holding that the Appellant’s case threw up an argument of conflicting primaries of the 1st Respondent for the Akwa-Ibom North West Senatorial District for the 2023 General Elections is distinguishable from the instant case of the Appellant as the primaries that was held on 27th May, 2022 is the only valid primary, conducted and observed by the 2nd Respondent (INEC) in this regard. Learned Counsel then contended that the principle relied upon by the trial Court as established in the case of Lado V CPC (supra) is no longer tenable and is inapplicable in the instant case in view of the relevant provisions of the Electoral Act, 2022. He then submitted, that by virtue of the extant provisions of the Electoral Act, any primary election that fails to comply with the stipulation of the Act cannot be accorded with the status of validity as to become a conflicting primary election.
Learned Counsel further submitted that by a combined reading of the provisions of Section 82 (1) and (5) of the Electoral Act, 2022, a political party that fails to notify INEC of the conduct of its convention, congress, conference or meeting convened for the purposes of inter alia electing its candidates for any elective office renders such exercise invalid. Pursuant to Section 84 (1) of the Electoral Act, 2022, it is the submission of Learned Counsel that it is mandatory that all the primaries conducted by political parties for purposes of nominating its candidate for elective positions must be monitored by INEC. In furtherance, Counsel added that Section 84 (13) of the Electoral Act, 2022 also provides that where a political party fails to comply with the provisions of the Electoral Act in conducting its primaries, any candidate who is a product of that exercise shall not be included in the election for that particular office.
Learned Counsel in its submission urged this Court to accord the above provisions of Section 82 (1) and (5) of Electoral Act, 2022 their ordinary and literal meaning to the effect that a party’s primary election would be invalid if the 21 days notice of same, is not given to the 2nd Respondent (INEC) before the date set for conducting such conventions and/or primary election. He contends that the 1st Respondent (APC’s) Exhibit APC 7 dated 7th June, 2022 for primaries allegedly slated for 9th June, 2022 i.e. a period of 2 days, is well below the length of notice statutorily required for the validation of such exercise by INEC.
Flowing from the above, Learned Counsel submits that on the basis of Section 82(1) and (5) of Electoral Act, 2022 the purported primary election of 9th June, 2022 accepted by the trial Court as being in conflict with that of 27th May, 2022 won by the Appellant is invalid not having complied with the clear provisions of the Electoral Act cited above. According to Learned Counsel, upon a perusal of the said Exhibit APC 19 (i.e. Excerpt from Premium Times online news report) the 2nd Respondent was reported to have restricted the said extension to only parties who had not conducted its primaries. He further asserted that nowhere inthe depositions of the 1st Respondent did it state or lead any scintilla of evidence to show that the 2nd Respondent monitored the purported primaries of (28th May, 2022 and 9th June, 2022) which it claims to have conducted and re-conducted. Counsel relied on the case of Musa v. Umar (2020)11 NWLR (Pt. 1735) 213 at P 257, Paras F-G to support his contention. Stemming from the foregoing, Learned Senior Counsel submitted that certain statutory conditions as provided for in the extant Electoral Act must be fulfilled before a claim for valid primaries can succeed. He called to aid the cases of Nigercare Development Co. Ltd. v Adamawa State Water Board &Ors. (2008) LPELR-1997 (SC); Captain Amadi v. NNPC (SUPRA) at Page 111 of The NWLR and Atolagbe And Captain Amadi’s Cases. 1.52 In Atolagbe& Anor. v. Awuni&Ors. (1997) LPELR-593 (SC).
On the need to invoke Section 15 of the Court of Appeal Act, Learned Counsel posits that in the matter before the trial judge, time was of essence and so the idea of returning the matter back to the trial Court appears constitutionally a no-go area. He further submitted that the foregoing and other reasons, rendersit imperative for the trial Judge to have dealt with the merit of the matter after declining jurisdiction. According to Learned Counsel, the trial Court having failed to do so, he humbly urged this Court to invoke Section 15 of the Court of Appeal Act in the circumstances and enter judgment in favour of the Appellant/Plaintiff on all the reliefs sought.
Issue three arose from the complaint of the Appellant against the finding of the trial Court relying on the case of Lado V CPC (supra) to the effect that there was conflicting primaries of the 1st Respondent for the Akwa Ibom North-West Senatorial District for the 2023 General Elections. The Appellant’s case before the trial Court however was that there was never any other Primary Election of the 1st Respondent other than the one conducted on 27th May, 2022 which produced the Appellant as winner. According to the Appellant, it was the 1st Respondent who introduced the issue of parallel Primary Elections in its Counter Affidavit. The Appellant responded and pointed out that he never participated in the said primary election of 9th June, 2022 by the 1st Respondent as same was not monitored by the 2ndRespondent (INEC). Thus, the Appellant’s further complaint is that the judgment of the trial Court was against the weight of evidence as presented by the parties’ Affidavit evidence. At this stage, I find it imperative to peruse the Affidavit evidence of the Appellant and that of the 1st Respondent to understand their respective claims and situate same with what the law prescribes. The Appellant’s in its Affidavit in support of his Originating Summons and the Reliefs sought, deposed as follows:-
1. That I am a member of the All Progressives Congress, a political party (the “1st Defendant”) registered by the 2nd Defendant.
