HON. EMMANUEL DAVID OMBUGADU V. CONGRESS FOR PROGRESSIVE CHANGE (CPC) & ORS.
(2012)LCN/5413(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2012
CA/MK/124/2011
RATIO
COURT: DUTY OF THE TRIAL COURTS: PRIMARY DUTY OF THE TRIAL COURTS
Generally, it is the fundamental duty of a trial Court to evaluate the evidence of parties. This Court has always remained disinclined to interfere with the findings of facts of a trial Court except where it can be shown as in this case that the evidence before the trial Court was solely documentary evidence in which case this Court becomes in as good a position like the trial Court to evaluate the evidence before it. Folorunsho V. W.A.E.C (2011) All FWLR (Pt, 556) 489. Since the action in the trial Court was commenced by Originating Summons and the entirety of the evidence before it was documentary, this Court stands the same chance of evaluating the evidence as the trial Court.PER UCHECHUKWU ONYEMENAM. J.C.A
COURT: WHEN THE APPELLATE COURT WILL INTERFERE IN THE EVALUATION OF EVIDENCE BY THE TRIAL COURT
Furthermore while maintaining that it is the basic function of the trial Court to evaluate and ascribe probative value to material evidence before it without the interference of an appellate Court, however the appellate Court must not only intervene but interfere where the trial Court failed to properly evaluate such evidence or to evaluate the evidence at all. See: Adebayo v. Adusei (2004) 4 NWLR (Pt 862) 44. In either case the findings of the trial Court will be said to be perverse. Once the findings of a trial Court is adjudge perverse, an appellate Court can interfere with the findings.PER UCHECHUKWU ONYEMENAM. J.C.A
ELECTION PETITION: SECTION 33 AND 87 OF THE ELECTORAL ACT:PROVISIONS AS REGARDS THE SELECTION OF CANDIDATES IN AN ELECTION
The provisions of sections 33 and 87 of the Act pre-suppose that a party must take a stand on who its candidate is in an election. By the said sections, once a political party determines whom its candidate is and the name of the candidate is sent to Independent National Electoral Commission (INEC); the candidate acquires a vested interest. This actually commences the process of election and the 3rd Respondent has no power to reject or cancel the nomination or sponsorship so made by the party. It needs to be pointed out that the issue off nomination and sponsorship of candidates for an election remains the exclusive preserve of the political party concerned. That being the case, the candidate to be sponsored for an election is the choice of a political party in respect of candidates nominated. Even the political party that submitted the candidate’s name cannot for any reason withdraw, cancel, substitute or nullify such nomination and/ or sponsorship except as provided for under section 33 of the Act.PER UCHECHUKWU ONYEMENAM. J.C.A
ELECTION PETITION: WHO HAS THE RIGHT TO NOMINATE AND SPONSOR A CANDIDATE FOR AN ELECTION
In sum, it is settled law that the right to nominate and sponsor a candidate for an election is that of the political party concerned. See Onuoha v. Okafor (1983) 2 SCNLR 244.PER UCHECHUKWU ONYEMENAM. J.C.A
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. HON. EMMANUEL DAVID OMBUGADU Appellant(s)
AND
1. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
2. IDRISYAHUZA YAKUBU
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
UCHECHUKWU ONYEMENAM. J.C.A: (Delivering the Leading Judgment):This is an Appeal against the judgment of the Federal High Court holden at Lafia, dated 15th July, 2011- granting the 1st and 2nd Respondents’ claims; that the 2nd Respondent was the sponsored candidate of the 1st Respondent for the Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State and as such should be member representing the 1st Respondent in the House of Representatives since the 1st Respondent (CPC) won the House of Representatives election conducted on 9th April, 2011. The Appellant being dissatisfied with the decision appealed to this Court.
On 11th January, 2011, the 1st Respondent conducted a primary election for the purpose of nominating her candidate for Akwanga/Wamba/Nasarawa Eggon Federal Constituency for the general election scheduled for April, 2011. The Appellant alleges that he emerged the winner in the said primary consequent upon which he was issued with a result sheet and subsequently with an INEC FORM CF001 on 14th January, 2011. This he filled and submitted.
By a rescheduled primary election held on 15th January, 2011 as claimed by the 1st and 2nd Respondents, the 2nd Respondent materialized as the party’s candidate for the April, 2011 general election.
The Appellant maintained that his name was forwarded to the 3rd Respondent before an unsuccessful subtle move by 1st Respondent to substitute his name with that of the 2nd Respondent upon the spurious claim that the party’s primary election of 11th January, 2011, was inconclusive. The 3rd Respondent however published the name of the Appellant on the website as the 1st Respondent’s candidate for the April election.
Offended by this, the 1st and 2nd Respondents took out an action at the Federal High Court Lafia, Nasarawa State against the Appellant by filing an Originating Summons on 1st April, 2011. See pages 3 – 159 volume L of the record. On 11th May, 2011 the lower Court granted the 1st and 2nd Respondents leave to amend their originating summons. See pages 523 – 524 of volume 1 of the record. The Appellant filed a counter affidavit in opposition to the affidavit in support of the amended Originating Summons and a written address dated 25th May, 2011. See pages 650 – 725 of the record. In furtherance, the Appellant filed a Notice of Preliminary Objection to the suit and a further counter affidavit in opposition. See pages 445 – 457 and 732 – 739 of the record respectively. The 3rd Respondent filed a written address in reaction to the Originating Summons. See pages 740 – 744 of the record.
Oral arguments were canvassed and the case heard on 10th June, 2011 with the Preliminary Objection taken first. See pages 745 – 749 of the record.
The lower Court on 18th July, 2011 delivered both its ruling on the Preliminary Objection and its judgment on the Originating Summons, howbeit, separately. While the ruling is contained in the supplementary record, the judgment is at pages 749 – 786 of the record.
The Appellant dissatisfied with the judgment of the lower Court filed a Notice of Appeal containing 5 Grounds of Appeal. On 7th December, 2011, this Court granted the Appellant leave to amend his Notice of Appeal which now contains 9 Grounds of Appeal.
Appellant’s brief settled by S.I. Ameh, SAN, J.S Okutepa, SAN and A.A Ibrahim Esq, filed on 8th December, 2011 but deemed properly filed and served on 13th December, 2011 distilled the 4 issues for the determination of this appeal. The 4 issues
“(1) Whether the learned trial judge was right in holding that there was no need for ordering parties to file pleadings inspite of irreconcilable affidavit evidence before the Court and if the case can be adequately determined by way of originating summons?
(2) Whether on a proper consideration and understanding of the case put forward by the Appellant and Respondent it was not a case of attempt to substitute the Appellant contrary to Section 33 of the Electoral Act. Grounds 2, 6, and 7
(3) Whether the trial judge was right in holding that the 2nd Respondent is the candidate of the party in law and making an order returning him as the winner of the election. Ground 3 – 9
(4) Whether the trial Court had jurisdiction to entertain and also make the consequential orders. Grounds 4 & 8”
On their part, the 1st and 2nd Respondents’ brief was prepared by Edwin Anikwem Esq. The brief which was filed on 16th December, 2011 formulated for the determination of this appeal, the following 4 issues:
“(1) Whether the action of the 1st and 2nd Respondents was properly commenced by originating summons. (Distilled from grounds 1 and 5 of the grounds of Appeal)
(2) Whether the learned trial judge was right when it held that 2nd Respondent was the sponsored candidate of the 1st Respondent. (Distilled from grounds 2, 6 &7)
(3) Whether the Court was right when it granted the relief sought by the 1st and 2nd Respondents and the consequential orders made therein (Distilled from grounds 3, 8 and 9 of the grounds of appeal)
(4) Whether the lower Court properly assumed jurisdiction to entertain the 1st and 2nd Respondents’ claim (Distilled from ground 4)”.
Mr. I.M. Dikko who settled the 3rd Respondents’ brief which was filed on 18th November, 2011 therein identified 2 issues for the determination of this appeal. Hereunder are the 2 issues:
“(1) Whether, assuming but without conceding that the parties affidavit were conflicting, the mere use of originating summons procedure has occasioned a miscarriage of justice on the Appellant herein.
(2) Whether the lower trial court has the jurisdiction to entertain the matter and to consequently grant the reliefs sought.”
On 27th March, 2011 when the appeal came up for hearing, Mr. Anikwem referred the Court to pages 4 – 7, paragraphs 2.0 – 2.6 of their brief relating to the argument on the Preliminary Objection the 1st and 2nd Respondent filed. He adopted and relied on same as their argument while urging the Court to uphold the Preliminary Objection and to strike out Grounds 1, 4 and 5 of the Grounds of Appeal.
Mr. Dikko for the 3rd Respondent did not oppose the Preliminary Objection.
