INC. TRUSTEES OF UNITED VISIONARY YOUTH OF NIGERIA v. SUKUBO (2021)

INC. TRUSTEES OF UNITED VISIONARY YOUTH OF NIGERIA v. SUKUBO

(2021)LCN/15002(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/A/701/2020

RATIO

ELECTION MATTERS: DEFINITION OF THE WORD “BYE ELECTION”

The word bye election was defined in the case of PPA & ANOR V INEC & ORS (2009) LPELR-4864(CA) thus:
“The Electoral Act does not provide a definition for the phrase ‘bye election’. Black’s Law Dictionary, 8th Edition defines a ‘Bye-Election’ at Page 557 as, “an election specifically held to fill a vacant post”. This Court in the case of LABOUR PARTY V INEC (2008) 13 NWLR (PT 1103) 73 relying on the definition of ‘bye-election’ and ‘general election’ under Section 164 of the Electoral Act settled the question as to the meaning of a bye-election as opposed to a general election under the Electoral Act. It held at pages 102-104 as follows:- “….a general election involves an election at regular intervals to fill all the seats available in the entire constituency, whereas a bye-election refers to an election to fill a particular vacant seat or position created either by death, resignation or impeachment.” The Court went further and held:- “Where a general election has been held and there is a false start for example a candidate who ought to be part of the election but was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of Court or Tribunal, and a re-run, a restart is ordered, it is in my humble view that the re-run or re-start refers to that general election cancelled or nullified and not a bye-election.” This decision was affirmed by the Supreme Court in the same case of LABOUR PARTY V INEC (2009) 6 NWLR (PT 1137) 315. It held at page 339 paragraphs E-G Per Ogbuagu, JSC as follows:- “The Court of Appeal did not order a bye-election which by the said definition herein reproduced, is ‘an election specifically held to fill a vacant post.” There was no vacant post to be filled, no one died and no one was removed as Governor by an impeachment. So Section 32(7) of the Act, as held by the Court below is inapplicable. I also so hold. The said nullification of the election was because of the unlawful exclusion of the Action Congress and its candidate by INEC. Since the said election was void, common sensically and in fact and in law, it is the same candidates that will ‘run’ in the aborted/nullified election that must go back to run in the Fresh election as ordered by the Tribunal which was affirmed by the Court of Appeal.” Per ABBA AJI, J.C.A.
In comparison, the word bye-election is an election to fill a vacancy created and generally, such situations are created by death, incapacitation, resignation or removal for acts of misconduct. It is not an election that comes periodically after the expiration of tenure. PER YARGATA BYENCHIT NIMPAR, J.C.A.

DOCUMENT: ATTITUDE OF THE SUPREME COURT ON THE INTERPRETATION OF DOCUMENTS

And in the interpretation of documents, the apex Court on the interpretation of documents had this to say in the case of UNION BANK V OZIGI (1994) LPELR-3389(SC) thus:
“… the words in a document must first be given their simple and ordinary meaning and under no circumstances may new or additional words be imported into the text unless the document would be, by the absence of that which is imported, impossible to understand. The presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand.

See Solicitor General, Western Nigeria v. Adebonojo (1971) 1 ALL NLR 1978.” Per ADIO ,J.S.C.
See also the following cases GANA V. SDP & ORS (2019) LPELR-47153 (SC); OMOIJAHE V. UMORU & ORS (1999) LPELR-2645(SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.

EVIDENCE: WHETHER ORAL EVIDENCE IN SUPPORT OF A DOCUMENT CAN STAND WITHOUT PRODUCTION OF THE DOCUMENT

Oral evidence in support of the existence of a document without producing the document cannot stand, see AGBAREH & ANOR V MIMRA & ORS (2008) LPELR-43211(SC) which held as follows:
“Documentary evidence in this matter, is crucial. There is therefore, in fact, speaking for myself, no need for any oral evidence which may amount to giving evidence in respect of the contents of a document or documents. This is because of the settled law firstly, that prima facie, oral evidence will not be admitted to prove, vary or alter or add to the term of any contract which has been reduced into writing when the document, is in existence except the document itself. See the cases of Da Rocha v. Hussain (1958) 3 FSC 89 at 92 (1958) SCNJ 280 and S.C.O.A. (Nig.) Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt.138) 380 at 389 and many others. Secondly, documentary evidence it is settled, is the best evidence. See the case of The Attorney-General, Bendel State & 2 Ors. v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

INCORPORATED TRUSTEES OF UNITED VISIONARY YOUTH OF NIGERIA APPELANT(S)

And

AMBASSADOR SUKUBO SARAIGBE SUKUBO RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court of the Federal Capital Territory sitting in Abuja and delivered by HON. JUSTICE A. O. MUSA on the 12th August, 2020 wherein the lower Court dismissed the suit of the Appellant for lack of merit and further granted all reliefs sought in the unchallenged Counterclaim filed by the Respondent. The Appellant dissatisfied with the judgment, filed a Notice of Appeal dated 17th August, 2020 setting out 8 grounds of Appeal as contained in its Notice of Appeal.

Facts leading to this appeal are amenable to brief summary. I shall do so shortly. The Appellant herein is a youth movement under the umbrella of the United Visionary Youth of Nigeria and a registered member of the National Youth Council of Nigeria (NYCN). The Respondent claims to be President of the NYCN. The Appellant had approached the lower Court via her originating summons to question the purported election that produced the Respondent as the President of the NYCN. According to the Appellant, the purported election that produced the Respondent was not in compliance with the

provisions of the Constitution. The Appellant therefore sought to know the validity of the purported election which was not conducted in accordance with constitutional provisions. The Appellant further sought the lower Court to set aside the purported congress election from where the Respondent emerged as the President and also prayed the lower Court to restrain the Respondent from parading himself as the President of the NYCN. The suit was dismissed and the Appellant was dissatisfied with the decision thus this appeal.

