HON. OGBONNA ASOGWA v. PEOPLES? DEMOCRATIC PARTY & ORS (2012)

HON. OGBONNA ASOGWA v. PEOPLES? DEMOCRATIC PARTY & ORS

(2012)LCN/5333(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of April, 2012

CA/A/586/2011

RATIO

APPEAL: WHAT CONSTITUTES A GROUND OF APPEAL

It is trite that every ground of appeal must relate to the decision complained of and it should constitute a challenge to the ratio of the decision. EGBE v. ALHAJI (1990) 1 NWLR [pt.128] 546 at 590, SARAKI v. KOTOYE (1992) 9 NWLR [pt.264] 156 at 184. PER EJEMBI EKO, J.C.A.

APPEAL: EFFECT OF A GROUND OF APPEAL WHICH NO ISSUE IS FORMED FROM

A ground of appeal from which no issue is formulated therefrom must be struck out as it is deemed abandoned. See AINA v. UBA PLC (1997) 4 NWLR [pt.498] 181. PER EJEMBI EKO, J.C.A.

EVIDENCE: EXCEPTION TO THE RULE THAT ORAL EVIDENCE CANNOT VARY THE CONTENTS OF A DOCUMENT

When documents ex facie are violently contradictory it may be necessary for the makers to be called to explain how they each came to the making of the contents of their respective documents. This may be an exception to the rule that oral evidence can not vary the contents of a document. See EJEZIE v. ANUWU (2008) ALL FWLR [pt.422] 1005 at 1039. PER EJEMBI EKO, J.C.A.

COURT: SIGNIFICANCE OF FACTS TO ADJUDICATION

JUSTICES

ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria

OFR Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

Between

HON. OGBONNA ASOGWA Appellant(s)

