HON. BASSEY ETIM V HON. BASSEY ALBERT AKPAN & ORS (2018)

HON. BASSEY ETIM V HON. BASSEY ALBERT AKPAN & ORS

(2018) LCN/4595(SC)

In the Supreme Court of Nigeria

Thursday, July 5, 2018


Case Number: SC.1057/2017

 

JUSTICES

MUSA DATTIJO MUHAMMAD    Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN    Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE    Justice of The Supreme Court of Nigeria

AMIRU SANUSI    Justice of The Supreme Court of Nigeria

EJEMBI EKO    Justice of The Supreme Court of Nigeria

Between

 

HON. BASSEY ETIM  Appellant(s)

AND

  1. HON. BASSEY ALBERT AKPAN
    2. PEOPLES DEMOCRATIC PARTY [PDP]
    3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

 

RATIO

DETERMINATION OF APPEAL

“It is long settled that the appellate court, particularly this one, is not under any duty to determine the appeal before it on the basis of the issue(s) formulated by the appellant or any of the parties thereto, The court may prefer any issue'(s) formulated by any of the parties or, still, suo motu formulate issue(s) it considers germane for the just and effectual determination of the matter in controversy between the parties. The preferred issue(s) must however evolve from the grounds in the notice of appeal. See Laturide & anbr V. Bella Lajufin (1989) 5 SC 59, Diokpa Francis Onochie V. Feguson Odogwu (2006) 2 SCNJ 96, Edem V. Canton Balls Ltd & anor (2005) LPELR-1007 (SC) (2005) 6 SC (Pt 11) 16.”

 

GRANT OF DECLARATORY RELIEF

“A declaratory relief is only granted in consequence of a finding of fact made by the court. Thus in the absence of sufficient evidence to make the finding of fact that must precede the grant of the relief, the court will not exercise its discretion to grant the relief.

 

 

 

ADMISSION BY A DEFENDANT

“It is also settled that in an action such as the instant one, in which declaratory reliefs are sought, admission on the part of a defendant will not, by itself and independent of the case made out by the claimant, entitle the latter to judgment. Being a discretionary remedy, it is granted only where the court is satisfied that, from his statement of claim and the evidence adduced in support, the claimant has a very strong and cogent case. The claimant must/therefore, satisfy the court that on his own he is fully entitled to the grant of the reliefs. He succeeds wholly on the strength of his case and not or the weakness of the case proffered in defence to his claim. See Kodilinye V. Odu (1935) 2 WACA 336, Bello V. Emeka (1981) 1 SC 101, CBN V. Amao & 2 ors (2010) 5-7 SC (Pt 1) 1 at 31 and Dumez (Nig) Ltd V. Nwakhoba (2008) 12 SCNJ 768. In Utih V. Onoyivwe (1991) 1 NWLR (Pt 166).”

 

 

ACTION FOR DECLARATORY RELIEFS

“For the appellant to succeed, he must establish that he took part in the primary election conducted by the National Working Committee of the 2nd respondent. See Emeka V. Okadigbo (2012) 18 NWLR (Pt 1331) 55, Emenike V. PDP. (2012) NWLR (Pt 1315) 556 at 594, 600, 602 and Senator Abubakar Saddiq Yar’adua & ors V. Senator Abdu Umar Yandoma & ors. (2014) LPELR-(SC)”.

 

 

WHO CONDUCTS PRIMARY ELECTIONS

“This is because it has been settled by this court that it is only the National Executive Committee or National Working Committee of a party that has the power to conduct primary elections. See: Emenike Vs P,D.P. (supra): Yar’Adua Vs Yandoma (2014) LPELR (SC)@ 107 A-C”.

 

EFFECTS OF CONTRADICTING EVIDENCE

“Unfortunately, the testimonies, which he, [the appellant], adduced were so evidently contradictory and inconsistent that they could not establish that the said exhibit was the result sheet of a primary election, the conduct of which, was authorized by the National Working Committee of the second respondent as required by law. The effect is that these conflicting versions render his evidence very unreliable and untenable, C D. C. (Nig.) Ltd v SCOA (Nig.) Ltd[2007] 6 NWLR (pt. 1030) 300. This must be so because such contradictions in the evidence of the plaintiff and his witness are disastrous; they, actually, have the effect of destroying the case of the plaintiff, Audu v Guta [2004] 4 NWLR (pt 864) 463”.

 

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading  Judgment): This appeal is against the judgment of the Court of Appeal, Calabar Division, hereinafter referred to as the lower Court, in respect of Appeals Nos CA/C/87/2017 and CA/C/104/2017 delivered on 30th day of November 2017, setting aside the decision of the Federal High Court sitting in Uyo, hereinafter referred to as the trial Court, in suit No. FHC/UY/CS/1087/2015. Hereinunder is supplied a summary of the facts that brought about the appeal.

The 2nd respondent, the P.D.P. a registered political party, with the view to nominating its candidate for the Akwa Ibom North East Senatorial Seat in the 2015 general election, conducted its primary election on the 7th day of December 2014. The appellant, 1st respondent and others contested the said primary election at the end of which the name of the 1st respondent who had polled the highest vote was forwarded to the 3rd respondent by the 2nd respondent as its candidate for the Senatorial Seat. Aggrieved by these turn of events, the appellant commenced the suit that brought about this appeal at the trial Court.

