HON. MOHAMMED WAKIL & ANOR v. PEOPLES DEMOCRATIC PARTY & ORS
(2019)LCN/12703(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/J/22/2019
RATIO
CIVIL SUIT: BURDEN OF PROOF
“This is a civil suit and the law is that the legal burden of proof in a civil case is always on a claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case and he has the onus of proving his case by preponderance of evidence. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant ‘Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt. 1057) 218, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. This is explained by the maxim ‘ei qui affirmat non ei qui negat incumbit probation’ which means the burden of proof lies on one who alleges, and not on him who denies Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. Thus, by natural course of events, the onus was on the Appellants to prove all the allegations in support of their case.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
DOCUMENT: WHETHER THE COURT CAN INTERPRET DOCUMENT
“It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning. Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu Vs Ejeagwu (2007) 6 NWLR (Pt 1031) 431.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
ELECTION: WHO SHOULD CONDUCT PRIMARY ELECTION
“These provisions have been interpreted severally by the Supreme Court and the position of the law is that it is the National Executive Committee of a political party that is empowered to conduct primary election for the selection of the candidates of the political party for any general election, and not the State Executive Committee and that any primary election conducted by a State Executive Committee to select candidates for elections is illegal. Emenike Vs Peoples Democratic Party (2012) 12 NWLR (Pt 1315) 556, Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55, Adebayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1, Yar’Adua Vs Yandoma (2014) LPELR 24217(SC), Odedo Vs Peoples Democratic Party (2015) LPELR 24738(SC), Etim Vs Akpan (2018) LPELR 44904(SC). The further contention of Counsel to the Appellants is thus totally misconceived.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. HON. MOHAMMED WAKIL
2. USMAN MAHDI BADAIRE
(For himself and on behalf of the Borno State Executive Committee of the Peoples Democratic Party) – Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. PRINCE UCHE SECONDUS
(National Chairman, Peoples Democratic Party)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSIONER, BORNO STATE
5. ZANNA GADDAMA
6. BABA AHMED
7. MOHAMMED ALKALI IMAM – Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court sitting in Maiduguri, Borno State delivered by Honorable Justice Jude K. Dagat in Suit No FHC/MG/52/2018 on the 12th of December, 2018.
The Appellants commenced the action in the lower Court by an originating summons and by which they raised three questions for determination and these were:
i. Whether by the combined effect of the valid and subsisting judgment and order of the Honorable Court delivered and issued on the 4th of July, 2018 and Sections 25(2) and 50(1)(b) of the Constitution of the first Respondent read together with paragraphs 6(v) and 7 of the Guidelines for Primary Election of candidates issued and dated on 4th of July, 2018, the election of the first Appellant as the Gubernatorial candidate of Borno State under the platform of the first Respondent held on 30th September, 2018 at the State Party Secretariat in Maiduguri and in accordance with the directive of the National Executive Committee of the first Respondent is null and void and the said order of this Honorable Court can be flagrantly disobeyed.
ii.Whether the letter dated 28th September, 2018 addressed to the fifth Respondent as State Chairman of the first Respondent is not contrary to the order of this Honorable Court dated 4th of July 2018 which order restrained the fifth and sixth Respondents from performing the functions of the State Chairman which purported letter was issued to short change the first Appellant; that such letter and whatever done thereon is not null and void and of no effect.
iii. Whether by virtue of Section 85 and 86 of the Electoral Act 2010 (as amended) read together with the order of the Honorable Court dated 4th July, 2018, the third and fourth Respondents have no power to recognize the process of the second Appellant and recognize accept and process the list of candidates including the first Appellant for the purpose of the 2019 election.
Consequent on the determination of the above questions, the Appellant sought before the lower Court for the following reliefs:
i. A declaration that the election of the first Appellant under the platform of the first Respondent and leadership of the second Appellant is valid and of legal effect having been conducted under the provision of the Constitution of the first Respondent.
ii. A declaration that the purported election conducted under the leadership of the fifth and sixth Respondents based on the letter dated 28th of September, 2018, having contravened the order of the lower Court dated 4th of July, 2018 is null and void and of no legal effect.
iii. An order of the Honorable Court nullifying the purported election conducted on the 30th September, 2018 under the leadership of the fifth and sixth Respondents having been restrained from performing the functions of Borno State Executive Committee by this Court on the 4th of July, 2018.
iv. An order directing the third and fourth Respondents to recognize, accept the processes and/or process of and the list of candidates of the first Respondent for the 2019 General Election in Borno State authenticated by the second Appellant as having emerged from the primaries conducted by them for Gubernatorial House of Assembly, House of Representatives and Senate.
v. An order directing the first, second, third and fourth Respondents to recognize and accept the first Appellant as Gubernatorial candidate of the first Respondent in Borno State until a subsequent state congress is conducted and to participate in the 2019 General Election representing Borno State.
vi. An order directing the Respondents to abide the order of this Court made on the 4th of July, 2018 until set aside by the superior Court of record.
