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JOSEPH HEMEN BOKO v. BENJAMIN B. NUNGWA & ORS (2018)

JOSEPH HEMEN BOKO v. BENJAMIN B. NUNGWA & ORS

(2018)LCN/12116(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of November, 2018

CA/MK/24/2016(2)

 

RATIO

EVIDENCE: EVALUATION OF EVIDENCE

“Evaluation of evidence and ascription of probative value to it are preeminently the business of a trial Court. An appeal Court will not lightly interfere with the same unless for compelling reasons. However where the evidence has nothing to do with demeanour of witnesses or credibility of witnesses or where the evidence involves affidavit evidence, or relates to interpretation to be placed on documents, as in instance, an appellate Court is in as good a position as the trial Court to do its evaluation. See Ebba v Ogodo (1984) 1 SCNLR 372, Balogun v Agboola (1974) 1 All NLR (2)66 and BFI Group Corporation v BPE (2012) 18 NWLR (Pt. 1332) 209.” PER JOSEPH EYO EKANEM, J.C.A

FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING

“A hearing is taken to be fair when all parties to a dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or is not given an opportunity to be heard, the hearing cannot qualify as fair hearing; Mbanefo v Molokwu (2014,) LPELR-22257 (SC); Dangote Gen. ile Products Ltd Ors v Hascon Associates (Nig) Ltd & Anor (2013) LPELR-20665(SC). While an administrative body may set up its own rules and adopt any procedure it so desires, as long as the civil rights and obligations of a party appearing before it is affected or will be affected, the principles of fair hearing ought to be applied by the administrative body in order to validate its proceedings and decision. The administrative body must act in good faith and fairly listen to both sides; Adeniyi v. Governing Council of Yabatech (1993) LPELR-128(SC); Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; Baba v Nigerian civil Aviation & Anor (1991) LPELR- 692 (SC). Thus, an administrative body, which is acting in a quasi-judicial capacity, must conduct its inquiry in accordance with the principles of natural justice. The appeal committee of the 2nd Respondent failed to give the Appellant an opportunity to be heard. Its proceedings and subsequent decision cannot therefore be validated. Further Invalidating the proceedings of the said appeal committee is the fact that its own guidelines on composition of the appeal committee were not complied with. The proceedings and decision of the said appeal committee therefore amounted to a nullity.” PER JOSEPH EYO EKANEM, J.C.A

 

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

JOSEPH HEMEN BOKO Appellant(s)

AND

1. BENJAMIN B. NUNGWA
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

 

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment of the Federal High Court, Makurdi Judicial Division delivered on 19/11/2015 in suit No. FHC/MKD/CS/13/2015. In the judgment (tagged as ruling by the lower Court) the lower Court dismissed the case of the appellant.

The facts of the case leading to this appeal may be summarised as follows: The appellant, a member of the 2nd respondent, contested the 2nd respondent’s primary election held on 2/12/2014 for the nomination of its candidate for the Benue State House of Assembly election scheduled for 2015. He contested with other candidates including the 1st respondent.

According to the appellant, he scored the highest number of votes at the primary election and was declared the winner of the same. He was thereafter issued with 3rd respondent’s Forms EC4B(iii) (Form for nomination of Member of State House of Assembly) and CF001 (Affidavit in support of personal particulars of persons seeking election) which he filled and submitted to the 2nd respondent. The 2nd respondent transmitted them to the 3rd respondent. To his surprise, the name of the 1st respondent was substituted for his name.

Consequent upon the foregoing, the appellant took out an originating summons at the lower Court seeking for the determination of the following questions:

(1) Whether or not by the combine provisions of Section 87(4) (c) (i) (ii) of the Electoral Act 2010 (as amended) Articles 20(iii) and (v) (c) of the All Progressives Congress (APC) Constitution 2013 (as amended): paragraphs 14 and 15 (d) of the (APC) 2014 guidelines for the nomination of candidates for public offices and the APC result sheet for the party primaries for State House of Assembly Kwande West Constituency No. APC/NHQ/BN0103 the plaintiff who scored the majority of votes cast at the 2nd Defendants’ congress for Kwande West State Constituency held at the Adikpo Township Stadium on the 2nd/12/2013 is the valid, lawful and proper candidate of the 2nd defendant for the February 2015 general election.

(2) Whether or not by the express provision of Sections 31, 33 and 35 of the Electoral Act 2010 (as amended), the declaration evidenced by the All Progressive Party Result sheet for party primaries for House of Assembly Kwande West State Constituency No. APC/NHQ/BN 0103 of 2/12/2014; the plaintiff who filled and returned to the 3rd defendants forms EC 4B (iii) and CF 001 issued to him through the 2nd Defendant and whose name was submitted to the 3rd defendant together with the Forms (amongst others) as 2nd Defendant’s candidate for the Kwande West State Constituency at the February 2015 polls, the 2nd and 3rd defendants could have the 1st defendant’s name substituted for his own when he (plaintiff) had neither died nor submitted a written withdrawal from the election as required by law.