AND

1. PEOPLES? DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. HON. DR. PATRICK ASADU Respondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On the 8th April, 2011 the Honourable Justice I. N. Auta, Ag. Chief Judge of the Federal High Court delivered the ruling at pages 751 – 865 of the Record in the suit of the Appellant as the Plaintiff. The Appellant was aggrieved by the decision and pursuant to the leave granted to him, the Appellant filed the Notice of Appeal at pages 870 – 875 on 27th January, 2012.
The appellant, as Plaintiff, had approached the Federal High Court sitting at Abuja vide originating summons filed on 22nd March, 2011 seeking four (4) reliefs, to wit:
1. Declaration that the Plaintiff’s the duly nominated candidate of the Peoples’ Democratic Party (PDP) representing Nsukka/Igbo Eze South Federal Constituency in the Primary Elections conducted on the 12th day of January, 2011 for the elections scheduled for April, 2011.
2. An order of injunction restraining the Peoples’ Democratic Party (PDP), their servants and agents, privies, howsoever from forwarding the name of any other candidate other than that of the Plaintiff to the 2nd Defendant as the Peoples’ Democratic Party (PDP) candidate for the Legislative Elections scheduled for the April 2011 representing Nsukka/Igbo Eze South Federal Constituency.
3. An order compelling the 1st Defendant to issue INEC nomination forms to the Plaintiff.
4. An order restraining the 2nd Defendant from publishing any other name other than of the Plaintiff as the candidate for the election into the House of Representatives for Nsukko/Igbo Eze South Federal Constituency in the election scheduled for April, 2011.
The Peoples’ Democratic Party (PDP) was the 1st Defendant in the said suit. The cause of action against the PDP was that, inspite of the Appellant, allegedly, winning the first primary election conducted by the PDP to elect the party’s candidate with 675 votes on 12th January, 2011, the PDP refused or failed to issue INEC nomination forms to the Appellant, as the Plaintiff, and that the PDP had “replaced” him without recourse or information to him. He posited that “there was no other primary election conducted by the party i.e. the 1st Defendant in accordance with the Electoral Act, 2011 or any other extant regulation.”
The 2nd Defendant in the suit, INEC, was apparently a nominal party.
Nothing was said about the 2nd and 3rd Defendants, in terms of the cause of action, except the terse averment in paragraph 19 of the Affidavit of urgency to wit –
19. That the 2nd Defendant’s the body charged with the conduct of the election, and should be compelled to publish my name as a candidate for the April, elections.
Preliminary to the four reliefs sought the Appellant, as the plaintiff, submitted 5 questions for determination, prominent among the questions are –
i. whether having won the primary election conducted on 12th January, 2011 by the PDP, the Appellant was not the PDP candidate for the April, 2011 elections to the National Assembly in Nsukka/Igbo Eze South Federal Constituency.
ii. whether the PDP could set aside the primary election conducted on 12th April, 2011 without any petition, complaint or irregularity in the conduct of the primary election.
The 1st and 3rd Defendants/Respondents said, in their Counter Affidavits, that there were several petitions or complaints about the January 12, 2011 primary elections in Nsukka/Igbo Eze South Federal Constituency, and that in consequence thereof, the National Working Committee of the PDP, on 14th January, 2011, “resolved that the entire primaries in the zone be repeated.” The Affidavit in support of the originating summons had several documents exhibited thereto, like the counter affidavits of the Defendants.
In a style, most unusual, the learned trial Judge reproduced almost all the processes filed in the bulky ruling. He found inter alia in the Ruling that;
i. The position of the parties is so full of claims and counter claims (page 851).
ii. There are conflicting documents with regard to the conduct of the election primaries. There is the Chief Babatope report, which stated that it was peaceful and no complaints, and the other panel. The 3rd Defendant also tendered documents to show that he petitioned the 1st Defendant (pages 861 – 852).
iii. From the exhibits tendered by both parties there are serious dispute (sic) as which is the correct one. The issues contained in this case are very contentious and it goes without saying that there is a serious dispute between the parties. The issues raised in this case and the conflicting documents filed in this case, it can not be effectively resolved by affidavit evidence. (page 862)
Thereafter the learned trial Judge observed that – the main characters like Chief Ebenezer Babatope and Mrs. Toru Ofili will have to testify. They have to testify on the veracity of their reports. There is also contradiction between the date 12/1/2011 of which the Plaintiff said the election was conducted on the 10/1/2011 shown on Exhibit 5. 1 have above shown that the affidavits filed by the parties in this suit contains lots of facts and issues that are very contentious and are in serious dispute. These issues can not resolved by affidavit evidence.
He said that the primary did not hold on the 11/1/2011 as scheduled as the panel sent from the 1st Defendant failed to show. As a result he petitioned the 1st Defendant/Applicant’s panel in Enugu, which is Exhibit D –
The foregoing is the substance of the decision of Justice I. N. Auta that has provoked the appeal of the Plaintiff. There are four grounds of appeal, out which the following two issues have been formulated by the Appellant –
2.1 whether the trial court was right in ruling that it can not determine the question submitted by the Plaintiff/Appellant without recourse to oral evidence, considering the entire documentary evidence before it and without considering questions 3, 4, 5 and 6 as submitted by Appellant in the originating summons [from grounds 1 and 2].
2.2 whether the admission of Exhibit R4 by the Respondents does not resolve all the issues involved in this suit. [from grounds 3 & 4].
The three Respondents have challenged the competence of the appeal by way of preliminary objections. The summary of the grounds for the objection are that –
1. Since the crux or subject matter of the suit at the trial court is a dispute as to which of the two primary elections conducted the PDP, 1st Defendant/Respondent, on 72th January, 2011 and 20th January, 2011 respectively produced the nominated or authentic candidate to contest for the National Assembly Election in Nsukko/Igbo Eze South Federal Constituency in the April, 2011 general elections the trial court lacks jurisdiction to entertain the suit.
2. Ground 1 of the grounds of appeal is incompetent in that the Federal High Court did not hold that the Plaintiffs suit could only be commenced by writ of summons instead of originating summons.
3. Grounds 2 and 4 of the grounds of appeal did not arise from the Ruling appealed and no leave had been sought and obtained to raise and argue them accordingly, issue 2 formulated therefrom is incompetent.
This first of the preliminary objections appears to be grounded on the opinion of the Supreme Court in the consolidated suits nos: SC.157/2011 and SC.334/2011 SENATOR YAKUBU GARBA LADO & V.C.P.C of 16th December, 2011 wherein it was held that –
Where, – there is a dispute, as in the instant case as to which of the two primaries of a political party produced the nominated candidate that dispute is not justiceable under the provisions of section 87 (4) (b) (ii) and (9) [Electoral Act, 2010] and the courts will have no jurisdiction to entertain same; as the matter, the Supreme Court went on, “is taken outside the purview of Section 87 (4)(b) (ii), (c )(ii) and (9) of the Electoral Act (as amended)”.

