HON. PATTY ETETE INEME v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2013)

HON. PATTY ETETE INEME v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2013)LCN/6289(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2013

CA/C/217/2011

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

HON. PATTY ETETE INEME Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLES DEMOCRATIC PARTY
3. BARRISTER SAVIOUR UDOH Respondent(s)

RATIO

THE MEANING OF THE PHRASE “BURDEN OF PROOF”

THE JURISDICTION OF THE COURT IN MATTERS INVOLVING SPONSORSHIP OF CANDIDATES OR OTHER INTRA-PARTY AFFAIRS

It must be made clear that the jurisdiction of the court in matters involving sponsorship of candidates or other intra party affairs, including the conduct of party primaries, is limited to ensuring that the political parties conform to the party’s constitution, the Electoral Law and other extant relevant laws. It does not lie within the vires of the court to decide on or to compel a political party to choose or nominate a particular candidate. See: Onuoha v. Okafor (1983) 1 NSCC 494, where the Supreme Court said:
There are no judicial criteria or yardstick to determine which candidate a political party ought to choose and the judiciary is therefore unable to exercise any judicial power in the matter. It is a matter over which it has no jurisdiction. The question of the candidate a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer. The judiciary has been relieved of the task of answering the question by the Electoral Act when it gave the power to the leader of the political party to answer the question.”
See also: Iwara v. Itam (2009) 17 NWLR (Pt. 1170) 337; Emenike v. PDP (SUPRA). PER OTISI, J.C.A.