2. That I purchased the 1st Defendant’s nomination form to contest in the 1st Defendant’s primary election for Candidacy of the party for the Akwa Ibom North West Senatorial District for the 2023 General Elections. Attached hereto is a copy of the aforesaid nomination form and the receipt issued to me by the 1st Defendant in respect of same marked Exhibits A1 and A2 respectively.
3. That thereafter the 1st Defendant set up a Screening Committee of all of its aspirants for the National Assembly elections and I was duly screenedand cleared to contest the primary election in respect of the Akwa Ibom North West Senatorial District for the 2023 general elections.
4. That I subsequently participated in the primary election conducted by the 1st Defendant on the 27th day of May, 2022 and I won the said election having scored the highest number of lawful votes. A copy of the result of the primary election issued by the 1st Defendant is attached hereto and marked as Exhibit B5.
5. That prior to the 27th of May 2022, the 1st Defendant had notified the 2nd Defendant of the date for the holding of the primary elections (27th of May 2022) and the 2nd Defendant published the date in its schedule of primaries to be monitored and actually monitored the 1st Defendant’s primary elections which I won. A copy of the 2nd Defendant’s schedule of elections to be monitored is annexed hereto and marked as Exhibit C.
6. That the 2nd Defendant in compliance with extant provisions of the Electoral Act 2022 observed the primary election through which I emerged as the 1st Defendant’s candidate.
7. That I was shocked and surprised when the 1st Defendant failed to submit my name to the 2ndDefendant as the validly nominated candidate of the 1st Defendant on the 17th of June 2022, the day stipulated by the 2nd Defendant as the deadline for the submission of names via its nomination portal. A copy of the 2nd Defendant’s timetable and schedule of activities for the 2023 general elections is annexed hereto and marked as Exhibit ‘D’. (see pages 7- 8 of the Record of Appeal)
The 1st Respondent on the other hand, deposed in the following paragraphs of the Counter Affidavit, thus:-
5. That as prelude to the 2023 general elections, the 2nd Defendant directed all political parties in Nigeria to organise party primary elections for purposes of nominating candidates of the different political parties, for the various elective offices that will be contested in the 2023 general elections.
6. That the 1st Defendant scheduled its primary election for purposes of electing its candidate for the Akwa Ibom North-West Senatorial District on May 28th, 2022, but concluded same on the June 9th, 2022, with Akpabio Godswill Obot elected as her candidate.
7. That members of the 1st Defendant who aspired to be the candidate of the 1st Defendant for the AkwaIbom North-West Senatorial District purchased nomination forms from the 1st Defendant.
9. That another member of the 1st Defendant who purchased the said nomination form was Akpabio Godswill Obot. Copies of the APC membership card and receipt issued in respect of the purchase of the nomination form by Akpabio Godswill Obot are exhibited as EXHS. APC 3 and APC 4 respectively.
10. That on the 27h day of May, 2022, the 1st Defendant at its headquarters, inaugurated the Primary Election Committees for the 1st Defendant’s Senatorial Primary elections for the various Senatorial Districts in the different States of the Federation scheduled for 2Sth day of May 2018, including the Akwa Ibom North- West Senatorial District,
11. That on the said 27th day of May, 2022, the 1st Defendant released the materials (result sheets, delegates list etc.) for the 1st Defendant’s said Senatorial primaries scheduled for 28th May, 2022, to the members of the inaugurated Primary Election Committees, including that of the Akwa Ibom North – West Senatorial District.
13. That the venue of the said 1st Defendant’s party primary election for the Akwa Ibom North WestSenatorial District scheduled for the 28th day of May, 2022 was Ikot Ekpene Township Stadium.
14. That the said election committee of the 1st Defendant reported that the party primary election for the Akwa Ibom North-West Senatorial District scheduled for the 28th day of May, 2022 was not concluded. Copy of the report of the Election Pane! is exhibited as Exh. APC 6.
15. That the National Working Committee reviewed the report and rescheduled the party primary election for the Akwa Ibom North-West Senatorial District to be re-conducted and concluded on the 9th day of June, 2022.
16. That the Plaintiff did not complain or object to the rescheduling of the inconclusive party primary elections for the Akwa Ibom North-West Senatorial District to the 9th day of June, 2022.
17. That the 1st Defendant notified the 2nd Defendant of the scheduling of the party primary election for the Akwa Ibom North – West Senatorial District on the 9th day of June, 2022 via letter with ref APC/NHDC/INEC/19/022/72 signed by the National Chairman and National Secretary of the 1st Defendant Copy of the said letter is exhibited as Exh. APC 7.