Mr. Okutepa, SAN referred to the Appellant’s argument in opposition to the Objection incorporated at pages 1. – 7 of his brief. He adopted same and urged the Court to dismiss the Objection. He added that the Objection was taking the Court back to the realm of technicality since the ruling was delivered in the morning and the judgment in the afternoon of the same day. The learned Senior Advocate contended that the two being the decisions of the lower Court made the same day, the Appellant could appeal with one Notice of Appeal. He relied on Oke V. Nwaogbuinva (2001) SC (Pt. 1) 29.
Mr. Anikwem had no reply on point of law.
The learned Counsel for the parties identified, adopted and relied on their respective briefs of argument, highlighting where necessary. The learned Senior Counsel for the Appellant also adopted and relied on his reply brief to the 1st, 2nd and 3rd Respondents’ briefs.
For the Appellant, Mr. Okutepa, SAN referred to page 1 of Exhibit CAI to show that the 1st Respondent submitted the Appellant’s name to the 3rd Respondent on 31st January, 2O011. Learned Senior Counsel emphasized that their contention is that when the 1st and 2nd Respondents approached the Federal High Court to validate the party’s primary of 15th January, 2011, the Court lacked jurisdiction to entertain the action. He referred to: Lado V. CPC unreported Appeal Nos: SC.157/2011 and SC.334/2011 delivered on 16th December, 2011. He finally referred to Section 33 of the Electoral Act, 2010 (as amended) vis-a-vis Exhibit CAI to draw the inference that INEC was in receipt of the name of the Appellant as the party’s candidate. He urged the Court to allow the appeal.
Mr. Anikwern for the 1st and 2nd Respondents contended that it is not correct that the name of the Appellant was the first to be sent to INEC. He referred the Court to Exhibit C at pages 543 – 546. On Exhibit CAI counsel submitted that there is no attachment to it to show the names of candidates the party (CPC) sent to INEC on 31st January, 2011. He added, that the missing annexure in Exhibit CAI are Exhibits OM7 at pages 595 and 679, volumes 1 and 2 of the record respectively and OM9 at pages 600 – 601 which were considered at pages 772 – 781, volume 2 of the record. He urged the Court not to attach any probative value to Exhibit CAI as no list was attached to it. Learned Counsel referred to: Ezeigwe V. Nwawulu (2011) 4 NWLR (Pt. 1183) 159 at 200 and urged the Court to dismiss the appeal.
Mr. Dikko for the 3rd Respondent did not highlight issues, he merely urged the Court to dismiss the appeal.
Mr. Okutepa, SAN in reply urged the Court to attach weight to Exhibit CAI because the attachment referred to at page 3 paragraph 1 of the said Exhibit are already before the Court. See pages 665 – 670 and 675 of volume 2 of the record.
Judgment was thereafter reserved. The issues raised by the Appellant cover the 9 grounds in his amended Notice of Appeal. I shall therefore adopt them for the determination of this appeal. However; before then, in accord with the rules and practice of the Court, I shall firstly consider the 1st and 2nd Respondents’ Preliminary Objection.
PRELIMINARY OBJECTION
In arguing the Objection Mr. Anikwem, Counsel for the 1st and 2nd Respondents submitted that sequent upon the fact that the dispute of commencing the action at the lower Court by Originating Summons had been separately and distinctly raised and determined by the lower Court in its ruling of 18th July, 2011; the said ruling having not been appealed against, the Appellant is estopped from raising the issue again. He referred to Adebavo V. Babolola (1995) 7 NWLR (Pt.408) 383 at 401. He submitted that ground one of the grounds of appeal and the ensuing issue are incompetent.
Also learned counsel submitted that grounds 1 and 4 are incompetent, the same having complaints radically different from the particulars. See Director P.C Ltd. V. SOF Tech. Ltd (2011) 10 NWLR (Pt. 1256) 442 at 455; FHA V. Kalejaive (2010) 19 NWLR (Pt.1226) 147 at 165 – 166.
Furthermore, it was submitted for the 1st and 2nd Respondents that ground 5 of the grounds of appeal is incompetent in that the complaint therein is against an Obiter dictum and not against the ratio of the case. See Debayo & Sons Ltd. V. Gomex (2011) 10 NWLR (Pt. 1255) 332 at 343: Shetimma V. Goni (unreported) Suit No. SC/332/2011 delivered on 31st October, 2011.
The 1st and 2nd Respondents urged the Court to strike out the grounds for being incompetent.
In the Appellant’s reply, Mr. Okutepa, SAN submitted that by Order 4 Rule 5 of the Court of Appeal Rules, ground 1 of the grounds of appeal is competent. He urged the Court to discountenance the objection on this ground for being misconceived. The learned Senior Advocate further argued that since the ruling was an interlocutory decision on a Preliminary Objection delivered same day with the judgment; he postulated that there is no need for the Appellant in law to file 2 Notices of Appeal. See Oke V. Nwaoobuinya (2001) SC (Pt. 1) 29: Okobia Ajanya Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179.
From the excerpts he quoted from the above decisions the learned Senior Counsel for the Appellant urged the Court to uphold his submission; that a litigant can file one Notice of Appeal against an interlocutory and final decision in so far as the litigant is not out of time in respect of the interlocutory decision.
Finally, he submitted that as the grounds of appeal attacked are concise, not vague and without argument in the particulars; they are competent. See Oloruntoba-Oju V. Abdul Raheem /2009) All FWLR (Pt. 497) 1 at 29
In conclusion, the Appellant urged the Court to dismiss the 1st and 2nd Respondents’ objection in its entirety as lacking in merit.
An appeal is a proceeding undertaken by a higher Court to reconsider the decision of a lower Court to ascertain whether by the facts, circumstances of the case and the applicable law, the lower Court decided correctly.
An appeal is initiated by a Notice of Appeal. It is the Notice of Appeal that gives an Appellate Court the required jurisdiction to hear an appeal. See Abiola V, Olawoye (2006) 13 NWLR (Pt. 996) 1. Generally, a party who fails to appeal against a decision against him is bound by it. F.I.B. Plc V. Pegasus Trading Office (2004) 4 NWLR (Pt. 863) 369.
The Appellant had on 5th May, 2011 challenged the mode of commencement of the action at the lower Court by Originating Summons. The lower Court in its ruling delivered on 18th July, 2011 decided against the Appellants. Later that day in the afternoon, the trial Court delivered its judgment in the substantive suit. The Appellant by his Notice of Appeal under “PART OF THE DECISION COMPLAINED OF” stated thus “THE WHOLE JUDGMENT’. While conceding that the judgment and the ruling were two distinct decisions of the Court and one cannot appeal against two decisions of the Court with one Notice of Appeal, the learned senior Advocate contended that since the 2 decisions were delivered the same day and reasons contained in the judgment at page 785 put to rest the reason why the lower Court in its interlocutory decision refused to order pleadings. The Appellant was right to have initiated the appeal touching on both decisions with one Notice of Appeal.
Of immense importance at this point are the quotes in the decisions relied upon by the Appellant for his submission, I shall herein reproduce them. In Oke V. Nwaoabuinya (2001) SC. (Pt. 1) 29 lines 25 – 35 Per Ejiwunmi JSC of blessed memory:-
“It is clear from the passage from the judgment of this Court, in Ogigie v. Obiyan (supra) per Uwais JSC, that by Section 25(2)(a) of the Court of Appeal Act, 1976, the period prescribed for appealing against a final decision is three months. It therefore follows that where an Appellant has failed to appeal within the period of time stipulated, he must, to have competent appeal, obtain leave to appeal out of time against the interlocutory ruling. Having said that, it must also be noted that in that passage it was also observed that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the Court. This would, it was further noted help to avoid unnecessary delay in the determination of the main issues joined by the parties in the case under consideration…”
See also Uwais CJN (as he then was) in Ogigie v. Obiyan (1997) 10 NWLR (Pt 524) 179 at 195.
“Although a party can include an appeal against ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to me encouraged in order to avoid unnecessary delay by appealing separately, there is a procedure to be followed in order to meet unavoidable technicalities involved by Section 25 subsection (2)(a) of the Court of Appeal Act of 1976, the time prescribed for appealing against the interlocutory decision is 14 days, while the time prescribed for appealing against a final decision is three months.
In order to marry the two appeals together one has to obtain leave to appeal out of time against the interlocutory ruling. Clearly this has not been done in this case. Accordingly the additional ground of appeal No. 1 before the Court of Appeal is hereby struck out. ….”
While it is correct that in an appropriate case, an Appellant in his appeal against a final decision can incorporate his appeal against a ruling in an interlocutory application. This however, is where the interlocutory decision has been made an issue that formed part of the case leading to the final judgment. See Ogigie V. Obiyan (19971 10 NWLR (Pt. 524) 179.