The originating summons was supported by an affidavit of twenty-two paragraphs and to which was attached eight exhibits and also by a further affidavit of twelve paragraphs and to which was attached another eight exhibits. In response to the originating summons, the first, second, fifth and sixth Respondents filed a counter affidavit of sixty paragraphs to which was attached seventeen exhibits. On their part, the third and fourth Respondents contested the originating summons by filing a counter affidavit of eight paragraphs and to which was attached three exhibits. The seventh Respondent also deposed to a counter affidavit in opposing the originating summons and it consisted of thirty-one paragraphs and had seven exhibits attached. The parties filed written addresses of arguments in support of their respective affidavits, counter affidavits and further affidavits.
The facts of the case, as can be garnered from the affidavits of the parties, is that on the 11th of November, 2017, the first Respondent organized a State Congress in Maiduguri, Borno State to elect the Borno State Executive Committee to be responsible for managing the affairs of the party in the Borno State. The second Appellant and the fifth and sixth Respondents participated in the election and the Electoral Committee of the first Respondent declared the election inconclusive as the delegate elections of two Local Governments, i.e. Shani and Bayo Local Government Areas, out of the twenty-seven Local Government Areas in the State, could not be conducted at the venue in Maiduguri. The first Respondent organized the delegate elections for the two affected Local Government Areas on the 25th of November, 2017 in Gombe and at the end of which the fifth and the sixth Respondents were declared winners as the Chairman and Secretary of the party in Borno State respectively.
The second Appellant and three other persons were dissatisfied with the outcome of the election and they commenced an action in the Federal High Court sitting in Maiduguri in Suit No FHC/MG/CS/76/2017 to challenge the declaration of the fifth and sixth Respondents as the Chairman and Secretary of the party in Borno State. In a judgment delivered on the 4th of July, 2018, the Federal High Court found in favour of the second Appellant and the three other persons and it nullified the election of the 25th of November, 2017 in Gombe and it declared the second Appellant as the duly elected State Party Chairman of the first Respondent for Borno State and it made an order restraining the fifth and sixth Respondents from parading themselves as the State Party Chairman and State Party Secretary of the first Respondent for Borno State respectively. The first Respondent was a party to the action. The first, fifth and sixth Respondents were dissatisfied with the judgment of the Federal High Court and they filed an appeal against it to this Court in Appeal No CA/J/317/18 and which appeal is still pending.
Subsequently, it became necessary for the first Respondent to conduct a primary election to select its gubernatorial candidate for Borno State for the forthcoming 2019 general elections.
The Respondents deposed in their various counter affidavits that the primary election was duly conducted on the 30th of September, 2018 by the Gubernatorial Primary Election Committee appointed by the National Working Committee of the first Respondent and chaired by one Chief Gebon Timothy Ketaf at the Forshams Event Center, Old GRA, Maiduguri, Borno State. The Respondents deposed that the election was supervised by the third and fourth Respondents on the invitation of the Gubernatorial Primary Election Committee and that three persons, including the first Appellant and the seventh Respondent, participated in the election and at the end of which the seventh Respondent scored 2,785 votes, one Kyari Abba Bukar scored 52 votes and the first Appellant scored 20 votes and that the seventh Respondent was declared the winner of the election. The Appellants, on their part, deposed that the primary elections for selecting the Gubernatorial candidate was conducted by the State Executive Committee of the first Respondent at the Party Secretariat under the headship of the second Appellant and at the end of which the first Appellant emerged the winner being the sole candidate who presented himself to the delegates at the election.
The contention of the Appellants was that the primary election conducted by the Gubernatorial Primary Election Committee appointed by the National Working Committee of the first Respondent was carried out in breach of the orders of the Federal High Court contained in the judgment delivered in Suit No FHC/MG/CS/76/2017 and contrary to the provisions of the Constitution of the first Respondent and the Guidelines issued by the first Respondent for the conduct of the primary election. The Respondents contended otherwise and maintained that the Gubernatorial Primary Election Committee appointed by the National Working Committee of the first Respondent was the proper organ of the first Respondent to conduct the primary election and that the primary election was conducted in accordance with the Constitution of the first Respondent and the Guidelines issued by the first Respondent and that the Respondents did not breach the orders of the Federal High Court contained in the judgment delivered in Suit No FHC/MG/CS/76/2017 in the conduct of the primary election.
The lower Court heard arguments on the originating summons and it, in a considered judgment delivered on the 12th of December, 2018, dismissed the claims of the Appellants on the originating summons as totally lacking in merit. The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal containing seven grounds of appeal and dated the 20th of December, 2018 against it. The records of appeal were compiled and transmitted to this Court on the 21st of January, 2019. In arguing the appeal, the Appellants filed a brief of arguments dated the 25th of January, 2019 on the 28th of January, 2019. The first, second, fifth, sixth and seventh Respondents filed a joint brief of arguments dated the 4th of February, 2019 on the same date. The third and fourth Respondents filed a brief of arguments dated the 5th of February, 2019 on the 8th of February, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellants distilled two issues for determination in the appeal and these were:
i. Whether the lower Court was not in gross error by its decision to disregard a subsisting judgment and order of its Court vis–vis the Constitution and Guidelines for Primaries of the first Respondent.
ii. Whether by the preponderance of evidence before the lower Court, the Appellants are not entitled to the reliefs sought.
