HON. IQUO NYONG INYANG v. ALL PROGRESSIVES CONGRESS & ORS (2019)

HON. IQUO NYONG INYANG v. ALL PROGRESSIVES CONGRESS & ORS

(2019)LCN/13124(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of April, 2019

CA/C/87/2019

RATIO

APPEAL: WHEN WILL AN APPELLATE COURT INTERFERE IN THE FINDINGS OF A LOWER COURT?

It is settled that a Court of appeal will only interfere with a finding of fact of the Court of trial when it is clear that the finding is perverse and does not flow from the facts relied upon, or is not a proper exercise of the Court?s judicial discretion. Thus, it is only where there is ample evidence and the trial Court has failed to evaluate it and make proper findings, then the Court of Appeal is entitled to evaluate such evidence and make the findings which the Court of trial ought to have made except where the matter rests on the credibility of witnesses. See DUMEZ (NIG) LTD V NWAKHOBA (2008) 18 NWLR (pt 119) 361 at 382.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

EVIDENCE: DIFFERENCE BETWEEN ADMISSIBILITY OF A DOCUMENT AND IT’S PROBATIVE VALUE

There is also a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached to it depends on the purpose for which it was tendered.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

APPEAL: WHEN AN APPELLATE COURT WILL NOT INTERFERE IN THE FINDINGS OR PROCEDURE OF THE TRIAL COURT

Whereas in this case a Court of trial unquestionably evaluates the evidence and justifiably appraised the facts and arrived at a conclusion on the credible evidence, the appellate Court will not interfere with such findings of fact nor is it the business of such appellate Court to substitute its own views of facts for those of the trial Court. See OGUONZE V STATE (1998) 4 SC 110 at 118 – 119.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

HON. IQUO NYONG INYANG Appellant(s)

AND

1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. MR. EDIDIONG IDIONG Respondent(s)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Uyo in suit NO FHC/UY/CS/223/2018: HON. IQUO NYONG INYANG ? VS ALL PROGRESSIVES CONGRESS & 2ORS. The appellant and 3rd respondent, members of 1st respondent, APC are of the same Ikono/Ini Federal Constituency, Akwa Ibom. The appellant claimed to have contested and won the 1st respondent?s primary election for the said Ikono/Ini Federal Constituency seat for 2019 but was unlawfully excluded by the 1st respondent from contesting by submitting the name of the 3rd respondent to the 2nd respondent as its candidate for the said election. Infuriated by the action of the 1st respondent, appellant commenced an action at the lower Court which gave rise to this appeal.

The action at the lower Court was commenced by originating summons for the determination of the following questions:-
1. Whether by proper interpretation of Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendant?s Guidelines for the nomination of candidates for the 2019 general elections direct primaries,

read in juxtaposition with Article 20 (iii) and (iv) of the All Progressives Congress Constitution October 2014, (as amended), the 1st and 2nd Defendants? are obliged thereby to comply strictly with the laws and procedures for the conduct of Primaries into the National Assembly of the Federal Republic of Nigeria as applicable to the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) held on the 5th October, 2018 at the 1st Defendants party offices located at Ibiaku Ntok Okpo and Odoro Ikpe, Akwa Ibom State respectively.
2. Whether, having taken steps to comply with the provision of Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendants Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Article 20 (iii) and (iv) of the All Progressives Congress Constitution October, 2014, (as amended) and Sections 85 (1) (3), 86(1), 87(1) (2)(4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the conduct of the Primaries for the Office of Member, House of

Representatives (Ikono/Ini Federal Constituency), and subsequently publicly announced the result of the said primaries at the venue, the 1st Defendant is thereby obliged to give effect to and recognize the candidature of the Plaintiff in the primaries to the exclusion of all other candidates including the 3rd Defendant.
3. Whether having regards to the steps taken by the Returning Officer and Electoral Officer being the agents of the 1st Defendant in the conduct of the Primaries for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) held on 5th day of October, 2018, to announce the Plaintiff as the winner, the 1st and 2nd Defendants are precluded from recognizing any other candidate in the said primaries as winner
4. Whether the 1st Defendant having issued the result of the National Assembly (House of Representatives) Primary Election for the Ikono/Ini Federal Constituency on the 5th day of October, 2018 to the Plaintiff, having been duly elected to contest the National Assembly Elections now scheduled for 16th February, 2019 can forward to the 2nd defendant the name of the 3rd Defendant as its candidate for the

aforesaid election for the Ikono/Ini Federal Constituency instead of the Plaintiff contrary to Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendant?s Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Article 20 (iii) and (iv) of the All Progressives Congress Constitution October 2014, (as amended) and Sections 85 (1) (3), 86 (1), 87 (1) (2) (4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
5. Whether the 2nd Defendant is bound to accept the nomination form of the Plaintiff viz-a-viz the result of the National Assembly primaries for the Ikono/Ini Federal Constituency as the candidate whose name ought to be submitted and published to contest the February 2019 National Assembly Elections under the All Progressives Congress for the Ikono/Ini Federal Constituency having regard to Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendants Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with

Article 20 (iii) and (iv) of the All Progressives Congress Constitution October 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?
6. Whether the non-submission of the plaintiff?s name and purported submission or forwarding of the 3rd Defendant?s name will not affect the right of the plaintiff to contest the forthcoming 2019 National Assembly Election for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) under the platform of the All Progressives Congress having scored the highest number of votes cast at the primary election conducted on the 5th day of October 2018 and returned duly elected contrary to Articles 14, 15, 16, 17, 18, 19, 20 ad 21 of the 1st Defendants Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Article 20 (iii) and (iv) of the All Progressives Congress Constitution October 2014, (as amended) and Sections 85 (1) (3), 86 (1), 87 (1) (2) (4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as

amended)?
7. Whether in the light of the provisions of Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendant?s Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Aticle 20 (iii) and (iv) of the All Progressive Congress Constitution October 2014, (as amended) and Sections 85 (1) (3), 86 (1), 87 (1) (2) (4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the 1st Defendant is not bound by the decisions of the Legislatives Election Appeal Committee for the South South Zone and its National Working Committee affirming the Plaintiff as the bona fide candidate of the 1st Defendant in the 2019 National Assembly Elections for the Office of Member, House of Representatives (Ikono/Ini) Federal Constituency, to be held on 16th day of February 2019 or any other date.