This matter is not arising from any of the four grounds of appeal. And there is no cross-appeal. It appears to have gone beyond the purview of a preliminary objection, which is usually an objection against some irregularity in the court process, which, if it succeeds, terminates the appeal in limine at that stage without the necessity of considering its merits. See OJUKWU v. YAR’ADUA (2008) 4 NWLR [pt.1078] 1. A preliminary objection is a procedure whereby the respondent contends the competence, not the merits, of the appeal. When it is upheld, it results in the striking out, and not the dismissing, of the appeal. See. GALADIMA v. TAMBAI (2000) 11, NWLR [pt.677]; (2000) 6 SCNJ 190; FABUNMI v. AJAYI (2008) 37 WRN 81 AT 93. The better course for a respondent who seeks to reverse an adverse finding of the court below is by a notice of appeal or cross-appeal. See NOBISCO INC v. ALLIED BISCUITS CO. LTD (1998) 10 NWLR [pt.568] 1 at 11; ELOCHIN NIG] LTD v. MBADIWE (1986) 1. NWLR (pt.14) 47.
I do not think it is proper or right for the respondents to raise before us the issue of the trial court lacking jurisdiction to entertain the subject matter of the originating summons, on the grounds that the dispute is over which of the two persons emerged as the candidate of PDP from the two primary elections, when they have no appeal or cross appeal raising such complaint about the jurisdiction of the courts in view of the statement of law by the Supreme Court in LADO & ORS v. CPC & ORS (supra). The jurisdiction of this Court is only invoked for the purpose of reviewing the decision of the lower court in order to find out whether, on the proper consideration of facts before it, and applicable laws, the lower court arrived at a proper decision. See OREDOYIN v. AROWOLO (1989) 4 NWLR [pt.114] 172.
It is only by a notice of appeal, upon valid ground(s) of appeal, and not preliminary objection, that the jurisdiction of this Court can be invoked.
The Respondents, in absence of a notice of appeal, or cross-appeal, can not be heard to raise this issue in this Court. The preliminary objection founded on the decision of the Supreme Court in LADO & ORS v. CPC & ORS (supra) can not be an ingenuous way of complaining about a decision, or none of it, of the court below. I will leave this issue on this for now.
The second ground of the preliminary objection is that the trial court never decided that the Plaintiff could only commence the suit by a writ of summons, and not by originating summons. The Respondents argue that ground 1 of the grounds of appeal, not arising directly from the decision of the trial court appealed, is incompetent. The Respondents, particularly the 2nd Respondent, have a point here.
I have read ground 1 of the grounds of appeal at page 871 of the Record. I agree with the Respondents that the trial court never held anywhere in the Ruling appealed that the suit of the Plaintiff/Appellant could only be commenced by way of writ of summons, and not originating summons. It is trite that every ground of appeal must relate to the decision complained of and it should constitute a challenge to the ratio of the decision. EGBE v. ALHAJI (1990) 1 NWLR [pt.128] 546 at 590, SARAKI v. KOTOYE (1992) 9 NWLR [pt.264] 156 at 184.
Respondents have demonstrated that ground 1 of the grounds of appeal does not flow directly from the decision or ruling appealed, and that it is incompetent. I agree completely. I do not think the Appellant was right in his submission that the defect in the said ground is a mere defect as to form, and not substance. The case of SOSANYA v. ONADEKO (2005) 8 NWLR [pt.926] 199 relied upon for that submission is completely irrelevant.
Ground 1 of the grounds of appeal, being incompetent, is hereby struck out.