In arguing the first issue for determination, Counsel to the Appellants reproduced the orders made by the Federal High Court in Suit No FHC/MG/CS/76/2017 and reproduced the letter dated the 28th of September, 2018 written by the first Respondent to the fifth Respondent as the State Chairman of Peoples Democratic Party notifying him of the composition of the Borno State Gubernatorial Primary Election Committee appointed by the National Working Committee to conduct the Gubernatorial Primary Elections scheduled for the 30th of September, 2018. Counsel referred to the case of Labour Party Vs Independent National Electoral Commission (2009) 6 NWLR (Pt 1137) 315 in reiterating the settled principle that judgments and orders of Courts remain valid until set aside by a superior Court and they must be obeyed and stated that the comment of the lower Court that the remedy of the Appellants on the issue of non-compliance with an aspect of the orders of the Federal High Court in Suit No FHC/MG/CS/76/2017 laid elsewhere and not in a pre-election matter was erroneous. Counsel stated that the act of the first Respondent addressing a letter to the fifth Respondent as the State Party Chairman of Peoples Democratic Party mandating him to, in conjunction with the Borno State Gubernatorial Primary Election Committee, conduct the Gubernatorial Primary Election, while being aware of the Court order recognizing the second Appellant as the State Party Chairman, and which primary election produced the seventh Respondent as the winner, was illegal, null and void having been done in flagrant disregard of the order of Court and he referred to the unreported decision of the Supreme Court in Suit No SC/764/2018. Ibrahim Umar & 22 Ors Vs All Progressives Congress.
Counsel stated that the finding of the lower Court that its jurisdiction under the provisions of Section 87(9) of the Electoral Act 2010 (as amended) was limited to action predicated on non-compliance with the provisions of the Electoral Act and the Constitution of the party and does not extend to actions predicated on non-compliance with the orders of Court and/or leadership tussle was incorrect.
Counsel referred to the case of Olley Vs Tunji (2013) 10 NWLR (Pt 1362) 275 in asserting that jurisdiction of the Court is to ensure that in the selection of a candidate for election, a political party complies with the provisions of the Electoral Act as well as its own guidelines in primary election. Counsel also referred to the provisions of Section 25(2) of the Constitution of the first Respondent that says that part of the functions of the State Congress is to elect governorship candidate of the party and Section 50(1)(b) that provides that the conduct of primaries for the party’s candidate for the post of Governorship of a State shall be held at the State Congress of the Party specially convened for that purpose as well as Paragraph 7 of the Guidelines of the first Respondent for Primary Elections that states that the State Congress for nominating a gubernatorial candidate shall hold in the State Capital and stated that from a community reading of these provisions, it is the State Executive that will set up and convene the Special Congress for the nomination of the gubernatorial candidate. Counsel stated that the Respondents acted in bad faith and not in accordance with its laws and parties are bound by their Constitution and the actions of Respondents amounted to political rascality and wanton disrespect for the rule of law and he referred to the cases of Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt. 1080) 227 and Umar & 22 Ors Vs All Progressives Congress supra. Counsel urged the Court to resolve the first issue for determination in favour of the Appellants.
In arguing the second issue for determination, Counsel traversed through the case of the Appellants presented before the lower Court and the exhibits and stated that the lower Court was in error when it held that the notice for the holding of the primary election to the third and fourth Respondents must emanate from the first Respondent when it was obvious that the first and second Respondents were not willing to recognize the second Appellant despite the order of the Federal High Court. Counsel stated that the result sheet of the primary election produced by the third and fourth Respondents, Exhibit REC 2 was an illegal document as the Borno State Gubernatorial Primary Election Committee that conducted the election that produced the result worked in collaboration with the illegal Special State Congress convened and organized by the fifth and sixth Respondents. Counsel stated that no legally recognized Special State Congress conducted the primary election for the gubernatorial candidate of the first Respondent for Borno State and that the third and fourth Respondents in collaboration with the first and second Respondents were in flagrant disobedience of the orders of the Federal High Court in the conduct of the primary elections and that the purported result was thus fraudulent.
Counsel stated that by the letter dated 28th of September, 2018 addressed by the first Respondent to the fifth Respondent as State Party Chairman, Exhibit YD4, empowered the fifth and sixth Respondents to coordinate the three ad-hoc delegates for the purpose of nominating the party?s candidates for the offices of the Governor of the State, House of Assembly, House of Representatives and Senate and that this was illegal and that the decision of the lower Court upholding the result of the primary election occasioned a miscarriage of justice and was perverse and should be reversed by this Court and he referred to the cases of Okoye Vs Center Point Merchant Bank Ltd (2008) All FWLR (Pt 441) 810 and Yaro Vs Arewa Construction Ltd (2008) All FWLR (Pt 400) 603. Counsel urged the Court to interfere and exercise its power under Section 15 of the Court of Appeal Act to consider the claims of the Appellants on the originating summons and to find that the Appellants made out a case warranting the grant of their claims and he referred to the cases of Obi Vs Independent National Electoral Commission (2007) 11 NWLR (Pt. 1046) 565 and Odedo Vs Independent National Electoral Commission (2008) 17 NWLR (Pt. 1117) 554. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.
Counsel concluded his arguments by praying the Court to allow the appeal, set aside the judgment of the lower Court and grant the claims of the Appellants before the lower Court.