19. That duringthe 1st Defendant’s said primaries on the 9th day of June, 2022, Ekpo, Ekperikpe Luke withdrew from the race and directed his supporters to vote for Akpabio Godswill Obot.
20. That the final result of the votes cast at the 1st Defendant’s party primary election for the Akwa Ibom North West Senatorial District conducted on the 9th day of June, 2022 is as follows- 13 Engr. Joseph Akpan b. DIG Ekpoudom 478 c. Godswill O. Akpabio Copy of the result sheet is exhibited as Exh. APC 8.
21. That the result of the 1st Defendant’s said party primary election for Akwa Ibom North-West Senatorial District was announced at the venue on the 9th day of June, 2022 and Akpabio Godswill Obot was declared as the winner. Copy of the report signed by members of the election committee of the 1st Defendant is exhibited as Exh APC 9.
22. That the Plaintiff who participated at the party primary election for Akwa Ibom North-West Senatorial District did not complain about the conduct of the said party primary election on the 9th day of June, 2022 or object to the victory of Akpabio Godswill Obot on the said day.
23. That the Plaintiff did not file any complaint withthe election appeal panel or file a suit in Court against the conduct of the party primary elections for Akwa Ibom North-West Senatorial District on the 5th day of June, 2022.
24. That Akpabio Godswill Obot having emerged the candidate of the 1st Defendant for the said Akwa Ibom North-West Senatorial District, had his name and particulars submitted to the 2nd Defendant as the 1st Defendant’s nominated candidate for the Akwa Ibom North-West Senatorial District Copy of INEC Forms EC9c and EC9 are exhibited as evidence of the said submission as EXHS. APC 10 & APC 11 respectively.
The Appellant on receipt of the 1st Respondent’s counter affidavit filed a further Affidavit and deposed at paragraphs 2, 3, 4, 5, 8, 9, 20, 21 and 24 as follows:-
2. That contrary to Paragraph 6 of the 1st Defendant’s counter affidavit, the 1st Defendant conducted its primary election for Akwa Ibom North West Senatorial District on the 27th of May, 2022 and same was won by me.
3. That Akpabio GodwillObot who is alleged to have participated in a Senatorial election on the 9th of June, 2022 is the one and the same person who took part in the 1st Defendant’sPresidential primary election which took place at the Eagle Square in Abuja from the 6th to the 9th of June, 2022, A Certified True Copy of the Independent newspaper of 8th June, 2022 attesting to same is attached hereto and marked as Exhibit “FA1
4. That one EkpoEkperibe Luke mentioned in Paragraph 8 of the 1st Defendant’s Counter Affidavit did not take part in the primary election of the 1st Defendant for the Akwa Ibom North West Senatorial District.
5. That Paragraphs 10 to 23 of the 1st Defendant’s Counter Affidavit are blatant lies and outright falsehood as not only was any primary election not conducted on the 28th of May, 2022 or the 9th of June, 2022, the Plaintiff never and could not have taken part in any having already won the only primary election conducted by the 1st Defendant for the Akwa Ibom North West Senatorial District on the 27th day of May, 2022.
8. That Exhibit “FA4 ” above mentioned also stated that the 2nd Defendant “stands by the monitoring reports received from our state offices”, In the instant suit, the 2nd Defendant’s report is Exhibit “F” attached to the affidavit in support of the originating summons which clearly shows thatthe 1st Defendant conducted its primary election for the Akwa Ibom North West Senatorial District on the 27th day of May, 2022 thereby proving the depositions in Paragraphs 24 to 33 of the 1st Defendant’s Counter Affidavit to be utter lies and deliberate falsehood.
9. That Paragraphs 34 to 40 of the 1st Defendant’s Counter Affidavit are a tissue of lies. The true state of events was that the 1st Defendant conducted a peaceful congress in Akwa Ibom state with the attendance and participation of all party stakeholders during which one Augustine Ekanem emerged as the 1st Defendant’s State Party Chairman.
20. That Paragraph 41 of the 1st Defendant’s Counter Affidavit is untrue as the 1st Defendant never announced Akpabio Godswill Obot as the winner of the 1st Defendant’s party primary elections for the Akwa Ibom North West Senatorial District on the 9th of June, 2022 or any day whatsoever.
21. That contrary to the 1st Defendant’s deposition in its paragraph 42, the 1st Defendant never submitted the name of Akpabio Godswill Obot to the 2nd Defendant as the candidate of the 1st Defendant for the Akwa Ibom North West SenatorialDistrict.
24. That the 1st Defendant’s deposition in its paragraph 45 takes lying to its most disingenuous height as nothing can be further from the truth. I could not have taken part in any primary election on the 9th of June, 2022 as no such election ever took place. The document purportedly showing election results for that day is nothing but outright concoctions by fly by night politicians.
The 1st Respondent filed a Further and Better Affidavit alleging that the Primary Election that produced the Appellant was not conducted by the 1st Respondent’s National Working Committee as averred at paragraphs 14, 15 and 16.