Consequent upon the above, the appellant prayed for the following reliefs:-
1. A declaration that pursuant to the combined effect of Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendant?s Guidelines

for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Article 20 (iii) and (iv) of the All Progressives Congress Constitution October 2014, (as amended) and Section 85 (1) (3), 86 (1), 87 (1) (2) (4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the conduct of the primary Election of the 1st defendant held on the 5th day of October 2018 for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) for the forthcoming 2019 National Assembly elections scheduled to be held on the 16th day of February 2019 (or any other date that may be fixed) the 1st and 2nd defendants? are obliged thereby to comply strictly with the laws and procedure for the conduct of primaries into the said office.
2. A Declaration that having taken steps to comply with the provisions of Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st defendant?s Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Article 20 (iii) and (iv) of the All

Progressives Congress Constitution October 2014, (as amended) and Section 85 (1) (3), 86 (1), 87 (1) (2) (4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in the conduct of the 1st Defendant primary election for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) leading to the public announcement of the result of the said primaries at the venue, the 1st Defendant is obliged to give effect and recognize the candidature of the Plaintiff in the primaries to the exclusion of other participants in the primaries.
3. A declaration that having regards to the steps taken by the returning officer and the Electoral officer being the agents of the 1st Defendant?s in the conduct of the 1st Defendants primary election for the office of Member, House of Representatives (Ikono/Ini Federal Constituency) on the 5th day of October, 2018 to announce the Plaintiff as winner, the 1st and 2nd Defendants are precluded from recognizing any other candidate in the said primaries as winner.
4. A Declaration that having regards to the steps taken by the 1st

Defendant to issue result sheets annexed to this Originating summons as Exhibits ?GO8?, ?GEO 9? ?GEO 10? in compliance with the relevant provisions of the 1st Defendant?s guidelines for primary elections, the 1st and 2nd Defendants are hereby obliged to accept and act upon respectively the candidature of the plaintiff to the exclusion of the 3rd Defendant and any other candidate that participated in the aforesaid primary.
5. A Declaration that pursuant to the contents of Exhibit A recorded by the 2nd Defendant, the plaintiff is the validly elected candidate of the 1st Defendant into the Office of Member, House of Representatives (Ikono/Ini Federal Constituency), pursuant to primary elections held on the 5th day of October 2018.
6. A Declaration that the 1st Defendant?s purported submission of the name of the 3rd Defendant (or preparation to submit of forward same) as the 1st Defendant?s candidate for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) is in gross violation of the 1st Defendant?s Constitution, Electoral guideline for Primary Election and the

Electoral Act (as amended) whereas the plaintiff won election for the same office as conducted by the 1st Defendant is illegal, unconstitutional, null and void and of no effect whatsoever.
7. A declaration that in light of the provisions of Articles 14, 15, 16, 17, 18, 19, 20 and 21 of the 1st Defendant?s Guidelines for the nomination of candidates for the 2019 general elections direct primaries, read in juxtaposition with Article 20 (iii) and (iv) of the All Progressives Congress Constitution October 2014, (as amended) and Section 85 (1) (3), 86 (1), 87 (1) (2)(4) (c) of the Electoral Act 2010 (as amended) and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the 1st Defendant is bound by the decisions of the Legislatives Election Appeal Committee for the South South Zone and its National Working Committee affirming the Plaintiff as the bona fide candidate of the 1st Defendant in the election for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) to be held on 16th day of February, 2019 or any other date.
8. An Order of perpetual injunction against the 1st and 2nd Defendants?,

their agents, servants or privies from recognizing and dealing with the 3rd Defendant or any other person other than the plaintiff as the 1st defendant?s candidate for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) to be held on the 16th of February, 2019 or any other date that will be fixed.
9. An Order restraining the 3rd Defendant from parading or holding himself out as the candidate of the 1st Defendant in the Ikono/Ini Constituency (House of Representatives)Election.
10. An Order directing the 1st and 2nd defendants by themselves, their agents, privies or howsoever called to take all necessary steps and action including listing the name of the plaintiff as the 1st defendant?s candidate for the forth coming National Assembly (House of Representatives Election) for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) and allow the Plaintiff contest the forthcoming aforesaid election on the platform of the 1st Defendant.
11. In the event that before the determination of this suit the 3rd Defendant whose nomination has been wrongly accepted and published as the candidate of

the 1st defendant, emerges victorious for the Office of Member, House of Representatives (Ikono/Ini Federal Constituency) fixed for the 16th February 2019 (or on any other date). An Order of this Court confirming the return of the plaintiff as the 1st Defendant?s lawful aspirant to be issued with a certificate of return by the 2nd Defendant for the office of Member, House of Representatives (Ikono/Ini Federal constituency) to be conducted on the aforesaid date or any other date.
12. Consequent on the order above, an order compelling the 1st and 2nd defendants? to issue the plaintiff a certificate of return as the validly elected flag bearer for the Office of Member, House of Representatives (Ikono/Ini Federal constituency) sequel to the election fixed for 16th of February, 2019.
13. And such additional or further orders this honourable Court may deemed fit/just to make in the circumstance of the case.
14. The cost of this Action.?
?
Upon being served, the 1st and 3rd respondents filed counter-affidavits in opposition to the Originating summons as well as Notices of Preliminary Objection. After hearing the submission of counsel

contemporaneously on the originating summons and notices of preliminary objection, learned trial judge dismissed the preliminary objection of both the 1st and 3rd respondents and also dismissed the reliefs of the appellant as lacking in merit.