On his part, Counsel to the first, second, fifth, sixth and seventh Respondents also distilled two issues for determination and they were differently couched. They read thus:
i. Whether the lower Court was not right to have disregarded the judgment of the 4th of July, 2018 in Suit No FHC/MG/CS/76/2017 in deciding the instant case.
ii. Whether the lower Court was not right to have dismissed the Appellants’ case in view of the evidence before it.
In arguing the first issue for determination, Counsel to the first, second, fifth, sixth and seventh Respondents noted that the first, fifth and sixth Respondents appealed against the judgment of the Federal High Court and which appeal is pending and that they also filed a motion for stay of execution pending the determination of the appeal and stated that a valid appeal coupled with an application for stay of execution serves to suspend the enforcement of the judgment until either the appeal is heard or the motion for stay of execution is heard and denied. Counsel referred to the case of Nigerian Breweries Plc Vs Dumuje (2016) 8 NWLR (Pt. 1515) 536 on the import of the word ‘stay’ in the con of execution of judgment and the case of Skye Bank Plc Vs Iwu (2017) LPELR 42595 (SC) on the importance of the constitutional right of appeal and stated that it is the law that parties must maintain status quo when there is a motion for stay of execution pending and he referred to the cases of Groupe Danone Vs Voltic (Nig) Ltd (2008) 7 NWLR (Pt 1087) 637 and Umeakuana Vs Umeakuana (2009) 3 NWLR (Pt 1129) 598.
Counsel stated that the finding of the lower Court that its jurisdiction under the provisions of Section 87(9) of the Electoral Act 2010 (as amended) was limited to action predicated on non-compliance with the provisions of the Electoral Act and the Constitution of the party and does not extend to actions predicated on non-compliance with the orders of Court and/or leadership tussle was correct on the strength of the decision of the Supreme Court in Ufomba Vs INEC (2017) LPELR 42079(SC). Counsel stated that the lower Court was right in discountenancing the aspect of the questions submitted by the Appellants which related to the judgment of the Federal High Court in Suit No FHC/MG/CS/76/2017 and that the lower Court rightly distinguished the case of Umar & 22 Ors Vs All Progressives Congress supra harped upon by the Counsel to the Appellants.
Counsel urged the Court to resolve the first issue for determination in favour of the Respondents.
With regards to the second issue for determination, Counsel noted that the Appellants predicated their case on the fact that the second Appellant conducted a primary election to select the gubernatorial candidate of the first Respondent where the first Appellant emerged the winner as the sole candidate presented to the delegates and stated that the law by the provisions of Section 87 (1), (2), (4)(b)(i) and (ii) of the Electoral Act is that the conduct of the primary elections to select the candidates of a party is the preserve of the political party itself and not that of the State Chapter of the political party and that these provisions of the Electoral Act were reproduced in Paragraph 7 of the Guidelines of the first Respondent for primary elections. Counsel stated that there is nothing in the provisions of the Constitution of the first Respondent that empowers the State Executive of the first Respondent to conduct primary elections and that even assuming that there is any such provision in the Constitution of the first Respondent, it will be contrary to the provisions of the Electoral Act and be thus null and void. Counsel stated that the Supreme Court has stated in several cases that a primary election conducted by a State Executive of a political party is illegal and he referred to the cases of Emenike Vs PDP (2012) LPELR 7802(SC) and Etim Vs Akpan (2018) LPELR 4490(SC).
Counsel stated that, additionally, the Appellants did not discharge the onus on them as claimants to succeed on the strength of their own case and not on the weakness of the defence and that this is more so in the instant case where the Appellants sought for declaratory reliefs and he referred to the cases of Ozomgbachi Vs Amadi (2018) LPELR 45152 (SC) and Etim Vs Akpan supra. Counsel stated that apart from debunking the case of the Appellants, the first, second, fifth, sixth and seventeen Respondents deposed to fresh facts which were material to the case before the lower Court and that the Appellants did not file a further affidavit to counter those fresh facts and that the law is that the Appellants are deemed to have admitted those fresh facts and he referred to the cases of Mana Vs PDP (2011) LPELR 1975(CA), Honda Place Ltd Vs Globe Motor Holdings Nig Ltd (2005) LPELR 3180(SC) and Akiti Vs Oyekunle (2018) LPELR 43721(SC). Counsel stated that what this means is that if the facts deposed by the Appellants are put on an imaginary scale of justice, there would be nothing to warrant the lower Court entering judgment in favour of the Appellants.
Counsel stated further that the core of the case of the Appellants was that the first Appellant emerged the winner of the primary election conducted by the second Appellant as the sole candidate who presented himself to the delegates for the election, but that the result sheet attached as Exhibit YD50 to the further affidavit showed the names of the first Appellant and the seventh Respondent as the two candidates that participated in the primary election. Counsel stated that this is a contradiction on an issue material to the case of the Appellants and that this casts serious doubt on the entire case presented by the Appellants and that the lower Court was correct not to have believed the case of the Appellants and he referred to the cases of Obioma Vs State (2013) LPELR 20647(CA) and Adu Vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110.
Counsel also stated that the contention of the Appellants that the result sheet produced by the third and fourth Respondents, Exhibit REC 2, is an illegal document has no basis in law because being a document produced by the third and fourth Respondents in the course of their official duty enjoys a presumption of regularity which was not debunked by the Appellants. Counsel stated that this is not proper case for this Court to exercise its powers under Section 15 of the Court of Appeal Act and he urged the Court to resolve the second issue for determination in favour of the Respondents.