I have read the two cases relied upon by the learned senior Advocate and I fail to see where or how the decisions support the Appellant’s position that by Appellant’s clear Notice of Appeal against the judgment of the lower Court made on 18th July, 2011 and without any mention that he was also appealing against the court’s ruling; he had also appealed against the distinct ruling of the Court delivered the same date. In Odigie V, Obiyan (supra) where the Appellant in his appeal against the final judgment raised an issue relating to the interlocutory ruling, Uwais CJN (as he then was); just before the earlier quote reproduced and relied upon by the Appellant said:
“Now, no reference was made throughout the judgment of the trial judge to the issue of applicability of Land Use Act or Bendel State legal Notice No. 22 of 1978. Such references were made only in the ruling delivered on the 31st May, 1984. Can the Appellants, therefore, raise such interlocutory issue in the appeal against the judgment”.
In the instant appeal, the Appellant referred to the comment of the lower Court at page 785 to say the learned trial judge therein gave reasons why he did not order pleadings. He argued that since this was the substance of the lower court’s interlocutory ruling, an issue relating to the said ruling was raised in the final judgment. I do not think so, in any case for clarity purposes, I shall reproduce what the learned trial judge said therein:
“Assuming for purpose of argument only that this Court orders pleadings, if I found irreconcilable conflicting affidavit evidence, and the parties call witnesses to give oral testimony, it is most unlikely that the National chairman of CPC, the State chairman and the Secretary of the 1st Plaintiff in Nasarawa State will come forward and give evidence contrary to the averment of the State chairman as contained in the affidavit in support of the originating summons. Here the case of Uzodinma (supra) is not only instructive, but sufficient to put to rest the argument that the 2nd Plaintiff is not only legible to contest the primary election of the 1st Plaintiff, but he was also its candidate for the April, 2011 general election.”
The statement of the learned trial judge to my mind was academic, hypothetical and speculative and has no legal value. At best it can be branded an obiter dictum. It therefore does not in any way back up the learned senior Advocate’s submission.
For better appreciation of the point I want to drive home, instructive will be the grounds of the Preliminary Objection as those were the issues the learned trial Judge resolved in the interlocutory ruling. The grounds are:
“(1) That this Honourable Court lacks the jurisdiction to entertain this matter
(2) That this suit discloses no reasonable cause of action
(3) That the Plaintiff has no locus to institute this action
(4) That the suit as currently constituted is an abuse of the process of Court
(5) The procedure of originating summons is only available for non-contentious actions
(6) The facts of this case as borne out by the supporting affidavit(s) are highly contentious, disputable and disputed.
(7) This case is hostile in character and not amenable to determination vide the originating summons procedure” (see pages 2 – 3) of supplementary record)
From the totality of the record I do not see how these grounds form part of the case that led to the judgment appealed against. The case that led to the judgment appealed against was determined based on the following 3 issues:
“(1) Whether the 2nd Plaintiff was eligible to contest as an aspirant in the 1st Plaintiff’s primary election?
(2) When was the authentic primary election held?
(3) Who amongst) the two contestants (i.e. 2nd Plaintiff and 2nd Defendant won the primary election”
(see page 757 vol. 2 of the record)
The argument of the learned senior Advocate cannot in the circumstance be sustained. I am of the view that this is not an appropriate case where the interlocutory ruling of the lower Court on 18th July, 2011 could be appealed against based on the notice of appeal against the judgment of the Court. I therefore hold that the ruling of the lower Court on 18th July, 2011 has not been appealed against. Since the ruling is a decision of a Court of competent jurisdiction which has not been appealed against, it is binding on the Appellant. Ground 1 of the notice of appeal and issue 1 arising therefrom are therefore incompetent and liable to be struck out. They are accordingly struck out.
On ground 4 of the grounds of appeal, I will simply state that I have gone through the particulars and I am of the opinion that the particulars are not at variance with the ground in question. Accordingly I hold that ground 4 is a competent ground of appeal.
As for ground 5 of the grounds of appeal, I had earlier in the course of determining this Preliminary Objection analyzed it. I will simply add that I agree with the 1st and 2nd Respondents that the ground is not appealable not being a ratio of the case. I also hold that ground 5 of the Appellant’s grounds of appeal is incompetent. It is hereby struck out.
From the foregoing, the objection herein predominantly succeeds. Grounds 1 and 5 of the grounds of appeal and issue 1 arising therefrom are struck out.
ISSUES FOR DETERMINATION
Issue 1 in the Appellant’s brief is same as issue 1, in the Respondents’ briefs respectively. This has been struck out. Left for the determination of the appeal are issues 2, 3 and 4 which I will re-number as issues 1, 2 and 3. I shall resolve them serially.
On issue 1, referring to the allusion of the learned trial Judge at page 776 lines 15 – 17 of vol. II of the record, the learned senior counsel for the Appellant argued that it was not in dispute that there was a primary election on 11th January, 2011 for the purpose of nominating a candidate of the 1st Respondent for the election into the House of Representative for Akwanga/Wamba/Nasarawa Eggon Federal Constituency. He called on the Court to resolve the issue as to whether there was another primary election on 15th January, 2011 having regard to the fact that the Appellant and the 1st and 2nd Respondents had respectively tendered Exhibits OM 10 and E to show that they won the party’s primary elections on 11th January, 2011 and 15th January, 2011 in particular. In resolving the issue, the learned Senior Advocate invited the Court to have recourse to Sections 87(4)(c)(i)(ii); 31 and 33 of the Electoral Act, 2010 (as amended).
Further relying on: Ugwu V. Ararume (2007) 12 NWLR (Pt.1048) 367: Ojokolobo V. Atamu (1987) 3 NWLR Pt.61) at 377, the Court was requested to discover the intent of the legislature in the provisions of the above referred sections of the Electoral Act by giving effect to their ordinary and literal meaning.
He further urged the Court as an impartial arbitrator to consider critically the Exhibits tendered by both parties. It was the Appellant’s complain that the trial Court completely overlooked Exhibits OM5, OM9, OM11, OM12 and OM12b which he tendered. Also that the trial Court did not consider the deposition in paragraphs 7 – 40 of the counter affidavit. See pages 549 – 552 of the record. The learned senior Advocate urged the Court to examine the Appellant’s Exhibits OM3, OM5, OM7, OM8, OM9, OM10, OM11, OM12 and OM12b side by side with 1st and 2nd Respondents’ Exhibits D, F, O, M and to hold that the finding of the trial court on the exhibits was perverse. See Oju L.G V. INEC (2007) 14 NWLR (Pt.1054) 242, Chukwu V. Omeaku (2009) All FWLR (Pt. 490) 697; Folorunsho V. W.A.E.C (2011) All FWLR (Pt. 556) 489.
Learned senior counsel finally urged the Court to hold that the case put forward by the parties was a case of attempt to substitute the Appellant contrary to Section 33 of the Electoral Act.
In response, the 1st and 2nd Respondents argued their issues 2 and 3 together, they emphasized the position of the law that once a political party has sponsored any candidate for an elective post such a person stands as the candidate of the political party. They cited long list of authorities to support their submission that the power of a political party as the sole determiner of who its candidate is, has long been settled in our electoral jurisprudence. See Onuoha V. Okafor (1983) 2 SCNLR 244 at 501, Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310 at 347; Ezeigwe v. Nwoawulu (2010) 4 NWLR (Pt.1183) 159; Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (Pt.1275) 30 at 82; Kolawole v. Folusho (2009) 8 NWLR (Pt.1143) 338 at 412.
In furtherance, Mr. Anikwem of counsel referred to the findings of the trial Court based on Exhibits I, K, M, N, F, O for which reason the trial Court disbelieved Exhibits OM3, OM5, OM6 and OM12 and refused to attach any probative value to them. See pages 772 – 782 of the record. Learned counsel added that there is no appeal against the said findings of fact.
The learned counsel finally submitted that the Court correctly granted the reliefs of the 1st and 2nd Respondents and the consequential order made therein. See Amoechi V. INEC (2008) 5 NWLR (Pt. 1080) 227 at 394: S.B.N Plc V. C.B.N. (2009) 6 NWLR (Pt. 1137) 237
Mr. Dikko for the 3rd Respondent did not submit on this issue.
The law is now fully settled that before anyone who seeks a political office can be elected, he must not only be a member of a registered political party but must be a duly sponsored candidate of the political party. Meanwhile, before a party nominates or sponsors any candidate for an elective position, aspirants seeking that position under its platform must contest the party’s primary election. See section 87(1) of the Electoral Act, 2010.