 

 

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By his amended statement of claim the appellant, as plaintiff, claims against the respondents being the defendants the following declaratory and injunctive reliefs:-
“a) A DECLARATION that the 1st defendant is bound by the provisions of its Constitution, Guidelines for the primary Elections 2014 and the results of its nomination processes for the election of its candidate in to the Akwa Ibom North East Senatorial District of Akwa Ibom State.
b) A DECLARATION that the 1st Defendant lacks competence, vires or authority to ignore, sideline or swap the results of the primary election conducted on the 7th December 2014 for the election of its candidate for Akwa Ibom North East Senatorial District to the prejudice of the Plaintiff who was so elected.
c) A DECLARATION that the Plaintiff is, and no other person is for all practical purpose relating to or connected with the 1st Defendant’s candidacy in respect of the 2015 election in the Akwa lbom North East Senatorial District, the candidate of the 1st defendant fielded for the said election.
d) AN ORDER of this Honourable Court mandating the 1st Defendant to forward to the 2nd Defendant and

 

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for the said Defendant to accept the name of the Plaintiff as the 1st Defendant’s only candidate for the Akwa lbom North East Senatorial District for the purpose of the 2015 Senatorial elections for that District.
e) AN ORDER of this Honourable Court mandating the 2nd Defendant to recognize and put on the ballot the name of the Plaintiff as the 1st Defendant’s candidate for the Akwa Ibom North East Senatorial District of Akwa lbom State for the purpose of 2015 general elections for that Senatorial District.
f) AN ORDER OF INJUNCTION restraining the 2nd Defendant from accepting, recognizing, dealing with/or putting on the ballot paper the name of the 3rd Defendant or any person other than the Plaintiff as the 1st Defendant’s candidate for Akwa Ibom North East Senatorial District of Akwa lbom State at the 2015 Senatorial elections for that Senatorial District.
g) AN ORDER nullifying any or all purported actions of the Defendants relating to the Senatorial election in respect of Akwa Ibom North East Senatorial election, including any allegedly held election, to the prejudice of the Plaintiff and in contravention of the 1st Defendant’s party primary election of 7th

 

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December 2014, the provisions of its Constitution, Guidelines for the Primary Elections 2014 and the result of its nomination processes for the election of its candidate in to Akwa lbom North East Senatorial District of Akwa Ibom State.
h) AN ORDER of this Honourable Court setting aside the certificate of returns issued by the 2nd defendant to the 3rd Defendant same having being done irregularly and illegally.
i) AN ORDER of this Honourable Court on the 2nd Defendant to issue a fresh certificate of return to the Plaintiff as the true and bonafide candidates of the Defendant in to Akwa Ibom North East Senatorial District.

With pleadings filed, exchanged and the matter fully tried, the trial Court granted the appellant all except items (e) and (f) of his claim it adjudged to have been overtaken by events.

Aggrieved by the trial Court’s judgment, the 1st respondent appealed to the lower Court which decision concludes at page 2812 of the record of appeal thus:-
“From the evidence before the Court, the actions of the 2nd, 3rd respondents relating to the Senatorial Election in respect of Akwa Ibom North East

 

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Senatorial Seat led to the successful PDP Senatorial primaries held on the 7th of December 2014. The political party primary election as earlier held followed party guidelines. There is therefore nothing that justifies nullifying it by the lower Court. I have equally found that the lower Court cannot nullify the primary election and still declare the 1st respondent winner.
From the foregoing therefore, I am of the firm view that there is merit in this appeal. The appeal is allowed. The judgment of the High Court …in suit No. FHC/UY/CS/1087/2015 is hereby set aside… It is hereby declared that the appellant is the winner of the primary election of the 2nd respondent held on 7th of December 2014 in respect of Akwa lbom North, East Senatorial District.”

It is against the foregoing decision that the plaintiff at the trial Court, being aggrieved, appeals to this Court on a notice filed on 23rd day of January 2018 containing fourteen (14) grounds.

At paragraphs 3.0 to 4.0, pages 3 to 4 of the appellant’s brief six issues have been formulated as having arisen for the determination of the appeal thus:-
“1. Whether their Lordships of the Court below were

 

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right when they held that the result sheet (Exhibit 8) was declared on a form not prescribed by the Guidelines of the 2nd Respondent and that both Michael George and Daniel Ekanem; Electoral and Returning Officers respectively were not appointed as such by the Electoral Panel and proceeded on that ground amongst others to allow the appeal and set aside the judgment of the trial Court. (Arising from Ground 1 of the grounds of appeal|.
2. Whether their Lordships of the Court below were right in placing undue reliance on Exhibits 19,28 and 29 in coming to the erroneous conclusion that the 1st Respondent won the primary election conducted by the 2nd Respondent on the 7th day of December, 2014 without due regard to the fact that these same Exhibits had been totally discredited. (Arising from Grounds 3, 4, 5, 6, 12, 13 and 14 of the grounds of appeal).
3. Whether their Lordships of the Court below were right when they held as inadmissible the admission made by the 2nd Respondent in the FCT High Court in SUIT NO. FCT/HC/CV/950/2015 to the effect that the Appellant was indeed a candidate in the senatorial primaries in issue in this case on the ground that law

 

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governing admissibility of evidence in previous proceedings had not been compiled with. (Arising from Grounds 2 and 10 of the grounds of appeal).
4. Whether their Lordships of the Court below were right when they held that the Appellant could not be declared winner of the primary election having regard to the relief sought in paragraph 13(g) of the Statement of Claim in spite of the fact that the Appellant did not seek nullification of the primaries but of the actions and illegalities of his opponents which were contrary to the constitution and guidelines of the 2nd Respondent. (Arising from Ground 9 of the grounds of appeal).
5. Whether their lordships of the Court below were right when they held that there was no credible evidence to justify the trial Court’s finding that the 1st Respondent was wrongly foisted on the 2nd Respondent as a candidate for the senatorial primaries in violation of the provisions of the Constitution, the Electoral Act and the party Guidelines and subsequently as winner of the Akwa-lbom North East Senatorial District primaries held on the 7th December, 2014. (Arising from Ground 11 of the grounds of appeal).

 

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  1. Whether, having regard to the 2014 Guidelines of the 2nd Respondent for the conduct of the senatorial primaries, their Lordships of the Court below were right when they held that it was not mandatory for the number of accredited delegates to tally with the number of the total votes recorded and that it was not required that the membership numbers of both Electoral and Returning Officers should be inscribed on the result sheet. (Arising from Ground 7 and 8 of the grounds of appeal).”The 1st respondent’s four issues for the determination of the appeal see pages 3 to 4 of his brief, are:-
    “1. Whether, considering the evidence, oral and documentary, before this Honourable Court, the standard and burden of proof on the Appellant and the provisions of the Electoral Act 2010 (as amended), the 2nd Respondent’s Constitution and Guidelines, the Lower Court was right when it set aside the Trial Court’s Judgment and upheld the 1st Respondent’s victory and nomination at the 2nd Respondent’s Primary Election held on 07 December 2014 in respect of Akwa Ibom North-East Senatorial District (Grounds 3, 4, 5, 6, 7, 8, 11, 12, 13 and 14).