Counsel concluded his arguments by praying the Court to dismiss the appeal and to affirm the judgment of the lower Court.
Counsel to the third and fourth Respondents distilled one issue for determination in the appeal and it was ? whether having regards to the affidavit evidence, and the documents tendered, the Appellants proved their claim on a preponderance of evidence as required by law, and whether the findings of the lower Court were perverse.
In arguing the issue, Counsel to the third and fourth Respondents stated that to succeed on their claims, the Appellants must succeed on the strength of their case and not on the weakness of the case of the Respondents unless the case of the Respondents supported their case and he referred to the case Agboola Vs UBA Plc (2011) All FWLR (Pt. 574) 74. Counsel stated that from the case made out by the Appellants on the originating summons and the affidavits in support as well as the exhibits, the Appellants had the onus of proving (i) the conduct of the primary election; (ii) the venue, date and the officials who conducted the primary elections; (iii) the total number of accredited delegates at the primary elections; (iv) the result of the primary elections as declared and recorded in the prescribed form as provided by the Guidelines of the first Respondent for the primary election; and (iv) that from the result, the first Appellant scored the majority of the lawful votes cast at the primary election, or, as claimed by the Appellants that the first Appellant was the sole candidate in the primary election, the number of the delegates present who voted Yes in his favour.
Counsel reproduced the provisions of Paragraph 30(b), (c) and (d) of the Electoral Guidelines for Primary Elections of the Peoples Democratic Party which say that at the conclusion of the elections and the public announcement of the results, the results shall be entered on the official result sheet form Code PD004/6 and a copy of the result sheet be given to each candidate and that results recorded on ordinary paper or photocopies shall not be accepted and that no result shall be upheld until same is entered on the result sheet form Code PD004/6. Counsel stated that the Appellants did not exhibit a valid result sheet of the primary election showing that the first Appellant scored the highest votes cast at the election and that the simple conclusion there from is that the Appellants did not discharge the burden of proof on them and he referred to the case of Eya Vs Olopade (2011) All FWLR (Pt 584) 25.
Counsel stated that it was clear from the affidavit evidence of the parties that the first Appellant did not win the primary election conducted on the 30th of September, 2018 by the Borno State Gubernatorial Primary Election Committee as shown on the result sheet exhibits as REC 2 and that the alleged result sheet exhibited by the Appellants to their further affidavit did not qualify as a valid result sheet by the Guidelines of the first Respondent for the primary election and that the Appellants did not thus lead preponderant evidence in support of their case and he referred to the case of Olubodun Vs Lawal (2008) All FWLR (Pt. 432) 1468. Counsel stated that the assertion of Counsel to the Appellants that the result sheet, Exhibit REC 2, was an illegal document was baseless as the result sheet was the authentic result of the primary elections conducted by the Borno State Gubernatorial Primary Election Committee for the Governorship seat for Borno State and which was monitored by the third and fourth Respondents as impartial umpires.
Counsel reproduced the findings of the lower Court and stated that they were not perverse and were supported by the affidavit evidence of the parties and that there was nothing in the Constitution of the first Respondent or the Guidelines for the Primary Election which empowered the second Appellant to conduct primary elections for selection of candidates for elective office. Counsel referred to the cases of Mini Lodge Ld Vs Ngei (2010) All FWLR (Pt. 506) 1806 and Udengwu Vs Uzuegbu (2003) FWLR (Pt. 179) 1173, amongst others on what amounts to a perverse decision and stated that this was not a proper case for this Court to exercise its power under Section 15 of the Court of Appeal Act. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.
Counsel concluded his arguments by praying the Court to find not merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Reading through the records of appeal, particularly the questions for determination and claims of the Appellants on the originating summons, the respective cases made out by the parties on their affidavits, the written addresses of Counsel to the parties, the judgment of the lower Court and the notice of appeal, as well as the arguments of Counsel on this appeal, it is the view of this Court that there is only one issue for determination in this appeal. It is:
Whether, on the strength of the cases made out by the parties in their respective affidavits on the originating summons, the lower Court was correct when it found that the Appellants did not make out a cogent and credible case to sustain their claims.
This appeal will be resolved on this sole issue for determination and all the arguments canvassed by the Counsel to the parties in their briefs of arguments will be considered under this single issue for determination.
As stated earlier, the case of the Appellants before the lower Court on their affidavit and further affidavit in support of the originating summons was that on the 30th of September, 2018, the Borno State Executive of the first Respondent under the leadership of the second Appellant conducted a primary election to select the gubernatorial candidate of the first Respondent for the 2019 elections at the Peoples Democratic Party Secretariat at Circular Road, Old GRA, Maiduguri and whereat the first Appellant emerged winner as the sole candidate who presented himself to the delegates. It was not in contest that on the same 30th of September, 2018 a primary election was conducted by the Gubernatorial Primary Election Committee appointed by the National Working Committee of the first Respondent and chaired by one Chief Gebon Timothy Ketaf at the Forshams Event Center, Old GRA, Maiduguri, Borno State and that the election was supervised by the third and fourth Respondents on the invitation of the Gubernatorial Primary Election Committee and that three persons, including the first Appellant and the seventh Respondent, participated in the election and at the end of which the seventh Respondent scored 2,785 votes, one Kyari Abba Bukar scored 52 votes and the first Appellant scored 20 votes and that the seventh Respondent was declared the winner of the election.