Now, from the facts and circumstances of this case whether the case of the Appellant is one that had arisen from conflicting primaries as held in the case of Lado V CPC (supra)? The case of the Appellant before the trial Court that gave rise to this appeal is that there was only one Primary Election of the 1st Respondent that took place on 27th May, 2022 for Akwa Ibom North West Senatorial District for the 2023 General Election in which the Appellant won. A close perusal of the Affidavit and Further Affidavit of the Appellant insupport of his Originating Summons states at paragraphs 2 and 3 of the Further Affidavit as follows:-
2. That contrary to Paragraph 6 of the 1st Defendant’s counter affidavit, the 1st Defendant conducted its primary election for Akwa Ibom North West Senatorial District on the 27th of May, 2022 and same was won by me.
3. That Akpabio Godswill Obot who is alleged to have participated in a Senatorial election on the 9th of June, 2022 is the one and the same person who took part in the 1st Defendant’s Presidential primary election which took place at the Eagle Square in Abuja from the 6th to the 9th of June, 2022. A Certified True Copy of the Independent newspaper of 8th June, 2022 attesting to same is attached hereto and marked as Exhibit “FAI”.
Thus, by the Plaintiff’s deposition in his affidavit and Further Affidavit before the trial Court Is that Akpabio Godswill Obot never participated in the 1st Defendant’s Primary Election of 27th May, 2022 or any other Primary Election of the 1st Defendant because he was a Presidential Candidate in the Primary Election of the 1st Defendant between the 6th-9th June, 2022 to produce its Presidential flag-bearer.The 1st Defendant did not deny or dispute the plaintiff’s claim and averment at paragraph 3 of the Further Affidavit. In fact, the 1st Defendant in his reaction to the averment of the Plaintiff states at paragraph 6 of its counter affidavit as follows:-
(6) That the 1st Defendant scheduled its primary election for purposes of electing its candidate for the Akwa Ibom North-West Senatorial District on May 28th, 2022, but concluded same on the June 9th, 2022, with Akpabio Godswill Obot elected as her candidate.”
The 1st Defendant in its Counter Affidavit at paragraph 10 and 11 avers as follows:-
10. That on the 27th day of May, 2022, the 1st Defendant at its headquarters, inaugurated the Primary Election Committees for the 1st Defendant’s Senatorial Primary elections for the various Senatorial Districts in the different States of the Federation scheduled for 28th day of May 2018, including the Akwa Ibom North- West Senatorial District.
11. That on the said 27th day of May, 2022, the 1st Defendant released the materials (result sheets, delegates list e.t.c.) for the 1st Defendant’s said Senatorial primaries scheduled for 28th May, 2022, to the members of the inaugurated Primary Election Committees, including that of the Akwa Ibom North-West Senatorial District,”
Let me quickly say that the averments of the 1st Defendant at paragraph 14, 15 and 16 of its further and Better Affidavit is an afterthought in view of the depositions of the 1st Defendant at paragraphs 10 and 11 of its Counter Affidavit to the effect that on the 27th May, 2022 the 1st Defendant inaugurated the Primary Election Committees for the 1st Defendants Senatorial Primary Elections for the various Senatorial Districts and released Election Materials, (that is result sheets), delegates list etc including the Primary Election of Akwa Ibom North West Senatorial District. Exhibit B attached to the Plaintiff’s Affidavit in support of Originating Summons is the 1st Defendant’s Result sheet for Primary Election 2022, Senatorial. In Exhibit B, it shows that the result sheet was signed by Chairman, Primary Election Committee and Secretary, Primary Election Committee. There is no indication that Exhibit B was signed by the State chapter of the 1st Defendant. Though the 1st Defendant disown, Exhibits B and F and also avers at paragraphs35(b) and (c) of the Counter Affidavit that the Primary Election of 27th May, 2022 was not conducted by its National Officers, the 1st Defendant failed to provide evidence that the officers that signed the result sheet were not National Officers of the 1st Defendant. The law is that he who asserts must prove. In other words, the law is still very sound and clear that he who asserts must prove. See Ngere & Anor v. Okuruket & Ors. (2015) LPELR 24747 (SC), APC V INEC & Ors. (2014) LPELR – 24036(SC) and Mbanefo V Agbu & ANOR, (2014) LPELR 22147 (SC). And the 1st Defendant’s Screening Committee Report, Exhibit 6 under the heading “LETTER OF INTRODUCTION” states as follows:-
“By our letter dated 27/05/2022, we notified the Resident Electoral Commissioner of the Independent National Electoral Commission (INEC), of our presence and mission, introduced ourselves and solicited his support…”
Then pursuant to the meeting between the Primary Election Committee of the 1st Defendant and the 2nd Defendant (INEC), the 2nd Defendant monitored the 1st Defendant’s Primary Election and issued its report dated 27th May, 2022 attached as exhibit F. There port of the 2nd Defendant states
“The All Progressives Congress notified the Commission of its intention to conduct its Senatorial Primary on 27th May, 2022 across the (3) Senatorial District of Akwa Ibom State in Akwa Ibom North West Senatorial District, the primary was held at Primary school Urban No. 1 Ikot Ekpene”.