On a party’s nomination and substitution of a candidate, it is immaterial that the primary election was inconclusive. What is relevant is the nomination of a candidate and submission of his name by the party to INEC within the prescribed period. Thereafter his withdrawal and or substitution must be in accordance with the provision of sections 33 and 35 of the Act. See: Njideka Ezeigwe V. Chief Benson Chuks Nwawulu & Ors. (2011) 4 NWLR (Pt 1183) 159 at 200: (2010) LPELR – SC.261/2008 Pp.43 -44 paras G-A.
It does greatly appear that the current position of the law does not take lightly the inviolability of nomination and the vested interest acquired there under by a candidate of a political party. The simple question that requires an answer in the resolution of this issue is, from the totality of Exhibits before the trial Court, was the decision of the learned trial judge perverse when it did not arrive at a conclusion that “there was on attempt to substitute s candidate”.
The Respondents seemed not to have quite appreciated this issue and as such did not address same squarely but rather dwelt on stressing the well established principle of law that the choice and sponsorship of a candidate is an unfettered right of a political party, which right the Court cannot under any guise interfere with. See Onuoha V. Okafor (1983) 2 SCNLR 244.
To resolve this issue, counsel for both parties have invited the Court to particularly examine Exhibits OM3, OM5, OM7, OM8, OM9, OM10, OM11, OM12, 12b and CAI tendered by the Appellant on the one hand and Exhibits C, D, F, I, K, M, N tendered by the 1st and 2nd Respondents on the other hand.
For ease of reference and understanding, I will hereunder list the Exhibits. They are:
Exhibit OM3 Form C.F001 Affidavit in support of personal particulars of Appellant dated and sworn on 14/1/2011.
Exhibit OM5 – Form CF002(i) 2011 House of Representative Elections submission of names of candidates by Congress for progressive Change (CPC) signed by the Chairman and Secretary of CPC.
Exhibit OM7 – Re: withdrawal of candidature Form (Not filed)
Exhibit OM8 Report of the Harmonization Committee of eminent persons of the Congress for Progressive Change (CPC) for Nasarawa State, Nigeria dated 28/1/2011.
Exhibit OM9 – Protest Letter on; Re: withdrawal of candidature form to the National Secretary CPC through the chairman, Harmonization Committee dated 26/1/2011 but received on 28/1/2011.
Exhibit OM10 – Filled 2011 Congress Result form for House of Representative for wards in Nasarawa State’
Exhibit OM11 Letter from Alpha Chambers to National chairman, INEC titled unjust and unlawful replacement and substitution of duly nominated elected senatorial candidates after conclusion of January II primary election of the Congress for Progressive Change Nasarawa State chapter.
Exhibit OM12 – Re: Withdrawal of candidature dated 14/2/2011
Exhibit OM I2B – Notice of change of candidate
Exhibit CAI – Letter from INEC chairman to Inspector General of police, headed – Report on forgery of documents to INEC dated 8th September, 2011.
Exhibit C – Letter from State chairman to National chairman
CPC requesting for a date for re-run of primary election in Nasarawa North Senatorial zone.
Exhibit D – Notice of re-run of primary election
Exhibit F – Form CF002(i) 2011 House of Representatives elections submission of names of candidates by CPC received by INEC on 14/2/2011 at 5.pm
Exhibit 1 – 2nd Respondent’s CPC membership card
Exhibit K – Bank Teller No. 1641781 evidencing payment for Nomination form
Exhibit M – CPC candidate’s nomination form for primary elections
Exhibit N – Affidavit in support of 2nd Respondent’s personal particulars dated and sworn to on 17/1/2011
Exhibit C – Executive summary of the list of candidates on party basis: addendum dated 4/2/2011
Listing the above Exhibits is imperative in the light of the learned senior counsel for the Appellant’s submission that the finding of the learned trial Judge was perverse when he held that the 2nd Respondent in the eye of the law was the party’s candidate. He submitted that this finding is not only inconsistent with the documents tendered, illogical but without proper legal foundation anchored on sound principles of law. He urged the Court to evaluate the evidence of the parties particularly the Exhibits set out above and to consider paragraphs 7 40 of the Appellant’s counter affidavit which the trial Court failed to consider.
Generally, it is the fundamental duty of a trial Court to evaluate the evidence of parties. This Court has always remained disinclined to interfere with the findings of facts of a trial Court except where it can be shown as in this case that the evidence before the trial Court was solely documentary evidence in which case this Court becomes in as good a position like the trial Court to evaluate the evidence before it. Folorunsho V. W.A.E.C (2011) All FWLR (Pt, 556) 489. Since the action in the trial Court was commenced by Originating Summons and the entirety of the evidence before it was documentary, this Court stands the same chance of evaluating the evidence as the trial Court.
Furthermore while maintaining that it is the basic function of the trial Court to evaluate and ascribe probative value to material evidence before it without the interference of an appellate Court, however the appellate Court must not only intervene but interfere where the trial Court failed to properly evaluate such evidence or to evaluate the evidence at all. See: Adebayo v. Adusei (2004) 4 NWLR (Pt 862) 44. In either case the findings of the trial Court will be said to be perverse. Once the findings of a trial Court is adjudge perverse, an appellate Court can interfere with the findings.
In the instant appeal the learned trial judge only reproduced paragraphs 28, 29, 31, 33, 34 and 35 of the affidavit in support of the amended Originating Summons while for the counter affidavit he only reproduced paragraphs 6, 12, 14, 18, 19 and 20. In the course of his judgment he also considered paragraphs 16, 22, 23, 24, 27 and 39 of the counter affidavit. Mr. Okutepa, SAN’s submission is correct to the extent that the learned trial judge failed to consider paragraphs 8, 9, 10, 11, 13, 14, 15, 16, 17, 21, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40 of the counter affidavit. These paragraphs overlooked by the trial learned Judge, apart from other material depositions made therein contained depositions that support Exhibits OM3, OM5, OM6, OM8, OM9, OM10 and OM11. The Learned Senior Advocate had also submitted that the learned trial Judge did not evaluate Exhibits OM5, OM9, OM11, OM12 and 12B tendered by the Appellant.
Upon going through the judgment appealed against at pages 750 – 786, it is correct that the learned trial judge did not evaluate exhibits OM8, OM9, OM11, and OM12. While I do not agree with the learned senior Advocate that Exhibit OM5 was not evaluated, it is correct as was equally contended by the Appellant at pages 17 – 18, paragraphs 5.18 – 5.19 that Exhibit OM5 was not properly evaluated. I therefore hold that the lower Court both failed to evaluate and to property evaluate all the material evidence put forth before it. It is my view therefore that this is a good case where this Court will intervene and interfere with the findings of the lower Court especially by reason of Exhibit CA1. See: Chukwu v. Omeaku (2009) All FWLR (Pt. 490) 697.
Exhibit CA1. See: Chukwtt V. Omeaku
Having identified the paragraphs of the counter affidavit overlooked, the exhibits not considered in the course of judgment and Exhibit OMs that was not properly evaluated, I will consider these pieces of evidence as the need arise in the course of this judgment.
I reiterate that the issue herein is whether there was an attempt to substitute a candidate by CPC. It is pertinent at this point to reproduce relevant paragraphs of both the affidavit in support of the amended originating summons, counter affidavit in opposition to the amended originating summons and the further affidavit in support. See material paragraphs:
“7. That sometimes in November, 2010, the 1st Plaintiff gave notice to interested and qualified members wishing to participate and or contest its primary election into various elective positions/offices in the country preparatory to the nomination of its candidate into various elective positions/offices for the general elections scheduled for April, 2011 to be conducted by the 1st Defendant.
8. That pursuant to paragraph 7 above primary election was partly conducted in one Local Government out of three that make up the Nasarawa North Senatorial District by the 1st Plaintiff on the 11th January, 2011 for the House of Representatives election for Akwanga/Wamba/Nasarawa eggon Federal Constituency of Nasarawa State for April, 2011 general election only.
9. That on the said day meant for the nomination of the 1st Plaintiff will sponsor as it candidate for the House of Representatives elections for Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State n the April, 2011, (i.e. 1st Plaintiff primary election), there was no election in Akwanga and substantial parts of Nasarawa Eggon where the majority of the lst Plaintiffs members in the House of representatives election for Akwanga/Wamba/Nasarawa Eggon Federal Constituency reside.
10. That there was no result declared by the 1st Plaintiff’s for the primary election fixed on the 11/01/2011 for Akwanga, Nasarawa Eggon and Wamba Federal Constituency as the primary election fixed on the 11/01/2011.
That due to inconclusive 1st plaintiff’s primary election fixed on the 11/01/2011; a re-run primary election was conducted by the 1st Plaintiff on the 15/1/2011.
13. That three aspirants to wit; Silas Agara, Idris Yahuzu (2nd plaintiff herein) and Emmanuel David Umbugadu (the 2nd Defendant herein) contested the inconclusive 1st Plaintiffs primary election of 11/01/2011 for Akwanga, Nasarawa Eggon and Wamba Federal Constituency as the primary election fixed on the 11/01/2011.