The Appellant’s brief settled by OLUWOLE ADAJA, ESQ., dated 27th August, 2020 and filed on the same day, it formulated three issues for determination as follows:
1. Whether in view of the clear provisions of Article 13 (B) and Schedule 2, Para. E of the Constitution of the National Youth Council of Nigeria, the lower Court was right when it held that the Appellant did not discharge the burden of proof that the Constitution was not complied with in the election of the Respondent and as such, the election did not follow due process of law. (Distilled from Ground 1, 2, 3, 7 and 8 of the Notice of Appeal).
2. Whether in the light

of the unchallenged affidavit evidence of the Appellant before the lower Court, it was right when the lower Court failed to nullify the purported election of the Respondent and restrain him from parading himself as the President of the National Youth Council of Nigeria (Distilled from Ground 2)
3. Whether the lower Court was right when it held that the counterclaim was undefended and thereafter proceeded to grant the reliefs sought by the Respondent/Counterclaimant. (Distilled from Ground 5).

The Respondent’s Brief was settled by MUSTAPHA SHABA IBRAHIM, ESQ., dated 1st September, 2019 and filed same day. He formulated issues for determination as follows:
1. Whether having regard to the Appellant’s failure to discharge its burden of proof during trial, the lower Court was not right in holding that the Respondent was validly elected as the extant President of the National Youth Council of Nigeria in accordance and compliance with the Constitution of the NYCN (Distilled from Ground 1, 2, 3, 7 and 8 of the Notice of Appeal).
2. Whether the Lower Court was not right when it held that the Counter claim filed by the Respondent

against the Appellant was undefended and thereafter proceeded to grant the reliefs sought by the Respondent/Counter Claimant. (Ground 5 of the Notice of Appeal).

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant argued that this issue borders on whether the purported election that produced the Respondent which was not in compliance with the Constitution of the National Youth Council of Nigeria in which the lower Court was in error when it held that the congress election whereat the Respondent was elected was in accordance with the dictate of the Constitution of the Association which was not supported by evidence. The Appellant tendered Exhibit D which is the Constitution of the NYCN and which stipulates when and how the election of National officers of the Association must be conducted which did not contemplate the exercise of discretion. The Appellant contended that the requirements of calling on other member bodies to issue notice and also to make representations in any scheduled election to elect national officers of the association was not complied with in this case. The Appellant further argued that their rights to send representatives

and nominate candidates for the election were violated and they were systematically disenfranchised. The Appellant reproduced the provision of the Constitution of NYCN (Art. 13.6) that was breached and the second schedule of the Constitution under voting section. The Appellant states that the law is trite that when the wording of a statute is clear, Courts will give value to the unambiguous words of the statute as held in NNABUDE V. GNG (W/A) LTD (2010) 15 NWLR (PT. 1216) 365 and NDOMA-EGBA V. CHUKWUOGOR & ORS (2004) LPELR-1974(SC). The Appellant also reproduced the provision of Article 13 (B) of the NYCN Constitution. The Appellant submits that from the evidence tendered, it is clear that the National Youth Council of Nigeria did not adhere to the provision of their constitution in the events leading to the congress election. Continuing, the Appellant states that all the Respondent was required to do was to produce evidence that these provisions of the Constitution was complied with, but failed to do because all requirement were conspicuously absent in the case yet the lower Court arrived at the perverse conclusion that the election of the Respondent

followed due process of the law. From the provision of the Constitution the word “Shall” was used to imply compulsion as held in ADAMS V. UMAR & ORS (2008) LPELR-3591 (CA). The Appellant reproduced the holding of the lower Court where the Court did not take cognizance of these mandatory provisions.

The Appellant argued also that the provisions were not complied with and the Respondent had no tangible response to the said evidence. The Appellant submits that it commenced the suit by originating summons to enable the trial Court interpret the provisions of the Constitution, however, the trial Court gave prejudiced interpretation which is not supported by evidence. The trial Court relied on Exhibit SK which was tendered by the Respondent, the Appellant objected to the admissibility of the said Exhibit but the Court below attached probative value to the said Exhibit. The Appellant states that the law is settled that an inadmissible document though wrongly admitted by the Court would be expunged at the Appellate Court as held in FASINA V. OGUNKAYODE (2005) 12 NWLR (PT. 938) 147; The Appellant urge the Court to expunge Exhibit SK from the record

for being inadmissible in evidence, even if the Appellant did not object to its admissibility, that does not render the said Exhibit SK admissible in law, relied on FRN V. BARMINAS (2017) 15 NWLR (PT. 1588) 177. The Appellant states that it duly discharged the burden of proof on it and that the lower Court wrongly held otherwise.

ISSUE TWO
The Appellant argued that the lower Court failed to consider the unchallenged affidavit evidence of the Appellant which made it to arrive at a perverse decision. The Appellant states that matters commenced by originating summons are determined on affidavit and documentary evidence and the affidavit and documentary evidence presented by the Appellant were reliable and credible than those presented by the Respondent which did not support his case. The Appellant submits that in the counter response of the Respondent, he failed to directly contradict the case of the Appellant, it is the law that to contradict facts in an affidavit, the opposing party must file a counter affidavit, relied on C.P.C. V. LADO (2011) 14 NWLR (PT. 1266) 40. The Appellant submits that the Respondent instead of contradicting the case of the

Appellant argued in opposite direction thereby leaving the case of the Appellant undefended. It submitted further that it is settled that an uncontradicted evidence is deemed admitted, referred to YAR’ADUA V. YANDOMA (2015) 4 NWLR (PT. 1448) 123 and OSHINAYA V. COP (2004) 17 NWLR (PT. 901) 1. The Appellant reproduced the content of their affidavit. The Appellant submitted that the trial Court ought to place the evidence of parties on the scale of justice before making a decision, however, the Judgment of the lower Court had been lopsided in favour of the Respondent who presented nothing believable before the Court. The judgment of the lower Court thus based on speculation and conjecture. Courts have been enjoined not to speculate as held in the case of LADOJA V. AJIMOBI (2016) 10 NWLR (PT. 1519) 87 and NITEL PLC V. MAYAKI (2007) 4 NWLR (PT. 1023) 173.