(3) Whether or not the sudden appearance of the 1st defendant’s name on the 3rd defendant’s website as the All Progressive Party’s candidate for Kwande West Constituency on the 29/1/2015 when the plaintiff neither withdraw from election as prescribed by law nor died is not an unlawful, invalid and an unwarranted publication of the 1st defendant as APC candidate for Kwande West State in violation of Section 31, 33 and 35 of the Electoral Act 2010 (as amended) and prejudicial to the candidature of the plaintiff?.

The appellant claimed the following reliefs:
1. A declaration that by the combined operation of Section 87 (4) (c) (i) and (ii) of the Electoral Act 2010 (as amended) Article 20(iii), (v) (c) of the All Progressive Party Constitution paragraphs 14 and 15 (d) of the APC guidelines for party primaries and the APC result sheet for party primaries for House of Assembly, Kwande West State Constituency No. APC/NHQ/BN 0103 of 2/12/2014 the plaintiff is the lawful and validly nominated 2nd defendant’s candidate for Kwande West State Constituency at the February 2015 polls.

2. A declaration that the plaintiff having been returned as the winner vide APC/NHQ/BN 0103, filled and return the statutory forms EC4 B (iii) and CF 001 to the 3rd defendant upon 2nd defendant’s submission of his name as her candidate for Kwande West State Constituency cannot lawfully and validly have the 1st defendant’s name substituted for his (plaintiff’s) name as the 2nd defendant’s candidate for Kwande West State Constituency without the plaintiff’s written and submitted withdrawal from the election.

3. A declaration that the 3rd defendant’s publication of the 1st defendant on her website purporting that 1st defendant is the substitute for the plaintiff as the 2nd defendant’s candidate for Kwande West State Constituency is unlawful, unwarranted, invalid, null and void not flowing from statutory qualification and contrary to Sections 31, 33 and 35 of the Electoral Act 2010 (as amended).

4. An order that the 3rd defendant further withdraw, delete, erase or remove the name of the 1st defendant from her website and record as the 2nd defendant’s candidate for the February 2015 election into the Kwande West State Constituency and to publish the plaintiff’s name in all its records and website as the 2nd defendant’s candidate for Kwande West State Constituency.

5. An order of Court that the plaintiff is and remains the lawful and valid candidate of the 2nd defendant for Kwande West Constituency at the 2015 polls.

6. An order that any return at the February 2015 polls or whenever same must have been held for election into Kwande West State Constituency in respect of votes cast for the All Progressive Congress (APC) shall be deemed to be a return of votes cast for the plaintiff at the election , AND

7. Any other further order (s) as the Court may deem it fit to make in the interest of justice.

The 1st and 2nd respondents, on their part, contended that although appellant was alleged to have had the highest number of votes by the primary election committee of the 2nd respondent, the 1st respondent petitioned against the result on the ground that the appellant did not have the highest number of lawful votes; that the 2nd respondent’s appeal committee upheld the petition of the 1st respondent, subtracted the unlawful votes resulting in the 1st respondent scoring the highest number of votes; that the National Working Committee of the 2nd respondent accepted and ratified the report; and that the name of the 1st respondent was forwarded to 3rd respondent as its candidate.

The lower Court, as earlier stated, dismissed the case of the appellant.

Aggrieved by the decision, the appellant has appealed to this Court, filing three notices of appeal. The notice of appeal filed on 9/2/2016 which is in the supplementary record is the extant notice of appeal. The appeal of the appellant was first struck out by this Court on 13/7/2016 but the Supreme Court on 13/7/2018 reversed the order of this Court and ordered that the appeal of the appellant be heard on the merit by another panel of this Court.

Pursuant to the rules of this Court, the appellant filed the following briefs of argument:
(i) Appellant’s brief of argument filed on 24/2/2016 which was deemed duly filed and served on 22/10/2018;

(ii) Appellant’s reply brief filed on 13/5/2016 but deemed duly filed and served on 22/10/2018.

Appellant filed a list of authorities on 5/4/2016.

The 1st and 2nd respondents filed a joint amended brief of argument on 19/10/2018 but it was deemed duly filed and served on 22/10/2018.

The 3rd respondent filed an amended brief of argument on 19/10/2018 which was deemed duly filed and served on 22/10/2018.

At the hearing of the appeal on 22/10/2018, this Court received the additional evidence admitted at the Supreme Court in the process of hearing the appeal to it that resulted in the remission of this appeal back to this Court for hearing.

T.D. Pepe, Esq. for the appellant adopted the briefs filed for the appellant in urging the Court to allow the appeal and set aside the judgment of the lower Court. He supplied the citation of the case of Gassol V Tutare SC.124/2012 cited by him in his brief and reported in (2015) All FWLR (Pt. 786) 24.

L. A. Izabie  Undie, Esq., adopted the 1st and 2nd respondent’s amended brief in urging the Court to dismiss the appeal.

U.O. Sule, Esq. for the 3rd respondent adopted and relied on 3rd respondent’s amended brief in urging the Court to dismiss the appeal.

