EZEANI v. ONYERERI & ORS
(2022)LCN/16511(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, November 03, 2022
CA/OW/360/2022
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. NNAMDI THANKGOD EZEANI APPELANT(S)
And
1. HON. JONES ONYERERI 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO:
THE COURT WILL NOT SHUT ITS EYES TO THE PECULIAR CIRCUMSTANCES OF THIS CASE WHICH BORDERS ON INSECURITY
The issue of lack of security is a peculiar circumstance. It is an extenuating circumstance.
The Court cannot, and will not shut its eyes to the peculiar circumstances of this case which borders on insecurity.
Public Policy, equity and good conscience cannot be sacrificed at the altar of any provisions of the law which cannot be effected.
If there is insecurity of such magnitude that lives are lost, violence emanating from insecurity do not understand borders when they happen, Law Rules, Regulations and Decrees no longer have meaning. Laws are an expression of peoples’ desire, for those who are alive to tell the story. Where there is chaos resources are repelled. RITA NOSAKHARE PEMU, J.C.A
A PLAINTIFF CAN ONLY SUCCEED ON THE STRENGTH OF HIS CASE AND NOT RELY ON THE WEAKNESS OF THE DEFENDANT’S CASE
The law is trite that a plaintiff can only succeed on the strength of his case and not rely on the weakness of the defendant’s case.
He who avers must prove. In declaratory matters, it is a cast-in-stone principle of law that a Plaintiff and/or Claimant who approaches the Court seeking declaratory reliefs, has the onus to establish his case, by credible evidence. A declaratory relief will not be granted even on admission.
The Appellant has made a heavy weather of the issue of the failure of the Court below to accordthe literal interpretation to the provisions of Section 84 (5) (c) (i) of the Electoral Act 2022.
With respect, that is misconceived in the face of the prevailing insecurity issues in the State.
In the face of the overwhelming evidence of the Respondents on issue of insecurity which occasioned the relocation of venue, to accord a mandatory interpretation to the provisions of Section 84 (5) (c) (i) of the Electoral Act, 2022, will not only lead to absurdity but will lead to gross miscarriage of justice.
By this judgment, I urge the National Assembly to amend the Provisions of Section 84 (5) (c) (i) of the Electoral Act 2022, to give adequate attention to the incidence of insecurity in the country. RITA NOSAKHARE PEMU, J.C.A
EVALUATION OF EVIDENCE ENTAILS THE TRIAL JUDGE EXAMINING ALL EVIDENCE BEFORE HIM BEFORE MAKING HIS FINDINGS
Evaluation of evidence entails the trial Judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale, to see whichside outweighs the other. LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVT. OF NASSARAWA STATE (2012) LPELR 20602 (SC) ATOYEBI AND ANOR. V. GOVERNOR OF OYO STATE AND ORS. (1994) LPELR 595 (SC).
It is an elementary principle of law that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be whether the trial Court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. So long a trial Court does not arrive at its judgment by considering the case of one party before considering the case of the other, its judgment, if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case, it may have adopted. RITA NOSAKHARE PEMU, J.C.A
THE COURT WILL NOT INTEFERE WITH THE FINDINGS OF THE COURT
This is the attitude of the Supreme Court and the Court of Appeal which is cast in stone. The Appellate Courts’ duty is not to re-evaluate the evidence (except the Court below fails to properly evaluate same) to arrive at a conclusion which it would have liked to arrive at. As long as the Court below appraised and evaluated the evidence both oral and documentary before it, without anyelement of perversity to it, the Appellate Courts would refrain from interfering. WOLUCHEM V. GUDI (1981) 5 S.C. 291 AIYEOLA V. PENRO (2014) LPELR 22915 (S.C.)
It is my view, at the expense of repetition that this Court will not interfere with the findings of the Court below as I find that it properly evaluated the evidence of the respective parties and having placed them on an imaginary scale, found that the case of the Respondents outweighs that of the Appellant, and I so hold. RITA NOSAKHARE PEMU, J.C.A
ALL PROCESSES FILED IN COURT ARE TO BE SIGNED
Decidedly, all processes filed in Court are to be signed as follows: First the signature of counsels, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. fourthly name and address of legal firm. This is the proper way or manner of validly signing all Court processes by counsel representing parties. SKY POWER EXPRESS AIRWAYS LTD V. UBA PLC & ANOR(2022) LPELR-56590(SC), NIGERIA ARMY V. SAMUEL(2014) 14 NWLR (Pt. 1375)446 AT 485. RITA NOSAKHARE PEMU, J.C.A
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Owerri Division, delivered on the 13th day of September, 2020 in Suit No. FHC/OW/102/2022, wherein the Court below dismissed the Appellant’s suit.