The Appellant argued that the Respondent failed to attack the deposition of the Appellant thereby making the Appellant’s assertion undefended. Also the Appellant states that the Respondent failed to contradict the averments of the Appellant though the Respondent asserted that notices were sent to

member bodies, he did not deny that the election was marred by several irregularities and in contravention of the Constitution of the NYCN. The Appellant assert that its case was supported by documentary evidence while the Respondent’s case was without any foundation, citing BOARD OF MGT FMC MAKURDI V. ABAKUME (2016) 10 NWLR (PT. 1521) 536. Continuing, the Appellant states that the lower Court did not advert its mind to the obvious fact that the preconditions as stipulated in the Constitution of the NYCN were not complied with and that the election which disenfranchised a handful of other members was not in accordance with the Constitution. That where a law stipulates how a thing should be done, anything to the contrary means that thing has not been done, it was stated in AMAECHI V. INEC (2008) NWLR (PT. 1080) 227; ABUBAKAR V. NASAMU (NO. 2) (2012) 17 NWLR (PT. 1330) 523 and FAGBENRO V. AROBADI & ORS (2006) LPELR 1227.

ISSUE THREE
The Appellant contend that from the Counterclaim of the Respondent, it is clear that he did not raise any live issue for the determination, the reliefs sought are incompetent as the Respondent did not seek the

leave of Court before filing the counterclaim, it is trite law that failure to seek leave where leave is required is fatal as held in UBN PLC V. SOGUNRO (2006) 16 NWLR (PT. 1006) 504. The Appellant submits that the trial Court was in error when it considered the counterclaim of the Respondent considering that the Appellant answered the sole question of Respondent in its affidavit and documentary evidence. It is trite that the Respondent was bound to succeed on the strength of his case and not on the weakness of the defence and it is also trite that in view of the declaratory reliefs sought by the Respondent, the lower Court ought to have determined same based on the evidence before it and not on the absence of a defence to the counterclaim, cited AKINBADE V. BABTUNDE (2018) 7 NWLR (PT. 1618) 366; OLUBODUN V. LAWAL (2008) 17 NWLR (PT. 1115) 1; DUMEZ NIG. LTD V. NWAKHOBA (2008) 18 NWLR (PT. 1119) and OGOLO V. OGOLO (2006) NWLR (PT. 972) 163. The Appellant submits that there is no basis for the grant of the relief sought by the Respondent in his counterclaim because the purported election which he claims to have won did not comply with the Constitution of the NYCN. It is settled that the duty of the

Court is to determine the dispute between parties and resolve issues brought before it based on the evidence presented before it. Relied on AKITI V. OYEKUNLE (2018) 8 NWLR (PT. 1620) 182 and PETER ADEBOYE ODOFIN & ANOR V. CHIEF AGU & ANOR (1992) 3 NWLR (PT. 229) 350.

Finally, the Appellant urge the Court to resolve the three (3) issues formulated above in favour of the Appellant, set aside the perverse judgment of the lower Court and allow this appeal in the interest of justice.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent argued that from the pleadings of the Appellant which can be found at Pages 1-69 of the Record, it would reveal that the Appellant is challenging the validity and legality of the 5th – 7th August, 2018 election which produced the Respondent as the extant President of the National Youth Council of Nigeria on account of failure of the National Management Council of the NYCN to comply with the mandatory requirements of Article 13(6) (b) and Paragraph E of the Second Schedule under voting in the Constitution of the NYCN and the conduct of the election that produced the Respondent as the valid

President of the NYCN. The Respondent states that the Appellant erroneously alleged failure of the NYCN to comply with the mandatory requirements of Article 13(6) (b) and Paragraph E of the Second Schedule and such vitiates and invalidates the election that produced the Respondent as the extant President of the NYCN. The Respondent reproduced the provision of Article 13(6) (b) and Paragraph E of the Second Schedule and states that the Article relates to a bye-Election to be conducted by the Council to fill up a vacant executive position as a result of death, incapacity etc. The Respondent submits that the law is long settled that in construing the provisions of a statute where the words are clear and unambiguous, it is the words used that should govern as held in ATUYEYE V. ASHAMU (1987) 1 SC 358; ADEWUMI V. A.G. EKITI STATE (2002) 2 NWLR (PT. 751) 474. The Respondent contends that the Appellant failed to understand that Article 12 of the Constitution of NYCN regulates the general election while Article 13.6 regulates bye elections, making paragraph E under Schedule 2 in respect of Voting under the Constitution of NYCN inapplicable to the election that

produced the Respondent as the extant President of the NYCN because such does not and cannot be interpreted to vitiates or invalidates the said election.

The Respondent argued also that the case of the Appellant is frivolous and bereft of any modicum of merit as such liable to be dismissed with utmost ignominy by this Court. The Respondent submits that the election was also conducted in a peaceful atmosphere in Port Harcourt, River state and in compliance with NYCN Constitution and after the truce meeting wherein it was agreed that the tenure of the Respondent was to commence from 5th March, 2020, the Appellant’s challenge of the validity and legality of the election contravened the provision of Article 12.5 (iii) of NYCN Constitution which stipulate that petitions to elections conducted by the Council shall be submitted to the Election Petition Committee not later than 4 days from the date of the election. The law is trite that when a law prescribes or stipulates the mode of doing something, anything done contrary to the prescribe or stipulated mode renders that act done null and void as held in KAMBA V. BAWA (2005) 4 NWLR (PT. 914) 43 and

AMAECHI V. INEC (2008) 5 NWLR (TP. 1080) 227 318. Continuing, the Respondent states that the Appellant through one of the Trustees (Mr. Abubakar Musa Abutu) deposed to the affidavit in support of the Originating Summons (See Pages 7-12 of record) and admitted to have gotten wind of the emergence of the Respondent as the valid President of the NYCN for a four year term but deliberately kept mute only to resurface out of the blues after 2 years to institutes the frivolous suit which gave rise to this instant appeal and he also made mention of a letter of protestation but did not attached it to the originating summons (See P. 10 of Records) and from page 138 of the record of appeal it is clear that such did not exist as deposed to by the Appellant. According to the Respondent, the Appellant failed to discharge its duty of proving its case and relinquishing same to the lower Court whereas the law has cautioned Judges against it in the case of MINISTER, FMH V. U.D. BELLO (2009) 12 NWLR (PT.1155) 345.