In the appellant’s brief of argument settled by T.D. Pepe, Esq., the following issues are distilled from the eleven grounds of appeal contained in the extant notice of appeal:
(1) Whether or not Exhibits DK8, DK9 and DK10 attached to the counter – affidavit of the 1st respondent and Exhibits 1 and 2 to the counter-affidavit of the 2nd respondent were admissible copies of public documents. Ground 1 of the appeal.

(2) In alternative to issue one above, whether or not the proceedings in Exhibit DK8 were competent in the absence of the chairman of the purported appeal panel and in the absence of participation by the appellant or any of the persons adversely affected by the proceedings. Grounds 2 and 3 of the appeal.

(3) Whether or not the appellant was the duly nominated candidate of the 2nd respondent from the result of primary election held on 02/12/2014 declared at the venue of the primary election, coupled with the forwarding of the appellant’s name to the 3rd respondent, and if the answer is in the affirmative, whether the subsequent forwarding of the 1st respondent’s name by the 2nd respondent to the 3rd respondent was in violation of Sections 33, 35 and 87 of the Electoral Act, 2010 (as amended). Grounds 4, 5, 6, 7, 8 and 10 of the appeal.

(4) Whether or not the 1st respondent had breached a fundamental requirement of a valid nomination in view of his failure to comply with Section 31(2) of the Electoral Act, 2010 (as amended) having filed an invalid Form CF001, Exhibit DK12. Ground 9 of the appeal.

(5) Whether or not the decision of the lower Court was supported by the weight of evidence tendered in the case. Ground 11 of the appeal.

In the 1st and 2nd respondents’ brief of argument settled by Bemva Akortsaha, Esq., a compound issue is formulated for the determination of the appeal. The issue is:
“Whether the forwarding of 1st Respondent?s name to 3rd respondent by 2nd respondent as its candidate for State House of Assembly for Kwande West Constituency, Benue State for February 2015 election, accords with the domestic rules of 2nd Respondent and the appropriate provisions of Electoral Act 2010 (as amended), where the answer is in affirmative, was appellant’s suit alleging wrongful substitution of his name against 1st, 2nd and 3rd respondents, rightly dismissed by the trial Court.” (Grounds 1-10 of appellant’s notice of appeal).

In the 3rd respondent’s brief of argument settled by Usman O. Sule, Esq. one issue is formulated for the determination of the appeal, Viz;
“Whether the 3rd respondent by virtue of the declaration of 1st respondent was wrong for declaring the 1st respondent as the winner”.

It seems to me that the issues presented by appellant’s counsel reflect appellant’s complaints in the grounds of appeal better than the single issue formulated by each of the counsel for the 1st and 2nd respondents, and the 3rd respondent. I will therefore be guided by them in the determination of this appeal. I intend to start with issue 1, thereafter deal with issues 2, 3 and 5 as they are interrelated, and finally treat issue 4.

ISSUE 1
Whether or not Exhibits DK8, DK9 and DK10 attached to the counter-affidavit of the 1st respondent and Exhibits 1 and 2 to the counter – affidavit of the 2nd respondent were admissible copies of public documents.

Appellant’s counsel submitted that Exhibits DK8, DK9 and DK10 attached to the 1st respondent’s counter-affidavit are inadmissible copies of public documents. He noted that they are marked as ‘certified true copies’ and certified by 2nd respondent’s legal officer though they were said to have been submitted to the 3rd respondent. He further submitted that being secondary evidence of public documents, they could not have been certified by the 2nd respondent or any of its officers. He argued that Exhibits DK8 and DK9 are photocopies of private documents and that there was need for proper foundation to be laid for them to be admissible, which was not done. It was his further argument that Exhibits DK8 and 9 were private documents addressed to a public officer thus becoming public documents by virtue of Section 102(b) of the Evidence Act, 2011.

He contended that Exhibit DK10 was a public document and could not be certified by the 2nd respondent but by the 3rd respondent. Counsel submitted that a copy of a public document attached to an affidavit must be duly certified to be admissible. He relied on Fawehinmi V IGP (2000) FWLR (Pt. 12) 14 among other cases to support his position and therefore urged the Court to discountenance or expunge the said exhibits from the record as inadmissible documents.

For the 1st and 2nd respondents, it was argued by their counsel that the case of appellant is predicated on affidavit evidence and therefore the need to certify a document that is attached to an affidavit does not arise. He submitted that objection can not be taken against documents exhibited to affidavit or counter-affidavit to a motion on ground of certification unless it is tendered at trial. He cited in support Ilorin East Local Government V Alasinrin (2012) All FWLR (Pt. 645) 226. He stated that certification by 2nd respondent was a mere surplusage and that the question of laying foundation for admissibility of documents does not arise in affidavit evidence.

In his reply, appellant’s counsel submitted that the case of Ilorin East Local Government V Alasinrin supra. has not overruled Fawehinmi V IGP supra.