14. That pursuant to the facts in paragraphs 9 and 10 above the stated executives of the 1st plaintiff of no holding of election in Akwanga and substantial parts of Nasarawa Eggon and its effect on the 1st plaintiff’s chances at the on-coming H o use of Representatives election of akwanga/WambalNasarawa Eggon Federal constituency of Nasarawa State in the April, 2011 general elections’ Attached as Exhibit “C” is a copy of the letter
15. That the National Executive Committee, being the highest Administrative organ of the 1st plaintiff, pursuant to the above complaint, rescheduled the nomination of the candidate for the House of Representatives election for Akwanga/W amba/Nasarawa Eggon Federal Constituency of Nasarawa state in the April, 2011 (i.e. 1st Plaintiff primary election) to 15th January, 2011. Now shown to me and attached as Exhibit “D” is notice/letter rescheduling the election.
16. That on the said 15th day of January, 2011, the rescheduled primary election for the nomination of the Senatorial candidate, the 1st Plaintiff would sponsor for Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State conducted and concluded and at the end, the 2nd Plaintiff scored the highest number of votes cast by scoring 9,709 votes while the 2nd Defendant scored a total number of 1,098 votes cast at the election. Attached as Exhibit “E” is the result of the primary election
17. That pursuant to the emergence of the 2nd Plaintiff as the winner of the said 1st Plaintiff’s primary election, the 1st Plaintiff submitted the 2nd Plaintiffs name to the 1st Defendant as the 1st Plaintiff’s candidate for House of Representatives election for Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State at the 2011 general elections and 1st Plaintiff did not substitute the name of the second Plaintiff with that of the 2nd Defendant. Attached as Exhibit “F” is the 1st Defendant form CF002C(i)(i.e. 1st Defendant’s submission of names of candidates by a political party).
22. That the 1st Plaintiff through its National Chairman and National Secretary confirmed the candidature of the 2nd plaintiff to the 1st Defendant via letter dated 8th March, 2011 and 24th March, 2011. Attached as Exhibits “G” and “G1” respectively are copies of the said letters.
23. That I know as a fact and a matter of practice that once a political party likes the 1st Plaintiff submits the name of the winner of its primary election to the 1st Defendant for any elective position, that the person automatically becomes the party candidate/flag bearer for the election.
24. That there was never a time the name of the 2nd Defendant was submitted to the 1st Defendant as the 1st Plaintiff’s candidate for the election.
25. That I know as a fact that after the 2nd Defendant lost the primary election of 15th January, 2011, he stopped attending meetings or participating in any party activities and was never part of the 1st Plaintiff’s campaigns and rallies with respect to the House of Representatives election for Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State for the 2011 general elections.
26. That I know as a fact that once the name of a candidate is submitted to the 1st Defendant, it has no power to reject and or substitute it.
30. That the 1st Plaintiff being desirous of winning the general elections fixed for April, 2011 in the entire country, waived its conditions and rules for the participation of aspirants by collecting nomination forms fees less than one week to primary election from 2nd Plaintiff to enable him participate in the primary election without the requirement of fulfilling all conditions of the 1st Plaintiff.
35. That pursuant to paragraphs 33 and 34 above, the 2nd Plaintiff obtained and filled the 1st Defendant form for personal particulars of persons seeking nomination into the Senate. Attached as Exhibit “N” is a copy of the said form for personal particulars.
39. That I know as a fact that the 1st Plaintiff never sponsored the of the 2nd Defendant as its candidate for the house of Representatives election for the Akwanga/Wamba/Nasarawa Eggon Federal Constituency for the April, 2011 general election neither did the 2nd Defendant win the rescheduled primary election of the 1st Plaintiff conducted on the 15th of January, 2011. See pages 312 – 317 vol.1 of the record.
As for the counter affidavit, see paragraphs:
3. I thereafter obtained the necessary forms presented myself as one of the aspirants to represent Akwanga Nasarawa and Wamba Federal Constituency on the 11th January, 2011 the primary election for the purpose of electing a candidate to represent the Congress for Progressive Change (CPC) was held and the election was between me and one Silas Agara
6. I shall at the trial challenge the forms collected by the 2nd Plaintiff and contest genuineness of the alleged receipts attached thereto and put him on notice to produce the original of the receipts, Bank Tellers in court. I also state that the 2nd Plaintiff was not even screened or cleared by the screening Committee.
7. That at end f the exercise, I scored 5398 number of votes and emerged the candidate with the highest number of votes.
8. The primary election was also monitored by officers of the 1st Defendant, Security agents and other and the election was between me and Silas Agara.
9. That I have seen and read the affidavit of one Alhaji Hamdi Haruna and in response I state further that paragraph 8 of the affidavit is false and that the election was conclusive.
10. That paragraph 9 and 10 are false and I state that after I emerged as the party’s candidate the deponent on Friday 14/1/2011 at about 12.00 noon in the Ta’al conference Hotel gave me forms CF001 to fill and return.
11. That I filled same went to the High Court of Justice, Lafia, Nasarawa State and swore to the declaration in accordance with the requirement. I thereafter returned same to the aforesaid officer. A copy of the register of member is attached as Exhibit OM3
15. I also state that the party sent my name along with others or form CF002 to the 1st Defendant. Copy of same is attached as “Exhibit OM”
16. That in response to paragraph 29 of the affidavit in support, I state that the 2nd Plaintiff left the People Democratic Party on 9/1/2011 and was not screened by the Primary Election screening Committee which cleared me and other contestants. Copy of our clearance attached as “Exhibit OM6”
17. I state that paragraph 27 is false and I know that it is only the candidate who emerged through the primary election that can be sponsored by the party.
20. As at 11/1/2011 when the election was conducted, the 2nd Plaintiff was not a registered member of the Congress for Progressive Change (CPC) and did not participate in the primary with me.
23. I state that my name had been substituted before any purported submission of the 2nd Plaintiffs name.
24. Paragraphs 28, 29, 30, 31 and 32 are false and I state that the 1st Plaintiff could not have submitted any other name after my victory as I am alive and have not withdrawn from the race to represent my Constituency in the Federal House of Representatives. Indeed, the 1st Plaintiff sent my name but could later not substitute me because I resisted it.
25. That the 2nd Plaintiff in his desperation to get me out of the race has applied different strategies to get me to relinquish my mandate to him.
26. One of the ploys was to call those of us who emerged victorious at the meeting and we were all issued with a form titled “Withdrawal form”
27. I also state that later on, a harmonization Committee was set up to reconcile the initial party members with the late entrants like the 2nd Plaintiff herein.
28. I made my stand unequivocally known that I am not ready to relinquish my mandate to anybody as the 1st election was done in accordance with the Electoral Act 2011 and I emerged the candidate of the party after receiving the highest number of votes cast. A copy of the Congress for Progressive Change (CPC) harmonization committee is hereby attached as “Exhibit OM8′ and Notice is given to the Plaintiff to produce the transcripts of the interview the 2nd Defendant had with the harmonization committee.
29. I state that when we were issued with the withdrawal of candidature form, I and some other colleagues protested the attempt to sacrifice internal democracy to favour some persons like the 2nd Plaintiff herein. A copy of the letter dated 26/1/2011 is hereby attached as “Exhibit OM9”
31. That I hereby attach the result of the primaries conducted on I3/1/2011 to demonstrate that I emerged the winner and that the 2nd Plaintiff did not contest any primary election with me as evidenced by “Exhibit OM10”
32. I state that on noticing the lackadaisical and ambitious manner the 2nd Plaintiff was throwing money around to get the State Executive of 1st Plaintiff to support his bid to replace me, I instructed my solicitor to write the 1st Defendant that I do not intend to withdraw my candidature for anybody whatsoever called or highly placed. Copy of the letter is attached as “Exhibit OM11”
36. I also state that I had cause on several occasions since I was issued with the withdrawal form to write letters denouncing that I am not ready to step down for the 2nd plaintiff or anybody at all.
39. To demonstrate that it was my name that had been sent from the onset, there was a purported attempt by the 2nd Plaintiff using some hirelings to substitute my name as a notice of withdrawal form was signed by his cohorts and an attempt was made to forge my signature and a photograph of an unknown person purportedly attached as mine. Copy attached as “Exhibit OM12 & OM12B”
See pages 548 -552 volume 1of the record.
See paragraph 3 of the further affidavit.
3. “That I know as a fact that the Resident Electoral Commissioner of the 1st Defendant in Nasarawa State forwarding to the head of the office of the 1st defendant in Abuja the 2nd plaintiff name as the candidate sponsored by the 1st plaintiff for the Akwanga/Nasarawa Eggon/Wamba Federal Constituency of Nasarawa State for the April, 9th National Assembly election. Attached and marked Exhibit O is the letter dated 4th February, 2011.”