The Respondent further argued that the Appellant failed to prove the Constitutional provision that makes the issuance of notice for nomination and representation in

respect of the election that produced the Respondent as the extant President of the NYCN as held by the lower Court (at pages 124 and 125 of the record). This was after the Court below duly considered Exhibit SK which was never denied, refuted nor challenged by the Appellant during hearing (See pages 104 and 105 of record). Also, the Respondent submits that the Appellant’s sudden decision to resurface out of the blues after 2 years of the conduct of the valid election despite submitting itself to the lawful conduct of the said election as evidenced by Exhibit SK is not only an ignoble and dishonourable act but also amounts to approbating and reprobating which the law frown at as held in OLEKSANDR V. LONESTAR DRILLING CO. LTD (2015) 9 NWLR (PT. 1464) 337. The Respondent submits that the Appellant has without any iota of doubt failed to discharge its burden of proof to warrant the Court dismiss the well considered judgment of the lower Court which is grained in law and grounded in evidence and also rightly held that the Respondent was validly elected as the extant President of the NYCN in accordance and compliance with the constitution of the NYCN.

Finally, the Respondent urge this Court to resolve issue one in favour of the Respondent.

ISSUE TWO
The Respondent in arguing issue two defined the word “defend” according to BLACK’S LAW DICTIONARY NINTH ED in order to ascertain whether or not the Appellant can be said to have defended the Respondent’s counter Claim even in the face of the blatant failure to controvert or challenge the supporting Affidavit to the Counter claim filed by the Respondent. The Respondent submits that the word “Undefended” means the direct opposite of the word “defend” and allegation and claim is said to be undefended when it is not denied, uncontested or unopposed. Judicial authorities states how depositions in an affidavit are contested by an adverse party and the law is settled on the effect of failure of the adverse party to challenge the dispositions in an affidavit, relied on THE HONDA PLACE LTD V. GLOBE MOTOR HOLDING NIGERIA LTD (2005) LPELR 3180 (SC); OGOEJOFO V. OGOEJOFO (2002) 12 NWLR (PT. 780) 171 and AIZEBOJE V. EFCC (2017) LPELR-42894(CA). The Respondent submits that paragraph 9 of the affidavit in support of the

Respondent’s counterclaim was neither controverted nor defended vide a sworn affidavit, which made it undefended as rightly held by the lower Court in its well considered judgment where it granted the reliefs sought in the counterclaim. Accordingly, the Respondent urge the Court to hold in accordance to the clear words of Exhibit SS2 which can be found at page 88 of Record, that the Respondent’s tenure commenced from 5th March, 2020.

RESPONSE TO APPELLANT’S ISSUE ONE
The Respondent argued that the Appellant erroneously argued that the clear provisions of Article 13.6 and Paragraph E under 2nd Schedule for Voting under the Constitution of the NYCN were not complied with in the 5th – 7th August, 2018 election that produced the Respondent as the extant President of the NYCN, however, the provision of the above mentioned statute relates to Bye-Elections to be conducted to fill vacant spaces and not the general election like the 5th – 7th August, 2018 election that produced the Respondent as the extant President of the NYCN. The case of NDOMA-EGBA V. CHUKWUOGOR & ORS (2004) LPELR-1974(SC) cited and relied on by the

Appellant’s Counsel is self-defeating and unhelpful to the Appellant’s appeal rather it supports the case of the Respondent. The Respondent states that the Appellant in an attempt to relinquish his burden of proof which he woefully failed to discharge during trial was to produce and provide evidence that these requirements were complied with, in response to that, the Respondent states that it was the duty of the Appellant to prove that those provisions were not complied with having asserted and maintained the position that those provisions were not complied with, as it is trite that “he who asserts must prove”, cited VEEPEE INDUSTRY LIMITED V. COCOA INDUSTRY LIMITED (2008) 13 NWLR (PT. 1105). The Respondent further states that the lower Court rightly arrived at its finding after duly interpreting the provisions submitted to it for interpretation by the Appellant, as the provision relied upon does not relate to the election being challenged. The Respondent state that the Appellant argued that he vehemently objected to admissibility of Exhibit SK attached to the Respondent counterclaim, however, from the record of Court, the

Appellant’s Counsel never objected to the admissibility of the said Exhibit SK contrary to what he submitted thereby misleading the Court rather, all was rightly complied with in regard to the admissibility of Exhibit SK under the Evidence Act. Relied on GARBA & ORS V. DIRECTOR GENERAL, BUREAU OF LAND, KWARA STATE & ANOR (2019) LPELR 47722 (CA) and the case of FASINA v. OGUNKAYODE (2005) 12 NWLR (PT. 938) 147 is inapplicable to this appeal.

RESPONSE TO APPELLANT’S ISSUE TWO
The Respondent contends that the arguments and how issue two of the Appellant’s brief was couched is aimed at misguiding and blatant misrepresentation of facts. The Appellant argued that the Respondent failed to challenge the facts contained in its Originating Summons nor did he proffer any challenge to the case of the Appellant at the trial Court which the lower Court ought to have entered judgment in favour of the Appellant but the Respondent in response to the submission of the Appellant, submits that he did proffer a frontal challenge against the case of the Appellant vide his Counter Affidavit and Exhibit SK (See pages 73-78 of records) and the

case of YAR’ADUA V. YANDOMA (2015) 4 NWLR (PT. 1448) 123 and OSHINAYA V. COP (2004) 17 NWLR (PT. 901) 1 cited and relied upon by the Appellant are inapplicable to this appeal. The Respondent further submits that assuming without conceding that the Respondent never filed a Counter Affidavit to challenge the case of the Appellant, the law is trite that in a claim where Claimant seeks declarative reliefs from the trial Court, the Claimant can only succeed on the strength of his case and not on the weakness of the defense. Citing of the following AKINBADE V. BABATUNDE (2018) 7 NWLR (PT. 1618) 366 and BELLO V. EWEKA (1981) 1 SC. The cases of AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227; ABUBAKAR V. NASAMU (2012) 17 NWLR (PT. 1330); FAGBENRO V. AROBADI & ORS (2006) LPELR-1227 and as relied upon by the Appellant’s Counsel under his issue 2 are very unhelpful and inapplicable to his appeal.