RESOLUTION
Exhibit DK8 attached to the counter-affidavit of the 1st respondent is a photo-copy of the recommendations of the Legislative Election Appeal Committee of the 1st respondent. It is also Exhibit 2 attached to the counter – affidavit of the 2nd respondent. Exhibit DK9 attached to the 1st respondent’s counter-affidavit is a photo-copy of the extract of the decision of the National Working Committee of the 2nd respondent. It is also Exhibit 1 attached to the counter-affidavit of the 2nd respondent. By Section 102(a) and (b) of the Evidence Act, 2011, the documents are private documents and therefore needed no certification by any one. The certification of Exhibit DK8 by 1st respondent’s legal officer was a mere surplusage. The certification of Exhibit 9 by 1st respondent’s legal officer is because it is an extract of the numerous decisions of the National Working Committee of the 2nd respondent. The question of laying proper foundation for the admissibility of the documents does not arise because the trial was not by oral evidence but by affidavit evidence.

The document at page 345 of the record of appeal which appellant’s counsel relied on to submit that Exhibits DK8 and DK9 were sent to the 3rd respondent thus making them public documents seems to be a rogue or strange document as it is neither referred to in the 1st respondent’s counter – affidavit nor is it marked as an exhibit. I shall therefore ignore it.

Exhibit DK10 is a photocopy of a letter addressed to the secretary of the 3rd respondent titled ‘Submission of INEC Nomination Forms-Benue State’. Being addressed to the 3rd respondent an official body, and having been received by it, it becomes a public document. It is certified by the legal officer of the 2nd respondent who can not do so not being an officer of the 3rd respondent. This is the basis of the objection of appellant’s counsel; but I think his objection is founded on quicksand and therefore can not stand.

The case of the appellant was initiated by way of originating summons which is fought on the basis of affidavit evidence. Generally speaking objection can not be raised against a document attached to an affidavit or a counter-affidavit because the question of admissibility of the document does not arise in that circumstance. See Adejumo V Governor of Lagos State (1970) All NLR 187.

The same position was taken by the Supreme Court again in Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735.

The position of the law above has been extended to documents attached to an affidavit in respect of an originating summons. See Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55. The reason for the position of the law regarding documents attached to an affidavit was stated by Mbaba JCA in Ilorin East Local Government v. Alasinrin (2012) LPELR 800 thus:
“That a document attached or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court and to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) has been dispensed with. Of course the reason for this is easy to adduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleadings which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy. It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the Court can attach probative value to it”.

Appellant’s counsel cited the case of Fawehinmi v. Inspector-General of Police supra to buttress his argument. The case of Fawehinmi v. Inspector-General of Police supra was decided by this Court in the year 2000. The more recent decisions of this Court set out above represent the current state of the law and I am bound to follow them.
I therefore resolve issue 1 against the appellant.

ISSUES 2, 3 AND 5
– Whether or not the proceedings in Exhibit DK8 were competent in the absence of the Chairman of the purported appeal panel and in the absence of participation by the appellant or any of the persons directly affected by the proceedings.

– Whether or not the appellant was the duly nominated candidate of the 2nd respondent from the result of primary election held on 02/12/2014 declared at the venue of the primary election coupled with the forwarding of the appellant’s name to the 3rd respondent, and if the answer is in the affirmative, whether the subsequent forwarding of the 1st respondent?s name by the 2nd respondent to the 3rd respondent was in violation of Sections 33, 35 and 87 of the Electoral Act, 2010 (as amended).

– Whether or not the decision of the lower Court was supported by the weight of evidence tendered in the case.

Arguing his issue 2, appellant’s counsel stated that going by Exhibit DK8, the proceedings (of the appeal panel) were conducted without the participation of the designated chairman and the appellant being given an opportunity to defend himself. He noted that the appellant was not copied any of the petitions written by 1st respondent nor was he served with them. He further noted that appellant was not invited to appear before the panel and none of the other persons affected was invited. He referred to Article 16(b) of the Guidelines of the 2nd respondent and submitted that the absence of the Chairman of the appeal panel meant that the panel had no quorum. The result, he stated, is that there was no basis upon which the 2nd respondent’s National Working Committee could act.

Counsel submitted that the National Working Committee could only have acted on the recommendation of the panel in the event of a ‘further appeal’ but there was none in this instance.

As regards his issue three, counsel set out the detailed procedure to be followed at the venue of the primary election as contained in the guidelines of the 2nd respondent. He stated that Exhibit 4 attached to the counter – affidavit of the appellant (the result sheet) was signed by the Chairman and Secretary of the primary election committee. He stated further that appellant’s name was forwarded to the 3rd respondent and he was availed nomination forms from the 3rd respondent which he duly completed and submitted. He submitted that appellant’s candidature could not be stayed.

Counsel contended that 1st respondent’s contention that the primary election was inconclusive does not help his case as an inconclusive primary election could not produce a candidate and that the lower Court erred in allowing the 1st respondent to benefit from the very election he impugned as inconclusive. He went on to assert that the case of the 1st respondent was full of contradictions which he set out to demonstrate.