SYNOPSIS OF FACTS:
Vide Originating Summons filed on the 7th of June 2022, the (Plaintiff/Appellant in this present appeal) sought inter alia some declaratory reliefs. In support of the Originating Summons was an affidavit sworn to by the Appellant himself and a written address. The Originating Summons was accompanied by an affidavit of non-multiplicity of action and an affidavit of urgency sworn to by the Appellant.
In response to the Originating Summons, each of the three Respondents filed a counter affidavit and written addresses.
In response to the respective counter-affidavits of the Respondents, the Appellant filed a further affidavit and reply address.
The summons proceeded to trial and on the 2nd of August, 2022, the parties adopted their respective processes, and the Court below reserved same for judgment.
In its judgment delivered on the 13thof September, 2022, in the Owerri Division of the Federal High Court, the Respondents were given judgment, while the suit instituted by the Appellant was dismissed, and all his reliefs refused.
The Appellant desirous of appealing the decision filed a Notice of Appeal on the 22nd of September 2022, with 12 Grounds of Appeal – pages 908 – 931 Vol. 11 of the Record of Appeal.
The Appellants filed his brief of argument on the 5th of October 2022. It is settled by Mustapha. I Abubakar Esq.
The 1st Respondent filed a Notice of Preliminary Objection on the 9th of October 2022, which he encapsulated in his brief of Argument filed on same date. The brief is settled by S.C. Imo Esq.
The 2nd Respondent’s brief of argument was filed on the 9th of October, 2022. It is settled by C.A Nnawuchi, PhD.
The 3rd Respondent’s brief of argument was filed on the 10th of October 2022. It is settled by Olachi Nwugo (Mrs).
The Appellant filed a Reply brief of argument in response to the Respondents’ brief of argument on the 13th of October 2022. There is a Notice of Cross Appeal.
From records, a supplementary Record was filed on the 29th of September 2022, by the Cross-Appellant in which there is a Notice of Cross Appeal filed on the 27th of September, 2022.
The Appellant distilled two issues for determination from the Grounds of Appeal. they are:
ISSUES FOR DETERMINATION
1. “Whether the trial Court was right in its interpretation and application of the mandatory provisions of Sections 84(5) (c) (i) of the Electoral Act, 2022 and similar provisions in the 2nd Respondent’s Constitution and Guidelines for Primary Elections as well as the decision of the Supreme Court in MATO V. HEMBER (2018) 5 NWLR (Pt. 1612) 258 in validating the 2nd Respondent’s Imo West Senatorial District Primary Election for the nomination of the 1st Respondent held outside the Senatorial District contrary to the said mandatory provisions.
2. On a proper evaluation of the affidavit evidence, including the documentary evidence before it, whether the trial Court was right in its findings and conclusion to the effect that, on a balance of probabilities, the Appellant did not prove his allegation that the 2nd Respondent’s Imo West Senatorial District Primary Election in which the 1st Respondent was nominated was conducted in substantial breach of the mandatory provisions of the Electoral Act, 2022 and the 2nd Respondent’s Constitution and Guidelines to entitle him to the reliefs sought in the Originating Summons”.
The 1st Respondent distilled two issues for determination. They are:
(a) “Whether in the peculiar circumstances of the parties’ case, the trial Court was right in its interpretation and application of Provisions of Sections 84 (5) (c) (i) of the Electoral Act, 2022 and similar provisions in the 2nd Respondent’s Constitution and Guidelines for Primary Elections as well as the decision of the Supreme Court in Mato V. Hember (2018) 5 NWLR (Pt. 1612) 258 in validating the 2nd Respondent’s Imo West Senatorial District (Orlu Zone).