RESPONSE TO APPELLANT’S ISSUE THREE
The Respondent argued that regarding the argument of the Appellant under issue three there is no rule of the High Court of the FCT Civil Procedure Rules 2018 that requires or mandates the Respondent to seek the

leave of the lower Court before filing its Counterclaim against the Appellant. The case of UBN PLC V. SOGUNRO (2006) 16 NWLR (PT. 1006) 504 cited and relied by the Appellant is inapplicable to this Appeal and does not help the case of the Appellant. The Respondent submit that the Appellant having not challenged the said counter claim nor appealed against the finding of the trial Court, is bound by same and the law is settled that the decision not appealed against is unassailable as held in PETER SAMUEL UDO V. JACKSON DEVOS LIMTED (2011) LPELR-4845 (CA) 7-8. The Respondent states that the Appellant argued that the lower Court was in error to have considered the Respondent’s Counterclaim in the absence of any tangible defence from the Respondent, in response to that, the Respondent refers to pages 70-78 of records where the Respondent filed a counter affidavit in opposing the originating summons of the Appellant and also filed a counter claim which is a distinct suit from the main suit, which is liable to succeed even in the absence of the main suit as held in BOCAS NIGERIA LTD V. WEMABOD ESTATES LTD (2016) LPELR 40193 (CA). The Appellant filed a defence to

the Counterclaim later in time but it cannot be said to be contained in the Appellant’s Originating summons which was filed long before the Respondent’s filed its counter claim and more so, the oppositions and defence of specific claims are required by law to be done frontally and by specific denial and not by general traverse as held in BAUCHI STATE HOUSE OF ASSEMBLY & ORS V. GUYABA (2017) LPELR-43295(CA).

Furthermore, the Respondent contend that the Appellant argued that it a settled principle of law that in a claim for declarative reliefs, a party is required to succeed on the strength of his case and not on the weakness of the defence, in response, the Respondent submits that his counterclaim is supported by Exhibits SS1 & SS2 as evidence in proof of his claim (See pages 86-88 or record), accordingly, the counter claim succeeded on the strength of the weighty evidence supporting it and not only on account of Appellant’s failure to challenge same. The cases of AKINBADE V. BABATUNDE (2018) 7 NWLR (PT. 1618); OLUBODUN V. LAWAL (2008) 17 NWLR (PT. 1115); DUMEZ NIG. LTD V. NWAKHOBA (2008) 18 NWLR (PT. 1119); OGOLO V. OGOLO (2006)

5 NWLR (PT. 972); AKITI V. OYEKUNLE (2018) 8 NWLR (PT. 1620); PETER ADEBOYE ODOFIN & ANOR V. CHIEF AGU & ANOR (1992) 3 NWLR (PT. 229) cited and relied on by the Appellant are unhelpful and inapplicable to his appeal.

Finally, the Respondent urges the Court to dismiss the appeal with utmost ignominy.

RESOLUTION
I have considered the Notice of Appeal, the Record of Appeal and the respective briefs of the learned Counsel for the parties and I am inclined to adopt the issues distilled by the Appellant, the party with grievance against the judgment appealed against. This way the entire gamut of their complaint shall be considered.

The Appellant before the trial Court filed an Originating summons wherein he presented the following questions for determination:
1. Whether the provisions of Article 13(B) And Schedule 2 (Under Voting, Paragraph E) of the Constitution of the National Youth Council of Nigeria (2014) make it mandatory for the National Management committee to issue notices to all member organizations to make nomination and make representation for any bye-election to fill the position of the National President of the National

Youth Council of Nigeria.
2. Whether upon an interpretation of Article 13(B) And Schedule 2 (Under Voting, Paragraph E) of the Constitution of The National Youth Council of Nigeria (2014); the provisions which include issuance of notices to all member organizations and to make representation for the conduct of any election to fill the position of the President of The National Youth Council of Nigeria was complied with and followed by the National Management Committee in the build-up to the election of the 5th – 7th of August, 2018 that produced the Defendant as the National President of the National Youth Council of Nigeria.
3. If the answer to question 1 & 2 above is in the affirmative, whether in light of the failure of the National Management Committee to comply with the provisions in Article 13(B) And Schedule 2 (Under Voting, Paragraph E) of the Constitution of the National Youth Council of Nigeria (2014), by not inviting the Claimant who is a registered member to the election of the 5th – 7th of August 2018 that produced the Defendant as the National President of the National Youth Council of Nigeria is legal and valid.

Whether the 1st Defendant can continue to act and/or parade himself as the duly elected President of the National Youth Council of Nigeria.
The Appellant also sought the following reliefs:
1. A DECLARATION that the provisions of Article 13(B) And Schedule 2 (Under Voting, Paragraph E) of The Constitution of the National Youth Council of Nigeria (2014) make it mandatory for the National Management Committee to issue notices to all member organizations to make nomination and make representation for any bye-election to fill the position of the National President of the National Youth Council of Nigeria.
2. A DECLARATION that by a proper interpretation of Article 13(B) and Schedule 2 (Under Voting, Paragraph E) of The Constitution of the National Youth Council of Nigeria (2014); the provisions which include issuance of notices to all member organizations and to make representation for the conduct of any election to fill the position of the President of the National Youth Council of Nigeria was complied with or followed by the National Management Committee in the build-up to the election of the 5th – 7th of August, 2018 that produced the

Defendant as the National President of the National Youth Council of Nigeria.
3. A DECLARATION that in light of the failure of the National Management Committee to comply with the provisions in Article 13(B) and Schedule 2 (Under Voting, Paragraph E) of The Constitution of The National Youth Council of Nigeria (2014), by not inviting the claimant who is a registered member to the election of the 5th – 7th of August, 2018 that produced the Defendant as the National President of The National Youth Council of Nigeria renders the election illegal, null and void.
4. A DECLARATION that the Defendant cannot continue to act and/or parade himself as the duly elected President of the National Youth Council of Nigeria.
5. AN ORDER of this Honourable Court setting aside the purported election of the 5th – 7th of August, 2018 held at Port-Harcourt, Rivers State that produced the Defendant as the National President of the National Youth Council of Nigeria.
6. AN ORDER of this Honourable Court restraining the Defendant forthwith from acting and/or functioning as the President of the National Youth Council of Nigeria.
7. AN ORDER of this

Honourable Court setting aside any act, order and instruction purportedly done by the Defendant as the National President of the National Youth Council of Nigeria.
8. AN ORDER of this Honourable Court compelling the National Management Committee of the National Youth Council of Nigeria to within 60 days conduct an election to fill the vacant seat of the President of the National Youth Council of Nigeria.
9. AN ORDER of Perpetual Injunction restraining the Defendant whether by himself, agents, privies, servants or otherwise howsoever from frustrating the National Management Committee from conducting the election to fill the position of the President of the National Youth Council of Nigeria.
10. AN ORDER of Perpetual Injunction restraining the Defendant from parading himself as the President as National Youth Council of Nigeria.
11. And For Such Further Order or Other Reliefs as this Honourable Court may deem just and expedient in the circumstances.