I have perused Appellant’s issue 1 viz-a-viz the incompetent ground 1 of the grounds of appeal. I do not think, though Appellant had indicated on 19th March, 2012 when this appeal was heard that issue 1 was formulated from grounds 1 and 2 of the grounds of appeal, that any issue was formulated from ground 1. I will now reproduce ground 2 to demonstrate that issue 1 was distilled solely from ground 2, that reads (shorn of its particulars) –
The learned trial Judge erred and misdirected itself (sic) in law when it (sic) failed to consider questions 3, 4, 5 and 6 which could have finally determined the whole issue in contention thereby occasioning a miscarriage of justice.
Contrary to the submission of Dr. O. Ikpeazu, SAN, of counsel to 2nd Respondent, that issue 1 is a mixed grill of the bad and good grounds of appeal; I am of the firm view that issue 1 has been distilled solely from ground 2.
Grounds 2 and 4 are said not to have arisen from the Ruling appealed, and that since no leave had been sought and obtained to argue them, issue 2 formulated therefrom is incompetent and should be struck out. I have earlier reproduced ground 2 of the grounds of appeal. I will only now reproduce ground 4. It avers (shorn of its particulars) –
The learned trial Judge erred in law when it (sic) held that the facts and the documents of the case are
seriously disputed when the 1st Respondents admitted most of the facts and the documents in the suit
especially Appellant’s Exhibit R4.
Appellant has formulated his issue 2 from this ground 4 of the grounds of appeal. Issue 2, earlier reproduced, does not seem to incorporate ground 3 of the grounds of appeal that reads (shorn of its particulars) –
The learned trial Judge erred in law and misdirected itself (sic) upon the facts in (sic) when it (sic) held that Chief Ebenezer Babatope and Mrs. Toru Ofili will have to testify on the veracity of their reports thereby occasioning a miscarriage of justice.
From all I have said grounds 1 and 3 of the grounds of appeal have been abandoned, as no issues have been formulated therefrom. A ground of appeal from which no issue is formulated therefrom must be struck out as it is deemed abandoned. See AINA v. UBA PLC (1997) 4 NWLR [pt.498] 181. Accordingly, grounds 1 and 3 of the grounds of appeal are hereby struck out, having been abandoned.
Now, I have only issues 1 and 2 distilled from grounds 2 and 4 of the grounds of appeal to consider the appeal on. The two issues are interrelated and would be taken together.
The four questions, that is questions 3, 4, 5 and 6, which the Appellant complains that the trial court did not consider are as follows:
3. whether having regards to the extant laws and regulations, Peoples Democratic Party PDP) could conduct another primary election to select a candidate for Nsukka/Igbo Eze South Federal Constituency after the 15th day of January, without recourse to the Plaintiff.
4. whether by virtue of Section 87 (1) of the amended Electoral Act, 2011, the Plaintiff having won the primaries can question or complain against his unlawful purported replacement by his party and refusal to issue with INEC nomination forms.
5. whether in view of part VI Section 50 (D) of the Electoral Guidelines for the 2010 of the Peoples’ Democratic Party (PDP) any complaint not brought within 24 hours of completion of the primary election of the party con be entertained by his party or said to be valid and proper.
6. whether in view of part VI Section 50E of the Electoral Guidelines for the 2010 of the Peoples’ Democratic Party (PDP), the plaintiff is entitled to be communicated in writing within 48 hours the decision of the panel.
I do not think the Appellant fully comprehends or appreciates the stance of the learned trial Judge to the effect that from the affidavit of the Appellant in support of the originating summons including exhibits thereto and the counter affidavits, including documents exhibited thereto. The facts are hostile and violently contradictory. The 1st and 3rd Defendants/Respondents Counter Affidavits show that the primary elections the Appellant relied on were inconclusive, and also based on the deluge of complaints arising therefrom the National Working Committee of the PDP resolved on 14th January, 2011 “that the entire primaries in the zone be repeated”. If the facts averred by the Defendants are accepted, on their face value, then it means that the PDP has exercised its prerogative to cancel the said controversial primaries. Paragraph 17 of the Counter Affidavit of the 1st Defendant avers:
That the Plaintiff at the time of filing his processes knew that the 1st Defendant had taken a decision nullifying the Sham House of Representatives primary but failed to disclose same to the trial court. In paragraph 18 of the same counter affidavit the power of the relevant organs of the PDP to cancel a primary election was alluded to. The findings of fact made by the learned trial Judge which no extant ground of appeal is challenging include the fact that
i. the position of the parties in the suit is full of claims and counter claim (page 861).
ii. there are conflicting documents with regard to the conduct of the primary elections. Chief Ebenezer Babatope had filed a written report that the elections were orderly and peaceful on 12th January, 2011. Mrs. Toru Ofili had filed a contrary report. The 3rd Defendant had tendered document in his counter affidavit to show that he and others petitioned the National Working Committee on the irregularities that purportedly marred the primary elections the Appellant was retying on. See pages 861 – 862 of the Record.
It is in order to properly resolve the very contentious and serious dispute of facts that the learned trial Judge reasoned correctly that it may be necessary for Chief Ebenezer Babatope and Mrs. Toru Ofili to be called.
When documents ex facie are violently contradictory it may be necessary for the makers to be called to explain how they each came to the making of the contents of their respective documents. This may be an exception to the rule that oral evidence can not vary the contents of a document. See EJEZIE v. ANUWU (2008) ALL FWLR [pt.422] 1005 at 1039.