See page 539 of volume 1 of the record.
I had earlier described the Exhibits the Appellant’s counsel invited the Court to particularly consider. Howbeit in the light of the paragraphs of the affidavit and further affidavit referred to above the totality of the Exhibits most relevant in the determination of this issue are: Exhibits C, D, E, F, G, G1, J, N, O tendered by the 1st and 2nd Respondents and Exhibits OM3, OM5, OM6, OM7 OM8, OM9, OM10, OM11, OM12 and CA1 tendered by the Appellant. For the Exhibits that were not described earlier I shall describe them as I go along in this judgment.
The Appellant’s case from the above reproduced paragraphs is that after screening and clearance as evidenced by Exhibits OM6, he filled the necessary forms and ran for the 11th January, 2011 primary election for the purpose of electing a candidate to represent CPC for Akwanga/Nasarawa Eggon/Wamba Federal Constituency of Nasarawa State for the April, 2011 election. That he emerged the winner in the said election which he contested with one Silas Agara. See Exhibit OM10. Thereafter, the Appellant said he filled and swore to Form CF001 after which his name was forwarded to INEC by the party. See Exhibits OM3, OM5 and CAI.
He maintained that subsequently a subtle but heinous attempt was made to substitute the Appellant as evidenced by the issuance of “Re: Withdrawal Form” which Appellant refused to fill. See Exhibit OM7. To ensure the 1st and 2nd Respondents did not substitute him, the Appellant made and caused to be made Exhibits OM8, OM9 and OM11. This not withstanding the Appellant alleged that the 1st and 2nd Respondents went ahead to forge his signature and placed another person’s passport photograph to procure Exhibits OM12 and OM12B (Re: withdrawal form dated 14/2/2011 and Notice of change of candidate) respectively. However at the end of events, the Appellant still stood the election, won and was issued with Exhibit OM13.
On their part, the 1st and 2nd Respondents shown in the reproduced paragraphs of their affidavit in support of the Originating Summons held on to the fact that the primary election of 11th January, 2011 in Akwanga/Nasarawa Eggon/Wamba Federal Constituency was inconclusive and produced no candidate. Consequently the 1st Respondent applied and got waiver to reschedule and conduct a re-run on 15th January, 2011 where the 2nd Respondent emerged the winner. See Exhibits C, D, and E. That with the emergence of the 2nd Respondent as the candidate of CPC, his name was forwarded to INEC. See Exhibit F. It was also their case at the lower Court that the national Chairman and Secretary of CPC confirmed the candidature of the 2nd Respondent via Exhibits G and G1 respectively. The Respondents stated that by Exhibit J, the 2nd Respondent had on 9/1/2011 resigned his PDP membership. When afterwards the 3rd Respondent published the name of the Appellant on its website as CPC’s candidate as against the name of the 2nd Respondent, Exhibit O ( a letter from Resident Electoral Commissioner to INEC chairman headed executive summary of list of candidates on party basis: Addendum dated 4th February, 2011) was made. At the end, the Appellant was returned as the winner of the April, 2011 election into the house of Representatives representing Akwanga/Nasarawa Eggon/Wamba Federal constituency hence the action in the lower Court.
It is against this background, that I shall resolve the issue as to whether there was an attempt to substitute the Appellant as a candidate. The learned trial Judge had in considering Exhibits F and OM5 which formed the crux of his decision; found Exhibit OM5 worthless by virtue of the information given by the Appellant in Exhibit OM3. See pages 781 – 782 of the record. I had earlier held that the lower court did not properly evaluate Exhibit oM5, I shall herein evaluate same. May I note at this point that while Exhibit OM3 was made by the Appellant, Exhibit OM5 was made by the Chairman and Secretary of CPC Nasarawa State chapter. Exhibit OM5 which is the prescribed form for submission of political party’s candidates’ names contains the name of the Appellant and other candidates of the 1st respondent for other constituencies in Nasarawa State. Against the name of the Appellant in Exhibit OM5 is the residential address and the academic qualification of the 2nd Respondent in addition to the Appellant’s academic qualification. The said Exhibit which was signed by Nasarawa State chairman and secretary of CPC was typewritten and at no time did the Respondents challenge the authenticity by alluding that the signatures of the chairman and secretary were forged. The only attack the Exhibit faced was by paragraph 24 of the affidavit in support of the Originating Summons where the state chairman himself merely deposed to the fact that the party never at any time submitted the name of the Appellant as the candidate in the election. As Exhibit OM5 was made by the CPC Nasarawa State chapter’s chairman and secretary, should the appellant be made to bear the responsibility for any wrong information in it? To hold that Exhibit OM5 has no probative value because both the address of the 2nd Respondent and his academic qualification were stated against the name of the Appellant is like the biblical saying that the fathers have eaten sour grape and the children’s teeth are set on edge. The appellant personally made and swore to Exhibits OM2 and OM3 (Personal particulars of persons seeking Nomination Form CPC001 and affidavit in support of personal particulars of persons seeking election to the membership of Federal House of Representatives Form CF001) respectively. Exhibit OM2 and OM3 are not found wanting neither have they been held to contain any wrong information. The Chairman, CPC Nasarawa State chapter who made
Exhibit OM5 and also authenticated Exhibit OM2 at pages 6 and 7 owed not only the candidate but the entire CPC the duty to copy correctly what is contained in the Exhibit OM2 while filling Exhibit OM5. Having failed to be diligent in this duty, the appellant cannot suffer for his sins. Moreover, it is my view that the wrong information made by the CPC, Nasarawa State chairman with his secretary cannot vitiate or affect the probative value of Exhibit OM5. I therefore hold that the learned trial Judge was wrong when he refused to ascribe probative value to Exhibit OM5 which in my opinion carries the full value of a completed form CF002(C) (i). The failure to ascribe the required probative value to Exhibit OM5 by the learned trial Judge occasioned a miscarriage of justice. I herein ascribe value and weight to Exhibit 0M5. From the foregoing, I hold the view that the name of the Appellant was submitted as the party’s candidate after the 11th January primary election.
What is the effect of this in the light of the fact that by Exhibit F, the name of the 2nd Respondent was also submitted as CPC candidate for the same constituency. As against Exhibit OM10 which is the result of the 11th January, 2011, primary election, the Respondents produced Exhibit E to show the result of the 15th January, 2011 re-run primary election. Also starring in the face of this dispute is Exhibit O which was attached to the further affidavit. Exhibit O dated 4/2/2011 purported to have also forwarded the name of the 2nd Respondent. From Exhibit O, it was the Resident Electoral Commissioner who purportedly forwarded the 2nd Respondent’s name to the Commission contrary to the provision of Section 87(4)(c)(ii) of the Electoral Act, which makes it the responsibility of the party to forward same. Also paragraph two of Exhibit O which is about the inconclusive state of congresses and conventions in CPC Nasarawa State chapter runs counter to paragraphs 8, 9, 12, 13 of the affidavit to say that it was only the 11th January 2011 primary election at Akwnaga/Nasarawa Eggon/Wamba Federal Constituency that was inconclusive. The said Exhibit O also stands against paragraphs 16 and 17 of the affidavit which assert the conclusiveness of the 15th January re-run election which produced 2nd Respondent as the candidate. Paragraph two of Exhibit O makes it clear that all primaries in Nasarawa State were inconclusive hence the list submitted to the Resident Electoral Commissioner by the State chapter of the party. If I am correct in my understanding of paragraph two of Exhibit O, which I believe I am, then it means that the learned trial Judge was wrong in his evaluation of Exhibit o which led to his finding that: “It is my view that whatever is pasted or placed on the website can never take the place of Exhibit O” see Page 782′
This finding is based on the wrong premise that Exhibit O supports the fact that the 2nd Respondent’s name was submitted to the commission having emerged the winner of a conclusive 15th January, re-run primary election.
Accordingly, I hold that Exhibit o which is at best a make shift list of CPC Nasarawa State office cannot override the Commission’s publication on her website based on a name submitted to it by Exhibit OM5 which carries all the legal value of form CF002 (c) (i)
While I agree with the learned trial Judge’s finding at page 782 about Exhibit O and Exhibit OM12 especially as to their dates, Exhibit CAI seems to have brought to rest the question of whose name was first submitted and what any attempted substitution could be. Exhibit CAI without prejudice to its heading; is a petition from the chairman INEC to the Inspector General of police; the petition opens thus:
“The congress of progressive change (CPC) on the 31st day of January, 2011 submitted the names of Dr. Yusuf Musa Nagogo as its candidate for Nasarawa North Senatorial District and Emmanuel David Umbugado as its candidate for House of Representatives representing Akwanga/Wamba/Nasarawa Eggon Federal Constituency”
Mr. Anikwem for 1st and 2nd Respondents had orally submitted in Court when the appeal was taken that as the annexures referred to at page 3 paragraph 1 of Exhibit CA1 were not attached, the Court should not ascribe probative value to Exhibit CA1. He however referred the Court to the pages of the record where the said annexures could be found.