The contention of the Appellants was that the primary election conducted by the Gubernatorial Primary Election Committee appointed by the National Working Committee of the first Respondent was carried out in breach of the orders of the Federal High Court contained in the judgment delivered in Suit No FHC/MG/CS/76/2017 and contrary to the provisions of the Constitution of the first Respondent and the Guidelines issued by the first Respondent for the conduct of the primary election. The Appellants sought for declaratory orders nullifying the primary elections conducted by the Gubernatorial Primary Election Committee appointed by the National Working Committee of the first Respondent and upholding and affirming the primary election conducted by the Borno State Executive of the first Respondent under the leadership of the second Appellant.
This is a civil suit and the law is that the legal burden of proof in a civil case is always on a claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case and he has the onus of proving his case by preponderance of evidence. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant ‘Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt. 1057) 218, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. This is explained by the maxim ‘ei qui affirmat non ei qui negat incumbit probation’ which means the burden of proof lies on one who alleges, and not on him who denies Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. Thus, by natural course of events, the onus was on the Appellants to prove all the allegations in support of their case.
Now, the first, fifth and sixth Respondents in this appeal were the first, seventh and eight defendants in Suit No FHC/MG/CS/76/2017 before the Federal High Court while the second Appellant and three other persons were the claimants. In the judgment delivered in that suit on the 4th of July 2018, the Federal High Court made the following orders:
i. A declaration that the first set of Defendants have no such power under the Constitution of the 1st Defendant and its guidelines for the conduct of Ward, Local Government Area, State congress and the National Convention of the 1st Defendant to conduct the State Congress into Borno State Executive Committee of the 1st Defendant having regard to the Election conducted on the 11th day of November, 2017 that shows the clear winner and in compliance with the provisions of S. 25 (4) of the Constitution of the 1st Defendant.
ii. A DECLARATION that the purported election conducted on the 25th day of November, 2017 at Gombe Town, Gombe State into the Borno State Executive Committee is unconstitutional, null and void and of no legal effect having regard to its conduct that
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was contrary to the provisions of the 1st Defendant?s Constitution and its guidelines of the conduct of various election into the State Executive Committee and the unlawful participation of the purported delegates from Bayo and Shani Local Government Area that are not legally elected in accordance with the Constitution of the 1st Defendant.
iii. AN ORDER nullifying the election conducted on the 25th day of November, 2017 at Gombe Town, Gombe State having not complied with the provisions of the 1st defendant?s Constitution as being unconstitutional, null and void of no legal effect whatsoever.
iv. AN ORDER declaring the election of 25th day of November, 2017 conducted in Gombe Town, Gombe State by the first set of Defendants unfair and undemocratic, it not being held in compliance with the principles of fairness.
v. AN ORDER of perpetual injunction restraining the 7th and 8th Defendants henceforth, their agents, servants, privies and or their representatives or in whatever manner or whosoever from, parading themselves as the State Party Chairman and State Party Secretary of Borno State Executive Committee as well as they are restrained from acting and/or performing the functions of State Chairman and State Party Secretary respectively and in whatever capacity which is for a period of four (4) years in accordance with the provisions of the 1st Defendant’s Constitution.
vi. AN ORDER directing the 1st, 2nd, and 3rd Defendants to immediately swear the Plaintiffs as the State Party Chairman, State Party Secretary, State Party Youth Leader and State Party Women Leader respectively.
It is clear that the Federal High Court did not order the first Respondent not to conduct primary elections for the selection of its candidates for the different offices for the forthcoming 2019 Elections. The case of the Appellants was that the first Respondent breached the terms of the judgment of the lower Court by a letter dated the 28th of September, 2018 addressed to the fifth Respondent as the State Chairman of the Peoples Democratic Party notifying the composition of the Borno State Gubernatorial Primary Election Committee appointed by the National Working Committee to conduct the primary election to select the gubernatorial candidate of the party for forthcoming 2019 elections and asking the fifth Respondent to accord the Committee necessary support and cooperation. Counsel to the Appellants argued that by the letter the first Respondent mandated the fifth Respondent as Chairman of Borno State Executive of the Peoples Democratic Party to conduct the primary election with the members of the Borno State Gubernatorial Primary Election Committee.
Counsel to the Appellants suggested that by reason of the letter, it was the fifth and the sixth Respondents that set up, convened and led the special congress that voted at the election conducted by the Borno State Gubernatorial Primary Election Committee. Counsel stated that the letter addressed by the first Respondent to the fifth Respondent as State Chairman of the party, instead of the second Appellant, breached the terms of the judgment of the Federal High Court in Suit No FHC/MG/CS/76/2017 and that by mandating the fifth Respondent to conduct the primary election with the members of the Borno State Gubernatorial Primary Election Committee and consequent to which the fifth and the sixth Respondents set up, convened and led the special congress that voted at the election conducted by the Borno State Gubernatorial Primary Election Committee, the letter contaminated that primary election and rendered it illegal, null and void.
