HON. RAMBI IBRAHIM AYALA v. HON. RABI DANIEL & ORS
(2019)LCN/13024(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/J/76/2019
RATIO
EVIDENCE: EVALUATION OF EVIDENCE: DEFINITION
Evaluation of Evidence can be simply described as the consideration of respective evidence by parties to a suit. It involves the determination of the credibility of the respective witness and the ascription of probative value to the evidence before the Court. This is the purport of the Ratio decidendi in the case of MAGAJI V. ODOFIN. (1978) 3-4 page 65 at 67 where Fatayi Williams (of blessed memory former Chief justice of Nigeria said thus:-
In short, before a judge before whom evidence is adduced by parties before him in a civil case comes to a decision as to which evidence he believes or accept and which evidence he rejects should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive;
and
(e) Whether it is more probable than that given by the other party
Finally, after invoking the law, if any that is applicable to the case, the Trial judge will then come to his final conclusion based on the evidence which he has accepted.”PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
AFFIDAVIT: EFFECT OF FAILURE TO FILE COUNTER AFFIDAVIT IN RESPONSE TO AN AFFIDAVIT
Failure to file a Counter affidavit in response to an affidavit in Support to challenge or controvert the depositions in the adverse partys affidavit is deemed to have accepted the fact deposed in the affidavit in support in question. It is also trite that unchallenged and uncontroverted facts in an affidavit are treated as established. See CONTROLLER, NIGERIA PRISON SERVICE V. ADEKANYE (1990) 10 NWLR (PT. 623) 400, AYOOLA V. BARUWA (1999) 11 NWLR (PT.628) 595.PER MUDASHIRU NASIRU ONIYANGI, 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
HON. RAMBI IBRAHIM AYALA Appellant(s)
AND
1. HON. RABI DANIEL
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Gombe in Suit No. FHC/GM/CS/24/2018 delivered by Hon. Justice N. I. Afolabi on the 30th day of January, 2019.
Before that Court, the Appellant as plaintiff vide an Originating summons sought against the Respondents as Defendants the determination of the following questions.
(1) Whether by paragraphs 12 (10) (a), (11) and (12) (a) and (c) of the Electoral guidelines for primary elections 2018 of the 2nd defendant, the Plaintiff is the winner of the primary election for Billiri East constituency seat in Gombe State House of Assembly having scored the highest votes and therefore the flag bearer of the 2nd Defendant in the forthcoming 2019 General elections.
(2)Whether by paragraphs 10 (c), (d) and (e) of the electoral guideline for primary election 2018, the Plaintiff had been validly substituted by the Electoral Appeal Panel of the 2nd Defendant as to up turn his election at the primary Election for Billiri East constituency seat in Gombe State House of Assembly.
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(3) Whether by the provisions of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (As amended) the Plaintiff was accorded fair hearing by the state Electoral Appeal Panel before the result earlier declared in his favour was upturned.
?Consequent upon of the foregoing questions, the Appellant sought for the following reliefs.
(A) A declaration that by virtue of Paragraph 12 (10) (a), (11) and (12) (a) and (c) of the Electoral Guideline for primary Election 2018 of the 2nd Defendant, the Plaintiff is the valid winner of the primary election conducted on 4th October, 2018 at Billiri Township stadium Gombe State for Billiri East Constituency seat in Gombe State House of Assembly.
(B) A. Declaration that the 2nd Defendant?s State Electoral Committee Report dated 5th October, 2018 which substituted the decision of the returning officer that the Plaintiff validly won the primary election immediately after the primary election was physically conducted on 4th October 2018 is wrongful, null and void.
?(C) A Declaration that the decision of the State Electoral Appeal Panels of the 2nd Defendant dated 6th October, 2018 which substituted the
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name of the Plaintiff with that of the 1st Defendant as the flag bearer of the 2nd Defendant in the Billiri East Constituency seat of the Gomabe State House of Assembly Election in the forthcoming 2019 General election is unconstitutional, null and void having been made without regard to the hallowed principle of justice and fairness.
(D) A Declaration that the Plaintiff is entitled to be recognized by the 3rd Defendant as the legitimate and duly nominated candidate of the 2nd Defendant being the valid winner of the Primary Election conducted on 4th October, 2018 at Billiri Township Stadium Gombe State for the Billiri East Constituency in Gombe State House of Assembly.
(E) A Perpetual Injunction restraining the 1st Defendant from parading herself as the flag bearer of the 2nd Defendant in the Billiri East Constituency seat in Gombe State House of Assembly in the forthcoming 2019 General Election
(F) A Perpetual injunction restraining the 2nd Defendant from violating and undermining the provisions of the Electoral Guidelines for Primary Elections 2018 through which the Plaintiff was validly elected and declared winner of the declared winner of the
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primary election for Billiri East constituency seat in Gombe State House of Assembly and therefore the flag bearer of the 2nd Defendant in the forthcoming 2019 General Elections.
(G) A mandatory Order compelling the 2nd Defendant to submit the name of the Plaintiff to the 3rd Defendant?s nominated candidate as the winner of the Primary election for Billiri East Constituency seat in Gombe State House of Assembly and therefore, the flag bearer of the 2nd Defendant in the forthcoming 2019 General Elections.
In support of the Originating Summons the Appellant filed a 44 paragraphs Affidavit. Attached to it are 7 exhibits marked exhibit AM 1 ? AM 7. They are:
(1) Exhibit Am 1:? PDP membership card.