(b) Whether on the evaluation of the affidavit and documentary evidence of the parties, the trial Court was right in its findings and conclusion to the effect that the 2nd Respondent’s Imo West Senatorial District Primary Election was conducted in substantial compliance with the provisions of the Electoral Act, 2022 and the 2ndRespondent’s Constitution and Guidelines”.
The 2nd Respondent distilled two issues for determination. They are:
1. “Whether the trial Court was not right in validating the 2nd Respondent’s Imo West Senatorial District Primary Election, which was held outside the Senatorial District, notwithstanding the provisions of Section 84(5), (c), (i) of the Electoral Act, 2022 and the 2nd Respondent’s Constitution and Electoral Guidelines for Primary Elections, as well as the decision of the Supreme Court in Mato V. Hember (2018) 5 NWLR (Pt. 1612) 258.
2. Whether the trial Court was not right in its conclusion that the Appellant failed to prove that the 2nd Respondent’s Imo West Senatorial District Primary Election was conducted in substantial breach of the mandatory provisions of the Electoral Act 2022 and the 2nd Respondent’s Constitution and Electoral Guidelines for Primary Elections.
The 3rd Respondent distilled two issues for determination from the Grounds of Appeal and they are:
1. “Whether the learned trial Judge rightly interpreted and applied the provisions of Section 84(5), (c), (i) of the Electoral Act, 2022and other relevant laws as well as the decision in Mato V. Hember when he proceeded to hold that the reason given by PDP to INEC for shifting the venue of its Primary Elections in Imo and Anambra States this year from various headquarters to respective State Capitals was a justifiable one.
2. Whether on a proper evaluation of all the documentary evidence placed before it, the learned trial Court rightly held that the 2nd respondent substantially followed its guidelines in the conduct of the disputed primary Election and that on a balance of probabilities, the Appellant did not prove his case to show that he is entitled to the principal claim for an order to conduct a fresh Primary Election.
On the 18th of October 2022, the parties adopted their respective briefs of argument.
It is apparent that the Respondents had adopted the two issues for determination proffered by the Appellant.
I shall consider the appeal based on the Appellant’s issues for determination.
Let me quickly observe here that the 1st Respondent had filed a Notice of preliminary objection.
I shall however, consider the Notice of Preliminary Objection first in considering this appeal.
The fulcrum of the Preliminary Objection filed by the 1st Respondent is that the Appellant’s brief of argument is invalid, as the said brief is comprised of about 46 (forty-six) pages. That the numbered pages were serially numbered to 41 pages while the remaining portions making up the 46 pages were left unnumbered.
By the provisions of paragraph 14 of the Election Judicial Proceedings Practice Directions 2022,…
Paragraph 14
(a) “Every Brief of Argument, whether of the Appellant or of the Respondent to be filed in the Court shall not exceed forty pages; and a Reply brief shall not exceed fifteen (15) pages.”
In Paragraph 14 (c) it says thus;
“Any brief of Argument which does not comply with these provisions shall be invalid.”
A painstaking perusal of the Appellant’s brief of argument filed on the 5th of October, shows the following features ex facie, (1) The brief, as filed is 41 pages, inclusive of the address for service within the jurisdiction of the Respondents and indeed that of the Appellant. (2) It is apparent that the Appellant constricted the contents of his brief. (3) Ex facie, the Appellant’s counsel Mustapha I. Abubakar Esq., signed off at page 40, spanning page 41 of the brief. (4) The brief was assessed by the Registry of this Court at page 41 of the brief on the 5th of October, 2022. (5) The Appellant summarised and concluded his brief at page 40.
In the Appellant’s reply to the 1st Respondent’s Preliminary Objection (paragraph 2.0) he argues that the objection is misconceived. That the contents of an Appellant’s brief of argument are spelt out in paragraph 11 of the Election Judicial Proceedings Practice Directions 2022 and that strictly speaking, they do not include addresses for service, while the pages of the brief is limited by paragraph 14 (a) of the said Practice Directions to 40 pages.
He submits that his brief of argument complied fully or substantially with the relevant provisions of the applicable Practice Directions and is therefore valid. That any non-compliance by virtue of the said addresses for service being supplied on the 41 pages (which is not conceded) is intangible or insignificant and does not in any way affect the validity of the brief. That indeed that is why the 2nd and 3rd Respondents did not bother to raise any objection to the competence of the brief.