 

 

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  1. Whether, considering the fact that the 1st and 2nd Respondents in their joint Amended Statement of Defence challenged the validity of Exhibit 8 the Result Sheet relied on by the Appellant at the Trial Court, the lower Court was right when it held that the Appellant’s Result Sheet (Exhibit 8) was not the authentic result as it was not declared on a form prescribed by the 2nd Respondent Guidelines and was not signed by the Electoral and Returning Officers appointed by the 2nd Respondent to conduct the Primary Election (Ground 1).
    3. Whether, considering the reliefs sought by the Appellant at the Trial Court, the Lower Court was right when it held that it was perverse and irreconcilable for the Trial Court to grant the Appellant’s relief (g) in his Statement of Claim, which seeks the nullification of the 2nd Respondent’s Primary Election held on 07 December 2014 in respect of Akwa Ibom North East Senatorial District and still proceeded to grant the Appellant’s reliefs declaring him the winner of the same nullified Primary Election (Ground 9).
    4. Whether, considering the provisions of Evidence Act, 2011 and principles established by decided

 

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authorities on evidence given in previous proceedings, the lower Court was right when it held that the provision governing admissibility of and reliance on evidence given in previous proceedings was not complied with in reliance by the Trial Court on the purported admission made by the 2nd Respondent in Suit No. FCT/HC/CV/950/2015 at the High Court of the Federal Capital Territory (Grounds 2 and 10).” (Underlining supplied for emphasis).

The three issues presented at page 2 of the respondent’s brief for determination of the appeal read:-
“i) Whether the lower Court was not right in relying on Exhibits 19, 28 and 29 as the authentic documentary evidence to decide that the 1st respondent was duly nominated at the Primary Election of the 2nd respondent held on 7/12/2014 for Akwa Ibom North East senatorial District.
ii) Whether the lower Court was not right in holding that the Primary Election of the 2nd Respondent held on 7/12/2014 and won by the 1st Respondent for Akwa Ibom North East Senatorial District was conducted in compliance with the 2nd Respondent’s Election Guidelines for Primary Election 2014.
iii) Whether the lower Court was not

 

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right in holding that Exhibit 8 did not conform with Sections 29 & 30 Election Guidelines Primary Elections 2014.
iv) Whether the lower Court was not right in setting aside the judgment of the trial Court and declaring the 1st Respondent as the duly nominated candidate at the primary election of 7/12/2014 on the platform of the 2nd Respondent for the Akwa Ibom North East Senatorial District.”

The 3rd respondent has, at pages 7-8 of its brief, adopted the six issues distilled by the appellant as having arisen for the determination of the appeal.

It is long settled that the appellate Court, particularly this one, is not under any duty to determine the appeal before it on the basis of the issue(s) formulated by the appellant or any of the parties thereto. The Court may prefer any issue(s) formulated by any of the parties or, still, suo motu formulate issue(s) it considers germane for the just and effectual determination of the matter in controversy between the parties. The preferred issue(s) must however evolve from the grounds in the notice of appeal. See Latunde & Anor V. Bella Lajinfin (1989) 5 SC 59, Diokpa

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Francis Onochie V. Feguson Odogwu (2006) 2 SCNJ 96, Edem V. Cankon Balls Ltd & Anor (2005) LPELR-1007 (SC) (2005) 6 SC (Pt 11) 16.
In the instant appeal where the issues have been unnecessarily fragmented, the necessity has arisen to prefer such issue(s) distilled by any of the parties that evolve(s) from the grounds of appeal and is/are comprehensive enough, on resolution, to effectually determine the matter the appeal raises. Accordingly, the appeal shall be determined on the basis of the 1st issue distilled by the 1st respondent which subsumes virtually all the issues distilled by the others that are germane to the just and effectual disposal of the appeal. For the avoidance of doubt the issue is hereunder reproduced:-
“1. Whether, considering the evidence, oral and documentary, before this Honourable Court, the standard and burden of proof on the Appellant and the provisions of the Electoral Act 2010 (as amended), the 2nd Respondent’s Constitution and Guidelines, the Lower Court was right when it set aside the Trial Court’s Judgment and upheld the 1st Respondent’s victory and nomination at the 2nd Respondent’s Primary Election held on 07 December 2014 in

 

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respect of Akwa !bom North-East Senatorial District (Grounds 3, 4, 5, 6, 7 8, 11, 12, 13 and 14).” (Underlining supplied for emphasis).

Arguing the appeal, learned senior counsel Kanu Agabi for the appellant submits that the validity or otherwise of exhibit 8 the lower Court bases its decision to reject appellant’s case was never made an issue by any of the parties either at the Court of first instance or the lower Court. The issue, it is contended, was raised suo motu by the lower Court and parties, particularly the appellant against whom the decision was given, were not heard. Exhibit 8 having not been made an issue of the appeal at the lower Court, it is submitted, the Court is wrong to have made it one. Relying on Halico Nig Ltd V. Equity Bank Nig Ltd (2013) 6-7 SC (Pt IV) 35 at 39 and Ben Obi Nwabueze V. Justice Obi Okoye (1988) 10-11 SCNJ 61, learned senior counsel submits that for the lapse alone, the appellant is entitled to have the lower Court’s judgment set-aside. Learned senior counsel so urges.

In any event, learned senior counsel further submits, exhibit 8 fully complies with paragraph 29 of the Electoral

 

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Guidelines of the 2nd respondent thereby rendering the lower Court’s finding to the contrary all the more perverse.