In its determination, the trial Court dismissed the main claim and granted the Counterclaim thus this appeal.

The three issues distilled by the Appellant shall be determined seamlessly

to avoid repetition and for expediency. The Appellant founded his claim on breaches to the Constitution of the National Youth Council of Nigeria in conducting election into the office of the President. This was stoutly challenged by the Respondent. Under issue one and two, the main reference is Article 13(B) and the Schedule 2, paragraph E of the Constitution of the Youth Council. Obviously there is an error in mentioning the relevant Article here, there is no Article 13(B) in the said Constitution. What is there is Article 13(6) and that was the provision considered by the trial Court. I take it that it was a typographical error. I take the liberty to so consider because of the record of Court does not mention Article 13(B) any where therein, even submissions of counsel all referred to Article 13 (6) which provides as follows:
“BYE ELECTION
Whenever there is a vacancy in any office of the National Executive Council, the National Executive Council shall conduct a bye election to fill the vacancy except for the office of President which shall be voted for by the National Management Committee and under the following guidelines:
a. An ad-hoc

Electoral Committee shall be set up to conduct the election within ninety days from the date the vacancy is declared;
b. Notice shall be issued to all state Chapters and members Organizations calling for nominations;
c. The Committee shall issue forms at the same amount of the preceding elections; and
d. The bye election shall be by open secret ballot and a winner shall emerge by simple majority.

It is obvious that the subtitle of Article 13(6) gives an indication for the applicability of the Article and titles though not part of a document, it guides in the interpretation of the document. In this case, the title says “BYE ELECTION”. The word bye election was defined in the case of PPA & ANOR V INEC & ORS (2009) LPELR-4864(CA) thus:
“The Electoral Act does not provide a definition for the phrase ‘bye election’. Black’s Law Dictionary, 8th Edition defines a ‘Bye-Election’ at Page 557 as, “an election specifically held to fill a vacant post”. This Court in the case of LABOUR PARTY V INEC (2008) 13 NWLR (PT 1103) 73 relying on the definition of ‘bye-election’ and ‘general election’ under Section 164 of the Electoral Act

settled the question as to the meaning of a bye-election as opposed to a general election under the Electoral Act. It held at pages 102-104 as follows:- “….a general election involves an election at regular intervals to fill all the seats available in the entire constituency, whereas a bye-election refers to an election to fill a particular vacant seat or position created either by death, resignation or impeachment.” The Court went further and held:- “Where a general election has been held and there is a false start for example a candidate who ought to be part of the election but was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of Court or Tribunal, and a re-run, a restart is ordered, it is in my humble view that the re-run or re-start refers to that general election cancelled or nullified and not a bye-election.” This decision was affirmed by the Supreme Court in the same case of LABOUR PARTY V INEC (2009) 6 NWLR (PT 1137) 315. It held at page 339 paragraphs E-G Per Ogbuagu, JSC as follows:- “The Court of

Appeal did not order a bye-election which by the said definition herein reproduced, is ‘an election specifically held to fill a vacant post.” There was no vacant post to be filled, no one died and no one was removed as Governor by an impeachment. So Section 32(7) of the Act, as held by the Court below is inapplicable. I also so hold. The said nullification of the election was because of the unlawful exclusion of the Action Congress and its candidate by INEC. Since the said election was void, common sensically and in fact and in law, it is the same candidates that will ‘run’ in the aborted/nullified election that must go back to run in the Fresh election as ordered by the Tribunal which was affirmed by the Court of Appeal.” Per ABBA AJI, J.C.A.
In comparison, the word bye-election is an election to fill a vacancy created and generally, such situations are created by death, incapacitation, resignation or removal for acts of misconduct. It is not an election that comes periodically after the expiration of tenure. Now was the election that was conducted between 5th – 7th August, 2018 a bye election or a general election? It was established that the Appellant

was nominated a representatives to the convention that produced the Respondent, see Exhibit SK which is clear and unambiguous. The Appellant failed to react to the said Exhibit to explain the circumstances of the said representation, if it was not the same election that produced the Respondent. Failure to contradict same is deemed an admission of the facts stated therein and the Court can rely on it in arriving at judgment. It was therefore a regular election and not a bye election that the Appellant can call up Article 13(6) in to play. General election for the Council is covered under Article 12 and not 13. Article 12(2) (vi) talks about issuing Notices and also set the criteria for those who qualify to contest, it says:
“… only persons who are serving or had served in the National Executive Council Chairman of a State Chapter or national Executive office of a member organization can vie for the offices of president, deputy president and Secretary General of the Youth Council.”

Does the Appellant qualify to contest even in general elections? He did not allude to his qualification to contest and the Counter Affidavit made it in

clear terms that he is not qualified and he did not rebut nor deny same. So he admitted that he was not qualified to contest or participate in the elections. How then could he have the locus to challenge an election he was not qualified to contest? The provision of the Constitution of the Youth Council is very clear and unambiguous and the Court shall not add or subtract from what is clearly stated therein.

The trial Judge expressed dismay at the conduct of the Appellant because the Appellant could not have written Exhibit SK and still have a justified and legitimate reason to institute the claim. And in the interpretation of documents, the apex Court on the interpretation of documents had this to say in the case of UNION BANK V OZIGI (1994) LPELR-3389(SC) thus:
“… the words in a document must first be given their simple and ordinary meaning and under no circumstances may new or additional words be imported into the text unless the document would be, by the absence of that which is imported, impossible to understand. The presumption is that the parties have intended what they have in fact said so that their words must be construed as they stand.