ONYEKACHI A. OTISI, J.C.A. (Delivering the leading Judgment): The Appellant was the incumbent member of the House of Assembly representing Ikot Ekpene Federal Constituency, Akwa Ibom State. He expressed the intention of re-contesting. He satisfied the procedural requirements set out in the Electoral Guidelines for Primary Elections 2010 of the Peoples’ Democratic Party (PDP), and was issued with a Provision of Clearance Certificate No: 00000571 on 31/12/2010. PDP held the Ikot Ekpene Federal Constituency Primaries on 7/1/2011 at the Ikot Ekpene Stadium. The Appellant alleges that the primaries were marred with irregularities, masterminded by the Executive Governor of Akwa Ibom State, who attempted to impose a consensus candidate, which led to protests by the delegates. The Appellant wrote a petition over the conduct of the elections to the National Chairman of the 2nd respondent. He stated that when it was noticed that the votes were going in his favour, the said Governor ordered that the elections be stopped and that 3rd defendant should be announced winner of the election. The State Publicity Secretary then announced the 3rd Respondent as the winner of the election without recourse to the party’s electoral guidelines.
The Appellant then filed suit No: FHC/ABJ/CS/255/2011 by way of Originating Summons at the Federal High Court, Abuja. The Suit was subsequently transferred to Federal High Court, Uyo on 7/3/2011, where it became Suit No: FHC/UY/CS/93/2011. The Suit was determined on 1/4/2011. The Appellant, dissatisfied with the judgment, has filed this appeal against the said Judgment of the Federal High Court, Uyo.
Before the trial court, the Appellant sought the resolution of the following questions:
1. WHETHER by virtue of the provisions of Section 87(3),(9) and (10) of the Electoral Act 2010, Article 17.1 of the Peoples Democratic Party Constitution 2009 (as amended) and the provisions of Articles Part V 24 to 33 of the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party (hereinafter referred to EGPE) the applicant herein was not legally entitled to participate in the National Assembly Election Primaries for Ikot Ekpene Federal Constituency held on Friday, 7th January 2011 at Ikot Ekpene Township Stadium, Akwa Ibom State.
2. WHETHER by virtue of the Provisional Clearance Certificate with number 00000571 dated 31st December, 2010 31-12-2010 signed by the Chairman and Secretary Committee respectively, the plaintiff herein was not entitled to exercise his right to participate in the Ikot Ekpene Federal Constituency National Assembly Election Primaries in Akwa Ibom State as guaranteed by Article 27 (V) of the Electoral Guidelines for Primary Elections 2010 of the 2nd Defendant herein.
3. WHETHER in view of prayers 1 and 2 above, the 2nd to 3rd defendants were lawfully entitled to EXCLUDE the plaintiff from participating in the said Ikot Ekpene Federal Constituency Election Primaries in Akwa Ibom State.
4. WHETHER by virtue of prayers 1, 2 and 3 above the Ikot Ekpene Federal Constituency Primary Election purportedly held on 7th January, 2011 can be said to have satisfied the requirement of Part V of EGPE to merit validity.
And upon the determination of these questions, the Appellant sought the following reliefs:
1. A DECLARATION that the Ikot Ekpene Federal Constituency Election Primaries of the PDP in Akwa Ibom State, purportedly held on 7th January 2011 at Ikot Ekpene Township Stadium was illegal, null, void and of no effect whatsoever because the plaintiff herein being an aspirant who was legally entitled to participate therein, was UNLAWFULLY EXCLUDED completely from the process thereby depriving him of the right to be voted for by the delegates who supported him.
2. AN ORDER setting aside the Ikot Ekpene Federal Constituency Election Primaries for Ikot Ekpene Senatorial District of Akwa Ibom State held on 7th January, 2011 at Ikot Ekpene Township Stadium.
3. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd defendant from forwarding the name of the purported Ikot Ekpene Federal Constituency Primary Election for Akwa Ibom State allegedly held on Friday, 7th January, 2011 at Ikot Ekpene Township Stadium, Akwa Ibom State pending the determination of the substantive suit.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st defendant from receiving, accepting, recognizing or in any way acting upon any nomination of any person, particularly the 3rd defendant herein purportedly elected at the aforementioned primaries pending the determination of the substantive suit.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 3rd defendant from parading himself as the duly nominated candidate and making, taking, continuing or resuming any steps, attempts, arrangement and preparations to undertake or carry out any function, task or act pursuant to the result of the aforementioned Primaries pending the determination of the substantive suit.
6. AN ORDER nullifying all acts, tasks and functions purportedly performed during and after 7th January, 2011 by the 3rd defendant pursuant to the results of the purported primaries aforementioned.
7. AN ORDER compelling the 2nd defendant herein to comply with Section 87(3) of the Electoral Act, 2010.
8. SUCH FURTHER ORDER or of her orders as this Honourable Court nay deem fit in the circumstances.
In the support of the originating summons was an affidavit deposed to by the Appellant. The 2nd and 3rd Respondents filed a counter affidavit to the originating summons on 16/3/2011. They aver that the 3rd Respondent was only candidate that stood for the Ikot Ekpene/Essien/Udim/Obot Akara Federal Constituency primary election because the other aspirants, including the Appellant, voluntarily and without any molestation, harassment and coercion by the 3rd Respondent or any other person, withdrew; and that they publicly announced their withdrawal 2 days before the primaries. The Appellant was not therefore a candidate of the election.
The 1st Respondent filed a counter affidavit on 31/3/2011, associating itself with the counter affidavit of the 2nd and 3rd Respondents. The Appellant filed a Further and Better Affidavit on 31/3/2011.
The learned trial Judge, in a considered Judgment, dismissed the suit of the Appellant. The Appellant filed an Amended Notice of Appeal against the said Judgment, raising six Grounds of Appeal, and seeking the following Orders:
1. Allow this appeal by nullifying the primary election purportedly conducted in respect of Ikot Ekpene/Essien/Udim/Obot Akara Federal Constituency for the House of Representative held on the 7th January, 2011.
2. Nullify the purported nomination/candidacy and election of the 3rd respondent as member of the House of Representatives, representing Ikot Ekpene/Essien/Udim/Obot Akara Federal Constituency.
3. An Order of this Honourable Court directing the 1st and 2nd Respondents hereof to organize a fresh primary election (with the appellant hereof participating, having earlier obtained clearance to contest) into the House of Representatives to represent Ikot Ekpene/Essien/Udim/Obot Akara Federal Constituency.
In the Appellant’s Brief filed on 17/1/2013, the following issues were distilled from the six Grounds of Appeal:
1. Whether having regard to the judgment of the lower court, the learned trial judge understood the principles of burden of proof in civil proceedings as enshrined in the relevant provisions of the Evidence Act 2011 and properly applied then to the case of the appellant thereof (Ground 1).
2. Whether having regard to the entire gamut of the judgment of the lower court, the learned trial, Judge was not biased and did not compromise his neutrality when he descended into the arena of dispute to make case for the respondents (Grounds 2 and 5).
3. Whether the issue formulated by the learned trial judge suo motu was well considered to the end that it can be said to have justly disposed of the real issues presented for determination by the parties hereof. (Ground 3).
4. Whether there is evidence on Exhibits G and G1 attached to the joint counter affidavit of the 2nd and 3rd respondents to show that almost all the aspirants developed cold feet and endorsed a consensus candidate on the eve of the election, or that the entire votes were cast for the 3rd Respondents. (Ground 6)
The 1st Respondent’s brief was filed on 4/2/2013. The 2nd and 3rd Respondents jointly filed their Respondents’ Brief on 20/2/2013. The Appellant filed a Reply Brief on 4/3/2013. These Briefs were all respectively adopted on 16/4/2013.
The 1st Respondent adopted the Issues raised by the Appellants for determination. The 2nd and 3rd Respondents raised a sole issue as follows:
Whether having regard to the judgment of the lower court and by its proper implication the lower court was not right to have held that the 3rd Respondent was properly nominated, chosen, elected or selected as candidate of the 2nd Respondent for the April 2011 General election into the House of Representatives of the Federal Republic of Nigeria.
On Issue 1, the Appellant argued that the suit before the lower court by originating summons was determined on affidavit evidence. It is submitted that the primary burden of proof is on the party who asserts. That by virtue of the provisions of Section 131(1), and 132 of the Evidence Act, the court could determine if the Appellant had discharged this burden by examination of his affidavit evidence; and that if the court had so examined, it would be evident that the Appellant had discharged this burden, while the Respondents to whom the burden now shifted, failed to rebut. It is contended that the trial court failed to scrutinize the exhibits tendered before it, in particular Exhibits G and G1 tendered by the 2nd and 3rd Respondents. It is submitted that the trial court failed to evaluate Exhibits G and G1, which did not indicate that there was a consensus arrangement upon which any party had stepped down. That the burden of proving the Appellant had stepped down remained that of the Respondents who so asserted, relying on Dingyodi v. Wamaka (2008) 17 NWLR (Pt. 1116) 395 at 447-449.
The provisions of Section 35 of the Electoral Act 2012 were relied upon. It is further submitted that where there is only one aspirant contesting an election or where other candidates have withdrawn from the race, the provisions of Section 87(6) of the Electoral Act is applicable. He also relied on Mahmoud B. Bichi v. Ahmed Haladu (2004) 1 EPR 587 at 600. It is submitted that the failure of the trial court to consider and apply principles guiding the burden of proof occasioned a miscarriage of justice. The case of Mini Lodge Ltd. v. Ngei (2004) 4 JNSC 13 at 327 at 339 was relied upon.
On Issue No 2, it is contended that the conduct of the trial judge by failing to properly evaluate the evidence and making a case for the Respondents, rather than remaining an unbiased umpire led to a miscarriage of justice, relying on Trade Bank Plc v. Chami (2003) 13 NWLR (PT 836) 158.
On Issue No 3, it is submitted that the lower court had the responsibility of resolving issues joined by the parties; and, that it is also bound to confine itself to the issues raised by the parties, relying on Edem v. Cannon Balls Ltd. (2006) ALL FWLR (Pt. 276) 693 at 716. It is submitted that the trial court failed to so consider all the issues raised.
On Issue No. 4, it is submitted that the decision of the trial court turned on Exhibits G and G1 but that there is nothing in the said Exhibits that shows that any or almost all the aspirants endorsed a consensus candidate by reason of developing ‘cold feet’ as stated in the judgment.
The Court is urged to allow the appeal.
The 1st Respondent argued Issues 1, 2, and 3 conjunctively. It is submitted that the 1st respondent remains an unbiased umpire. It is submitted that the nomination of a candidate sponsored by a political party could be by primary election, appointment etc. or by a combination of the above methods. That whatever method is employed, the nomination of a candidate remains within the absolute jurisdiction of the political party, relying on Senator Hosea Ehinlonwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 at 402-403, 405 and 411. It is further submitted that courts do not interfere into the affairs of political parties and matters raising political questions. That a political party has the unfettered right to nominate and sponsor a candidate of its choice for any election and the court would have no jurisdiction to inquire into the issues except in circumstances as decided in the case of Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Section 34(2) of the Electoral Act 2006, Onuoha v. Okafor (1983) 2 SCNLR 244. It is further submitted that a political party takes a number of factors into consideration in arriving of the final list of its candidates to be sent to the 1st Respondent, which include ensuring geographical spread.