It is the primary duty of the trial Court to evaluate evidence and where the credibility of witnesses is involved, the lower Court’s inference from the evidence of witnesses it did not see and assess, it is further contended, cannot substitute that of the trial Court. The Court cannot reject the testimony of PW3 and PW5 from the cold and lifeless facts it assessed from the record and, instead, prefer the evidence of DW6 and DW7 to further discountenance the documentary evidence of the one and accept that of the other side. The evidence of witnesses of the defendants, especially DW3 and DW6, that is plagued by contradictions, it is further submitted, cannot sustain the lower Court’s findings that 1st respondent, instead of the appellant, is 2nd respondent’s candidate at the senatorial election. Relying on Momah V. VAB Petroleum Inc (2000) All FWLR (Pt 5) 827 and Egba V. Appah (2005) NWLR (Pt 935) 178, learned counsel further urges that the trial Court’s finding at page 2131 of vol. 3 of the record of appeal that exhibit 19, is falsified be restored. These

 

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findings, unlike those of the lower Court, it is submitted, are based on unchallenged evidence of appellant’s witnesses on record that exhibit 8 is the result of the 2nd respondent’s primary election conducted by its relevant officers.

Exhibits 14 (a) 14 (b) and (14) (c), learned appellants counsel further contends, are 2nd respondent’s admission in suit No. FCT/HC/CV/750/2015 between the same parties that the appellant was the actual winner of its 7th December primary election. Relying inter-alia on APC V. PDP (2015) LPELR-24587 (SC), AD V. Fayose (2004) AFWLR (Pt 222) 1719 and Ezekiel Adedayo V. Alhaji Yakubu Babalola & Ors (1995) LPELR-85 (SC) learned senior counsel submits that by the exhibits, the fact of appellant’s candidature arising from the primary election has ceased to be in contention. To allow the 2nd respondent to resile from its admission as conveyed in the exhibits, it is submitted, is to allow it to be inconsistent in its case. The decisions in Solomon Ajide V. Kadiri Kelani (1985) 3 NWLR (Pt 12) 248 at 269, Okoroafor Mbadiniju & 3 Ors V. Chukwunyere Ezuka & 5 Ors vol. 22 LRCN 1 at 37 and Tijani Jolasun V. Napoleon

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Bamgbose vol. 190 LRCN 1 at 24, learned senior counsel further submits, disentitles the 2nd respondent from doing so.

Lastly, learned senior counsel submits that the lower Court’s finding that the appellant by his relief (g) has sought the impossible is a complete misapprehension of what the relief stands for. The relief, it is argued, is not about the nullification of the 2nd respondent’s primary election but 1st respondent’s nomination that arises from the breach of the 2nd respondent’s Constitution, Electoral Guidelines and the Electoral Act as amended. Relying on Amaechi V INEC (2008) 5 NWLR (Pt 1080) 227 and Dalhatu V. Turaki (2003) 5 NWLR (Pt 843) 300, Achineku V. Ishagba (1988) 1 SCNJ 427, Oyeyipo V. Chief Oyinloye (1987) 1 NWLR (Pt 50) 356 and Kraus Thompson Organisation V. National Institute for Policy and Strategic Studies (NIPPS) (2004) 17 NWLR (Pt 901) 44, learned senior counsel urges that the issue be resolved in appellant’s favour in allowing the appeal.

Responding, learned senior counsel for the 1st respondent, Paul Usoro submits that the appellant who failed to prove his claim at the two Courts below cannot succeed here as well.

 

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Beyond establishing his case on the balance of probabilities, the aspect of appellant’s case that involves criminal allegation of falsification of the result sheet relied upon by the respondents, it is contended, must be proved beyond reasonable doubt.

The appellant, it is further submitted, succeeds on the strength of his case and not on the weaknesses of the 2nd respondent’s defence. The trial Court’s failure to imbibe these elementary principles, it is contended, justifies the lower Court’s intervention to set aright the miscarriage of justice the trial Court’s judgment occasioned. Inter-alia relying on Sections 131-132 of the Evidence Act, Okoye & Ors V. Nwankwo (2014) LPELR-23172 (SC), PDP V. INEC (2012) LPELR-9724 (SC) and Congress for Progressive Change V. INEC & 41 Ors (2011) LPELR-8257 (SC), learned senior counsel insists that the appellant in failing to discharge the burden of proof the law places on him is not, as rightly held by the lower Court, entitled to the declaratory reliefs he claims even if same are admitted by the respondents in whatever manner.

Conceding that it is the trial Court’s primary duty to

 

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evaluate the evidence of parties, learned senior counsel, however, asserts that where the evaluation is wrongly done, the appellate Court has the corresponding duty of re-evaluating the evidence, particularly where same is documentary and credibility is not an issue, to arrive at the just decision in the matter. The very narrow issue in this case, as found by both Courts below, it is submitted, is who between the appellant and the 1st respondent won 2nd respondent’s primary election. Paragraph 50 (1) of 2nd respondent’s Constitution vests the party’s National Executive Committee alone the power of conducting primary election. Appellant’s claim, it is argued, is based on the allegation that the primary election was conducted in breach of the party’s Constitution and the Electoral Act which in Section 87 (4) and (9) entitled him to the reliefs he seeks. The appellant as PWI and his witnesses, particularly PW3 and PW5, all testify to the fact that Mr. Osuntokun, DW6, headed the Electoral Panel that conducted the 7th December 2014 primary election appellant claims he won. The legality or otherwise of the primary election, It is contended, lies in determining who, between the

 

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two persons in exhibit 8, relied upon by the appellant, and the two persons in exhibit 19, tendered in defence, were appointed the Electoral and Returning officer respectively in the conduct of the primary election by Mr. Osuntokun. The lower Court, unlike the trial Court, submits learned senior counsel, held that the two persons contained in exhibit 19, are the persons appointed to conduct the election. The lower Court, it is submitted, acted purposefully on the evidence on record which points conclusively at the invalidity of exhibit 8 relied upon by the appellant in proof of his case.

Lastly, the trial Court’s grant of appellant contradictory reliefs, learned senior counsel submits, is perverse. With the nullification of the very primary election in relation to which the other reliefs are sought, nothing again remains on which those reliefs can stand. Learned senior counsel relies onUdengwu V. Uzuegbu (2003) 13 NWLR (Pt 836) 136 at 152, Agbomeji V. Bakare (1998) 9 NWLR (Pt 564) 1 and (1992) 3 NWLR (Pt 231) 658 at 686-687 to further urge the resolution of the issue against the appellant and the dismissal of the appeal.