Exhibit CA1 was tendered to show that the name of the Appellant was submitted to INEC on 31st January, 2011. Without the annexures, paragraph 1 page 1 of Exhibit CA1 made it clear beyond any doubt that INEC on 31st January, 2011 was in receipt of the name of the Appellant as the CPC candidate for the Akwanga/Wamba/Nasarawa Eggon Federal Constituency. I am therefore not persuaded by Mr. Anikwem’s argument that Exhibit CA1 has no probative value. I rather hold that Exhibit CA1 has both probative value and weight and I accordingly ascribe same to it. Exhibit CA1 having been ascribed its required value makes paragraphs 8, 9, 10, 12, 13, 14, 15 and 18 of the Affidavit in support of the Originating Summons incredible. Exhibit CA1 also negates Exhibit O as the Resident Electoral Commissioner could not rightly be forwarding a name of a candidate for Akwa nga/Wamba/Nasarawa
Eggon Federal Constituency to the commission when the name of the Appellant had already been received by the Commission as CPC’s candidate for that constituency.
It is for the foregoing that I hold that whatever the Respondents did from 1st February, 2011 in a bid to forward a candidate’s name as the party’s candidate for Akwanga/WambalNasarawa Eggon Federal Constituency could best be described as an attempt to substitute the name of the Appellant that was earlier on submitted. I therefore resolve issue 1 in favour of the Appellant.
The appellant argued issues 2 and 3 together as both border on the jurisdiction of the Court.
Relying on the classical case of Madukolu V. Nkemdilim (1962) 2 SCNLR 341; the learned senior Advocate submitted that the 2nd Respondent who was not a candidate cannot under Section 87(a) of the Electoral Act, bring an action to complain that the provision of the Act and the guidelines of the political party has not been complied with in the nomination of a candidate of a political party for election. Learned senior counsel stated that this is so because the 2nd Respondent never participated in the 11th January, 2011 primary election. He added that he would have still been ineligible to participate in the re-run of the 15th January, 2011 assuming without conceding there was a re-run.
Secondly, the Appellant’s counsel submitted that by virtue of Section 140 and 141 of the Electoral Act, the trial Court had no jurisdiction to declare the 2nd Respondent the winner of the general election of April, 2011 because he did not participate fully in the election. He urged the Court to hold the order of the trial Court returning the 2nd Respondent, the winner of the April, 2011 National Assembly Election into the House of Representatives representing Akwanga/Wamba/Nasarawa Eggon Federal Constituency a nullity.
In reply, Mr. Anikwem for the 1st and 2nd Respondent submitted that it is the claim of the Plaintiff that confers jurisdiction on the Court. See: Multi Purpose Venture Ltd. V. A.G. Rivers State (1997) NWLR (Pt. 522) 642; Onvencha V. Military Administrator Imo State (1997) 1 NWLR (Pt. 482) 429. He noted that the claim of the Petitioners/Respondents concern the rightful candidate of the Congress for Progressive Change that was nominated and sponsored by the party. He submitted that it is a pre-election matter that is provided for by the Sections 32, 34 and 87(i) and (0) of the Electoral Act, 2010 (as amended). The learned counsel for the 1st and 2nd Respondents further contended that substitution and nomination being pre-election matters, the lower Court had jurisdiction. See Hassan V. Aliyu (2010) NWLR (Pt. 12231 547.
On Section 140 and 141 of the Electoral Act, 2010 (as amended) learned counsel submitted that the Sections are dead in our statute book same having being voided by the Federal High Court in Action Congress of Nigeria V. The National Assembly in Suit No. FHC/L/ CS/471/2011 dated 30th June, 2011 (unreported).
He urged the Court to hold that the trial Court had jurisdiction and to affirm its decision.
The 3rd Respondent submitted that the Appellant was under a misconception when he submitted that by Section 87 of the Electoral Act, 2010 (as amended) as well as the authority of Madukolu V. Nkemdilim (1962) 2 SCNLR 341: the trial Court had no jurisdiction. It was its contention that on the strength of the Exhibits before the trial Court, the Appellant ignorantly argued that the 2nd Respondent was not a candidate under Section 87 of the Electoral Act, 2010 (as amended).
On Section 141 of the Electoral Act (supra), Mr. Dikko for the 3rd Respondent contended that the Appellant totally ignored the decision of the Supreme Court in Amaechi V. INEC & Ors (2008) 5 NWLR (Pt. 1080) 227 when he submitted that the trial Court lacked the jurisdiction to return the 2nd Respondent.
Mr. Dikko finally urged the Court to dismiss the appeal and affirm the decision of the trial Court.
On point of law, Okutepa, SAN, for the Appellant referred to the Supreme Court decision in Senator Yakubu Garba Lado & Ors V. Congress for Progressive Change & Ors unreported consolidated Appeals Nos. SC.I57/2011 and SC.334/2011 delivered on 16th December, 2011 to submit that by virtue of Section 87 of the Electoral Act (supra) since CPC had two primaries out of which arose a contention as to which of them produced its right candidate then the trial Court and infact the Court has no jurisdiction to entertain the dispute. See also Ehinlanwo V. Oke (2008) 16 NWLR (Pt. 1113) 357. He pointed out that the case of Nagogo V. CPC decided by this Court is not on all fours with the instant appeal as the grounds of appeal and reason for the appeal are different. He urged the Court to allow the appeal.
The resolution of this issue rests on the import of sections 87 and 141 of the Electoral Act (supra). Section 87(4)(c)(ii) and (9) are the relevant paragraphs. The sub-sections provide inter alia:
(4)(c)(ii);
“The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant name shall be forwarded to the Commission as the candidate of the party;”
(9) “Notwithstanding the provision of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of the political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court of a State or FCT, for redress”
Very outstanding in sub-paragraph 9 above is the fact that it is an “aspirant” not a “candidate” who can institute a pre-election suit to complain that any of the provisions of the Electoral Act and the guidelines of his political party has not been complied with in the selection or nomination of the party’s candidate. There is no dispute from the record that the 2nd Respondent was an aspirant. The learned senior counsel’s contention that the 2nd Respondent who did not qualify as a candidate under Section 87 of the Electoral Act (supra) could not maintain the pre-election matter and as such the trial Court was robbed of its jurisdiction to determine the suit runs counter to the very provision of section 87(9) of the Act which he leaned on. For this, I hold that the 2nd Respondent as an aspirant of CPC in the case of nomination to the position of a candidate to the House of Representative seat for Akwnaga/Wamba/Nasarawa Eggon Federal Constituency could maintain an action for redress under section 87(9) of the Act.
The provisions of sections 33 and 87 of the Act pre-suppose that a party must take a stand on who its candidate is in an election. By the said sections, once a political party determines whom its candidate is and the name of the candidate is sent to Independent National Electoral Commission (INEC); the candidate acquires a vested interest. This actually commences the process of election and the 3rd Respondent has no power to reject or cancel the nomination or sponsorship so made by the party. It needs to be pointed out that the issue off nomination and sponsorship of candidates for an election remains the exclusive preserve of the political party concerned. That being the case, the candidate to be sponsored for an election is the choice of a political party in respect of candidates nominated. Even the political party that submitted the candidate’s name cannot for any reason withdraw, cancel, substitute or nullify such nomination and/ or sponsorship except as provided for under section 33 of the Act.
In sum, it is settled law that the right to nominate and sponsor a candidate for an election is that of the political party concerned. See Onuoha v. Okafor (1983) 2 SCNLR 244.
Established at the trial court is the fact that CPC conducted two primaries for the selection or nomination of its candidate for House of Representative for Akwanga/Wamba/Nasarawa Eggon Federal Constituency. See the finding of the trial Court at page 784 of the record.
This finding of the learned trial Judge was not appealed against. There was therefore no dispute that there were two primaries by CPC for the seat under reference. The dispute that exists is that while the Appellant insists that the primary of 11th January, 2011 produced him as a candidate, the 1st and 2nd Respondents maintain that the referred primary was inconclusive. There is also no dispute that the outcome of the two primaries of 11th January, 2011 and 15th January, 2011 are in contention in this case. Two candidates seem to have emerged from the two primaries and the dispute is “who is the right candidate” based on the two primaries of the political party for the seat of House of Representative for the Akwanga/Wamba/Nasarawa Eggon Federal Constituency.