The Report of the 2nd Defendant further States:-
“The monitoring team arrived the venue by 2.00pm and the exercise commenced immediately.
ORGANIZING/PLANNING COMMITTEE
The National Working Committee constituted a committee for the exercise.
RESOLUTION/DECISION OF THE PRIMARIES
Three aspirants contested in the Akwa Ibom North West Senatorial District Primary. Namely UDOM UDO EKPON UDOM, JOSEPH MICHEAL AKPAN and EKPERIKPE EKPO. A total number of 414 delegates were accredited and votes were cast per Local Government. The mode of election was by open secret ballot.
At the end of the exercise, Udom Udo Ekpoudom scored (338) votes, while Joseph Michael Akpan and Eperikpe Ekpo scored 12 and 4 votes respectively. Udom Udo Ekpoudom was declared the winner and candidate for Akwa Ibom North West Senatorial District.”
The Report of the 2nd Defendant, Exhibit F was signed by its team leader, Barrister Mark Chukwu, Head of Department, Legal of the 2nd Defendant and signed by other Officers of the 2nd Defendant.
Now, from the facts on record, the 2nd Defendant (INEC) is not aware neither have they monitored any other Primary Election for Akwa Ibom North West Senatorial on 28th May, 2022 or 9th June, 2022 except the Primary Election of 27th May, 2022 which produced the Plaintiff as the winner of the Akwa Ibom North West Senatorial District.
The averments of the 1st Defendant in its Counter Affidavit, Further and Better Affidavit of 20th July, 2022 and all the exhibited documents in order to make a case for Akpabio Godswill Obot and to create an opportunity or ground to forward his name to the 2nd Defendant, which the 2nd Defendant strongly resisted through Press Release Exhibit FA4, is to say the least most unfortunate.
It is public knowledge and indeed paragraph 3 of the Plaintiff’s further Affidavit in support of Originating Summons that Akpabio Godswill Obot is the one and the same person that took part in the 1st Defendant’s Presidential Primary Election at Eagle Square in Abuja from the 6th to the 9th of June, 2022 and Exhibit FA1, a Certified true copy of Independent Newspaper of 8th June, 2022 aptly captured him as one of the aspirants. And by Section 84(1) and (2) of the Electoral Act 2022, it provides as follows:-
84. (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus.”
Then subsection 5(c) of Section 84 of the Electoral Act 2022 further provides:-
(5) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined-
(c) in the case of nominations to the position of a Senatorial candidate, a Member of the House of Representatives and a Member of a State House of Assembly, the political party shall, where it intends to sponsor candidates-
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for aspirants of their choice in designated centres on specified dates, and
(ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party;
From the facts on record, Section 84(5)(c)(i) and (ii) of the Electoral Act, 2022 applies to those candidates for nominations to the position of a Senatorial Candidate, a Member of House of Representatives and a Member of a House of Assembly, the Political party shall, where it intends to sponsor candidates, hold Congresses in the Senatorial District, as in this case of the Appellant, at Akwa Ibom North-West Senatorial District and not in any other place. The facts on record of the candidates that the 1st Defendant sponsored for Akwa Ibom North West Senatorial District Primary Election were (1) Udom Udo Ekpoudom, (2) Joseph Michael Akpan (3) Ekperikpe Ekpo. Unlike the 2010 Electoral Act (as amended), Section 84(5)(c) is silent on whether the Primaries Election for Senatorial, House of Representatives and State House of Assembly shall be held or conducted by the National Working Committee of the Party.
However in respect of the Presidential Primary Election under Section 84(5) (a) (i) & (ii), of the Electoral Act, the Party, in this case, the 1st Defendant shall hold special Presidential convention at a designated centre in the Federal Capital Territory or any other place within the Federation agreed by the National Executive Committee of the party and in this case, the 1st Defendant conducted its Presidential Primary Election at Eagle Square, Federal Capital Territory, Abuja where Akpabio Godswill Obot was a candidate. There is no dispute and indeed the 1st Defendant did not deny the fact that Akpabio Godswill Obot was a presidential Candidate of the 1st Defendant on the 6th-9th of June, 2022. This is to say, apart from the averment at paragraph 3 of the Plaintiff’s Further Affidavit and the lack of denial of same by the 1st Defendant, failure to deny a material deposition in an Affidavit is deemed as an admission. This Court held in the case of FBN PLC VIntertech Resources Ltd. &Ors. (2020) LPELR – 52257, “… The Appellant did not in any way deny the deposition of the Respondents that the Nigeria Police operates different accounts and in different names and in law such a failure to deny those depositions of facts rendered those facts as admitted by the Appellant, and therefore, requires no further proof by the Respondents. In law, facts in an affidavit not denied by the adverse party are deemed admitted. See Lawson Jack V. SPDC (2002) 102 LRCN 2021 AT p. 2030. See also Buhari V. Obasanjo (2003) 114 LRCN 2723.”