Now looking at Article 13(6), can anything there suggest that it refers to a general election and not a bye-election? The obvious answer is NO. Was there a vacancy created by death, resignation or removal? Again, the answer is No. So could the Article be relevant here as a challenge to the general election? I say No. So even if the Appellant proffered evidence, as long as he challenges the general election the evidence would have been irrelevant because it will not support the claim which is founded on the Article that governs bye election. And, this was an election he sent representatives to observe. Definitely, the Appellant is estopped by his conduct from challenging the said election, estoppels by conduct is what was considered in the case of NSIRIM V NSIRIM (2002) LPELR – 8060(SC) wherein the apex Court held:
“… it needs be restated that where one by his words or conduct willfully causes another to believe the existence of

certain state of things and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time. This is how the rule in estoppel by conduct otherwise also known as estoppel by matter in pais has been stated. See Joe Iga and Ors v. Ezekiel Amakiri and Ors (1976) 11 SC 1; Gregory Ude v. Clement Nwara and Anor (1993) 2 NWLR (Pt.278) 638 at 662-663.” Per IGUH, J.S.C.

In any case, was there evidence to support the claim as presented by the Appellant? The trial Judge found that there was no evidence to support or establish the claim and I agree with him completely. The Appellant in the affidavit in support said he indicated interest in the office of President and while waiting for notices for nomination, he was informed that the Respondent had been elected as the President of the National Youth Council and his protest yielded no result therefore, the election is unconstitutional, the question is, to which election was Exhibit SK made? Where is the letter of protest as alleged? Oral evidence in support of the existence of a

document without producing the document cannot stand, see AGBAREH & ANOR V MIMRA & ORS (2008) LPELR-43211(SC) which held as follows:
“Documentary evidence in this matter, is crucial. There is therefore, in fact, speaking for myself, no need for any oral evidence which may amount to giving evidence in respect of the contents of a document or documents. This is because of the settled law firstly, that prima facie, oral evidence will not be admitted to prove, vary or alter or add to the term of any contract which has been reduced into writing when the document, is in existence except the document itself. See the cases of Da Rocha v. Hussain (1958) 3 FSC 89 at 92 (1958) SCNJ 280 and S.C.O.A. (Nig.) Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt.138) 380 at 389 and many others. Secondly, documentary evidence it is settled, is the best evidence. See the case of The Attorney-General, Bendel State & 2 Ors. v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.37) 547 at 565.”
Failure to annex the letter of protest defeats that contention of the Appellant and I can safely say there was no protest after the elections that brought in the Respondent as President

and by Exhibit SS2, he was a consensus candidate of 4 factional leaders.

The other impeaching factor which will defeat the claim of the Appellant is the failure of the Appellant to comply with the time frame within which to question any general election. The Appellant waited for 2 years to bring the challenge when the Constitution limits the time to 4 days, see Article 12(5) (iii) which says:
“accepts a petition as valid only if it submitted to the headquarters of the Youth Councils in seven copies in a sealed envelope not later than four days after the election.”
The Appellant who claims to be a qualified member who can contest the election is bound to also comply with Constitutional requirement of presenting the challenge within 4 days and failure to do as constitutionally required further defeats the claim. The Constitution usually is sacrosanct amongst those it applies to and any breach is fundamental. See OSI V ACCORD PARTY & ORS (2016) LPLER-41388(SC) where OGUNBIYI JSC said thus:
“A breach of the Constitution is so fundamental and which cannot be remedied. It is an abuse of process.”

Every member of the organisation is bound to obey their Constitution and it is not discretionary and give no room for exception. The Appellant cannot pick and choose a Constitutional provision to latch on in disregard of another.

The Appellant complained that reliance on Exhibit SK was in error but he did not deny making the document, he merely called it questionable and that documents do not now speak for themselves, it was gratifying that he could not find any authority to back that submission. He further contended that the document was inadmissible without identifying the vitiating factors. It is trite that inadmissible evidence could be expunged even at judgment stage as held in the case of KUBOR & ANOR V DICKSON & ORS (2012) LPELR-9817(SC). The question is, what made the Exhibit illegal? No arguments were proffered on what made the document illegal and therefore that line of argument must be discountenanced. The document was attached to an affidavit and therefore at what stage did the Appellant oppose its admissibility as he submitted? The Appellant did not even file a further and better affidavit to the Counter affidavit so where was the opposition? The said

Exhibit SK was evaluated and duly assessed by the trial Judge before placing reliance on it and the Judge was right in doing so.

Where the claim is not supported by evidence, it must of necessity fail and be dismissed and that was the unfortunate position the claim at the trial Court found itself. Originating summons is determined on affidavit evidence and the Appellant failed to support his claim by requisite evidence. The issue to my mind is not that the evidence was unchallenged but it was that the evidence was worthless as it could not establish the claim and the question sought to be answered must be so answered in the negative. Infact, the case of the Appellant was not well founded particularly when the so called evidence is contrary to Constitutional provisions which are also against the assertion of the Appellant thereby making its case contradictory. Contradiction defeats the interest of a party, it is a house divided within itself, it cannot stand.

I agree with the Appellant that the Constitution of the Youth Council is supreme and that is why in interpreting same, the claim cannot have any leg to stand upon and must collapse.

Having failed to present evidence in support, the Respondent had no duty to rebut.

It is settled that where the law prescribes the method of doing a thing, that should be the method to do the thing, the Constitution said file your Complaint within 4 days and you are filing it in Court after 2 years. The same Constitutional provision relied upon refers to Bye elections and not general elections but the Appellant contends otherwise. I do not agree that the trial Judge abdicated in his duty to evaluate evidence. Evidence was duly evaluated and evaluation is not only seen done when the Court finds for the Appellant. It goes further to place evidence on an imaginary scale for weight and subsequent decision. The Appellant had nothing worthy of placing on the scale.

In the light of above, I resolve issues one and two against the Appellant which was the main claim. The trial Judge was right to dismiss the claim because it was unproved.

On issue three which challenges the counterclaim which succeeded, the Appellant argued that the trial Judge erred in granting the relief named in the counter claim. He submitted that the Respondent should have sought for leave

before counterclaiming, it is settled that where leave is required before a process is filed and leave is not is sought and obtained, such a process is incompetent, see the case of METUH V. FRN & ANOR (2018) LPELR-43706(SC) wherein the apex Court held as follows:
It has long been settled that leave of Court, where it is required, is a condition precedent. Accordingly, failure to obtain leave, where it is required, renders any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court, Nalsa and Team Associates v. N.N.P.C. [1991] 8 NWLR (Pt.212) 652; Nyambi v. Osadim [1997] 2 NWLR (Pt.485) 1; Olanrewaju v. Ogunleye [1997] 2 NWLR (Pt.485) 12; Organ and Ors v NLNG Ltd (2013) LPELR – 20942 (SC) 26; E -G. As this Court held in Odofin v. Agu [1992] 3 NWLR (Pt.229) 350.”
The question is, whether there is any rule of Court requiring leave of Court before the Respondent could file a counterclaim? The Appellant did not cite any Rule of the Rules of the trial Court requiring leave before a counterclaim can be filed. The trial Court, the FCT High Court has no such Rule which requires leave before the filing of a counter claim

and no statute so provides. The argument is discountenanced. A counter claim is a distinct and separate claim, see OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985 apex Court held:
“…a counter claim is always considered as an independent, separate and distinct claim which a trial Court must always consider. A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case.” Per SANUSI, J.S.C.