 

 

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  1. A. Umoh Esq for the 2nd respondent, in their equally elaborate brief, rehashes the foregoing submissions of learned senior counsel for the 1st respondent to urge the dismissal of the appeal as well.Alhassan A. Umar Esq. in the brief he settled for the 3rd respondent chose to be ambivalent. His submissions therein are accordingly discountenanced.Now, arguments for and against this appeal are unnecessarily prolific and intense. I entirely agree with learned senior counsel Mr. Paul Usoro for 1st respondent that the issue the appeal raises is indeed very narrow. The facts which sustain this postulation draw from the pleadings and evidence proffered thereon by the parties which both Courts below concurrently appreciate.

    The appellant in paragraph 6 of his amended statement of claim, see page 1107 of vol. 2 of the record, averred thus:-
    “In line with the 1st Defendant’s Guidelines for the 2014 primary election aforesaid, the Senatorial indirect Election took place at the Uyo Township Stadium on the 7th December 2014, and out of the delegates accredited to vote for the election, the Plaintiff scored a total of 150 (One Hundred and Fifty

 

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votes), being the highest number of votes cast for any of the contesting aspirants and was duly declared and returned as the winner of the said primary election by the Returning Officer and the 1st Defendant’s candidate in the general election to the Akwa Ibom North East Senatorial Election having defeated seven (7) other aspirants. Pursuant thereto, the Returning Officer issued to the Plaintiff a “result sheet” which he shall rely upon at the trial. The 150 delegates from the nine (9) Local Government Areas of the said Senatorial District who were part of the Electoral College for the said primary election of the 1st Defendant and voted for the Plaintiff on 7th December 2014 deposed to an affidavit each with their pictures affixed thereto in confirmation and/or verification of their votes and support for the Plaintiff on the said election and return. The said affidavits shall be relied upon at the trial and are hereby pleaded.” (Underlining supplied for emphasis).

The “result sheet” referred to in the foregoing is exhibit 8. In joining issues with the appellant to the foregoing, the 1st and 2nd respondents in paragraphs 6 (a) (b) (c) of their

 

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statement of defence particularly plead as follows:-
“Further to paragraphs 4 and 5 above and in specific response to paragraphs 5, 6, 7 and 8 of the Amended Statement of claim, the PDP Defendants aver that the 1st Defendant’s Primary Election for Akwa Ibom North East Senatorial District was conducted in accordance with the PDP Guidelines on 07 December 2014 at the Uyo Township Stadium and the 3rd Defendant emerged as the winner of the said primary election.
Particulars
a. The Plaintiff’s alleged result Sheet and List of Delegates for the Akwa Ibom North East Senatorial District annexed to the Amended Statement of Claim are fake, forged and fictitious and were not authored, produced, or signed howsoever by the appointed Retuning Officer for the Primary Elections, or any official of the 1st Defendant that conducted the Elections.
b. Messrs Michael George and Daniel Ekanem named in the Plaintiff’s alleged Result Sheet were not the Electoral Officer and the Returning Officer respectively appointed by the 1st Defendant pursuant to Section 25 (viii) of the PDP Guidelines for Primary Elections 2014.
c. The Electoral Officer and the Returning Officer

 

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appointed by the Chairman and other members of AKS NASS Electoral Panel pursuant to Section 25 (viii) of the PDP Guidelines for the Akwa lbom North East Senatorial District Primary Election held on 07 December 2014 at the Uyo Township Stadium were Mr. Nse Gabriel and Hon. Chris Okorie respectively as specified in the authentic Result Sheet produced by the authentic officials of the 1st Defendant who conducted the Primaries and eventually published by the 1st defendant. The PDP Defendants plead and shall at the Trial of this Suit rely a Certified True Copy of the Authentic Result Sheet of the Akwa Ibom North East Senatorial District Primary Election held on 07 December 2014 at the Uyo Township Stadium.” (Underlining supplied for emphasis).

The “authentic result sheet produced by the authentic officers of the 1st defendant” pleaded in the foregoing is exhibit 19.

The two sides, by their pleadings and evidence agree, as concurrently held by the two Courts, that the controversy between them is in respect of the one and only primary election of the 2nd respondent conducted on the 7th December 2014. The only point of contention between the

 

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two sides is as to who, between the appellant and the 1st respondent, is the winner of the primary election. Whereas the appellant relies on exhibit 8 to prove that he is the successful candidate, the 1st and 2nd respondents, on the other hand, rely particularly on exhibit 19 to contest appellant’s reliance on exhibit 8.
Arising from the pleadings and evidence of parties, the trial Court at page 2419 of the record of appeal enthused as follows:-
“In this matter under controversy, the fulcrum of the matter raises the following questions/sub-issues to be answered or resolved
1. Who are the authentic/genuine electoral and returning officers appointed for the conduct of the Akwa Ibom North East Senatorial District primary on 7/12/2014
2. Which of the results tendered by the parties is the genuine/authentic result”
The lower Court in affirming the trial Court’s foregoing finding stated at page 2750 of volume 4 of the record as follows:-
“The issues in contention in this Appeal which the parties have blown out of proportion and have exhausted their reasoning on over-drawn windy and loathsome arguments are indeed very easy. The

 

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parties in this case have agreed that the issues revolved around the Primary Election conducted on the 7th December 2014 for the purpose of fielding a candidate for the Senatorial seat of Akwa Ibom North East Senatorial District Election of 7th December 2014. Each of the parties from the said primary held unto two separate add divergent Returns issued purportedly by Officers who supervised the Election on that date. The results were tendered in this case as Exhibits 8 and 19 before the lower Court. Exhibit 8 was tendered by the 1st Respondent (now the Appellant) as the result declaring him successful in the Primaries while Exhibit 19 was tendered as the result declaring the Appellant (now the 1st Respondent) the winner and the candidate of the party. The hall mark of the controversy therefore is the authenticity of Exhibit 19 and 28 (sic). Once this is resolved all the controversy would have been dealt with. Furthermore, it is also clearly established that the Parties are all operating from the PDP. So the tools that are rightly necessary for the resolution of the issue are the PDP Guidelines and the Constitution of the PDP. I shall therefore peep in to these