(2) Exhibit Am 2: ? Constitution of the P. D. P (2017) as amended.
(3) Exhibit AM 3:? P.D.P Guide lines for Primary Elections.
(4) Exhibit Am 4:? form code PD004 /SA.
(5) Exhibit AM 5:- Letter of Counsel dated 19/10/2018.
(6) Exhibit AM 6:- Report of the State Electoral Committee.
(7) Exhibit AM 7:- Report of the Electoral Appeal Panel.
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Also attached are Appendix 1, 2, 3a and 3b respectively and a written address dated and file on 30th day of October 2018 through which the Appellant urged the trial Court to sustain the Originating summons and grant all the reliefs sought.
At the proceeding of 21st day of November 2018 the trial Court set down the suit for 28th day of November 2018 for hearing. On the foregoing return date the learned Counsel representing the 1st and 2nd Respondent told the Court that the 1st and 2nd Defendants were served with the Originating summons on the 8th and 9th of November 2018 respectively and hence they are within time to file their processes. By consent of Counsel the matter was adjourned to 5th December 2018 for hearing. On the said date, the defence of the 1st and 2nd Respondent was still not before the Court. A request was made by the defence Counsel for a stand down but was met by a strong objection.
The learned trial Judge ruled in favour of Plaintiff objector, refused the application for a stand down and proceeded to hearing.
The Appellant adopted his processes and written address and urged the Court to grant all the reliefs sought.
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The 1st and 2nd Respondent who had no counter affidavit nor written address before the Court briefly commented on the submission of the learned Counsel representing the Plaintiff and urged the trial Court to refuse the reliefs sought by the Plaintiff in the interest of justice. The 3rd Respondent did not file any process in this Appeal.
At this stage, I consider it proper to state in brief the fact upon which the case of the Appellant before the trial Court is predicated.
Both the Appellant and the 1st Respondent being card caring members of the 2nd Respondent the People?s Democratic Party were candidates along with other contestant at the Primary Election for Billiri East constituency seat of Gombe State House of Assembly which took place on the 4th day October 2018 at Billiri Township stadium Gombe State. It is on Record that 49 eligible delegates were accredited for the Election. The Election took place and delegates voted for candidates of their choice. There after the votes were counted. It is the case of the Appellant that he scored a total 25 votes while the 1st Respondent polled 24 votes.
?
Relevant form PD004 / S A was filled and issued to him as the winner of the delegate primary Election
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and other contestant. Himself and his supporters left the place jubilating his success at the poll. Not quite long information reached him that the ballots Box was hijacked and taken away. Again he was informed that the 1st Respondent complaint and alleged that one of the ballots papers in her favour was counted infavour of the Appellant. An alleged recount took place somewhere in his absence and also a complaint was lodged before the State Electoral Committee who issued a report which gave reason that the returning officer made a mistake in the counting of ballot papers resulting in declaring erroneously the Appellant as winner but after a recount they concluded that the 1st Respondent is the winner of the Primary election as a candidates to represent Billiri East constituency for the House of Assembly Election now pooling 25 vote against the alleged 24 votes scored by the Appellant.
The view was affirmed by the Appeal Panel of the Party. It is the case of the Appellant that at both the process of the allege recount of the Ballot papers the proceeding before the Appeal Committee of the Party, he was neither invited nor present. All he saw was that the
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1st Respondent and others were issued with nomination forms and he was not issued with any. He registered his complaint but when he realized that it was not going to yield any success hence his suit by way of an originating summons before the trial Court.
The learned trial Judge in his considered judgment concluded as follows (see pages 477-478 of the Record of Appeal);
?From the affidavit evidence before the Court it is clear that the Plaintiff was aware that something had gone a miss, if his evidence of Ballot snatching and voting outside of Billiri Local Government is to be believed but instead of going by the guidelines, he elected to call the State governor and visit the custodian Hotel with his ?agitated? supporters. A Party cannot be found to cry foul if he fails to avail himself of the opportunity given him.
Finally I find that the issue of fair hearing has not arisen since there is no credible evidence before this Court that the Plaintiff was duly returned elected. How much more rubbed of his victory. It is trite that he who asserts must prove. Plaintiff has failed to prove the substance of his allegations before this
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Court and to show why the Court?s discretion should be exercised in his favour.
Plaintiff failed to provide any evidence of ballot snatching taking place outside Billiri East Local Government Area and at the custodian hotel and finally that he was returned elected at the P. D. P Primaries. I therefore, find the reliefs sought by the Plaintiffs to be unsupportable by the evidence before this Court if anything the evidence points in the opposite direction. On the whole, I find the Plaintiff?s claim to be without merit and the Plaintiff not deserving of the relief sought, and his Originating Summons is hereby dismissed with cost N30,000.00 awarded in favour of the 1st and 2nd Defendants jointly. This is the Judgment of this honourable Court.”
Dissatisfied with the foregoing outcome of the trial, the Appellant filed his notice of Appeal containing nine grounds on the 12th day of February, 2019.
They grounds are:-
GROUND OF APPEAL
(1) The decision of the trial Court cannot be supported having regard to the weight of evidence on record.
(2) The learned trial judge erred in law by relying on a counter.
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Affidavit annexed with an Exhibit (1) filed by the 1st and 2nd Respondents but which was never served on