The appellant being dissatisfied with the judgment of the lower Court, appealed to this Court on 26/2/2019. The appellant?s notice of appeal at pages 488 ? 493 of the record of appeal contains 4 grounds of appeal.

At the hearing of the appeal on 9/4/2019, P.D. Daudu, Esq., on behalf of the appellant adopted and relied on the appellant?s brief of argument and the appellant?s reply brief respectively filed on 26/3/2019 and 8/4/2019 in urging this Court to allow the appeal. Christopher Ekpo, Esq., adopted and relied on the 1st and 3rd respondents? brief filed on 4/4/2019 in urging this Court to dismiss the appeal and affirm the judgment of the lower Court.

Learned counsel for the appellant distilled three issues for the determination of this appeal as follows:
1. Whether the learned trial judge erred in law and thereby occasioned a miscarriage of justice when he dismissed the

appellant?s originating summons and held that the 3rd respondent was the lawful candidate and flag bearer of the 1st respondent for the Ikono/Ini Federal Constituency seat in the National Assembly elections despite there being no legal basis for arriving at the conclusion (Distilled from grounds 1 and 4).
2. Whether the learned trial judge erred in arriving at the conclusion that Exhibit INE 14 being the report of the Appeal Committee upholding the plaintiff?s candidacy in the said election was not signed or authenticated by any of the parties. (Distilled from ground 2).
3. Whether the trial judge erred in law when he held Exhibit 15 and Exhibit A being an online Newspaper publication required certification by National Library despite same being certified in accordance with Section 84 of the Evidence Act (Distilled from ground 3).
The 1st and 3rd respondents adopted the three issues formulated by the appellant.

It is pertinent to set out albeit, briefly the facts giving rise to this appeal as presented before the lower Court.
?
On the 5th day of October, 2018, the 1st respondent in readiness for the 2019 general Election in

Nigeria decided to conduct her primary election at Akwa Ibom to elect a candidate for the Ikono/Ini Federal Constituency in Akw Ibom State. The primary election was conducted and the 1st respondent declared the 3rd respondent as winner and therefore forwarded his name to the 2nd respondent (INEC) as its candidate for Ikono/Ini Federal Constituency.

The appellant on her part maintained that she was among the four candidates who contested the 1st respondent?s primary election for the Ikono/Ini Federal Constituency held in Ikono/Ini Local Government Area respectively. And that there were a total of 90 delegates who voted at the said primary election and that the returning officer for the said primary election Mr. Emmanuel Nnana Akpan submitted the result but the electoral committee refused and neglected to submit her name to the 1st respondent?s headquarters in Abuja as the 1st respondent?s candidate for Ikono/Ini Federal Constituency Election in 2019 elections. As a result, she lodged an appeal to the Legislative election committee of the 1st respondent which upheld the primary election that produced her as flag bearer of the 1st

respondent for the office of member House of Representatives Ikono/Ini Federal Constituency in 2019 General election.

On their part, the 1st and 3rd respondents contended that it was the 3rd respondent that won the primary election for Ikono/Ini Federal Constituency of Akwa Ibom State and thus the 3rd respondent?s was the candidate for Ikono/Ini Federal Constituency for the said general elections.

I now come back to the issues for determination formulated by the appellant and adopted by the 1st and 3rd respondent as the 2nd respondent did not file any brief of argument and therefore shall not be heard on this appeal.

ISSUE NO 1
Arguing this issue, learned counsel for the appellant submitted that the onus of proof in civil cases does not remain static and thus shifts from one side to another and that the onus of adducing further evidence is on the person who will fail if such evidence were not adduced.

?Still in argument, learned counsel submitted that the appellant?s affidavit in support of the originating summons as well as the further and better affidavit had several exhibits namely, Exhibits INE 1A ? INE 15

together with Exhibit A which served as documentary evidence in proof of her case. The admissibility of these evidence were put forward by the appellant and the lower Court had found that ?the hallmark of the controversy? between the parties was the authenticity of the said Exhibits, but the learned trial judge refused and or neglected to make any finding on Exhibits INE 10, INE 11 and INE 12. Worst still, the trial judge in assessing the admissibility of the said exhibits found Exhibits A and INE 14 not authentic, credible, and real. Thus, the exclusion of Exhibits INE 10, 11 and 12 according to the learned counsel is wrongful and constitute a fundamental error which occasioned a miscarriage of justice. He referred to AWUSE V ODILI (2005) 16 NWLR (pt 952) 426 and SPDC (NIG) LTD V OLANREWAJU (2002) 16 NWLR (pt. 792) 38.

With respect to Exhibits INE 14 and ?A? learned counsel, submitted that the trial Court did not take cognizance of the law at regarding the admissibility of original document before arriving at the conclusion that same are not authentic, credible, acceptable and real. And that the said

documents were not impugned in any way. He referred to AGBAKOBA V INEC (2008) 18 NWLR (pt 1119) 489 at 537 and ETIM V OBOT (2010) 12 NWLR (pt 1207).

In further argument, learned counsel submitted that Exhibits 14 and A are not public documents and that where the original copy of a document is available, it is admissible without the requirement of certification relying on the authorities in the cases ofKASSIM V STATE (2017) LPELR ? 42586 and SHYLLON & ANOR V UNIVERSITY OF IBADAN (2006).

On the part of the 1st and 3rd respondents, learned counsel referred to Exhibit INE 13 to contend that the appellant had admitted that she took laws into her hands by conducting her own primaries and thus her purported victory was as a result of self-help. He therefore submitted that the appellant having failed to adduce facts in support of her case, she was not entitle to the declaratory reliefs sought as the burden is quite heavy in the sense that declaratory reliefs are not granted even on admission by defendant where the plaintiff fails to establish his entitlement. He referred to IKECHI

EMENIKE V PDP (2012) LPELR ? 7802.