It can not be denied that every case is decided on the peculiar facts before the court. Facts, therefore, are the fountain head of the law. The courts in deciding cases determine the issues therein by relating the facts to the issues and the law. The significance and importance of facts to adjudication by the courts can not be down played. It is for this reason the Supreme Court stated, in A.G, BENDEL STATE v. A.G., FEDERATION (1983) 1 SCNLR 239 and A.G., ABIA STATE v. A.G, FEDERATION (2005) 16 NWLR [pt.1005] 262 at 361, that facts being the fountain head of the law, decisions or determination of cases are related to the facts and each case should be considered in its factual milieu.
The peculiar facts of this case, though significantly hostile, suggest that there is a serious dispute as to whether the Appellant was duly elected as the party’s candidate for Nsukka/Igbo Eze South Federal Constituency. There is still a lingering dispute over whether the nomination exercise of 12th January, 2011 which the Appellant relies on had been cancelled and a re-run of the primary election was ordered by the National Working Committee of the PDP. Appellant denies any knowledge of the cancellation and the order for re-run. The 1st and 3rd Defendants/Respondents vehemently insist that the Appellant was aware of both, and that he infact participated in the re-run exercise.
I have seen Exhibit R4 which the Appellant says was never disputed or denied by the Defendants/Respondents in any counter affidavit. The said document is an extract of the minutes of the National Working Committee of PDP held on 14th January, 2011. The Appellant introduced the document to contradict the assertion of the 1st and 3rd Respondents that the same National Working Committee of the PDP had cancelled the primary election of 12th January, 2011 and ordered a re-run in Nsukka/Igbo Eze South Federal Constituency. The 1st Respondent’s Exhibits PDP 1 and 2 also contradict Appellant’s Exhibit R4. It is for the reason, that the several documents brought in as exhibits in the case do not speak with one voice, that the Respondents insisted, and the trial court agreed, that the serious disputes of facts do not warrant the hearing of the case on originating summons.
It was held in DOHERTY v. DOHERTY (1963) NMLR 241 that the procedure of originating summons for hostile proceedings is inadvisable and unsuitable. see also BALONWU v. PETER OBI (2007) 5 NWLR [pt.1028] 488; ODUKWE v. ACHEBE (2008) 1 NWLR [pt.1067] 40. The Supreme Court in OSSAI v. WAKWAH (2005) ALL FWLR [pt.303] 237 had stated that the mere fact that the plaintiff complained that the Defendant has attempted to do something which he is suing him on portrays hostility of proceedings. To further underscore this point the 1st and 3rd Respondents, on the one hand, and the Appellant are relying on two primary elections, conducted on different dates, to situate their stances. For this the Respondents have placed reliance on the Supreme Court decision in LADO & ORS v. CPC & ORS (supra) to the effect that once there is a dispute as to which of the two primary elections of a political party produced what candidate for the party to sponsor the dispute is not justiceable. The party’s inalienable right to refuse sponsorship to any individual as its candidate in an election can not be denied by the court. The PDP, 1st Respondent, is here asserting that right, and so, the Appellant can not say that his suit is not a hostile proceeding.
On a final note, the 1st Respondent submits that Exhibit R4, which forms the basis of the Appellant’s issue 2 was never pleaded and that it did not form part of the claim of the Appellant and as such it can not be relied upon. There is a misconception here. Appellant, in paragraph 8 of the ground upon which the Reliefs are sought had averred that apart from the primary election of 12th January, 2011 that he has founded his claims on, there was no other primary election conducted by the party, the PDP “in accordance with the Electoral Act 2011” (sic 2010) or any other extant regulation. I think Appellant’s resort to Exhibit R4 was intended to join issues with the 1st and 3rd Respondents on their assertion that the primary election, relied upon by the Appellant was cancelled and re-run election was ordered, and that the 3rd Respondent emerged the candidate of the 1st Respondent, PDP, from the re-run election. The facts are mutually hostile and seriously disputed.
On the basis of the foregoing, I hereby resolve the two issues against the Appellant and in favour of the Respondents. There is no substance in the appeal, and it is hereby dismissed. The Ruling delivered by I.N. Auta Ag. CJ Federal High Court on 8th April, 2011 in the suit no FHC/ABJ/CS/81/2011 is hereby affirmed.
My Lords, is it not time we asked the Appellant, as the Plaintiff, whether his pending suit is now not merely academic? He was not given the INEC Nomination Form. He returned no such form to INEC and he was not on the ballot. This is not a case in which the principle in AMAECHI v. INEC (2009) 5 NWLR [pt.1080) 227 can be invoked, as the Appellant has admitted that his own party refused to release INEC nomination forms to him. There was no formal nomination of the Appellant. In AMAECHI’s (supra) the plaintiff returned INEC nomination forms and he was formally nominated as a candidate before his party, the PDP, crudely purported to have substituted him with Mr. Omehia. In the eye of the law, as held by the Supreme Court, the Plaintiff, Mr. Amaechi, remained the PDP candidate.
That is not the situation here. See also UGWU v. ARARUME (2007) 12 NWLR [pt.1048] 412.