In the case of Danladi v. Taraba State House of Assembly &Ors. (2014) LPELR – 24021, the Supreme Court of Nigeria held:-
“Where facts deposed to in an Affidavit on a crucial and material issue are not controverted or denied in a counter Affidavit such facts must be taken as true except they are moon shine. See Alagbe V Abimbola (1978) 2 SC P.39, Agbaje V Ibru S. F Ltd. (1972)5SC 50 at 55.
In the instant case, the 1st Respondent fully knows that the said Akpabio Godswill Obot took part in its Presidential Primary Election on 6th- 9th June, 2022, but still proceeded to expose the person of Akpabio Godswill Obot as its candidate in the Akwa Ibom North West Senatorial District on 28th of May to 9th June, 2022 contrary to the clear provision of Section 35 of the Electoral Act, 2022 which provides as follows:-
“Where a candidate knowingly allows himself to be nominated by more than one Political party or in more than one Constituency his nomination shall be void.”
This provision of the Electoral Act, 2022 clearly stipulates the invalidity of multiple nominations and by the use of the word “shall” in the statute, it amounts to a command, a must, compulsion or an obligation or mandatory. See Aladejobi V NBA (2013) LPELR – 20940 (SC), Bamaiyi V Attorney General Federation &Ors. (2001) 12 NWLR (Pt. 727) 466 at 497. Thus, the intention of the drafters of this beautiful piece of legislation is to ensure credibility and integrity of the Electoral Process and yet the 1st Respondent Jettisoned same by nominating and attempting to forward the name of Akpabio Godswill Obot to the 2nd Respondent as its candidate for the Akwa Ibom North West Senatorial District for the 2023 General Election.
That being so, I am of the firm view that the action of the 1st Respondent as regards the forwarding or attempting to forward Akpabio Godswill Obot to the 2nd Respondent, being a void act, and therefore unconstitutional and void. Therefore juxtaposing the facts on record in this appeal and the facts in the case of Lado V CPC (supra), the facts of this case will show that they are not the same. The instant action at the trial Court that gave rise to this appeal are miles apart because there was no parallel Primaries of the 1st Respondent in Akwa Ibom North West Senatorial District. In other words, there is no evidence of any valid primary election conducted by the 1st Respondent in which another candidate was elected.
In the instant appeal, the statutory body, the 2nd Respondent that has the duty to monitor Primaries of Political parties to nominate candidates for Elections under the Act which provides that:-
84(1) A Political Party seeking to nominate candidates for Election under this Act shall hold Primaries for aspirants to all Elective positions which shall be monitored by the commission.”
The 2nd Respondent monitored the Primary Election of the 1st Respondent for the Akwa Ibom North West Senatorial District and it issued its report of the result of the 1st Respondent’s primary wherein the Appellant emerged the winner on 27/5/2022 for the Akwa Ibom North West Senatorial District.
The 1st Respondent having failed to forward the name of the Appellant as its nominated candidate for the Akwa Ibom North West Senatorial District, the Appellant had approached the trial Court for the enforcement of his legal rights. The trial Court then held erroneously at pages 382-387 of the Record of Appeal while relying on the case of Lado V CPC (supra) And Senator Sadiq Yar’adua & Ors. v. Senator Abdul Umar Yandoma & Ors. (2015) 4 NWLR (Pt. 1447) 123 at 182-182 to the effect that the action of the Appellant (Plaintiff) is not justiciable and that the trial Court has no jurisdiction to entertain the case. The decision of the trial Court occasioned serious miscarriage of justice to the Appellant (Plaintiff).
A miscarriage of justice simply means judgment or Order of a Court rendered in flagrant breach of the right to fair hearing and a perverse decision against a party in proceeding which if not set aside will amount to a denial of justice to the party affected. In Olusola Adeyemi v The State, (2014)11 SCM1 at 20, the Supreme Court per Odili JSC said:
“To maintain the link in the discourse is to define what miscarriage of justice is which would render a Court of Appeal without option than to intervene and set aside what the Lower Court had done.”
On the other hand, Bode Rhodes-Vivour, JSC in the case of Dennis Akoma & Anor. v. Obi Osenwokwu & Ors. (2014)11 NWLR (pt 1419) 462 at 97 held that:-
“it however depends on fact and circumstances of each case. There would be miscarriage of justice when an error can be seen in the proceedings/judgment and had it not been for the error a decision more favourable to the party that lost would have been given. There is a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining.”