While the Respondents contended that by Section 87(i) and (9) of the Act, the trial court had the jurisdiction to hear and determine the Originating Summons, the Appellant submitted that by Section 87(4)(c) and (9) and the authority of Garba Lado & Ors v. CPC & Ors (unreported) consolidated Appeals Nos. SC.157/2011 and SC.334/2011 delivered on 16th December, 2011 the trial Court and in fact no Court has the jurisdiction to determine the Suit whose issue rests on which of the CPC primaries produced the candidate to represent the party.
In Garba Kado & Ors v. CPC consolidated Appeals (supra), CPC held 2 primaries, the parties in dispute as in the instant case was which of the primaries of the 13th January, 2011 and 15th January, 2011 produced the right candidate. The Supreme Court invited the counsel for the parties to address the court on the issue as to whether the Courts have jurisdiction to entertain the suit having regards to the provisions of Section 87(4)(b)(ii), (c) (ii) and 9 of the Electoral Act, 2010 (as amended). The Supreme Court thereafter, held:
“The power of an aggrieved aspirant who is not satisfied with the conduct of the primaries by his party to elect a candidate must bring himself within the preview of Section 87(4)(b)(ii); (c)(ii) and (9) of the Electoral Act, 2010 (as amended), supra. It is only if he can come within the provisions of those sub-sections that his complaints can be justiceable as the courts cannot still decide as between two or more contending parties which of them is the nominated candidate of a political party; that power still resides in the political parties to exercise.”
I had earlier set out some depositions in the affidavit and counter affidavit for and against the Originating Summons. The trial Court at page 784 of the record found as follows:
“Parties are ad idem that there was a primary erection held on 11/1/2012. However, while the plaintiffs have documentary evidence to confirm their position the 2nd Defendant has none ………….. I am of the view that sufficient materials have been placed before this Court to the effect that the primary election held on 11/1/2011 was inconclusive and come to the conclusion that the authentic primary election of the 1st Plaintiff for the Senate and House of Representative in Nasarawa North senatorial zone was held on 15/1/2011………….On issue 3 which is on who is the winner of the primary erection for the House of Representatives between the 2nd plaintiff and the 2nd Defendant, for the Nasarawa North Senatorial District of Nasarawa State, recourse shall be had again to the affidavit evidence and exhibits attached to the parties affidavits. It is beyond dispute that the gravamen of this suit is as to who between the two of them won the primary election. In paragraph 16 of the affidavit in support of the amended originating summons, the deponent ALHAJI HAMIDU, chairman of Nasarawa State chapter of the 1st, plaintiff stated that when the rescheduled primary election was conducted on 15/1/2011, the 2nd plaintiff scored the highest number of votes cast by scoring 9,709 votes while the 2nd Defendant scored a total number of 1,098 votes cast and in support attached EXHIBIT “E” as the result of primary election. On his part, the 2nd Defendant in paragraph 27 of the counter affidavit to demonstrate that he emerged and that the 2nd Plaintiff did not contest any election with him attached Exhibit “OM8″ as the result of the primary election held on 11/1/20111” (underlining mine for emphasis).
From the foregoing, it is established beyond peradventure that CPC had two primaries and there is dispute as to who amongst the parties emerged the candidate of the party from the two primaries. In my view therefore, this appeal is different by its facts and circumstance from the case of Nagogo V. CPC Appeal No: CA/MK/125/2011, unreported decision of this court, delivered on 11th December, 2011; but on all fours with Garba Lado & Ors V. CPC & Ors consolidated Appeals (supra). This is to say that the Originating Summons at the trial Court was not justiceable under the provisions of Section 87(4)(c)(ii) (supra) and the trial Court lacked the jurisdiction to entertain same.
Not only the trial Court, since the dispute is taken outside the preview of Section 87(4)(c)(ii) and (9) of the Electoral Act, 2010 (as amended) the Courts have no jurisdiction to entertain the matter in dispute.
In the event that I am wrong with the above conclusion, on Section 141, of the Electoral Act (supra) the learned counsel for the 1st and 2nd Respondents was under a great misconception when he submitted that the above section is dead in our law having been held null and void. In A.C.N V. The National Assembly (unreported) suit No. FHC/L/CS/471/2011 delivered on 30th June, 2011; Okechukwu Okereke J., held thus:
“That the enactment of Sections 87(8) and 141 of the Electoral Act, 2010 (as amended) is intra vires the powers of the National Assembly by virtue of Section 4 and 45 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
That the said section 87(8) and L4r of the Electoral Act, 2010 (as amended) are regular, valid and Constitutional'”
The above decision relied upon by the learned counsel is not an authority to hold that section 141 of the Electoral Act (supra) is invalid or unconstitutional. Section 141 of the Act (supra) is an existing law of the land. The question then is with the provision of Section 141 of the Act did the trial Court have jurisdiction to make the consequential order at pages 785 – 786 lines 21 – 24 of the record. The learned trial Judge therein stated:
“I am now left with the consequential order to be made.
The consequential order of my finding is that BARRISTER IDRIS YAHUZA YAKUBU is the authentic candidate of the 1st plaintiff for whom the party campaigned prior to the April 9, 2011 National Assembly elections and not MR. EMMANUEL DAVID UMBUDADU since the CPC was declared the winner of the said election, barrister IDRIS YAHUZA YAKUBU must be deemed the candidate that won the election on the platform of CPC. In the eyes of the law, MR. EMMANUEL DAVID UMBUGADU was never a candidate in the election much less the winner.
It is therefore hereby ordered that the 1st Defendant returns the 2nd Plaintiff as the winner of the April 9, 2011, National Assembly Election into he House of Representatives of the Federal Republic of Nigeria representing Akwa nga/Wamba/Nasarawa Eggon Federal Constituency”
Section 141 of the Electoral Act, (supra) provides:
“An election Tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”
The question therefore is, did the 2nd Respondent participate fully in all the stages of the April 9, 2011 election. From the resolution of issue l based on the affidavit evidence in support and in counter of the Originating Summons, I had held that the Congress for Progressive Change attempted to substitute the name of the Appellant with that of the 2nd Respondent. Beyond this attempt the 2nd Respondent:
(a) Was not screened
(b) His personal data was not published by INEC in his constituency
(c) His statement of full names and address was not displayed at the relevant office, or offices of INEC and on INEC’s website by INEC.
(d) He did not take part in the April, 9 2011 election.
I hold the view therefore, that the 2nd Respondent did not fully participate in all the stages of the April, 9 2011, election for the Federal House of Representative into Akwanga/Wamba/Nasarawa Eggon Federal Constituency. The 2nd Respondent in law cannot be declared a winner by virtue of Section 141 of the Electoral Act.
Consequently I hold that the learned trial Judge was wrong when he held that the 2nd Respondent, whose name I had held was not successfully submitted to INEC as a candidate by the party be deemed the candidate of the party. I further hold that the learned trial Judge was in want of jurisdiction when he ordered that the 2nd Respondent who was set against Section 141 of the Electoral Act (supra) be returned by the 3rd Respondent as the winner of the April 9, 2011 election into the Federal House of Representative for Akwanga/Wamba/Nasarawa Eggon Federal Constituency.
From the totality of all I have said in the course of resolving this issue particularly as it relates to Section 87 of the Electoral Act (supra) and the decision of the Supreme Court in Garba Lado & Ors V. CPC (supra); I hold that neither the trial Court nor this Court has the jurisdiction to entertain the matter in dispute. Again by virtue of section 141 of the Act, the courts cannot make the consequential order made by the court below.
In the final analysis, I hold that the appeal has merit. Appeal is therefore allowed.
Consequently, I strike out suit No. FHC/LF/CS/18/2011 for want of jurisdiction.
I make no order as to cost.
MOHAMMED LADAN TSAMIYA, J.C.A: My Learned brother Justice Uchechukwu Onyemenam, JCA, gave me opportunity before today, of reading in draft the lead judgment just delivered in this appeal, The three issues identified in the appellants brief of argument and the respondents’ briefs of argument have been exhaustively examined and resolved in accordance with the provisions of the applicable statute, namely, the Electoral Act 2010 (as amended), and I have nothing more to add.
I agree with the reasoning and conclusion that this appeal should be allowed. I too allow it and endorse all the orders contained in the lead judgment.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Onyemenam, JCA. I agree with all his reasons and confusions. I adopt them as mine. I have nothing useful to add. I allow this appeal and abide by all the consequential orders in the lead judgment of my learned brother.
Appearances
J. S Okutepa, SAN with
M.O Ozueh,
A.C Uchin (Mrs)
N. I Ugoh (Miss)
O. M Ajonye
Ocholi O. Okutepa
S.I. Abu
S.U. Akoh
M. M. Narimi
N. I AniekweFor Appellant
AND
Chief S. A. Ayiwulu with
Edwin Anikwem
Dr. M.E Ediru,
I.M Dikko
M. M. OgahFor Respondent