He argued that Article 16 (b) of the guidelines of the 3rd respondent which established an appeal committee in respect of primary election was in conflict with Section 87 (9) of the Electoral Act, 2010 (as amended) which vests jurisdiction in the Courts specified therein, referring to Gassol v Tutare decision of the Supreme Court in SC 124/2012. He stated that the Supreme Court therein held that party guidelines and constitutions had been excluded in the procedure for challenging result of a primary election by Section 87 of the Electoral Act, 2010 (as amended). He submitted that in effect the 1st respondent’s nomination was not done at a party congress but in a boardroom.

Finally, in arguing his issue five, appellant’s counsel submitted that the appellant had proved his case on the preponderance of evidence. He urged this Court to evaluate the evidence led at the trial Court as according to him, the trial Court failed to evaluate the crucial evidence before it.

On his part, 1st and 2nd respondents’ counsel raised some questions which he said would help the Court in deciding the appeal. He referred to Section 87 (1), (2), (4) (c) (i) & (ii) of the Electoral Act, 2010 (as amended) and submitted that a distinction could be drawn between lawful votes and unlawful votes under the said provision and that the highest votes contemplated thereunder is the highest lawful votes. He stated that two categories of ballot papers were used in the primary election on the basis of which appellant was erroneously declared the winner, viz; (i) ballot papers and (ii) counter-foil papers. He noted that upon the extraction of the votes cast on the counter- fail papers, the 1st respondent was declared the winner. He contended that counter-foil papers are ordinary papers which are forbidden from being used by the party guidelines.

He stated that it was not true that the appellant was not afforded an opportunity of being heard by the appeal committee as the committee on arrival publicized into mission as held by the lower Court. Again, he asserted, the State Chairman of the 2nd respondent informed the appellant (of the committee’s sitting). He therefore submitted that the appellant who refused to appear before the committee or appeal against its decision can not complain of denial of fair hearing.

Counsel argued that since the 1st respondent had the highest lawful votes, his name was duly forwarded to the 3rd respondent. He submitted that by Article 19 (111) of 2nd respondent’s constitution a candidate who is declared winner would have his name forwarded to the 3rd respondent after all appeals or petitions are resolved. It was further submitted that since 1st respondent’s name was forwarded to 3rd respondent after appeals were concluded, the same was regular. He added that the name of the appellant was in law never submitted to the 3rd respondent and as such there was no case of substitution.

It was his position that the complaints of appellant against the appeals committee or national working committee cannot be resolved without making them parties to this matter.

Counsel thereafter proceeded to argue that the relief that the 1st respondent be compelled to return the salaries and allowances he earned as a member of the State House of Assembly cannot be granted. This, he said, is because the salaries and allowances were validly earned. He then urged the Court to remit the case to the lower Court to be determined on the merit. This, according to him, is for the reason that serious allegations of fraud were made by the appellant and the case is contentious and hostile.

For the 3rd respondent, it was stated by its counsel that it was not surprised that the 2nd respondent forwarded the name of 1st respondent to it for substitution and that the 3rd respondent has nothing to say when a party writes for withdrawal of a candidate.

In his reply appellant’s counsel submitted that forty three accredited delegates would have been disenfranchised if the counter-foils were not used. He took the position that the electoral committee having accredited 144 delegates had the power to use improvised ballot papers if necessary to ensure that all accredited delegates voted. He argued that the portion of the judgment of the lower Court that the appeal committee advertised its presence was not a finding of the Court but a summary. Even if it was a finding, he contended that it would still not meet the requirement of adequate notice to the appellant. He thereafter submitted that non-joinder of the appeal committee and the National Working Committee was of no consequence since they are not juristic persons and merely acted as organs of the 2nd respondent.

RESOLUTION
Evaluation of evidence and ascription of probative value to it are preeminently the business of a trial Court. An appeal Court will not lightly interfere with the same unless for compelling reasons. However where the evidence has nothing to do with demeanour of witnesses or credibility of witnesses or where the evidence involves affidavit evidence, or relates to interpretation to be placed on documents, as in instance, an appellate Court is in as good a position as the trial Court to do its evaluation. See Ebba v Ogodo (1984) 1 SCNLR 372, Balogun v Agboola (1974) 1 All NLR (2)66 and BFI Group Corporation v BPE (2012) 18 NWLR (Pt. 1332) 209.

It is common ground that the 2nd respondent held its primary election which is under consideration on 2/12/2014. It was conducted by its Electoral Committee set up by its National Working Committee. The result of the exercise was recorded in Exhibit 4 attached to the affidavit in support of the originating summons’ the result sheet. It was duly signed by the committee Chairman and Secretary. The 2nd respondent in paragraph 3 (f) of its counter-affidavit admits that the signatories were the Chairman and Secretary of the Committee. The result sheet shows the appellant as having scored the highest number of votes at the primary election. He was consequently declared the winner of the primary election. The 3rd respondent’s report on the election (exhibit 12 attached to the 1st respondent’s counter-affidavit at PP223 – 225 of the record) confirms that the election was hitch – free .. and produced a general (sic) accepted outcome. All participants expressed satisfaction by way and manner of the conduct of the primaries by the party exco and returning officers.