The provisions of paragraph 11 (a) of the Election Judicial Proceedings Practice Directions 2022 has this to say:
Viz:
(a) “The Brief of argument which may be settled by counsel shall contain what are in the Appellant’s view, the issues arising in the appeal.
(b) The Brief of Argument shall be concluded with a numbered summary of the reasons upon which the argument is founded.”
With these provisions in mind viz-a-viz the Appellant’s brief in question, it is clear that the Appellant’s brief concluded at page 40, as the summary and conclusion of his brief spanned pages 39 – 40 of his brief of argument.
This connotes that the Appellant’s brief complied with the provisions of paragraph 14 (a) and (b) of the Election Judicial Proceedings Practice Directions, 2022, which instrument deals with pre-election matters.
The Preliminary Objection becomes misconceived and same is bereft of merit. It is overruled and I so hold.
The Appellant’s Brief of Argument is valid. I shall now consider the issues for determination proffered by the Appellant.
ISSUE NO. 1
The Appellant submits that the provisions of Section 84 (5)(b) and (c) of the Electoral Act, 2022, should not carry the ejiusdem generis rule and should not be interpreted together that the Court should have struck to the literal interpretation of the Section as the words were clear and unambiguous. Submits therefore that the 2nd Respondent should have mandatorily conducted the said Primary Election in which the 1st Respondent was nominated as its candidate for the 2023 General election in or within the Senatorial District. That the 2nd Respondent has no discretion and the matter.
He submits that regardless of the alleged security challenges in the Imo West Senatorial District or Imo State in General, it was imperative for the 2nd Respondent (Peoples Democratic Party) to have conducted its Imo West Senatorial District Primary within the said Senatorial District, and consequently that the Imo West Senatorial District Primary Election as held on the 26th of May, 2022 in Owerri, outside the Imo West Senatorial District in anullity.
Submits that the reason for insecurity given by the 2nd Respondent is unjustifiable.
ISSUE NO. 2
The Appellant submits that there was no proper evaluation of the affidavit and documentary evidence before the Court.
That when the Court held that the Appellant had not proved his case on a balance of probability, he was wrong, submits that contrary to the findings of the trial Court, the Appellant sufficiently discharged the onus of proof on him by tendering both affidavit and documentary evidence, to have entitled him to the reliefs sought.
The Court below had held that all allegations of exclusion of delegates were not proved on a balance of probability. Appellant submits that contrary to the findings of the trial Court, that over 800 delegates were excluded from voting.
The Appellant urges this Honourable Court to hold that contrary to the findings of the trial Court, on balance of probabilities or preponderance of evidence, the Appellant has proved satisfactorily that a substantial number of delegates eligible to vote in the Primary Election were wrongly or unlawfully excluded from voting in the Primary Election pursuant to Article 25(1) and (7) of the 2nd Respondent’s Constitution or Part 11 paragraph 4 and Part IV paragraph 7 of the 2nd Respondent’s Electoral Guidelines for Primary Elections 2022, and that the Appellant is entitled to the reliefs sought in his Originating Summons.
RESOLUTION OF ISSUES
ISSUE NO. 1
The provisions of Section 84 (5) (c) (i) notwithstanding, the 3rd Respondent in the Court below had filed a 7 paragraphs counter affidavit – pages 319 – 321 of Record of Appeal Vol. 1. wherein be deposed to the fact by one Linda Opara that the 3rd Respondent had made a strong case for its acceptance of the relocation of venue of the primary of the 2nd Respondent on grounds of the peculiar insecurity situation which has been ravaging the entire state prior to the fixing of the date of the primaries and after, and which led to the murder of one of the 3rd Respondent’s officials while discharging his duties as a registration officer. These facts were supported by the counter affidavit of the 1st and 2nd Respondents. These facts have to do with the insecurity in the State.
This evidence was placed at the bosom of the Court. There is an undertaking in respect of venue for the conduct of party primaries signed by aspirants which was not denied by the Appellant – pages 565 – 568 of the Record of Appeal.
The issue of lack of security is a peculiar circumstance. It is an extenuating circumstance.
The Court cannot, and will not shut its eyes to the peculiar circumstances of this case which borders on insecurity.
Public Policy, equity and good conscience cannot be sacrificed at the altar of any provisions of the law which cannot be effected.