ISSUE NO. 2
On this issue, learned counsel for the appellant contended that Exhibit INE 14, the report of the appeal committee of the 1st respondent of the primary election that produced the appellant as the winner for membership of the House of Representative for Ikono/Ini Federal Constituency was properly signed and authenticated. He thus submitted that the failure of the learned trial judge to wholly appraise Exhibit INE 14 inevitably led to an erroneous finding that the appellant was not the authentic candidate of the 1st respondent in its primary election for the said Ikono/Ini Federal Constituency.

On the part of the 1st and 3rd respondents, learned counsel submitted that the learned trial judge had reached his conclusion on Exhibit INE 14 based on the facts placed before him by the parties.

ISSUE NO. 3
On this issue, learned counsel for the appellant contended that Exhibits INE 15 and A being an online Newspaper report showing the list of sponsored candidates with their parties including the name of the appellant requires no certification by the National Library. He thus

submitted that the learned trial judge misapplied the authority in AGBI V INEC (2018) 14 NWLR (pt 1108) 422 to the facts and circumstances of this case to hold that uncertified newspaper publication attached as exhibit by the appellant was inadmissible under Section 116 of the Evidence Act. He further submitted that admissibility of hard copy online newspaper are differently provided. He referred to Sections 102 and 84 of the Evidence Act in submitting that the appellant having fulfilled the preconditions spelt out in Subsections (2) (3) and (4) of Section 84 of the Evidence Act, the learned trial judge was bound not only to admit Exhibit A but also to attach full evidential weight to same.
He finally urged this Court to resolve all the three issues in favour of the appellant and to allow the appeal.

On the part of the 1st and 3rd respondents, learned counsel relied heavily on the authorities in OLUFUNKE ELUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2009) EPRC 114 at 146 and PDP V SYLVA (2012) 12 NWLR (pt 1315) 85 at 146 in submitting that the appellant has not shown that her claim vide Exhibit

INE 13 falls within the confines of Section 87 of the Electoral Act 2010 (as amended) and the effect is that she could not be regarded as having been deprived of a position she never vied for. He urged this Court to dismiss the appeal.

In appellant?s reply brief, learned counsel contended that nowhere in the entire brief do the respondents deal with issues on failure of the trial judge to make findings of fact on Exhibits INE 10, 11, 14,15 12 and A. He submitted that the failure of the respondent to offer reply to an issue in the appellant?s brief is tantamount to conceding the issues raised therein. In aid, learned counsel referred to EIGBE V N.U.T. (2008) 5 NWLR per Abba Aji, JCA (as he then was).

I have carefully considered the argument of learned counsel on both sides as regards to the above formulations. I am however of the firm view that the resolution of issue No.1 can subsume the remaining two issues. I shall therefore consider this appeal in the light of issue No.1 formulated by the appellant and adopted by the 1st and 3rd respondents.
?
To underscore the appellant?s grouse against the judgment of the

lower Court, it is necessary at this stage that I reproduce the relevant extracts from the affidavit before the lower Court.
Affidavit in support of Originating summons:
6. That in a bid to participate in the 1st Defendant?s Ikono/Ini Federal Constituency (House of Representatives) primary elections, I obtained an Expression of Interest form for the 2019 National Assembly Elections and also bought the 1st Defendant?s House of Representatives nomination form for 2019 election with serial number APC/004/2019 for the sum of N1,925,000 (One Million, Nine Hundred and Twenty Five Thousand Naira) only. A copy of the 1st Defendant?s Guidelines for the conduct of primary elections, the said Expression of Interest form, nomination form and copy of the confirmation of payment for expression of interest and Nomination form for Akwa Ibom State House of Representatives issued by ACCESS BANK PLC to the Finance Director of 1st Defendant dated the 7th day of September, 2018 are hereby attached and marked as ?Exhibit INE 3? ?INE 4?, ?INE 5? and ?INE 6? respectively.
7. That having fulfilled all the

requisite pre-conditions stated in the 1st Defendant?s guidelines and constitution, Electoral Act and the 1999 Constitution (as amended) and screened by the committee set up by the 1st Defendant, I was cleared to contest the 1st Defendant?s House of Representatives primary election for the Ikono/Ini Federal Constituency which held on the 5th day of October, 2018.
8. That I am aware that I was among the four candidates who contested the 1st Defendant?s primary election for the Ikono/Ini Federal Constituency held at Ikono and Ini Local Government Areas respectively.
9. That the said primary election described above was conducted at the 1st Defendant?s party offices at Ibiaku Ntok Okpo for Ikono Local Government Area (L.G.A.) and Odoro-Ikpe for Ini Local Government Areas (L.G.A) which constitute Ikono/Ini Federal Constituency in Akwa Ibom State.
10. That there were a total number of 90 delegates who voted at the said primary elections and were all duly accredited.
11. That the said primary election held on the 5th October, 2018 was democratic and successful as it was carried out in accordance with the 1st Defendant?s

Constitution and Electoral guidelines.
12. That I am aware that the name of the Returning Officer of the Ikono/Ini Federal Constituency in the said primary election who was duly appointed by the 1st Defendant was Emmanuel Nnana Akpan. A copy of the evidence of appointment by the 1st Defendant is hereby annexed and marked as ?Exhibit INE7?.
14. That I am also aware that the name of the Returning Officer of the Ini Local Government Area in the said primary election who was duly appointed by the 1st Defendant was Mr. Bassey C. Ben. A copy of the evidence of appointment is hereby annexed and marked as ?Exhibit INE 9?.
15. That at the end of the voting process, the valid votes were counted and the following scores were recorded as the results of the Ikono/Ini Federal Constituency primary election organised by the 1st Defendant;
a. Dr. Emmanuel Akpanobong – 0
b. Rt. Hon. Iquo Nyong Inyang – 90
c. Dr. George Udo – 0
d. Barr Edidiong Idiong – 0
Total – 90
16. That afterwards, the Returning Officers for the Ikono and Ini L.G.A. publicly announced the respective results from at the 1st Defendant?s