It is submitted that failure to act on the result of primaries may not per se be enforceable in the court. That the court will only come in when the provisions of specific statutes have to be interpreted; relying on Idris v. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 66, Azaranda v. Tilde (2008) 10 NWLR (Pt. 1098) 184 at 206. The Court is urged to apply these same principles.
For the 2nd and 3rd Respondents, it is submitted that for the grant of a declaratory relief as sought by the Appellant, the burden of proof resting on the plaintiff is such that even on admission by the defendant, the plaintiff is to establish his entitlement to the declaration, relying on Dumez Nigeria Ltd. v. Nwakobo (2008) 18 NWLR (Pt. 119) 361 at 373-374; Aloa v. Akno (2005) 22 NSCQR (Pt. 1) 867: Owoade v. Omitola (1988) 2 NWLR (Pt. 889) 18 at 214; Egboike v. Muoweokwu (1962) ALL NLR 46, Chukwuma v. Shell Development Nig. Co. Ltd. (1993) 4 SCNJ 1 at 42; P.T.I. v. Aderemi (1999) 46 of 73. It is submitted that the Appellant who is bound to prove his assertions, failed to do so. Referring to the letter written by the Appellant to the National Chairman of the National Assembly dated 5/1/2011 and received on 6/1/2011, at page 32 of the Record of Appeal is referred to, it is submitted that the said letter complained of imaginary and anticipatory irregularities as no election had taken place of the time. That on 7/1/2011, the Appellant wrote another petition also in anticipation; and that deducible from this conduct is that the Appellant needed to prepare a certain state of affairs in order to create artificial irregularities and truncate the primaries by all means. It is submitted that the interest of the Appellant should be real and tangible in law. That an aspirant must be sponsored by a political party and in this case, the Appellant was not sponsored by the 2nd Respondent.
On Exhibits G and G1, it is submitted that while the 2nd Respondent issued Exhibit G, the 1st Respondent issued Exhibit G1. It is submitted that the crux of this matter centres on the issue of choosing a candidate for elective offices, and in this case, the 2nd Respondent nominating the 3rd Respondent as its candidate. On the treatment of matters relating to nomination of candidates by a political party, it is submitted it is the domestic affair, relying on: Emenike v. PDP (2012) 210 LRCN 91; Onuoha v. Okafor (1983) 2 SCNLR 244; Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 13; Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310; Lado v. CPC (2012) 206 LRCN 176; Emeko v. Okadigbo SC 69/2012 (unreported); Uzodinmo v. Izunaso (2011) Vol. 5 (Pt. 1) MJSC 27.
It is submitted that Exhibit G is the report of the 2nd Respondent gave out to assist the trial court come to a just decision, since the conduct of the primaries was entirely within its purview and domestic affairs. That Exhibit G1 was also tendered by the 1st Respondent, which acted as an umpire. It is submitted that the Appellant cannot decide for the 2nd Respondent who its candidate will be. That the court’s jurisdiction is activated only when an aggrieved aspirant approaches it to examine if the primaries were conducted in accordance with the Electoral Act, the Constitution and guidelines of the party.
It is submitted that the Appellant’s name was never forwarded to the 2nd Respondent at all, and that the Appellant never presented himself of the primary election on 7/1/2011.
It is also submitted that there was no miscarriage of justice as the trial court properly evaluated the issues placed before it.
In the Appellant’s Reply Brief, the Appellant relied on Section 87(d)(2)(3)(4)(c)(9) and (10) of the Electoral Act, 2010 and Article 32(a) of the Electoral Guidelines for primary election 21 of PDP, which provided the procedure to be adopted in the selection of candidates for elective positions by political parties. It is submitted that the grouse of the Appellant before the lower court did not revolve around who should be sponsored by the 2nd Respondent or who should be the candidate for the 2nd Respondent at the general election. But, that what had been placed before the lower court were questions which call for the interpretation of provisions of the Electoral Act 2010, the constitution of the 2nd Respondent, Electoral Guidelines for the conduct of primaries of the 2nd Respondent in order to determine whether the 1st and 2nd respondents complied with the relevant provisions of the Electoral Act, the 2nd Respondent’s constitution and its Electoral Guidelines in the nomination of the 3rd Respondent; and whether the Appellant was not unlawfully excluded from the primary election issue. But that the trial court had failed to so interpret. On the justiciability of complaints emanating from the conduct of primary elections, he relied on Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55 at 88-89.
Issues that arise for determination in a matter are intended to narrow the issues in controversy between the parties for clarity, accuracy and brevity. Upon consideration of the issues raised by the Appellant, and the sole issue raised by the 2nd and 3rd Respondents, I deem it appropriate to consider these issues together.
The Appellant has rightly submitted that the burden of proof lies on him who asserts. In civil cases, while the general burden of proof in the sense of establishing his case lies on the plaintiff, such a burden is not static. There may be instances in which, on the state of the pleadings, the burden of proof lies on the defendant. As the case progresses, it may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case. See; Section 131, 132, 133, and 136 of the Evidence Act 2011, which provide thus:
131.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact if is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133.
(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
136
(1) The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless if is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.
(2) In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.