Section 87 (4) (c) (ii) of the Electoral Act 2010 (as amended) provides:
(11) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant?s name shall be forwarded to the commission as the candidate of the party.

The law therefore is clear as crystal that at the end of voting in a primary election for the position of a candidate for the relevant election, the aspirant with the highest number of votes shall be declared the winner thereof and his name shall be forwarded to the 3rd respondent as the party’s candidate. The word ‘shall’ used therein connotes a mandate. It is mandatory. See Gbileve v Addingi (2014) 16 NWLR (Pt. 1433) 394.

Did the 2nd respondent submit the name of the appellant to the 3rd respondent? The answer is ‘Yes’. Appellant deposed that 2nd respondent issued him with forms EC4B (111) and CF 001 E (nomination form and affidavit in support of personal particulars) which he filled and submitted to the 2nd respondent who in turn transmitted them to the 3rd respondent with its list of candidates within the stipulated time. See par. 13 of his affidavit in support of the originating summons. There is an admission of par. 13 supra by failure to deny it in 2nd respondent’s counter – affidavit. In deed, par. 3 (d) of the said counter – affidavit confirms the admission by stating that the 2nd respondent wrote to the 3rd respondent and asked that it stays action on the processing of appellant’s documents and his recognition as its candidate for the Kwande West Constituency.

It may be stated in passing that no copy of the letter was attached to the counter?affidavit. In any event, there is no provision in the Electoral Act for stay of action by 3rd respondent after the submission of the name of a candidate by a political party.

In par. 5 of the counter – affidavit of the 3rd respondent it is deposed that in response to pars 11, 12, 13 and 14 of appellant’s affidavit, the 3rd respondent maintains that the facts deposed therein are within the personal knowledge of the appellant and that he (appellant) was put to the strictest proof of those assertions. This again amounts to an admission of appellant’s paragraph 13. Furthermore in Exhibit 13 attached to appellant’s reply affidavit to 3rd respondent counter-affidavit the 3rd respondent on 2/12/2015 invited the appellant as a political contestant for a meeting.

Thus by the reason of scoring the highest number of votes at the primary election, being declared winner and having his name forwarded to the 2nd respondent, the appellant became the candidate of the 2nd respondent. He had therefore acquired a vested interest in that position which could only be taken away in accordance with the law. It is completely immaterial that his name was not published by the 3rd respondent as a candidate as that is an administrative matter that does not add to or subtract from the candidature of a candidate. See Kubor v Dickson (2013) 4 NWLR (Pt. 1345) 534.

The only way prescribed by the Electoral Act for the appellant not to be the candidate of the 2nd respondent is by way of withdrawal of the appellant (by virtue of Section 35 of the Electoral Act) or by reason of the death of the appellant (by virtue of Section 36 (2) of the Electoral Act, 2010 (as amended). See Section 33 of the Electoral Act and CPC v Ombugadu (2013) 18 NWLR (Pt. 1385) 66. None of those events occurred. In fact in paragraph 3 (g) of the 2nd respondent’s counter-affidavit, it is deposed that the appellant has never withdrawn from contesting the polls.

How then did the 1st respondent feature as the candidate of 2nd respondent in the general election? According to the 1st and 2nd respondents, the primary election was inconclusive as it was marred by irregularities ; that the 1st respondent rejected the result and wrote a letter to that effect; that he wrote a petition to the Legislative Election Appeal Committee of 2nd respondent; that the appeal committee found his petition to be meritorious and the National Working Committee of the 2nd respondent upheld the first recommendation of the appeal committee and declared him the winner of the primary election. His name was then submitted to the 3rd respondent.

In the case of Gassol v Tutare supra, this Court held that the National Assembly appeal panel set up by the 2nd respondent (Peoples Democratic Party) to consider complaints arising from its primary election was ‘a clog to access to Court as far as Section 87 (9) of the Electoral Act is concerned’.

On appeal to the Supreme Court, one of the two issues that was formulated for the determination of the appeal was
‘Were the learned Justices of the Court of Appeal wrong in upholding (sic) the decision of the National Assembly Electoral Appeal of the Peoples Democratic Party (PDP) and the resultant re-run of the primary election for Taraba Central Senatorial District on the basis that Section 87 (9) of the Electoral Act, 2010 precluded the panel from inquiring into the validity of the initial primary.’

Galadima, JSC, at page 251 of the report after considering Section 87(9) of the Electoral Act 2010 answered the question as follows:
‘I have found and for the umpteenth time, held that the use of the word ‘notwithstanding’ has subordinated, beyond any doubt, the provisions of the Electoral Act and party guidelines in relation to the forum where complaints may be addressed, if any aggrieved contestant decides to challenge the outcome of the primary election. The Courts listed in the Section 87 (9) of the Electoral Act (supra) possess the judicial powers to address such grievances not appeal panel of the PDP which was neither established by law nor vested with judicial powers under Ss. 87 (4) (c) (ii) and 87 (9) of the Act.