 

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documents to see the position of the political party which the Parties subscribed to in this case.” (Underlining supplied for emphasis).
I cannot agree more with the foregoing concurrent findings of the two Courts.
The enquiry to undertake at this point is to uncover from the record of appeal how each of the two Courts proceeded to arrive at their divergent findings and which of the findings comes within the purview of Section 87(4) and (9) of the Electoral Act that provides the appellant the platform to ventilate his dissatisfaction. To aid us in the enquiry are all those trite principles, most of which, counsel alluded to in support of their arguments for and against the appeal. Some are hereinunder recounted.
Appellant’s claim is evidently for declaratory reliefs which are not granted as a matter of course and on a Platter of gold. A declaratory relief is only granted in consequence of a finding of fact made by the Court. Thus in the absence of sufficient evidence to make the finding of fact that must precede the grant of the relief, the Court will not exercise its discretion to grant the relief. It is also settled that in an action such as the instant one, in

 

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which declaratory reliefs are sought, admission on the part of a defendant will not, by itself and independent of the case made out by the claimant, entitle the latter to judgment. Being a discretionary remedy, it is granted only where the Court is satisfied that, from his statement of claim and the evidence adduced in support, the claimant has a very strong and cogent case. The claimant must, therefore, satisfy the Court that on his own he is fully entitled to the grant of the reliefs. He succeeds wholly on the strength of his case and not on the weakness of the case proffered in defence to his claim. See Kodilinye V. Odu (1935) 2 WACA 336, Bello V. Emeka (1981) 1 SC 101, CBN V. Amao & 2 Ors (2010) 5-7 SC (Pt 1) 1 at 31 and Dumez (Nig) Ltd V. Nwakhoba (2008) 12 SCNJ 768. In Utih V. Onoyivwe (1991) 1 NWLR (Pt 166).
This is a pre-election matter arising from 2nd respondent’s primary election for the nomination of its candidate for the 2015 Akwa Ibom North East Senatorial election. For the appellant to succeed, he must establish that he took part in the primary election conducted by the National Working Committee of the 2nd respondent. See Emeka V.

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Okadigbo (2012) 18 NWLR (Pt 1331) 55, Emenike V. PDP. (2012) NWLR (Pt 1315) 556 at 594, 600, 602 and Senator Abubakar Saddiq Yar’adua & Ors V. Senator Abdu Umar Yandoma & Ors. (2014) LPELR-(SC).
Since the appellant is relying on exhibit 8 to prove his entitlement to the declaratory reliefs he must prove that exhibit 8 is indeed the authentic result sheet issued by officers appointed by the 2nd respondent’s National Working Committee to conduct the primary election he claims to have won and was denied the opportunity of being the party’s candidate at the senatorial election.
Unable to withstand the rigours of cross examination, the appellant, at page 1167 of the record, however, divulged as follows:-
“Five members constituted the Electoral Panel responsible for conducting the primary Mr. Olatobosun was the chairman of the panel. Mr. Michael George and Daniel Ekanem were authentic officers that conducted the primary. I did not appoint them ….These two members Daniel Ekanem and Michael George are not members of the panel.” (Underlining supplied for emphasis). Daniel Ekanem and Michael George the appellant assert

 

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issued exhibit 8 testified as PW3 and PW5 respectively.
Under cross examination PW3 said:-
“I was the returning officer of the primaries. I did not appoint myself I do not have any letter of appointment…I am not a member of the National Executive Committee. There were 5 members of the panel responsible for conducting the primaries of the senate. I was not a member of that panel….. The panel by the guidelines is the one that oversees all part of the conduct of primaries.” (Underlining supplied for emphasis).
Under cross examination PW5 similarly told the trial Court, in relation to exhibit 8 the appellant relies on, as follows:-
“This is the result sheet. I issued to all the aspirants. My name is in the document as the electoral officer. It was signed by me…..Olatubosun was the Chairman of the Electoral Panel Akwa Ibom North East Senatorial District. Electoral and Returning officers take instructions from the Electoral Panel. I did not appoint myself. It was Olatubosun that appoint me on 7th December 2014.” (Underlining supplied for emphasis).
At this point the question which must agitate the mind of

 

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any reasonable Court is whether the foregoing testimonies vis-a-vis exhibit 8 establishes the appellant’s entitlement to the declaratory reliefs he seeks and which the trial Court found he does.
It occurs to me that the appellant, by these pieces of manifestly contradictory and inconsistent evidence is far from establishing that exhibit 8 is indeed the result sheet of a primary election the conduct of which was authorized by the National Working Committee of the 2nd respondent as the law requires. The contradictions in the testimonies of these witnesses being fundamental render appellant’s case untenable. See Okashetu V. State (2016) LPELR-40611 (SC), Nsirim V. Nsirim (2002) 2 SCNJ 46, Anuonye Wachukwu & Anor V. Amadike Owunwanne & Anor (2011) LPELR-3466 (SC) and Akaji Isiyaku Yakubu V. Alhaji Usman Jauroyel & Ors (2014) LPELR-22732 (SC).
It is manifest from the evidence on record that the appellant whose burden it is to establish that, as required by Rule 25 (viii) of the 2nd respondent’s Electoral Guidelines, it was DW7 who submitted the names of PW3 and PW5 as the Electoral Officers to the Electoral Panel chaired by Mr. Osuntokun that conducted the

 

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primary election, has not discharged the burden.
One also agrees with learned senior counsel for the 1st respondent that should the contradictions in the testimonies of appellant’s witnesses be glossed over, as did the trial Court, the appellant and his witnesses will still be held to have acknowledged the fact that Mr. Osuntokun is the chairman of the panel that conducted the primary election. Testifying as DW6, Mr. Osuntokun not only disclaimed PW3 and PW5, who signed exhibit 8, as being the Electoral Officer and Returning Officer in respect of the primary respectively, he categorically denied the participation of the appellant in the primary election as well.
It is clear from the foregoing that the two Courts below are wrong in going beyond the evidence the appellant proffers in proof of his claim, the one by stressing on the weakness of the case of the defendants and the other dwelling on its strength to find for and against the appellant respectively.
The principle has long been settled that the appellant succeeds on the strength of his case only and not on the weakness of the respondent’s case. Having failed to

 

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establish that exhibit 8 is indeed the result sheet of the primary election conducted on the authority of the 2nd respondent’s National Working Committee, his case fails and should have been dismissed by the trial Court. See Ogolo V. Ogolo (2006) 2 SC (Pt 1) 61 and Tukur & Ors V. Sabi & Ors (2013) 3 SCNJ 212. Even though the lower Court did not dismiss the appellant’s case at the appropriate stage, it eventually found the claim unmeritorious.