In Ezembo v. Ibeneme (2004) 7 S.C. (Pt. II) 45, the Supreme Court per Edozie, J.S.C. said:
“In civil cases, the phrase ‘burden of proof’ has two distinct’ and frequently confused meanings.
Firstly, it may mean the burden of proof as a matter of law and the pleadings usually referred to as the legal burden or the burden of establishing a case;
Secondly, the burden of proof in the sense of adducing evidence often referred as the evidential burden. While the burden of proof in the first sense is always stable or static, the burden of proof in the second sense may shift constantly as one scale of evidence or the other preponderates. As Aniogolu, J.S.C. correctly observed in the case of Felix O. Osawaru v. Simon Ezeiruka (1978) 6 &7 SC. 135 at 145-
“In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff (Joseph Constantine Steam Line Ltd v. Imperial Smelting Com. Ltd. (1942) A.C. 154, 174) the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses See the case of Odukwe v. Ogunbiyi (1998) 8 N.W.L.R. (Pt. 56) 339 of 353.”The Appellant had sought a declaration, upon which all the executory orders he sought were hinged. A declaratory order is one that merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by or enforced against the defendant. A declaratory order must always be established by credible evidence. The Court does not grant declarations of right either in default of defence or on admissions without hearing evidence and being satisfied by such evidence. See: Bello v. Eweka (1981) 1 S.C. 10; Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90; Ogunjumo v. Ademola (1995) 4 NWLR (Pt. 389) 254 at 269; Dumez Nig. Ltd. v. Nwakhoba (2008) 12 S.C. (Pt. III) 142; Ndayako v. Jikantoro (2004) 8 MJSC 163.
A plaintiff is therefore required to present satisfactory evidence before the trial court in order to be entitled to a declaratory order, even in circumstances where the defendant has failed to respond to the plaintiff’s claims.As earlier observed, the executory order sought by the Appellant in this case are hinged on the declaratory order. These orders were to be made upon the trial court resolving in favour of the Appellant the questions raised in the Originating Summons. Upon the Appellant therefore lay the burden of proving he was entitled to the orders sought.
It must be made clear that the jurisdiction of the court in matters involving sponsorship of candidates or other intra party affairs, including the conduct of party primaries, is limited to ensuring that the political parties conform to the party’s constitution, the Electoral Law and other extant relevant laws. It does not lie within the vires of the court to decide on or to compel a political party to choose or nominate a particular candidate. See: Onuoha v. Okafor (1983) 1 NSCC 494, where the Supreme Court said:
There are no judicial criteria or yardstick to determine which candidate a political party ought to choose and the judiciary is therefore unable to exercise any judicial power in the matter. It is a matter over which it has no jurisdiction. The question of the candidate a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer. The judiciary has been relieved of the task of answering the question by the Electoral Act when it gave the power to the leader of the political party to answer the question.”
See also: Iwara v. Itam (2009) 17 NWLR (Pt. 1170) 337; Emenike v. PDP (SUPRA).The Appellant alleged that the 2nd Respondent did not comply with the Electoral Act, the Electoral Guidelines of the 2nd Respondent, and its constitution. In paragraphs 6, 8, 9, 10, 11, 16, 17, 18, 19, 20, 22 and 23 of the affidavit in support of the Originating Summons, he deposed as follows:
6. That I expressed the intention of re-contesting the Ikot Ekpene Federal Constituency position and after satisfying all procedural requirements as set out in the Electoral Guidelines for the Primary Elections 2010 of the Peoples Democratic Party (hereinafter referred to as EGPE), I was accordingly issued a Provisional Clearance Certificate number 00000571 dated 31st December, 2010 in confirmation of my eligibility to contest the Ikot Ekpene Federal Constituency position.
8. That the Ikot Ekpene Federal Constituency Primaries held on the 7th of January, 2011 at Ikot Ekpene Township Stadium.
9. That the exercise was marred by several irregularities that were inconsistent with the applicable Electoral Guidelines.
10. That the said irregularities were masterminded by the Governor of Akwa Ibom State, Barrister Godswill Akpabio who attempted to impose a consensus candidate on us in the person of the 3rd defendant herein to satisfy the requirements of geo-political balancing to make room for his perceived senatorial ambition come 2015.
11. That this led to widespread opposition by the delegates who were aggrieved by the wrongful use of exclusive powers to subvert their will in the electoral process.
16. That I and other candidates consistently argued that there is no place for consensus in our extant Electoral Laws because our party constitution allows every aspirant equal opportunity to be voted for by his delegates.
17. That pursuant to the aforestated, the 3rd defendant herein relied heavily on the wrongful use of State powers by the sitting Governor to manipulate the Process in his favour contrary to electoral guidelines.
18. That the Election Primaries for House of Representatives was due to hold on 6th January, 2011 and on this time scheduled, everyone including all my delegates whom are in the majority were at the venue. Likewise, security operatives including the police, Nigerian Army, State Security Service, Civil Defence Units and all other services critical to the process were duly present except for the officials of the party from Abuja who were not on ground for the exercise. At the end of the day, it was obvious that all the delegates present were in my support and if the election had held as scheduled and in the presence of the party officials from Abuja, I would have been declared the winner by majority of the delegates present. Unfortunately, the election was postponed till today 7th, January, 2011.
19. That further to the petition as stated earlier above, if was quite clear that when all the delegates were about to commence the process of the elections, the Governor came in company of the State Publicity Secretary of the 2nd defendant who was used by the governor to announce the preferred choice to the hearing of all the delegates, a situation that is not in tune with the conduct of free and fair elections and contrary to the rules of the elections as dictated by the Electoral Act.
20. That the surprising scenario played itself out when the delegates started voting and when it was noticed that the votes were in my favour that the governor ordered the elections to be stopped and instead directed that 3rd defendant be announced as the winner of the elections.