It follows therefore that the proceedings of the appeal panel of the 2nd respondent that deliberated on the complaints of the 1st respondent against the nomination of the appellant at the primary election was a non-starter and therefore produced nothing for the National Working Committee to accept or ratify.

Apart from the foregoing, the appellant contended that he was not given an opportunity to be heard by the appeal committee before a decision was taken against him. 1st and 2nd respondents contended to the contrary. Exhibit DK6, 1st respondent’s first petition, was not copied to the appellant. Exh. DK7, 1st respondent’s second petition, was copied to, inter alia, the appellant but there is no evidence or even assertion of service of the same on the appellant. This confirms the deposition of the appellant in par. 3 (f) of his further affidavit that he was not served with the petition nor was he invited by the appeal committee (to appear before it to defend himself).

In the report of the appeal committee (Exhibit 2 attached to the counter-affidavit of the 2nd respondent) the committee stated that,
‘After hearing from the petitioners, the committee made some investigations and their findings were indicated as follows

This clearly shows that the appeal committee did not hear from the appellant before making findings and recommendations against him.

At page 558 of the record of appeal, the lower Court in its judgment stated that,
‘On the averment of the 1st and 2nd respondents, an appeal committee was set up which came into Benue State and advertised their presence.’

This appears to have been a finding of the trial Court and it has not been appealed against. So it stands. How did the appeal committee advertise its presence? Was it by means of a town crier, radio/newspaper advertisement? There is no evidence that the appellant was even aware of the presence of the committee. Even if he was aware of its presence, that fact would not speak against him so long as he was not served with the petition of the 1st respondent so that he would know that there was a matter ending against him at the committee. He was not also told of any sitting date.

Counsel for the 1st respondent descended into the nether world of speculation when he submitted that on account of a letter written by the State Chairman of 2nd respondent to its National Chairman, the State Chairman told the appellant of the sitting of the appeal committee. I will not follow him into the nether world of speculation as the decision of the Court can not be based on speculation.

Having not afforded the appellant the opportunity to be heard before making findings against him, the appeal committee breached his right to fair hearing specifically audi alterem patem. The appeal committee was required to act fairly but it failed to do so by not giving the appellant the opportunity to be heard. This rendered the whole proceedings and its finding and recommendations null and void. The acceptance or the alleged acceptance of the same by the National Working Committee was therefore a nullity-an acceptance of nothing.

In Adekole v Ogbuagu (2015) All FWLR (Pt. 782) 1751, 1776 cited by appellant’s counsel, Ogbuinya, JCA, stated that,
‘The whole essence of fair hearing, which is coterminous with fair trial connotes giving parties to any proceedings, be it judicial or otherwise, the opportunity to present their case.’

It remains to add that the doctrine of fair hearing is so expensive and all -encompassing to the extent that non-judicial bodies, that is administrative tribunals or bodies, are willy-nilly, bound to give persons fair hearing before reaching a decision affecting their rights, obligations and interest. See also Hart v. Military Governor, Rivers State (1976) 11 SC (Reprint) 109 and Gyang v. COP, Lagos State (2014) 3 NWLR (Pt. 1395) 547.

Furthermore, the proceedings of the appeal committee was signed by two persons as ‘Acting Chairman/Secretary’ and ‘Member’. Article 16(b) of the guidelines of the 2nd respondent provides for a 5 – member Legislative Election Appeal Committee made up of Chairman, Secretary and 3 other members (see page 383 of the record). The provision contemplates five members and not two. It does not also make room for one person acting as secretary and ‘Acting Chairman’ at the same time. This by itself makes the proceedings and report of the appeal committee a nullity.

The contention by 1st and 2nd respondent’s counsel that the appellant ought to join the appeal committee and the National Working Committee is of no moment. This is because those bodies are not juristic persons and they only acted as organs or agents of the 2nd respondent. The joinder of the 2nd respondent as a party suffices. Again, as rightly argued by appellant’s counsel, non-joinder of parties can not defeat proceedings so far as the Court can determine the issues in controversy between the parties actually before it. See Order 9 Rule 14(1) of the Federal High Court (Civil Procedure) Rule, 2009.

Counsel for the appellant pointed out something very curious about the case of the 1st respondent. It is as follows: In paragraph 6(g) of the counter-affidavit of the 1st respondent at pages 317-320 of the record of appeal, the 1st respondent deposed that his name was submitted among others to the 3rd respondent on 9/1/2015 vide a letter submitting 2nd respondent’s candidates for Governor and Deputy Governor and all its candidates for Benue State House of Assembly election. A copy of the letter is Exhibit ‘DK10’.