ZAINAB A. BULKACHUWA, J.C.A.: I have been privileged to read the draft of the judgment just delivered by my learned brother Eko, JCA.
I agree with the reasoning and conclusion reached in dismissing the appeal as lacking in merit.
The appeal is accordingly dismissed by me.
I make no order on costs.

HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the judgment just rendered by my learned brother EJEMBI EKO, JCA and totally agree with the well articulated reasoning and the obvious conclusion that the appeal is devoid of merit. I adopt it as mine.
It will, however, be pertinent to observe that since the appellant has had no opportunity of obtaining the nomination form much less filling and submitting same and his name was therefore never submitted to INEC as a candidate, it is difficult to see the basis of his claim before the lower court.
One may further observe that some of the reliefs sought for by the appellant/applicant in the originating summons filed on 22nd March 2011 are self contradictory. While the first relief sought for a declaration that the appellant was duly nominated as PDP candidate for National Assembly election on the one hand, the third relief sought for an order compelling INEC to issue nomination forms to the appellant on the other. This case is therefore distinguishable from Amaechi’s where the candidate was substituted after completion of nomination process entirely. The appellant’s claim was therefore based on nothing and bound to collapse as it did. This appeal is no different. It is a complete non-starter and certainly unmeritorious. I shall for these and the more detailed reasons in the judgment of my learned brother EKO, JCA dismiss the appeal for lacking in merit. The ruling delivered by Auta Ag CJ (as he then was) on the 8th April 2011 is accordingly affirmed.

Appearances

Chidi Aroh with O. A. Ochuagu and I. L. AlekeFor Appellant

AND

Chief A. O. Ajana with P. U. Ogbadu for 1st Respondent

Dr. Onyechi Ikpeazu, SAN with Prisca Ozoilesike (Miss) and C. Nwabueze for 2nd Respondent.

Ifeanyi Okoli for 3rd Respondent.For Respondent