If there is insecurity of such magnitude that lives are lost, violence emanating from insecurity do not understand borders when they happen, Law Rules, Regulations and Decrees no longer have meaning. Laws are an expression of peoples’ desire, for those who are alive to tell the story. Where there is chaos resources are repelled.
In the case in issue, regardless of the provisions of Section 84(5), (c), (i) and the provisions of Article 50 (2) of the Constitution of the Peoples’ Democratic Party 2017 (as amended), Part 11 paragraph 5 and Part IV paragraph 6 (i) of its Guidelines for Primary Election 2022, the overbearing incidence of violence pervading the Imo State and other South Eastern States before the Primary and indeed during the Primary Elections plus gross insecurity in the country in general and the South Eastern States of Nigeria in particular, must of necessary occasion the relocation of venue, and failure on the part of the 3rd Respondent to accede to such request for relocation would occasion to all parties gross miscarriage of justice. Death is no respecter of persons. Indeed, the 3rd Respondent has the mandate and unfettered discretion to relocate venue of elections when it deems it necessary.
The law is trite that a plaintiff can only succeed on the strength of his case and not rely on the weakness of the defendant’s case.
He who avers must prove. In declaratory matters, it is a cast-in-stone principle of law that a Plaintiff and/or Claimant who approaches the Court seeking declaratory reliefs, has the onus to establish his case, by credible evidence. A declaratory relief will not be granted even on admission.
The Appellant has made a heavy weather of the issue of the failure of the Court below to accord the literal interpretation to the provisions of Section 84 (5) (c) (i) of the Electoral Act 2022.
With respect, that is misconceived in the face of the prevailing insecurity issues in the State.
In the face of the overwhelming evidence of the Respondents on issue of insecurity which occasioned the relocation of venue, to accord a mandatory interpretation to the provisions of Section 84 (5) (c) (i) of the Electoral Act, 2022, will not only lead to absurdity but will lead to gross miscarriage of justice.
By this judgment, I urge the National Assembly to amend the Provisions of Section 84 (5) (c) (i) of the Electoral Act 2022, to give adequate attention to the incidence of insecurity in the country. The 3rd Respondent should have the unfettered discretion to relocate venue of primaries and general election across the board. In other words, where it pertains to Elections regarding Governorship, Senatorial Candidates, House of Representatives, State House of Assembly, Chairmanship and Councillorship, the 3rd Respondent can relocate venue at the shortest notice where the need arises, and such shall not invalidate any election.
I am of the view that, in the interpretation of statute, Judges should be mindful of not only the words of the statute, but the spirit behind the enactment, public policy and equity.
The Court below did just that. Consequently, this issue is answered in the affirmative and same is resolved in favour of the Respondents and against the Appellant.
ISSUE NO. 2
The law is elementary that a trial Court has a primary function and duty to appraise fully the facts of a case and properly evaluate the evidence proffered by parties in order to draw inferences and ascribe probative value.
The fulcrum of the Appellant’s case in the Court below centres on two planks viz, (1) the venue of the primary election and (2) on the actual list of delegates who were to vote in the said primary.
At page 902 Vol II of the Record of Appeal, the trial Court amply evaluated the evidence of the Appellant on the list of delegates to vote at the primaries of the 2nd Respondent.
The Court below observed thus;
“at this juncture, let me reiterate that when it comes to voting at elections, the Electoral Act, 2022 in Section 47 (1) and 60 (1) stipulates that it is only accredited delegates who can vote. So the fact that someone for instance has been designated as a delegate (statutory or ad hoc, elected or non-elected) still does not automatically entitle such a person to vote at any primary election. Only accredited delegates can vote.
The Court observed further
“Nowhere in any of those depositions did he state the total number of these said “statutory delegates” that would have likely voted for him; and what were the assurance or guarantees he had that they would certainly vote for him had they not been disenfranchised”
From record – the Court below evaluated Exhibits PDP 6B and Exhibit PDP6c respectively on the issue of the result sheet from Code PD004/SN in arriving at the conclusion that the result sheet relied upon by the Appellant was not shown to have come from proper custody. – pages 899 of Vol. 2 of the Record of Appeal.