22. The governor was able to achieve this by fraudulently appointing delegate heads for each of the local governments with a view to declaring their block votes for his preferred choice of candidate, the 3rd defendant.
23. That the 1st defendant’s observers and other security reports clearly attested to these claims of irregularities.
The 2nd and 3rd Respondents in paragraphs 7, 9, 10, 11, 12, 14, 15, 21, and 22 of their counter affidavit stated thus:
7. That sometime in September, 2010, when the 2nd Defendant/Respondent called for nomination for primaries election into the House of Representatives, I bought the form to express my interest for the House of Representatives and look every constitution and legal steps to contest the primaries.
9. That on 31/12/2010 the 2nd Defendant/Respondent issued me a provisional clearance Certificate Number 0000539 with Form Number CC/PD/WA/2010 clearing me to contest the National Assembly Primaries election in Akwa Ibom State and in particular the House of Representatives primaries.
10. That I was variously informed by the National Legal Adviser of the 2nd Defendant/Respondent Chief Barrister Olusola Oke in his office at the PDP National Secretariat Plot 1970 Wadata Plaza, Michael Okpara Street, Wuse Zone 5, Abuja on Monday 7th March, 2011 at 5.45p.m. and also by Barrister Dominic Okon the PDP Akwa Ibom State Chapter State Legal Adviser on Monday, 14/3/2011 in his office at No. 37 Oron Road, Uyo at 8.15a.m. while in company of my learned Solicitor Chief N. F. N. Ntong of Notary Public for Nigeria and I verily believe them as follows:
(1) That all the aspirants were given equal opportunities before the withdrawal of four of the aspirants mention in paragraph 11 below.
(2) That the 1st Defendant/Respondent monitored the National Assembly primaries election conducted by the 2nd Defendant/Respondent after the issuance of the 21 days Notice to it.
(3) That the 2nd defendant/respondent conducted its primaries election in Akwa Ibom State for the National Assembly Aspirants in particular the House of Representatives primaries election which was held at the Ikot Ekpene Stadium on 7/1/2011 freely and fairly without any rancor, oppression or irregularity.
(4) That the 2nd Defendant/Respondent National Assembly primaries was conducted by the 2nd Defendant/Respondent through its accredited Electoral Panel for Akwa Ibom State comprising:
(i) Chief Olisa Okeke Chairman
(ii) Umaru Mohammed Usman – Secretary
(iii) Mrs. Stella Owhonda – Member
(iv) Madam Jesey Onakoya – Member
(v) Murtala Mohammed – Member
(5) That the said Electoral Panel submitted its report to the 2nd Defendant/Respondent vide the office of the National Chairman.
(6) That the same report was also published in all the National Newspapers within Nigeria including the National Newspaper of Friday, 14th January, 2011 at page 58.
11. That on the 7/1/2011 I was the only candidate that stood for the Ikot Ekpene/Essien/Udim/Obot Akara Federal Constituency primaries election at the Ikot Ekpene Township Stadium as the other Aspirants namely-
(a) Mr. Felix Emanson
(b) Hon. Nkereuwem Udoh
(c) Hon. Patrick William, and
(d) Hon. Patty Etete Ineme.
had voluntarily and without any molestation, harassment and coercion by me or any other person publicly announced their withdrawal from the race 2 days before the primaries election.
12. That the plaintiff did not contest the primaries election with me as he had withdrawn his candidacy and aspiration long before the primaries election proper on the 7/1/2011.
14. That in spite of the consensus arrangement and my being the only candidate for the primaries election, Delegates voted overwhelmingly for me and I pulled 705 votes. And was accordingly declared nominated. My name was published and forwarded to the 1st Defendant accordingly for the general election on 2/4/2011.
15. That I was informed by Chief NFN Ntong of learned counsel and Notary Public for Nigeria on Monday 14/3/2011 in my house at D49 Ewet Housing Uyo, at 11:05a.m. and I verily believe him.
(i) That the plaintiff having previously withdrawn his aspiration and interest lacks the standing to successfully maintain this suit having ceased to be an aspirant for the purpose of the said primaries.
21. That the 2nd Defendant vide the National Legal Adviser Chief Barr. Olusola Oke also informed me in his office at Wadata Plaza, Abuja on Monday 7/2/2011 at about 6:00p.m. and I verily believe him that the plaintiff undertook to “abide and comply with all the conditions which the Party laid down in the nomination form” and “to support the person nominated by the 2nd defendant as its House of Representatives candidate…..” and to abide by the 2nd defendant’s decision as final and not subject it to litigation whatsoever or adjudication by any other body including the court.
22. That the plaintiff did not keep to his understanding of compliance.
The 1st Respondent associated itself and agreed with the depositions of the 2nd and 3rd Respondents.
The Appellant had a Further and Better Affidavit in support of the Originating Summons, in which he stated in paragraphs 8(1)(2)(7)(15)(24) as follows:
8. However in response to paragraph 10(1), (2), (3), (4), (5) and (6) the plaintiff states as follows:
1. The plaintiff vehemently denies the fact that all the aspirants were given equal opportunities to canvass and solicit for votes at the 2nd defendant’s primary election to the office of the Federal House of Representatives for Ikot Ekpene Federal constituency.
2. That it was only delegates from Essien Udim Local government Area that were accredited and allowed to vote at the congress. Delegates from Ikot Ekpene (The plaintiff’s Local government Area) and Obot Akara did not and were not allowed to vote…
7. That paragraph 11 and 12 are false and untrue. The 3rd defendant was not the only candidate in the race. Plaintiff herein was also in the race along with Felix Emanson, Hon. Nkereuwem Udoh and Hon. Patrick William. He was molested, harassed and forced to withdraw from the race but he refused and insisted on contesting and actually did contest. His live (sic) was threatened but he refused budge.
15. That at the end of the sham accreditation exercise, the total number of accredited delegates was not publicly announced. The total number of delegates was not entered in the appropriate form designed for that purpose before commencement of the said election.
24. That the result of the said election was not duly entered in form PD/004 as required by the Guidelines.