In the instant case, Exhibits APC 10 and APC 11 as well as Exhibit FA4 are all attached to the Affidavits of the respective Parties i.e 1st Defendant and the Plaintiff. Learned Counsel to the Plaintiff objected to exhibits APC 10 and APC 11 to the effect that they are public documents. The trial Court rejected the argument and strongly relied on Exhibit APC 10 and APC 11 respectively. On the other hand, Exhibit FA4, the Press Release of the 2nd Defendant (INEC) that accords credence on the 1st Defendant Primary Election of 27th May, 2022 for Akwa Ibom North West Senatorial District was declared by the trial Court as uncertified public document, which document is relevant to the case of the Appellant but rejected or failed to rely on same. Hence, the trial Court approbated and reprobated in breach of the law. See SCOA (Nig.) PLC V TAAN & ORS (2018) LPELR 44545 (CA), A.G Rivers State V AG Akwa Ibom, (2011)29 WRN1, wherein the Supreme Court held thus:
“It is the rule of equity that one cannot approbate and reprobate…. It is a doctrine of justice and it is inequitable to blow hot and cold, this principle finds expression in latin maxim “Allegans Contraria Non Est Audiendus.”
Furthermore, it’s clear to me that, the trial Court misconceived the claim of the Plaintiff before it and thereby arrived at a decision inconsistent with the rights of Plaintiff/Appellant.
In the circumstances of this case, I have deemed it appropriate to apply Section 15 of the Court of Appeal Act to resolve the substantiveissues in the claim as pronounced upon earlier in the course of this judgment. This is because, I have found that the only Primary Election of the 1st Respondent that took place for the Akwa Ibom North West Senatorial District was the Primary Election of the 1st Respondent which was held on 27th May, 2022 and duly monitored by the 2nd Respondent (INEC) as per exhibits B, F and FA4. Clearly, the Appellant emerged winner of the 1st Respondent’s Primary Election for Akwa Ibom North West Senatorial District for the 2023 General Election conducted on 27/5/2022. And the Appellant having satisfied all the relevant requirements under the Electoral Act, 2022 for a valid Primary Election of the 1st Respondent and having emerged as the winner of the 27th May, 2022 1st Respondent’s Primary Election for Akwa Ibom North West Senatorial District for the 2023 General Election, the 1st Respondent is statutorily bound, pursuant to Section 29 (1) & (2) of the Electoral Act, 2022 to forward or submit his name to the 2nd Respondent and the 2nd Respondent upon on receipt, at least 150 days before the day of the election, publish his name and particulars as required bySection32(1) of the Electoral Act, 2022.
On the whole, the three issues for determination are all resolved in favour of the Appellant and against the Respondents. This appeal succeeds and it is allowed. Accordingly, the judgment of the trial Court, i.e the Federal High Court in Suit No. FHC/ABJ/CS/1000/2022 delivered on 23rd September, by D. U Okorowo, J is hereby set aside. Consequently, judgment is hereby entered for the Appellant (Plaintiff) as per his Reliefs as contained in his Originating Summons dated the 27th June, 2022 and filed on the same date. Accordingly, I HEREBY:
1. DECLARE that by the virtue of the provisions of Section 29(1), 33, 82(1) (5) and 84 (1) (5) (c) (i) and (ii) (13) of the Electoral Act 2022 (as amended), and Paragraph 5c and 22 (ii) 2 of the 1st Defendant’s Guidelines for the Nomination of Candidates for the 2023 General Elections, the Plaintiff who scored the highest number of votes (338) in the Primary election of the 1st Defendant conducted on 27th May, 2022 is the validly elected candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 general election.
2. DECLARE that by virtue of theprovisions of Sections 29(1), 33, 82(1) (5) and 84 (2) (5) (c) (i) and(ii)(13) of the Electoral Act (as amended), the 2nd Defendant ought to accept/publish the name of the Plaintiff as the validly elected candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 general election.
3. ORDER that the 1st Defendant to issue a Certificate of Return to the Plaintiff as the winner of the Primary Election conducted by the 1st Defendant for the Akwa Ibom North West Senatorial District held on the 27th day of May, 2022 and submit his name to the 2nd Defendant as its candidate for the Akwa Ibom North West Senatorial District for the 2023 general election.
4. ORDER that the 2nd Defendant to receive/accept/publish the name of the Plaintiff as the validly nominated candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 general election.
5. ORDER THAT AN INJUNCTION is granted restraining the 1st Defendant from submitting the name of any other person whomsoever to the 2nd Defendant as the candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the generalelection.
6. ORDER THAT AN INJUNCTION is granted restraining the 2nd Defendant from accepting/publishing the name of any other person whomsoever as the candidate of the 1st Defendant for the Akwa Ibom North West Senatorial District for the 2023 general election, aside that of the Appellant.
7. No order as to cost.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have read in draft, the lead judgment of my learned brother, Haruna Simon Tsammani, JCA.
I am in complete agreement with the reasoning and conclusion reached therein. In consequence, I also allow the appeal and abide by the orders made therein.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to be in conference with my learned brothers over this appeal. And I had also the opportunity of reading in draft before now, the lead judgment of my learned brother HARUNA SIMON TSAMMANI, JCA. The lead judgment has aptly and substantially captured all my views I expressed during the conference.