party offices at the said local governments, the totality of both results the Returning officer for the Ikono/Ini Federal Constituency announced as reflected in the paragraph 15 above. The results of the said primary elections in Ikono L.G.A. and Ini L.G.A. allied with summary of the overall result as announced by the Returning Officer of the Ikono/Ini Federal constituency are hereby annexed and marked as Exhibits ?INE 10, ?INE 11? and ?INE 12? respectively.
17. That I am aware that the returning officer for the said primary elections ? Mr. Emmanuel Nnana Akpan submitted the said result to the 1st Defendant?s Legislative primary election committee appointed by the APC National Working Committee to supervisee and organize the said primary election.
18. That to my utmost surprise and disappointment, the Electoral Committee failed, refused and or neglected to submit my name to the 1st Defendant?s Headquarters in Abuja as the 1st Defendant?s candidate for the office of Member, House of Representatives Ikono/Ini Federal constituency (House of Representatives) Elections in the 2019 General

elections.
19. That as a result, I was constrained to lodge an appeal to the Legislative Election Appeal Committee of the 1st Defendant chaired by Prof. Osarhienmen Osunbo which upheld the said primary election as valid and lawful. A copy of my petition and the report of the Appeal Committee upholding the result of the priary election that produced me as the flag bearer of the 1st Defendant for the office of Member House of Representatives Ikono/Ini Federal Constituency in the 2019 General elections are hereby annexed and marked as Exhibits INE 13 and INE 14.
20. That I am fully aware that the report of the Appeal Committee of the 1st Defendant has been submitted to and approved by the National Working Committee of the 1st Defendant.
21. That in line with the decision of the National Working Committee of the 1st Defendant, I was issued and directed to fill a nomination form for member House of Representatives (FORM E.C.4B (v) for Ikono/Ini Federal Constituency of Akwa Ibom State which I duly filled and returned to the officials of the 1st Defendant for the onward submission to the headquarters of the 2nd Defendant.

22. The 1st Defendant ought to have submitted my name to the 2nd Defendant as its candidate for the Ikono/Ini Federal Constituency seat in the forthcoming 2019 General Elections, but up to the time of filing this action, my name has not been submitted to the 2nd Defendant.
23. That I am aware that the 1st Defendant went ahead to transmit the name of the 3rd Defendant to the 2nd Defendant as its purported candidate for the Ikono/Ini Federal Constituency seat in the forthcoming 2019 General Elections notwithstanding the fact that I won the primary elections conducted by the 1st Defendant on the 5th day of October, 2018.
24. That I am fully aware that the name of the 3rd Defendant was published by the 2nd Defendant as being the sponsored candidate of the 1st Defendant in Ikono/Ini Federal Constituency of Akwa Ibom State on the 25th day of October, 2018. A print out of report published by Daily Trust Newspapers on 26th day of October, 2018 is hereby attached and marked as Exhibit ?INE 5?.
Counter affidavit of 1st respondent.
(iv) That regarding paragraph 6 of the plaintiff?s Affidavit in Support, the 1st Defendant

states that it is not in a position to confirm the exhibits tendered by the plaintiff and cited therein. The exhibits in contention would normally be certified by the 1st Defendant to ensure its authenticity since they could be contrived by the plaintiff to illegally obtain the judgment of this Honourable Court. That the usual process of the APC, as an organized Political Party, upon an appropriate application, would issue a Certified True Copy of any document requested, since the Court must look at authentic documents in order to arrive at just fair and justice oriented decision.
(v) The 1st Defendant denies paragraphs 7, 8 and 9 of the Affidavit in support and shall put the plaintiff to the strictest proof thereof. There is no record of the plaintiff being screened or cleared to contest the Federal Constituency primary elections of the 1st Defendant in any capacity.
(vi) That the party primaries of the 1st Defendant were conducted by a panel consisting of members in Exhibit A now shown to me and marked accordingly. The purported primaries, the plaintiff relies upon was neither signed by the Chairman described in Exhibit A, nor any of the members

therein as required by the regulations and could therefore not have been an authentic primary election of the 1st defendant. It has consistently been the policy of the 1st defendant to constitute primary Election Committees by people who are not indigenes of the states where the primaries are being conducted. This case was no exception as can be gleaned by the membership thereof.
(vii) The primaries relied upon by the plaintiff was contrived by her and declared by her, as indicated in her Exhibit INE 13 where she stated in the 2nd paragraph thus:
On the 5th day October, 2018, when the rescheduled primaries were to be held, party members waited anxiously the whole day to vote, but no materials came for the exercise, nor has any result been announced to date.
We had to organize a primary election where I emerged winner with 90 votes
(viii) That paragraphs 9, 10, 11, 12, 13, 14 and 15 of the Affidavit in support are emphatically denied. These are again, figments of the plaintiff?s fertile imagination. The 1st Defendant is shocked at the level to which the plaintiff can descend in her effort to create chaos and

thereby feed her inordinate ambition!
(xix) The figures mentioned in paragraph 15 of the Affidavit in support are denied as fictitious as none of the persons mentioned in paragraphs 12, 13, and 14 of the Affidavit in support were nominated by the party to manage any primary election of the 1st defendant. The only persons duly authorized to conduct primary elections are those contained in Exhibit A of the 1st defendant hereof.
(xx) That further shown to me and marked Exhibit B ? B2 is the extract of the Minutes of the National Working Committee of the 1st defendant party clearly showing that the 3rd defendant won the primaries and succeeded and surmounted all the obstacles. The exhibits also indicate and underscore the paucity of correct information on the part of the plaintiff.
(xxi) That shown to me and marked Exhibit C (Form EC. 25C (iv)) of INEC showing the list of Nominated House of Representatives Candidates of the 1st Defendant from Akwa Ibom State. The 3rd defendant is indicated as No. 4 on the list. The plaintiff?s name could not be on the list because she was busy conducting her own primary elections, while ignoring the properly