The Appellants attached the said letter addressed by the first Respondent to the fifth Respondent as Exhibit YD4 and the letter read thus:
Friday September 28, 2018
Zannah Gaddama Mustapha
State Chairman Peoples Democratic Party (PDP)
Borno State Chapter Borno State
Dear Zannah Gaddama Mustapha,
BORNO STATE GUBERNATORIAL PRIMARY ELECTORAL COMMITTEE COMPOSITION:
1.CHIEF GEBON TIMOTHY KETAF ? CHAIRMAN
2.BARR. MOHD INUWA BASI – MEMBER
3.VINCENTO CHUKWU – MEMBER
4.JULIUS TEN ? MEMBER
5.MR. INNOCENT EZEKIEL – SECRETARY
The above-mentioned Party members have been appointed by the National Working Committee (NWC) to serve on the BORNO STATE GUBERNATORIAL ELECTORAL COMMITTEE to conduct the Gubernatorial Primary Election (Candidate Nomination) of our great Party for the upcoming 2019 General Election.
The exercise is scheduled for SUNDAY SEPT. 30, 2018, at the State Capital, BORNO STATE.
Please accord them the necessary support and cooperation needed for the success of this assignment.
While thanking you for your continued support to our Great Party, please accept the assurances of my highest regards.
Signed
Col. Austin Abobundu (rtd).
National Organizing Secretary.
It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning. Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu Vs Ejeagwu (2007) 6 NWLR (Pt 1031) 431. Applying this principle to the above reproduced contents of Exhibit YD4, nowhere therein did the first Respondent mandate the fifth Respondent as Chairman of Borno State Executive of the Peoples Democratic Party to conduct the primary election with the members of the Borno State Gubernatorial Primary Election Committee and/or to set up, convene and lead the special congress that will vote at the election conducted by the Borno State Gubernatorial Primary Election Committee.
Reading through the affidavit in support of the originating summons and nowhere therein did the Appellants depose that the fifth and sixth Respondents conducted the primary election for the selection of gubernatorial candidate with the members of the Borno State Gubernatorial Primary Election Committee and/or that it was the fifth and sixth Respondents that to set up, convened and led the special congress that voted at the election conducted by the Borno State Gubernatorial Primary Election Committee. The first, second, fifth and sixth Respondents deposed in their counter affidavit that the Borno State Gubernatorial Primary Election Committee was solely responsible for the conduct of the primary election and they attached the report of the election signed by the Chairman and Secretary of the Committee and submitted to the first Respondent as Exhibit MAM5. There is nothing in the report suggesting that the fifth and sixth Respondents took any part in the preparations for and in the conduct of the primary election.
?The first, second, fifth and sixth Respondents also attached the letters written to the third
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and fourth Respondents, the Director of State Security, the Commandant of Nigeria Security and Civil Defence Corps as well as the Commissioner of Police notifying the conduct of the primary election as Exhibits MAM7, MAM8, MAM9 and MAM10 and they were all authored by the first Respondent. The letter addressed to the third and fourth Respondents requesting for ballot boxes to be used at the primary election was attached as Exhibit MAM15 and it was authored by the Chairman and Secretary of the Borno State Gubernatorial Primary Election Committee. The Appellants did not file a further affidavit to contest the deposition in the counter affidavit of the first, second, fifth and sixth Respondents and the authenticity of the documents attached. The law is that the deposition and the documents are deemed admitted by the Appellants ? Agbaje Vs Ibru Sea Foods Ltd (1972) 5 SC, 50, Agbakoba Vs Independent National Electoral Commission (2008) 18 NWLR (Pt 1119) 489, Ugwuanyi Vs NICON Insurance Plc (2013) LPELR 20092(SC).
The Appellants did not refer the Court to any provision of either the Constitution of the first Respondent or of the Guidelines issued by the
36
first Respondent for the conduct of primary elections which stated in clear terms that part of the duties of the State Executive Committee of the first Respondent is to collaborate and jointly conduct primary elections for selection of candidates for elections with the National Executive Committee of the party or with the Primary Election Committee appointed by the National Working Committee of the party and to set up, convene and lead the special congress that will vote at such election. The provisions of Sections 25(2) and 50(1)(b) of the Constitution of the first Respondent and of Paragraph 7 of the Guidelines of the first Respondent for Primary Elections referred to by Counsel to the Appellants merely say that the conduct of primaries for the party?s candidate for the post of Governorship of a State shall be held at the State Congress of the Party specially convened for that purpose. They do not say that it is the State Executive Committee that convenes such State Congress of the Party.
It is settled law that in interpreting the words of a statute or document, a Court is not entitled to read anything into or remove anything from them unless
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there are adequate grounds to justify the inference that something was intended which it omitted to express ? Johnson Vs Mobil Producing (Nig) Unlimited (2010) 7 NWLR (Pt 1194) 462, Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nigeria Ltd (2010) 13 NWLR (Pt 1211) 307, Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337. Additionally, Section 87(4)(b) of the Electoral Act 2010 (as amended) provides in clear terms that it is the political party, as a whole, that holds a special congress in a State capital to select a candidate to nominate as its Governorship candidate.