It must be stated at this point that it is not every error or mistake by a Court that will lead to a reversal of its judgment on appeal. Only a mistake that occasions miscarriage of justice does. See John Owhonde V. Alphonso Ekpechi (2003) 9 SCNJ 1, and Ukiri V. Geco Prakla Nigeria Ltd (2010) LPELR-3341 (SC). In the instant case where the mistake of the Court below does not occasion miscarriage of justice, the mistake is accordingly discountenanced. The Court’s judgment endures and is hereby affirmed. In sum, the appeal has failed and is accordingly dismissed at a cost of five hundred (N500, 000.00k) naira in favour of the 1st respondent.

 

 

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother MUSA DATTIJO MUHAMMAD, JSC just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and ought to be dismissed.
I agree with that the 1st respondent’s first issue is sufficient to dispose of this appeal.

In an action of this nature, where the appellant, as plaintiff, seeks declaratory reliefs, he has the burden of satisfying the Court that he is entitled to those reliefs. He must rely on the strength of his own case and not the weakness of the defence, if any. He may not even rely on any lapses or inadequacies in the defence. See: Dumez Nig. Ltd. Vs Nwakhnoba (2008) 18 NWLR (Pt 1119) 361: Emenike vs P.D.P (2012) 12 NWLR (Pt.1315) 556; Okoye vs Nwankwo (2014) 15 NWLR (Pt.1429) 93.
The burden was on the appellant who asserted that those who issued Exhibit 8 to him were the persons authorized by the National Executive Committee of the People Democratic Party to conduct the primary election that took place on 7th December 2014, to adduce satisfactory evidence to prove that assertion.
This is because it has been settled by this

 

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Court that it is only the National Executive Committee or National Working Committee of a party that has the power to conduct primary elections. See: Emenike Vs P.D.P. (supra): Yar’Adua Vs Yandoma (2014) LPELR (SC) @ 107 A-C.
In the instant case, as rightly found by the Court below, the appellant and his witnesses, PW3 and PW5 gave conflicting evidence as to who appointed PW3 and PW5 to conduct the primary election. It was agreed by both sides that Olatunbosun Osuntokun was the Chairman of the Electoral Committee. He testified as PW6 and stated categorically that PW3 and PW5 were not the returning officer and electoral officer appointed by him. The said witnesses were unable to show who appointed them.
I agree entirely with my learned brother that the appellant failed to discharge the onus of proof on him that would entitle him to the declaratory reliefs sought.
His witnesses gave evidence that contradicted his assertions. Exhibit 8 relied upon by the appellant was rendered worthless. The Court below was therefore right when it set aside the judgment of the trial Court and upheld the victory of the 1st Respondent.

 

 

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I find no merit in this appeal. It is hereby dismissed. I abide by the order for costs as contained in the lead judgment.
Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I read, in advance, the draft of the leading judgment which my Lord, Musa Dattijo Muhammad, JSC, just delivered. I agree with the conclusion that the lower Court’s judgment should be affirmed.

As His Lordship found, in the said leading judgment, the appellant’s case, at the trial Court, was woven around exhibit 8 in his claim to entitlement to the declaratory reliefs he sought. As such, he had the obligation of proving that the said exhibit 8 was, truly, the authentic result sheet issued by officers appointed by the second respondent’s National Working Committee to conduct the primary election he claimed to have won.
Unfortunately, the testimonies, which he, [the appellant], adduced were so evidently contradictory and inconsistent that they could not establish that the said exhibit was the result sheet of a primary election, the conduct of which, was authorized by the National Working Committee of the second respondent as required by law.

 

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The effect is that these conflicting versions render his evidence very unreliable and untenable, C. D. C. (Nig.) Ltd v SCOA (Nig.) Ltd [2007] 6 NWLR (pt. 1030) 300. This must be so because such contradictions in the evidence of the plaintiff and his witness are disastrous; they, actually, have the effect of destroying the case of the plaintiff, Audu v Guta [2004] 4 NWLR (pt 864) 463.
As this Court held in National Investment Properties Co. Ltd v The Thompson Organization Ltd and Ors (1969) NMLR 99, 104:
A Plaintiff must call evidence in support of his pleadings and evidence which is in fact adduced, which is contrary to his pleadings, should never be admitted. It makes no difference that the other side did not object or that the Judge did not reject it. It is of course the duty of counsel to object to, in one word, inadmissible evidence; but if notwithstanding this, evidence is still, through oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.
The explanation for this prescription is simple: the

 

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standard of proof is on the preponderance of evidence.
Thus, where the evidence adduced by the plaintiff is contradictory, he would have failed to discharge the onus of proof on him, Yakubu v Jauroyel and Ors (2014) LPELR-22732 (SC) 69; E -G. That was the fate of the plaintiff’s case at the trial Court. His case must, therefore, fail.

It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall enter an order dismissing this appeal. Appeal dismissed. I abide by the consequential orders in the leading judgement.

AMIRU SANUSI, J.S.C.: The judgment in this appeal prepared and delivered by my learned brother Musa Dattijo Muhammad, JSC was made available to me before now. Having perused same, I find myself in entire agreement with his reasoning and the conclusion he arrived at that this appeal lacks substance and deserves to be dismissed. The appeal is dismissed by me. I endorse the order on costs made in the lead judgment.

EJEMBI EKO, J.S.C.: My Lord, HON. MUSA DATTIJO MUHAMMAD, JSC had availed me, before now, the draft of

 

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the judgment just delivered in this appeal. It represents my views in the appeal.
Consequently, I hereby adopt it, including all the consequential orders made therein.