It seems to me profoundly erroneous that the Appellant’s grouse is that the Court below abdicated its duty to evaluate evidence to wit: the Appellant’s affidavit evidence as well as the accompanying exhibits.
At page 900of Vol. 2 of the Record of Appeal, the Court below evaluated the evidence presented by the Appellant in support of his reliefs seeking the cancellation of the 2nd Respondent’s Primary held on the 25th and 26th of May, 2022 and the ordering of a fresh primary election. The Court concluded that the Appellant was not entitled to that relief which sought for an order of fresh primary election.
All the Appellant had to establish is that from the totality of the circumstance, the Imo West Senatorial District Primary was not conducted in substantial compliance with the Electoral Act, 2022, the 2nd Respondents’ Constitution and Guidelines.
But regrettably, he failed to establish this. He could not prove that he suffered any prejudice by the conduct of the primary at the venue. The Appellant failed to state, what injury he suffered by virtue of the relocation of venue and failed to adduce evidence showing that the delegates who could have voted for him if the primaries had held at a different venue were prevented from voting for him because of the relocation of venue.
All the Respondents proffered evidence concerning the issue of delegates list. They are all in agreement that the list of the 3-man ad hoc delegates elected from the wards across the 12 Local Government Area that make up the Imo West Senatorial District, as well as the list of the National Delegates elected from the said 12 Local Government Areas were used in the primary election. These facts are contrary to the Appellant’s claim. For purposes of elucidation paragraph, 15 (f)- (c) of the 1st Respondent’s Counter affidavit at pages 364 of Vol. 1 of the Record of Appeal. Reference is made to paragraphs 28, 29 and 36 of the 2nd Respondent’s Counter affidavit at pages 545 – 547 of volume 2 of the Record of Appeal; and paragraphs 15 (f) – (k) of the 1st Respondent’s counter affidavit at pages 364 of volume 1 of the Record of Appeal.
The provisions of Section 84 (8) of the Electoral Act; Section 25(7) of the 2nd Respondent’s Constitution and Part iv article 7 of its guidelines.
The Court below in all came to the conclusion that the Imo Senatorial District primaries was conducted in substantial compliance with the Electoral Act, 2022, and the 2nd Respondent Constitution and Guidelines.
It is my view that the Court below sufficiently evaluated the evidence of the parties before concluding that the Appellant has not discharged the burden of proof on him.
By the Provisions of Section 25(7) of the 2nd Respondents’ Constitution and Part IV Article 7 of its Guidelines, the Senatorial District Congress shall be constituted by all delegates to the State Congress from the Senatorial District.
The provisions of the 2nd Respondent’s Guidelines, the 3-man ad hoc ward delegates and the one National delegate per Local Government Area are delegates in the State congress by virtue of which they are also delegates to the Senatorial District Congress. The Appellant has been unable to dislodge these facts, neither has he proved anything to the contrary. The 3rd Respondent and indeed other Respondents had proffered evidence that out of the 423 delegates that were eligible to vote, only 412 delegates were accredited on the day of the primary election in question.
Evaluation of evidence entails the trial Judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale, to see which side outweighs the other. LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVT. OF NASSARAWA STATE (2012) LPELR 20602 (SC) ATOYEBI AND ANOR. V. GOVERNOR OF OYO STATE AND ORS. (1994) LPELR 595 (SC).
It is an elementary principle of law that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be whether the trial Court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. So long a trial Court does not arrive at its judgment by considering the case of one party before considering the case of the other, its judgment, if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case, it may have adopted.
This is the attitude of the Supreme Court and the Court of Appeal which is cast in stone. The Appellate Courts’ duty is not to re-evaluate the evidence (except the Court below fails to properly evaluate same) to arrive at a conclusion which it would have liked to arrive at. As long as the Court below appraised and evaluated the evidence both oral and documentary before it, without any element of perversity to it, the Appellate Courts would refrain from interfering. WOLUCHEM V. GUDI (1981) 5 S.C. 291 AIYEOLA V. PENRO (2014) LPELR 22915 (S.C.)
It is my view, at the expense of repetition that this Court will not interfere with the findings of the Court below as I find that it properly evaluated the evidence of the respective parties and having placed them on an imaginary scale, found that the case of the Respondents outweighs that of the Appellant, and I so hold.
This issue is resolved in favour of the Respondents and against the Appellant.