constituted authorities of the 1st defendant
Counter affidavit of 3rd respondent:
i. The 3rd defendant was an aspirant at the primaries of the All Progressives Congress, the 1st defendant herein, a political party in Nigeria, which primaries were conducted by the National Assembly primary Electoral Committee appointed by the National Executive Committee of the said party on the 5th of October, 2018 in all the 21 Wards that constitute the Ikono/Ini Federal Constituency in Akwa Ibom State.
ii. The plaintiff and 2 other aspirants also contested the primary election with him, but all lost to him.
iii. He, the 3rd defendant won the primaries, scoring 11,312 votes, the highest number of votes cast at the primaries and was declared winner and returned as the candidate of the 1st defendant. The plaintiff scored only 445 votes. Attached hereto and marked Exhibit A, is the APC primary election result for the Ikono/Ini Federal Constituency conducted on 5th October, 2018, which was issued to him by the returning officer at the end of the election.
iv. Following his victory at the election, his name has since been forwarded to the

Independent National Electoral Commission, the 2nd Defendant herein.
v. The returning and Electoral Officers at the election were Hon. Mohammad Yamah and Hon. Abass Braimah respectively, not the names stated by the plaintiff.
vi. The plaintiff manipulated the Appeal Panel into making an unwarranted and illegal recommendation in her favour. The National Working Committee rejected the recommendation and approved the result of the election which the 3rd defendant had won. The extract from the minutes of the National Working Committee held on 17th October, 2018, directing that the list of candidates who won the elections be signed by National Officers of the party and submitted to INEC and the said list submitted to INEC are hereto attached and marked Exhibits B and C, respectively.
vii. The APC National Assembly Primary Direct Election conducted on 5th October, 2018 in Ikono/Ini Federal Constituency was free, fair and credible. It was conducted in line with the Party?s Guidelines, Constitution and all other relevant laws regulating the conduct of a political party?s primary elections.
viii. Throughout the primaries election period,

before and after the party?s primaries he was qualified and met all the constitutional requirements to be the candidate of the party eligible to be elected into the Federal House of Representatives.
ix. As the legitimate candidate of the 1st Defendant, whose name was forwarded to the 2nd defendant, he has since launched his campaigns in accordance with the law and has been campaigning vigorously throughout the length and breadth of Ikono/Ini Federal Constituency.
Further and Better affidavit:
15. That contrary to paragraph 5 (v) of the counter affidavit, the plaintiff?s primary election was upheld by the Appeal Committee set up by the National Chairman of All Progressive Congress and could not have manipulated the Appeal Panel as alleged by 3rd Defendant but rather it was members of the Electoral Committee that were manipulated/compromised as they failed, refused or neglected to recognize the plaintiff as the winner of the said primaries which required the intervention of an appeal panel.
?16. That National Working Committee of the All Progressives Congress met on the 17th October, 2018, reviewed the Report of the National

Assembly Primaries and Primary Appeal Committee reports, and approved the recommendation of the primary Appeal Committee directing the party to forward the name of the plaintiff to INEC as the duly elected candidate for the Ikono/Ini Federal Constituency seat. An original copy of the extract of the meeting signed the National Secretary of the party Alhaji Mai Mala Buni is hereby attached as Exhibit A.
17. That I verily believe the contents of Exhibit B (Extract of the 1st defendant?s National Working Committee meeting held on the 17th of October, 2018) attached to 3rd defendants counter affidavit to be true only to extent that it does not specify the name of the 3rd defendant, nor did it direct that it was the 3rd defendant?s name be sent to the Independent National Electoral Commission.
18. That I verily believe that the National Working Committee of the 1st Defendant is the final arbiter on all disputes arising from the conduct of primary elections for the office of member house of representatives in line the Constitution and guidelines of the 1st defendant.

3rd respondent?s further and Better counter Affidavit:
4. Paragraph 8 is denied and in addition, I reiterate that I won the primaries by a landslide in all the 21 wards of the Ikono/Ini Federal constituency, as shown in the result, Exhibit A, attached to the Counter Affidavit deposed by Ubong Inyang, the 1st defendant?s chapter Chairman of Ikono Local Government Area.
5. Paragraph 9 is denied, I was an aspirant duly cleared by the 1st defendant to contest the primary election conducted by the 1st defendant, a fact admitted by the plaintiff in paragraph 15 of her affidavit in support of her originating summons.
6. Paragraph 10 is denied. Exhibit A is a Certified True Copy of the final result signed by the Chairman and Secretary of the Electoral Committee, who also served as the Returning and Electoral Officers, respectively. They collated the result at the Headquarters of Ikono/Ini Federal constituency at Ikono Local Government Area Chapter Secretariat of the party. The said result was not collated or written at Rosemohr Hotel as claimed. It was written by the duly appointed Electoral Officers and not by me or my friends as the plaintiff has falsely claimed.
7. Contrary to the plaintiff?s

deposition in paragraph 11 which is contrived to mislead the Court, the issue in contention is not the exhibition of the field results or lack thereof.
8. I personally know NNANA AKPAN, ALBERT UDOSEN and BASSEY C. BEN falsely mentioned by the plaintiff as the Returning Officers at the election and they all hail from Akwa Ibom State. However, the actual returning and Electoral officers at the election, namely MOHAMMED YAMAH and HON. ABASS BRAIAH were, along with other members of the Electoral Committee, recruited from outside Akwa Ibom State.
9. Contrary to the misleading statement contained in paragraph 12, in Akwa Ibom State, the stakeholders of the 1st defendant, the APC adopted the option of direct primaries for all offices including the primaries now in dispute. All registered members of the party in each ward of the state were entitled to vote. It was not a delegate?s election.
10. Further to paragraph 8 above, the primaries were conducted in all the 21 Wards of Ikono/Ini Federal Constituency and all APC party members were eligible to vote and be voted. It is not true that the elections were conducted at the respective chapter