There is nothing on the face of the processes filed by the parties showing or suggesting that the fifth and sixth Respondents took any part or performed any function at the primary election conducted by the Borno State Gubernatorial Primary Election Committee on the 30th of September, 2018. The submissions of Counsel to the Appellants that the fifth and sixth Respondents set up, convened and led the special congress that voted at the primary election and that they jointly conducted the primary election with the members of the Borno State Gubernatorial Primary Election Committee were not based on the facts presented by the parties before the lower Court, but on the conjectures and the imagination of the Appellants. Counsel obviously forgot that submissions, no matter how brilliant, can never take the place of evidence and that a Court law does not work with the conjectures and imagination of parties, but on the facts presented. Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 552, CAP Plc Vs Vital Investment Ltd (2006) 6 NWLR (Pt 976) 220, Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386.
Thus, while the first Respondent might have breached the terms of the orders made by the Federal High Court in Suit No FHC/MG/CV/76/2017 by addressing the letter, Exhibit YD4, to the fifth Respondent as the State Chairman of the Peoples Democratic Party (PDP), the Appellants woefully failed to show how the breach contaminated and made the conduct of the gubernatorial primary election by the Borno State Gubernatorial Primary Election Committee on the 30th of September, 2018 illegal and/or in flagrant violation of the orders of the Federal High Court.
Another issue canvassed by the Appellants before the lower Court was that by the provisions of the Constitution of the first Respondent and the Guidelines of the first Respondent for the conduct of primary elections, it is the Borno State Executive Committee of the first Respondent, and not the National Executive Committee of the first Respondent, that was empowered to conduct the primary elections for the selection of the Governorship candidate of the first Respondent for the forthcoming 2019 elections. The provisions of the Electoral Act 2010 (as amended) are very clear on which organ of a political party is empowered to conduct primary elections for selection of its candidates for elections. Section 87 of the Electoral Act states:
1.A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
2.The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
3. A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
4. A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:
a. In case of nomination to the position of Presidential candidate, a party shall
i. Hold a special presidential convention in the Federal Capital Territory or any other place within the Federation that is agreed by the National Executive Committee of the party where delegates shall vote for each aspirants at the designated center; and
ii. the aspirant with the highest number of votes at the end of voting, shall be declared the winner of the Presidential primaries of the political party and the aspirant name shall be forwarded to the Independent National Electoral Commission as the candidate of the party.
b. in case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates-
i. hold a special congress in the State Capital with delegates voting for each aspirants at the congress to be held at a specific date appointed by the National Executive Committee of the party; and
ii. the aspirant with the highest number of votes at the end of voting, shall be declared the winner of the primaries of the political party and the aspirant?s name shall be forwarded to the Commission as the candidate of the party for the particular State.
c. in the case of nomination to the position of a candidate to the Senate, House of Representatives, and State House of Assembly, a political party shall, where it intends to sponsor candidates .
i. hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively with delegates voting for each of the aspirants in designated center on specified dates; and
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’s name shall be forwarded to the Commission as the candidate of the party.
These provisions have been interpreted severally by the Supreme Court and the position of the law is that it is the National Executive Committee of a political party that is empowered to conduct primary election for the selection of the candidates of the political party for any general election, and not the State Executive Committee and that any primary election conducted by a State Executive Committee to select candidates for elections is illegal. Emenike Vs Peoples Democratic Party (2012) 12 NWLR (Pt 1315) 556, Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55, Adebayo Vs Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1, Yar’Adua Vs Yandoma (2014) LPELR 24217(SC), Odedo Vs Peoples Democratic Party (2015) LPELR 24738(SC), Etim Vs Akpan (2018) LPELR 44904(SC). The further contention of Counsel to the Appellants is thus totally misconceived.
The Court must say that it has not been given any reason to tamper with the findings and conclusion of the lower Court that the Appellants did not make out a credible case to sustain their claims on the originating summons. The Court finds no merit in the appeal and it is hereby dismissed. The judgment of the Federal High Court sitting in Maiduguri, Borno State delivered by Honorable Justice Jude K. Dagat in Suit No FHC/MG/52/2018 on the 12th of December, 2018 is hereby affirmed. Each of the Respondents is awarded the costs of this appeal assessed at N50,000.00. 00. These shall be the orders of the Court.
TANI YUSUF HASSAN, J.C.A.: I agree.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading the draft of the lead judgment which my lord HABEEB A. O. ABIRU JCA, just delivered.
I endorse the reasoning and conclusion that the appeal being unmeritorious should be dismissed.
Accordingly, I also dismiss the Appeal for lacking in merit and I abide by the consequential orders therein including that for cost against the Appellants.
Appearances:
A. R. AbdulSalaam with him, I.H. Ngada
For Appellant(s)
Okechukwu Edeze with him, Edet Akpan and J.S.P. Dada for the 1st, 2nd, 5th & 6th Respondents.
Godwin Haruna for the 3rd & 4th RespondentsFor Respondent(s)
Appearances
A. R. AbdulSalaam with him, I.H. NgadaFor Appellant
AND
Okechukwu Edeze with him, Edet Akpan and J.S.P. Dada for the 1st, 2nd, 5th & 6th Respondents.
Godwin Haruna for the 3rd & 4th RespondentsFor Respondent