The appeal fails. It is devoid of merit and same is hereby dismissed accordingly.
The judgment of the Federal High Court, Owerri Judicial Division delivered on the 13th day of September 2022 in Suit No: FHC/OW/102/2022 is hereby affirmed.
THE CROSS-APPEAL
This Cross-Appeal is an appeal by the 1st and 2nd Respondents in the main appeal against the part of the judgment overruling the Preliminary Objection to the competence of the 1st Cross-Respondents’ suit before the Court below. Dissatisfied, the Cross Appellant filed a Notice of Cross-Appeal on the 27th of September,2022 with one Ground of Appeal. – pages 944 – 949 of the supplementary Record of Appeal filed on the 30th of September, 2022.
The decision of the Court below is at pages 852 – 906 of Volume 2 of the Record of Appeal.
SYNOPSIS OF FACTS
Pertinent to state that at the hearing of this appeal, this Court observed that the two Cross-Appellants, viz the Peoples Democratic Party (PDP) and Hon. Jones Onyereri filed their Notice of Cross-Appeal on the 23rd of September, 2022 and 30th of September, 2022, respectively. Jones Onyereri’s Notice of Cross-Appeal came via Supplementary Record filed on the 30th of September, 2022.
These respective Notices of Cross Appeal had a sole ground of appeal and same Ground of Appeal which is
“ERROR IN LAW
The trial Court erred in law when it held thus;
“So, as can be gleaned from the above, counsel did follow the above procedure. The stamp and seal of Mustapha Abubakar was also fixed on it. The only variation from the laid down procedure; was that the name of address of counsel’s law firm (i.e. Abubakar Mustapha and Associates); was preceded by the abbreviation“PP”. on my opinion, I honestly think that it would amount to stretching the Principle of Okafor V. Nweke too far to the point of absurdity; to hold that an originating process signed as shown above; is incompetent, simply because the expression “PP” was inserted before the name and address of counsel law firm. Admittedly that right appears as unnecessary or superior, surplusage nevertheless it is not one that I think should affect the competence of the process. Consequently, I overrule the two Preliminary Objections”.
I shall consider the two identical Cross Appeals together.
The 3rd Respondent in the main appeal (Peoples Democratic Party (PDP) filed a Cross Appellant’s brief of argument on the 9th of October, 2022. It is settled by C.A. Nnawuchi PhD.
The 1st Respondent in the main appeal (Hon. Jones Onyereri) filed his Cross-Appellant brief of argument on the 9th of October, 2022. It is settled by S.C Imo Esq., the 1st Cross Respondent filed a brief of argument in respect of the Cross-Appeal by PDP. On the 14th of October, 2022.
The 1st Cross Respondent also filed a brief of argument in respect of the Cross-Appeal by Hon. Jones Onyereri on the 14th of October, 2022, both briefs were settled by Mustapha .I. Abubakar Esq.,
On the 18th of October 2022, the parties adopted their respective briefs of argument.
The Cross-Appellant proffered a sole issue for determination viz:
“WHETHER THE TRIAL COURT WAS NOT WRONG WHEN IT HELD THE ORIGINATING SUMMONS FILED ON 7TH JUNE 2022 TO BE COMPETENT AND OVERRULED THE OBJECTION OF THE CROSS-APPELLANT”
In the first Cross-Respondent’s brief of argument in reply to the Cross-Appellants’ brief of argument, he proffered a sole issue for determination viz:
“WHETHER THE LOWER COURT WAS RIGHT IN OVERRULING THE CROSS-APPELLANT’S PRELIMINARY OBJECTION TO THE COMPETENCE OF THE 1ST CROSS RESPONDENT SUIT’’
The issue of the respective parties deal with the question which is the validity or lack of validity of the originating summons in view of the incompetence of the signature of counsel on the originating summons.
The Cross-Appellant submits that the originating summons was incompetent by reason of the fact that it was signed for and on behalf of anentity other than a legal practitioner. That the word “pp” means that the process was signed on behalf of somebody else. Submits that the originating summons was signed on behalf of Abubakar Mustapha and Associate, that the Abubakar Mustapha and Associate is not on the roll of Legal Practitioners.