headquarters of Ikono and Ini Local Government Areas.
11. That APC has over 15,000 members in Ikono/Ini Federal Constituency, and out of which about 13,053 were accredited to vote at the primary election conducted on 5th October, 2018.
12. It is a complete fabrication to assert that only 90 members of the party voted in the party?s primary elections that were conducted in all the 21 Wards of Ikono/Ini Federal Constituency.
13. Paragraph 13 is contrived to confuse and mislead the Court. The direct primaries were conducted and the final result collated and signed by the Chairman and Secretary of the Electoral Committee set up by the National Working Committee of the Party. The Chairman and secretary of the Electoral Committee also served as the Returning and Electoral Officers, respectively, in the said primary election in line with the party?s Guidelines for the conduct of the primary election.
14. Paragraph 14 is denied. The Electoral Committee was not compromised or manipulated.
15. Paragraph 154 is denied, the plaintiff is a serial manipulator and who misled the Appeal Panel to taking an absurd decision that was perverse and

in complete ignorance of the fact.
16. Paragraph 16 is true to the extent that the APC NWC met on 17th October, 2018 a day preceding the deadline for submission of names of the political parties? candidates to the Independent National Electoral Commission. The NWC of the APC deliberated extensively on the reports of the primaries and the various appeal panels and took a decision to send the names as contained in Exhibit C of the 3rd defendants counter Affidavit to the Independent National Electoral Commission. The document Exhibited as Exhibit A in the plaintiff?s Further and Better Affidavit is forged. Alhaji Mai Mala Buni, the National Secretary of the 1st defendant informed me yesterday by telephone at about 10pm that he did not sign the said document, and I verily believe him.
17. In response to the plaintiff?s paragraphs 20 and 21, I aver that my name was correctly forwarded to the 2nd defendant by the 1st defendant. The plaintiff?s appeal was not based on truth and was rejected by the National Working Committee.
18. The names sent to the Independent National Electoral Commission by the 1st defendant were published as

admitted by the plaintiff in paragraph 24 of her affidavit in support of the Originating Summons and included my name to the 2nd defendant.
19. The plaintiff having been aware of the decision of the NWC (the final authority) of the APC on the 17th October as admitted by the plaintiff in her paragraph 23, the plaintiff took no steps until after 20 days, when she filed this suit on 7th November, 2018.

It is clear after reading the affidavit in support of the originating summons alongside the various counter affidavits both the appellant and the 3rd respondent emerged winner from parallel primaries of the 1st respondent for Ikono/Ini Federal Constituency. Learned trial judge has rightly observed that since the parties are all operating for All Progressive Congress (herein referred to as the 1st respondent), the necessary tools for the resolution of issues are the APC guidelines and the constitution of the APC. Article 13.4 (xiv) of the APC Constitution provides as follows:
The National working committee shall organize primary election for the nomination of its presidential candidates, Governorship candidates and candidates for election

into the National and State Assemblies.?
Guidelines 14 of the APC deals with Electoral process and it provide thus:-
?(a) There shall be a 7 member Election Committee for each state who must be persons of proven integrity.
(b) The members of the committee are to be recruited from outside the state of the assignment, comprising of a chairman, secretary and 5 members.
(c) The committee shall be responsible for the overall conduct of the exercise in the state.
(d) The committee shall supervise the local Government and ward Election committee.
(e) The committee shall collate the result from all the local governments.
(f) The final result of the election shall be collated on the state declaration result form.
(g) The chairman of the committee shall declare the aspirant polling majority of lawful votes as the winner of the primary.
I have stated that the dispute giving rise to this appeal relates to parallel and or multiple primaries. The Court has a duty to say which of the multiple primaries is authentic one, where as in this case, there is a dispute on such. The provisions of Section 87 (4) (i) (ii) and

(9) of the Electoral Act give any aspirant member of a registered political party, who participated in a primary conducted by a political party to choose a candidate to contest an election under its platform who is not satisfied with the outcome of the primary election contested with other members of the same political party, to approach the Federal High Court or High Court of a state or F.C.T High Court for redress. In other words, where a political party breaches the Constitution and party guidelines in the nomination of its candidates, an aggrieved candidate has the right to interrogate the said process and seek redress in court. See C.P.C. V OMBUGADU (2013) 18 NWLR (pt 1385) 66, UKACHUKWU V PDP (2014) 17 NWLR (pt 1428) 575, AKPAMBO OKADIGBO V CHIDI (NO 1) (2015) 10 NWLR (pt 1466) 171 UZODIMA V IZUNASO (NO 2) (2011) 17 NWLR (pt 1275) 30 and PDP V ORANEZI (2018) 7 NWLR (pt 1618) 245 at 259 – 260.

In the instant case, the appellant hinges her claim based on the report of the Appeal committee upholding the result of the primary election that produced her as the flag

bearer of the 1st respondent for Ikono/Ini Federal Constituency in the 2019 General Election, Exhibit INE 14 and the extract of the National Working Committee meeting of 17/10/18 Exhibit A. The 1st and 3rd respondents also relied on the extract of minutes of the National Working Committee meeting report of the National Assembly primary and primary Appeal Committee of 17/10/2018. Exhibits B, B2 and C respectively.