I must chip in that a close perusal of the questions submitted by the Appellant for determination, the Reliefs claimed and Affidavit in support of the OriginatingSummons, the Appellant’s case is to the effect that despite having emerged as the winner of the 1st Respondent’s Primary Election conducted on the 27th May, 2022 for the Akwa Ibom North West Senatorial District of the 1st Respondent, which Primary Election was monitored by the 2nd Respondent by virtue of Section 84(1) of the Electoral Act, 2022, the 1st Respondent failed, neglected or refused to forward his name to 2nd Respondent as the candidate of the 1st Respondent for Akwa Ibom North West Senatorial District for the 2023 General Elections:
By the Affidavit evidence of the Appellant before the trial Court, the 1st Respondent’s candidates that contested on the 27th May, 2022 Primary Election of the 1st Respondent in Akwa Ibom North West Senatorial District were UDOM UDO EKPONUDOM, JOSEPH MICHEAL AKPAN and EKPERIKPE EKPO and that the Appellant won the Primary Election of the 1st Respondent.
Thus, by the facts on Record, Rule 3 of the Federal High of Nigeria (Pre-Election) Practice Directions, 2022 does not apply to require the Appellant joining one Godswill Obot Akpabio as a party to the Appellant’s action. Hence, in determining whether the said GodswillObot Akpabio is a necessary party and falls within the provision of Rule 3 of the Pre-Election Practice Directions of the Federal High Court, the trial Court ought to have perused and considered the issue of necessary parties in the light of the processes filed by the Appellant and not the 1st Respondent defence. The trial Court has no business determining issue of jurisdiction in the light of the defence of the 1st Respondent. Thus, the trial Court at lines 15-30 of page 380 and 381 of the record of appeal arrived at an erroneous decision. See the cases of REPTICO S.A GENEVA V AFRIBANK (NIG) PLC, (2013) LPELR 20662, the Supreme Court of Nigeria held thus:-
“The only and primary duty of Court is to ensure that plaintiff’s claim or case is cognizable. That is, capable of being judicially tried or examined by the Court. As a result in considering whether or not a Court has jurisdiction to try or examine a claim brought by a plaintiff, only the claim endorsed on the writ of Summons and statement of claim should be considered. No reference is to be made to whatever defence the defendant may put up against the plaintiff’s claim. In ALPHONSUS NKUMA V JOSEPHOTUNUYA ODILI, (2006)4 SCM 127 AT 135, this Court opined as follows: “It is a plaintiff who brings a suit that also nominates the issues for decision in the case. Once a plaintiff’s suit is based on a right, which is cognizable under the law, it is not for the Court to dictate to such plaintiff the manner by which to frame the remedy being sought. The crucial question is has the plaintiff called sufficient evidence that will enable the Court grant him the relief being sought. What is material for consideration is the case as presented by the plaintiff before the Court. The Court cannot formulate a different case for the plaintiff. See S.D ILODIBIA V NIGERIAN CEMENT COMPANY LIMITED (1997) 7 NWLR (pt 512) 54-55; EKPENYONG v NYONG, (1975)2 SC 71 at 80.”
This Court held also in the case of ALALADE V PRESIDENT OF THE OTA GRADE 1 CUSTOMARY COURT & ORS, (2021) LPELR 55654,
“I consider it well settled that jurisdiction is determined by the claim of the plaintiff. It is what the plaintiff submits to the Court for adjudication, that is to say, the subject matter and claim that determines whether the Court has jurisdiction to entertain the claim or not.
Therefore, the process to be examined in determining if the Court has jurisdiction to hear and determine the matter submitted to it for adjudication is the plaintiff’s claim; ADETAYO V ADEMOLA, (2010) LPELR 155 (SC), TUKUR V GONGOLA STATE, (1989) LPELR 3272 (SC) AKPAMGBO- OKADIGBO & ORS V CHIDI & ORS (2) (2015) LPELR 24565 (SC), EMEKA V OKOROAFOR(supra) PDP V ORANEZI (2017) LPELR 43471(SC); AGI V PDP & ORS (2016)LPELR 42578 (SC) Per OTISI, JCA (PP 28 -29 paras E-B).
Having said the above, I have nothing useful to add but I adopt as mine, the detailed lead judgment of my learned brother, TSAMMANI JCA and I hold the view that this appeal has merit and it is allowed.
The judgment of the Federal High Court delivered on 23rd September, 2022 is hereby set aside.
I abide by all the consequential Orders made in the lead judgment as mine.
Appearances:
Solomon E. Umoh, SAN with him, Victor Odjemu, Esq. Emmanuel Ekong, Esq. and Santos Enejah, Esq. For Appellant(s)
Umeh Kalu, SAN with him, John Awa Kalu, Esq for the 1st Respondent. For Respondent(s)