That the originating summons filed on the 7th day of June 2022, having been signed by Mustapha I. Abubakar for Abubakar Mustapha and Associates is incompetent and liable to be struck out.
This is the fulcrum of the Cross-Appellant case.
RESOLUTION
I shall endeavour to restate the law as to signing of process by legal practitioners as it pertains to the jurisprudence of this country.
Decidedly, all processes filed in Court are to be signed as follows: First the signature of counsels, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. fourthly name and address of legal firm. This is the proper way or manner of validly signing all Court processes by counsel representing parties. SKY POWER EXPRESS AIRWAYS LTD V. UBA PLC & ANOR(2022) LPELR-56590(SC), NIGERIA ARMY V. SAMUEL(2014) 14 NWLR (Pt. 1375)446 AT 485.
Indeed, a plethora of cases have normalized this principle of law.
The originating summons is at pages 3-7 of the Record of Appeal Vol.1.
Below the signature column are the names Mustapha. I. Abubakar Esq. The name is ticked and signed and it says (Legal Practitioner for the Plaintiff).
The additional ‘PP’ Abubakar Mustapha & Associates is after all these.
There is a signature of counsel who ticked his name which was clearly written. Counsel stated that he is Legal Practitioner for the Plaintiff. The name and address of his legal firm is Abubakar Mustapha & Associate (Law bridge Chambers) No.5 Kindia close, off Bangui street, off Adetokunbo Ademola Crescent, Wuse II Abuja.
It is my view that the plaintiff’s counsel in the main appeal who is the 1st Respondent in the Cross-Appeal, satisfied the conditions and features relevant to a valid signature in law.
The cross-appeal is misconceived and same lacks merit. it is dismissed accordingly.
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 issues in contention have been explicitly set out and determined.
I am in entire agreement with the decision of my learned brother. The lower Court, I agree, rightly evaluated the evidence before it. It is a trite principle of law that an appellate Court will not interfere with findings of fact of a trial Court except such findings are perverse. See Oguntade v Oyelakin (2020) 6 NWLR Part 1719 page 1 at 71 – 72 para H- H per Nweze JSC: Suberu v. Polaris Bank (2020) 9 NWLR Part 1728 page 79 at 105 para B – D Per Aka’ahs JSC.
The findings of the lower Court have not been shown to be perverse, I hold.
With respect to the decision of the 3rd Respondent to conduct her primaries at the State Headquarters in Owerri because of the insecurity in the State, it is a notorious fact that insecurity pervades the land, including some parts of Imo State. By Section 14 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999, the security and welfare of the people shall be the primary purpose of government.
If the 3rd Respondent, an organ of the Federal Government, allows elections to be held in a safe place, away from danger, and which fact was well known to the candidates prior to the election, it cannot be faulted, I hold.
No prejudice has been shown to the Appellant. I hold.
For these and the fuller reasons given by my learned brother, I also dismiss this appeal and the cross-appeal in its entirety and affirm the judgment of the lower Court.
IBRAHIM WAKILI JAURO, J.C.A.: I am privileged to have before today read the draft judgment delivered by my brother R. N. Pemu, JCA. His lordship had extensively addressed the issues identified for determination in this appeal and I am completely in agreement with the reasoning and conclusions reached. The appeal is absolutely devoid of any merit and it must therefore fail. I hereby dismiss same.
CROSS APPEAL
In the Cross-Appeal, the Cross Appellant distilled a lone issue for determination and that is:
Whether the trial Court was not wrong when it held the originating summons filed on the 7th June, 2022, to be competent and overruled the objection of the Cross-Appellant.
His lordship gave a lucid consideration of the Cross-Appeal and came to the conclusion, and rightly too, that the Cross-Appeal is lacking in merit and like the main appeal, it must fail. I too agree that the Cross-Appeal is unmeritorious and must fail. Same is dismissed.
Appearances:
M.I. Abubaka, Esq. with him, G.O.C. Ihejiagwa, Esq. For Appellant(s)
S.C. Imo, Esq. with him, Onyinye Obaji, Esq. – for 1st Respondent
C.A. Nnawuchi, Esq. with him, C.C. Nnawuchi, Esq. and P.U. Nnakum, Esq. – for 2nd Respondent
O.C. Nwugo, Esq. Chief Legal Officer INEC – for 3rd Respondent For Respondent(s)