Usually, a Claimant/Defendant to counterclaim react to the counterclaim by way of filing a reply and or defence to counterclaim. Yes, evidence is taken all at once but applied separately, to the main claim and thereafter to the counterclaim. The trial Court found that the Appellant did not file a reply and or defence to the counterclaim and therefore proceeded to grant the reliefs. The contention of the Appellant was that the Respondent’s reliefs were declaratory and therefore it should not have been granted in the absence of a defence. It is trite that a declaratory relief is generally not granted on admission

which is to say that evidence must be called but where the Defendant fails to deny the claim and call evidence in rebuttal, the Court is duty bound to grant such a claim on the evidence of the counterclaimant no matter how slight. The admission talked about is when evidence is not presented but the Court proceeds to enter judgment. Where the counterclaimant presents evidence and in the absence of defence and evidence from the Defendant to counterclaim, the Court can enter judgment based on the evidence presented which was not challenged.
Declaratory relief cannot be granted on admission without the Claimant presenting cogent and convincing evidence, see MOHAMMED V WAMMAKO & ORS (2017) LPELR-42667(SC) where in the apex Court held thus:
“The law is well settled that in a claim for declaratory reliefs (as in the instant case), the plaintiff must prove his entitlement to such declaratory reliefs by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence (if any). Indeed a declaratory relief will not be granted on the basis of admission by the adverse party. See: Dumez Nig. Ltd. V. Nwakhoba

(2008) 18 NWLR (pt. 1119) 361; Wallersteiner V. Moir (1974) 3 ALL ER 217 @ 251; Bello V. Eweka (1981) 1 SC (Reprint) 63; Emenike V. P.D.P. (2012) LPELR – 7802 (SC); Matanmi V. Dada (2013) LPELR – 19929 (SC).” Per KEKERE-EKUN, J.S.C ( P. 26, paras. A-D)
The Respondent argued that the Appellant had no defence and the evidence allegedly relied upon was filed in support of the main claim and therefore filed before the Counterclaim. The evidence disclosed in the affidavit in support of the Originating summons came earlier to the counterclaim. I must say that if the Appellant believed there was evidence in the supporting affidavit that could be a defence to the counterclaim, so be it and he can rely upon it. It means the counterclaim will be determined based on the evidence from the Counterclaimant and the same evidence considered in support of the main claim. The choice of how to defeat or defend the counterclaim was the sole decision of the Appellant and if his evidence as disclosed in the affidavit in support could not support his claim, the question then arises as to how it can defeat the counterclaim. It is therefore wrong to say there was no evidence

completely in defence of the counterclaim, instead the position is that the evidence relied upon by the Appellant could not defeat the counterclaim. The Appellant had a choice and chose to rest his defence on the affidavit in support of the Originating summons.
The basic and fundamental question to determine here is whether the counter claim was established by the Respondent. The trial Judge on evaluation of the evidence before the Court did not find anything in the affidavit in support which could be a defence to the counterclaim. There was of course no specific defence filed and the evidence relied upon in the supporting affidavit to the originating summons had also no defence to the counterclaim.
The trial Court granted the relief on the basis of absence of defence. This was wrong, because there must be evidence from the Counterclaimant which must be evaluated before a decision. The trial Judge should have evaluated the evidence presented by both sides before arriving at a decision. What the rule says is that the Counterclaimant must satisfy the Court by strong and cogent evidence before a declaratory relief can be granted.

The evidence before the trial Court is documentary and affidavit evidence, therefore the Court is in a position to do that which the trial Court failed to do. This Court can review the evidence in this case to see whether the Counterclaimant established the basis for the reliefs granted. Paragraph 4, 5 and 7 of the affidavit in support of the counterclaim contains facts not reputed or denied by the Appellant and which justified the grant of the reliefs prayed for by the Counter claimant. The Counterclaimant said the election held peacefully, he was congratulated and had assumed office for over two years and the Constitution says any person aggrieved by the outcome of an election had merely 4 days to file a complaint, that the Constitution was to be strictly followed by all members of the association. And also Exhibit SK before the trial Court showed clearly that the Appellant was a nominated representative to the congress that produced the Respondent. Furthermore, that the Appellant/Defendant to counterclaim was not qualified to contest in the election that produced the Counterclaimant. All these facts were not challenged thus admitted. The Appellant having failed to bring

his complaint within the time allowed by their Constitution is estopped from contending otherwise. These points were made out under issues one and two and reasons why the main claimed failed. The facts deposed by the Counterclaimant were not traversed and being affidavit evidence, the Court will act on it. Even though the trial Judge missed a step, the final decision was right because the Counterclaimant established by evidence why the declaratory reliefs should be granted. I also find for the Respondent and resolve issue three against the Appellant.

In the light of the resolution above, I agree with the Respondent that the case of the Appellant is frivolous and bereft of any modicum of merit as such liable to be dismissed for lacking in merit, it is hereby dismissed. The Judgment of the trial Judge, HON. JUSTICE O. A. MUSA delivered on the 12th day of August, 2020 is hereby affirmed.

Cost of N100,000.00 (One Hundred Thousand Naira) only is awarded against the Appellant and in favour of the Respondent.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my

learned brother, Yargata Byenchit Nimpar, JCA.

I am in agreement with the reasoning and the conclusion which I adopt as mine. I too find this appeal lacking in merit. I abide by the consequential orders inclusive of the order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

OLUWOLE ADAJA, ESQ. For Appellant(s)

M. AGBADULU, ESQ., with him, NAFISAH JIBRIN, ESQ. For Respondent(s)