Appraising the above documents, learned trial judge at page 482 of the record of appeal said:
?Having carefully examined and viewed the exhibits of the parties aforementioned, I find as a fact and I so hold that Exhibit A of the plaintiff is not authentic, credible, acceptable and real, rather the 1st and 3rd defendant exhibits are authentic, credible and believable! Exhibits B ? B2, C of the 1st Defendant and Exhibit B and C of the 3rd defendant show the names of the other nominated National Assembly candidates for 2019 General Election (excluding the plaintiff).
These exhibits are in agreement and corroborate the fact that the 3rd defendant is the candidate of the 1st defendant for Ikono/Ini Federal constituency seat,

and I so find and hold. Find and hold that Exhibit INE 14 of the plaintiff is also not authentic and therefore not reliable and credible.”

Learned counsel for the appellant descended heavily on the above findings stressing that the failure to wholly appraise Exhibit INE 14 led to a perverse finding and urged this Court to set it aside.

There is also a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached

to it depends on the purpose for which it was tendered. In the instant case, Exhibit INE 14 was relied upon to contend that the appeal committee of 1st respondent has cleared the appellant but the lower Court found same not have been signed by any officer of the party. The traditional function of a signature is to permanently affix to a document a person?s uniquely personal undeniable self-identification as physical evidence of that person?s personal witness and certification of the content of all or a specified part of document. Thus, the purpose is to authenticate a writing, or provide notice of its source and bind the individual signing the writing. The appellant?s Exhibit A, the Extract of the National working committee meeting of 17/10/2018 is to give effect of the report in Exhibit INE 14 but the lower Court found it to be lacking in credibility as same mentioned the appellant and one GLORY EKPO OKON with no other person whose appeal was also entertained by the committee.

I have closely examined the above findings of fact by the lower Court and it is clear to me that they are neither perverse nor arrived at as a result of any wrong

approach to the evidence or as a result of a wrong application of any principle of substantive law or procedure. Whereas in this case a Court of trial unquestionably evaluates the evidence and justifiably appraised the facts and arrived at a conclusion on the credible evidence, the appellate Court will not interfere with such findings of fact nor is it the business of such appellate Court to substitute its own views of facts for those of the trial Court. See OGUONZE V STATE (1998) 4 SC 110 at 118 ? 119.

Learned counsel for the appellant also faulted the findings of the lower Court in respect of Exhibit INE 15 as well as its reliance on the authority of AGBI V INEC (supra). The Newspaper and Magazine, though private but they fall within the meaning of public document by virtue of Section 102 (b) of the Evidence Act read together with Section 2 (2) (a) of the National Library Act Cap N56 Laws of Federation 2004. However, an online newspaper publication such as Exhibit INE 15 are admissible under Section 84 of the Evidence Act and thus the case of AGBI V INEC (Supra) is not an authority in that regards.

In evaluating evidence, the Court is under a duty to evaluate all and not just some of the evidence tendered at the trial. See NDUKUBA V IZUNDU (2006) ALL FWLR (pt 343) 1740.

In the instant case, the lower Court had evaluated all the Exhibits presented by the parties and found Exhibit B ? B2 and C, more credible than Exhibits A and INE 14 in view of the entire circumstances of the case. I am also in agreement with the submission of learned counsel for the 1st and 3rd respondents that the appellant by her own admission in Exhibit INE 13 admitted that she conducted her own primary election on the 5th day of October, 2018. In paragraph 2 of Exhibit INE 13 at page 157 of the record of appeal it read as follows:
On the 5th day of October, 2018 when the rescheduled primaries were to be held, party members waited anxiously the whole day to vote but no materials came for the exercise, nor has the result been announced till date; we had to organize a primary election where I emerged winner with 90 votes.”
An admission is an express or implied concession by a person of the truth of an alleged act. It is generally presumed that no

man would declare anything against himself unless it was true. See EIGBE V N.U.T (Supra). In EMEKA V OKADIGBO (2012) 18 NWLR (pt 1331) 55 at 88 per Rhodes – Vivor, JSC held:-
?Where there are two primaries conducted by the NEC of the PDP a situation best imagined, it is only then it can be said that there were two parallel primaries. The authentic primary could easily be resolved by documentary evidence available.”
In the instant case, appellant vide Exhibit INE 13 had admitted that the primaries that produced her as a flag bearer of the 1st respondent was not the authentic primary and the trial judge was justified when he held at page 486 of the record of appeal that:-
It is my view that the primary election conducted by the plaintiff and relied upon by the plaintiff to seek the reliefs in this case was not in line with the constitution and guidelines of the 1st defendant. For the nomination of a candidate for an election to be valid it must follow and meet the statutory procedure.”

Perhaps, it becomes necessary to reiterate that declaratory reliefs are not granted even on

admission. Thus, the plaintiff who seeks such a relief must prove and succeed on the strength of his case and not rely on the weakness of the defence. The burden of proof on the plaintiff in establishing a declaratory relief to the satisfaction of the Court is quite heavy because such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. See EMENIKE V PDP (2012) 12 NWLR (pt 1315) 556, CPC V INEC (2012) 1 NWLR (pt 1280) 106 and DUMEZ (NIG) LTD V NWAKHOBA (supra).

The appellant in this case has failed to prove the perversity of judgment of the lower Court and cannot rightly entreat this Court to interfere with its findings.

In the result, the appeal is moribund and deserving dismissal. Accordingly, the appeal is dismissed. The 1st and 3rd respondents are damnified in costs which I assess and fix at N100,000.00.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment of my brother Muhammed L. Shuaibu, JCA. I agree entirely with the

reasoning and conclusion that the appeal is devoid of merit and should be dismissed.
I too dismiss the appeal and affirm the judgment of the trial Court.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, M. L. SHUAIBU, JCA and I completely align myself with the reasoning and conclusion in leading Judgment. I too dismiss the appeal and abide by the orders made therein.

Appearances:

P. D. Daudu, Esq.
For Appellant(s)

Christopher Ekpo, Esq. for 1st & 3rd RespondentFor Respondent(s)

Appearances

P. D. Daudu, Esq.For Appellant

AND

Christopher Ekpo, Esq. for 1st & 3rd RespondentFor Respondent