I need only to add that the case of the Appellant, as the Plaintiff, was bedeviled with contradictions right from its inception. He had sought at the trial Court three declaratory reliefs and six injunctive orders, which said injunctive orders are merely consequential reliefs. Of the three declaratory reliefs, the third reads thus –
(c). A DECLARATION that the Plaintiff is, and no other person is for all practical purpose relating to or connected with the 1st Defendant’s candidacy in respect of the 2015 election in Akwa Ibom North East Senatorial District, the candidate of the 1st Defendant FIELDED for the said election.
I understand the Appellant, on this relief, as saying that he had already been fielded as the 1st Defendant (2nd Respondent’s) candidate for Akwa Ibom North East Senatorial District, and his coming to Court was merely to have the Court declare to all other impostors that his was already a done deal as he had already been fielded by the

 

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P.D.P. as its candidate. The choice of the word “fielded” was instructively deliberate and purposeful. This third relief was couched as intended; the first and second reliefs being merely precursoral harbingers of the coming of the main course, the third declaratory relief. For avoidance of doubt I herein below reproduce (a) & (b) preceding relief (c).
(a). A DECLARATION that the 1st Defendant is bound by the provisions of its Constitution, Guidelines for the Primary Elections 2014 and the results of its nomination processes for the election of its candidate in the Akwa Ibom North East Senatorial District of Akwa Ibom State.
(b). A DECLARATION that the 1st Defendant lacks competence, vires or authority to ignore, sideline or swap the results of the primary election conducted on the 7th December, 2014 for the election of its candidate for the Akwa Ibom North East Senatorial District to the prejudice of the Plaintiff who was so elected.
It is a basic logic or common sense that the election of the candidate from the nomination or primary election precedes his being fielded, presented or put up as the Party’s candidate.
This is my understanding of the verb field

 

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the past tense or past participle of which is fielded after consulting the 7th ed of Oxford Advance Learners Dictionary International Students Edition.
The injunctive reliefs immediately following the third declaratory relief sought by the Appellant then seek
(d) AN ORDER of this Honourable Court mandating the 1st Defendant to forward to the 2nd Defendant and for the said Defendant to accept the name of the Plaintiff for the Akwa Ibom North East Senatorial District for the purpose of the 2015 Senatorial elections for that District.
(e) AN ORDER of this Honourable Court mandating the 2nd Defendant to recognise and put on the ballot the name of the Plaintiff as the 1st Defendant’s candidate for the Akwa Ibom North East Senatorial District of Akwa Ibom State for the purpose of (the) 2015 general elections for that Senatorial District.
The purport of reliefs (d) and (e) is the solidification of the Appellant’s claim that he had already being fielded as the P.D.P. (1st Defendant/2nd Respondent’s) candidate. All I am saying is; if the P.D.P. had already fielded or put up the Appellant as its candidate then it will be contradictory on

 

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his part for the same Appellant to be calling evidence against the same P.D.P., that had already fielded him, to establish that P.D.P. was estopped from ignoring, sidelining or swapping the results of the primary election. The substance of the Appellant’s suit is that the process of P.D.P. fielding him as their candidate is in dispute; that he had not been fielded as their candidate, and that he is seeking to be fielded as their candidate since he won, allegedly, the primary election. The substance of the suit and the principal declaratory relief are in material contradictions.
The Appellant seems to reverse himself when, in relief (g) he sought “an order nullifying any or all purported actions of the Defendants”, including the P.D.P. that purportedly had fielded him as their candidate.
Reliefs (h) and (i) are orders the trial High Court cannot, intra vires make in view of Section 285 of the Constitution, 1999, as amended. From the said reliefs the Appellant’s suit comes within post general election dispute. I reproduce the reliefs
(h) AN ORDER of this Honourable Court setting aside the certificate of return issued by the 2nd

 

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Defendant to the 3rd Defendant same having been done irregularly and illegally.
(i) AN ORDER of this Honourable Court on the 2nd Defendant to issue fresh Certificate of return to the Plaintiff as the true and bona fide candidate of the 1st Defendant into Akwa Ibom North East Senatorial District.
From the provisions of Section 285(1)(a) of the Constitution 1999, as amended, only the National and State Houses of Assembly Election Tribunal, has original jurisdiction to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly. Reading Section 285(I)(a) of the Constitution together with Sections 133 and 140 of the Electoral Act, 2010, as amended, reliefs (h) and (i) would not and did not avail the Appellant at the trial Court as that Court, not being an election tribunal, lacked the vires to nullify a general election conducted by INEC, and/or Order INEC to issue fresh Certificate of Return. Claiming a relief(s) not backed by law is an abuse of Court’s process: R  BENKAY NIG. LTD v. CADBURY NIG. LTD (2012) LPELR – 7820 (SC).
I have merely demonstrated that the Appellant, from

 

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the inception of the suit did not contrive it to succeed. It was dead on arrival, hence the Appellant’s difficulty proving the merits of the case.

 

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Appearances:

KANU AGABI, SAN, with him, Ogwu Onaja, Taiwo Abe, John Ochogwu Esq., and Peter Eriwode, Esq. For  Appellant(s)

PAUL USORO, SAN, SOLOMON UMOH, SAN with him, Ini Utuk, lme Edem-Nse and Ejike Wogu – for 1st Respondent’

G.A. UMOH with him, E. Enoidem and I. Ememdoong for 2nd . Respondent.

ALHASSAN A. UMAR, with him, I. S. Mohammed and M. O. Ediawe Esq. – for 3rd Respondent. For  Respondent(s)

 

Appearances

KANU AGABI, SAN, with him, Ogwu Onaja, Taiwo Abe, John Ochogwu Esq., and Peter Eriwode, Esq. For Appellant

 

AND

PAUL USORO, SAN, SOLOMON UMOH, SAN with him, Ini Utuk, lme Edem-Nse and Ejike Wogu – for 1st Respondent’

G.A. UMOH with him, E. Enoidem and I. Ememdoong for 2nd . Respondent.

ALHASSAN A. UMAR, with him, I. S. Mohammed and M. O. Ediawe Esq. – for 3rd Respondent. For Respondent

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