The Appellant in paragraphs 8 and 9 of his affidavit in support averred that the party primaries did take place on 7th January, 2011 but that it was marred by irregularities. He also stated in paragraphs 7 and 15 of his Further and Better Affidavit as follows:
7. That paragraph 11 and 12 are false and untrue. The 3rd defendant was not the only candidate in the race. Plaintiff herein was also in the race along with Felix Emanson, Hon. Nkereuwem Udoh and Hon. Patrick William. He was molested, harassed and forced to withdraw from the race but he refused and insisted on contesting and actually did contest. His live (sic) was threatened but he refused budge.
15. That at the end of the sham accreditation exercise, the total number of accredited delegates was not publicly announced. The total number of delegates was not entered in the appropriate form designed for that purpose before commencement of the said election.
From these averments, PDP primary election to the office of the Federal House of Representatives for Ikot Ekpene Federal Constituency did take place on 7/1/2011; and, the Appellant did take part in the said primaries. He stated he was harassed, molested, even threatened, but he did not budge. He stated that he actually did contest. In other words, the primaries did hold; and, the Appellant did insist on contesting and he did so contest. He therefore had the burden of proving that there were irregularities in the conduct of the said primaries, contrary to the Electoral Act and to the PDP constitution and Guidelines for primaries.
Section 87(1)(2)(3)(4)(6)(7)(8)(9) of the Electoral Act 2010, as amended, provides thus:
87. (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:
(c) In the case of nominations to the position of a candidate to the Senate, House of Representatives and State House of Assembly, a political party shall, where if 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 centre on specified dates; and
(ii) The aspirant with the highest number of votes at the end of the 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;
(6) Where there is only one aspirant in a political party for any of the elective positions mentioned in subsection (4)(a), (b), (c) and (d), the party shall convene a special convention or congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the party.
(7) A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in ifs constitution and rules the procedure for the democratic election of delegates to vote at the convention, Congress or meeting, in addition to delegates already prescribed in the constitution of the party.
(9) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, nay apply to the Federal High Court or the High Court of a State or FCT for redress.
Section 156 of the Electoral Act 2010, as amended, gives the following explanation:
“Primaries” means an intra-party election by voters of a given political party to nominate candidates for effective office in accordance with a political party’s constitution and the law;
“Direct Primaries” means an election at which candidates for elective office are chosen by direct vote of political party members instead of by delegates at a convention or congress;
“Indirect Primaries” means an intra-party election where a political party’s delegates to a party convention or congress elect the party’s candidates, and
“Aspirant” means a person who aspires or seeks or strives to contest an election to a political office.The 2nd and 3rd Respondents had attached a copy of the 2nd Respondent’s 2009 Constitution, as amended, as Exhibit A1 and the PDP Election Guidelines as Exhibit A2. By virtue of Article 17.1 of Exhibit A1, the National Executive Committee of the party shall be the final authority for resolving all disputes relating to the choice of candidates for the party for any election and for confirming the names or list of names of candidates for the party in any elective public office in the Federation.
Clause 31.a of Exhibit A2 provides that all results polled at the National Assembly primary election shall be recorded on the official result sheet Form- Code PD004/NA. Clause 32.a provides that no result shall be upheld as valid until it has been entered into the appropriate form PD004/NA designated for it. The result sheet Form-Code PD004/NA is an internal result sheet for the 2nd Respondent.
The 2nd Respondent had conducted its National Assembly primaries through its Electoral Panel appointed for Akwa Ibom State; see Clause 27.iv of the 2nd Respondent’s Electoral Guidelines (EGPE). The Report of the said Electoral Panel was annexed as Exhibit G in the counter affidavit of the 2nd and 3rd Respondents. Exhibit G does not purport to be the result sheet Form- Code PD004/NA, but rather an official report on the said primaries issued by the Electoral Panel and addressed to the leadership of the 2nd Respondent which set it up. The fact that result sheet Form- Code PD004/NA was not exhibited does not imply or mean it does not exist. Rather the 2nd and 3rd Respondents exhibited the official report of the Electoral Panel, which has not been shown to be ersatz or inauthentic.
Exhibit G1 is the official report of the Resident Electoral Commissioner on the conduct of the National Assembly Primaries in Akwa Ibom State, addressed to the Director, Political Party Monitoring and Liaison of the Headquarters of the 1st Respondent. Specifically on the primaries in issue herein, the said report reads:
“For Ikot Ekpene/Essien/Udim/Obot Akara Federal Constituency/Senatorial District primaries which was held at Ikot Ekpene Township Stadium, the monitoring team comprising,
(1) Mr. Emmanuel Agwu
(2) Mr. Effiong Bassey Eno
(3) Mr. Isaac Etim Obot
(4) Mr. Udeme Elensi
turned in the following report:
There was consensus arrangement which produced Barr. Saviour Peter Udo as the sole candidate. In compliance with the guidelines however, he was voted for, polled 705 votes and was accordingly declared nominated.”
The Appellant had deposed in paragraph 23 of his supporting affidavit that:
23. That the 1st defendant’s observers and other security reports clearly attested to these claims of irregularities.
Exhibit G1, which is the official report of the 1st defendant’s observers does not support this deposition.
From the counter affidavit of the 2nd and 3rd Respondents, it is evident that the notion of a ‘consensus’ candidate or a candidate that is sponsored by the party upon taking into account geographical spread, otherwise known as ‘zoning’, is not totally strange or unknown. The 2nd and 3rd Respondents averred in paragraphs 3 and 6 of their counter affidavit that in 2006, the 3rd Respondent contested the PDP Senatorial primaries election and won. He was issued with a Certificate of Return. But, in view of the 2nd Respondent’s internal consensus arrangement, he withdrew his aspiration and candidacy to allow for harmony and concord in the Party in satisfaction of a zoning formula, which brought in Senator Aloysius Etuk. The said Certificate of Return, which was annexed as Exhibit B, reads thus:
“Barr. Saviour F. P. Udoh                            December, 8th, 2006
Ikot Ekpene Senatorial District
Akwa Ibom State
CERTIFICATE OF RETURN
This is to inform you that you hove been returned as the duly elected member of National Assembly (Senate) in line with the People’s Democratic Party (PDP) Electoral Guidelines.
Kindly accept our congratulations.
signed                                                           signed
Jibril Tafida                                                 Nasir Isa Abubakar
Chairman                                                     Member/Secretary
PDP Electoral Panel                                    PDP Electoral Panel
Akwa Ibom.                                                 Akwa Ibom.”
These averments and exhibit were not seriously challenged by the Appellant. He simply stated in paragraphs 5 and 7 of his Further and Better Affidavit that he denied the averments in certain paragraphs of the counter affidavit of the 2nd and 3rd Respondents, including paragraphs 5 and 6, and that he put them to strict proof of those facts. The contents of Exhibit B reproduced above, were not specifically denied.
Article 12.73 of the 2nd Respondent’s Constitution, provides:
The decisions of the National Executive Committee shall be binding on all organs and members of the party.
See also Clause 27.xii of the EGPE which provides that:
Notwithstanding the provisions of these Guidelines and any other rules or regulations laid down by the Party, the decision of the National Working Committee shall be final and binding on all aspirants, officers and organs of the party in respect (sic) the primary election to the National Assembly on the platform of the party.
It is clear therefore that the principle or notion of zoning to accommodate geographical spread, leading to consensus candidates, was not novel for the 2nd Respondent and a fortiori, its members. If the 2nd Respondent, as it had in the post done, chose to present a consensus candidate for the election of 2011, it was their prerogative. This prerogative is not subject to judicial castigation or modification or alteration. And the members of the political party having freely elected to be members and having freely given their consent to be bound by rules and regulations of the party, are so bound. In Onuoha v. Okafor (supra) the Supreme Court said:
“The party, like any other corporation, operates within the guidelines, the powers and duties set out in its constitution. All its members are bound by its provisions and their rights and obligations created by their constitution can be remedied as provided by the constitution if breached by any of its members.
See also: Ararume v. INEC (2007) 9 NWLR (Pt. 1038) 127; Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310.
It should also be clear that the requirements provide in Section 35 of the Electoral Act are not applicable in this matter, contrary to the assertion of the Appellant. Section 35 provides that:
A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election.
These provisions relate a situation when primaries have been concluded and the candidate in question is nominated as the party’s flag bearer. If such candidate wishes to withdraw at that stage, he shall make his intention known in writing to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 45 days to the election. These provisions are inapplicable in situations where a person has not been presented or nominated by the political party as its flag bearer. See also Sections 31(1)(a) and 33.
These proceedings were commenced in the lower court by way of Originating Summons. There is no other evidence tendered by the Appellant in support of his allegations. The 1st Respondent, which is on independent party and which the Appellant deposed witnessed the alleged irregularities, wrote a report, Exhibit G1, refuting that the alleged irregularities took place. See also the counter affidavit of the 1st Respondent. There was no report from any security officials who the Appellant stated also witnessed the alleged irregularities. No other affidavit evidence was presented to the court.
The unsubstantiated allegations before the trial court led the learned trial Judge to state:
“Without expecting must (sic) from the Plaintiff outside the various and variegated assertions I have looked for any concrete evidence to substantiate these assertions but I could still not see any and I so hold.”
The learned trial Judge relied on Exhibits G and G1, rightly in my view, to hold that there was an election of which there was a consensus candidate, the 3rd Respondent.
From the affidavit and documentary evidence, the Appellant did not discharge the burden of proof placed on him.
The learned trial Judge was therefore clearly undeserving of the harsh words of the Appellant’s Counsel.
The point had already been made that a declaratory order as sought by the Appellant must always be established by credible evidence. The Court will not grant declarations of right without satisfactory evidence. The Orders sought by the Appellant are hinged on the declaration sought. He has not shown he is entitled to the said declaration, and, therefore to the orders sought.
I find no merit in this appeal. This appeal accordingly fails and is hereby dismissed.
Parties are to bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment delivered by my learned brother Onyekachi A. Otisi, JCA and agree from the affidavit evidence of the Appellant he did not establish his entitlement to the declaratory relief he sought in the originating summons he filed in the case against the 3rd Respondent in particular. He owed and had the burden of proving all the allegations of irregularities which had the effect of vitiating the process of nominating the 3rd Respondent by the 2nd Respondent for the named election on the strength of his deposition. This he failed to do and the evidence of the Respondents, particularly Exhibits G and G1 show that Appellant was not entitled to the declaration sought by him. The claims by the Appellant therefore failed and the High Court was right to dismiss them and for reasons set out in the lead judgment which I adopt, I too dismiss the appeal for lacking in merit.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Onyekachi A. Otisi, J.C.A. I agree that the Appellant did not prove his claims in the High Court. For that, his appeal is unmeritorious and therefore dismissed.

Appearances

Ukpong Eba, Esq., – AppellantFor Appellant

AND

Ilyasu Haruna Yamah, Esq., – 1st Respondent

Chief N. F. N. Ntong, – 2nd and 3rd RespondentFor Respondent