The letter reads in part:
‘Please find attached INEC Nomination Forms EC4 B(ii) and EC 25C(ii) in respect of our Party’s Candidates for the Governor and Deputy Governor of Benue State’.  P 346 of the record.

There is absolutely no mention of House of Assembly candidates of the party. Surprisingly, the list said to be attached to it at page 347 of the record is that of nominated House of Assembly candidates with the 1st respondent as the first name on the list. There is no explanation for this strange state of affairs. Furthermore, 1st respondent’s Form CF001 (affidavit in support of personal particulars) is stamped with 3rd respondent’s stamp and dated 12/1/2015 while Exhibit DK 10 is stamped 16/1/2016. This means that 1st respondent’s Form CF 001 was received by the 3rd respondent four days before his name was purportedly submitted vide exhibit DK10 by his party to the 3rd respondent as its candidate. The case of the respondents does not just ‘add up’.

1st and 2nd respondents’ counsel did contend that the votes scored by appellant at the primary election were not lawful votes, because of the use of counter – foils, yet the counter – foils were not presented to the lower Court nor was it said that there was over-voting as a result of the use of the counter-foils. A counter-foil, in any event, is defined as
‘The part of a cheque, ticket etc that you keep when you give the other part to somebody else’ Oxford Advanced Learner’s Dictionary 7th Ed P. 334.

It can not be described as ‘ordinary paper’ within the contemplation of the general provisions of 2nd respondent’s guidelines for nomination of candidates for public office. (Exhibit DK 13 attached to the counter – affidavit of the 1st respondent).

In the light of all that I have stated thus far, I resolve issues 2, 3, and 5 in favour of the appellant and against the respondent.

ISSUE 4
Whether or not the 1st respondent had breached a fundamental requirement of a valid nomination in view of his failure to comply with Section 31(2) of the Electoral Act, 2010 (as amended) having filed an invalid Form CF 001, Exhibit DK12.

Appellant’s counsel submitted that the submission of Form CF 001 is a mandatory requirement of Section 31(2) of the Electoral Act. He noted that the affidavit (Form CF 001) submitted by the 1st respondent was not duly sworn before a Commissioner for Oaths in the High Court but before a notary public contrary to the express provision of Section 31(2) of the said Act. He submitted further that the non -compliance is not a mere irregularity.

He contended that since the name of the notary public is stated as ‘J.E. NZENWATA & ASSOCIATES’, 1st respondent’s Form CF 001 was rendered incompetent.

Counsel for the respondents maintained a loud silence on this issue and the argument presented by appellant’s counsel. The implication is that he conceded the issue. Nevertheless, I will still consider the issue to see if it is well taken by appellant’s counsel.

RESOLUTION
The point raised under this issue was not raised by counsel for the appellant in his address before the lower Court and it was also not considered, and pronounced upon by the lower Court in its judgment. It is therefore a fresh issue which requires leave to raise it. There being no leave applied for and obtained to raise it, the issue is not competently before this Court. I therefore discountenance it.

As an intermediate appellate Court, this Court will nevertheless proceed to consider the issue.

Section 31(2) of the Electoral Act, 2010 (as amended) states
‘The list or information submitted by each candidate shall be accompanied by Affidavit sworn to by the candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office’.

Form CF 001 (affidavit in support of personal particulars of persons seeking election to office/membership of a legislative body) is the means by which a candidate fulfills the requirement above. The subsection requires him to swear to the affidavit at ‘the High Court of a State’. 1st respondent’s form CF 001, a copy of which is attached as Exhibit DK12 to his counter – affidavit, is sworn before

J.E. NZENWATA & ASSOCIATES
Notary Public
Suite 218, ANBEEZ PLAZA,
Wuse Zone 5, Abuja, Nigeria
(See page 361 of the record).

It was thus signed by a notary public at his office and not at the High Court of a State.

What is the effect of this failure? Appellant’s counsel submitted that the use of the word ‘shall’ makes the provision mandatory and that the express mention of one thing is the exclusion of things of a similar category not mentioned.
The word ‘shall’ generally speaking when used in a statute connotes a mandatory meaning. It is however not in all cases that the word ‘shall’ carries a mandatory connotation.

The word may have a directory import depending on the circumstances of a given case and the con in which it is used. See Nyesom V Peterside (2016) 1 NWLR (Pt. 1492) 71. It is also to be added that in determining whether a provision is mandatory or directory, the Court is to look at the whole scope of the statute and the importance of the provision in question in relation to the general object to be secured. See Amokeodo v. Inspector-General of Police (1999) 69 LRCN 1084.

The Electoral Act 2010 (as amended) was enacted to regulate the conduct of elections specified therein. The essence of Section 31(2) of the Electoral Act is to ensure that the list or information submitted by each candidate is under oath. The reason for this is to bind the candidate to tell the truth, the whole truth, and nothing but the truth or he be liable to criminal punishment as well as disqualification by order of Court if the information is untrue. What is important is that the information is under oath. Therefore whether the oath is at the High Court of a State or at any other place where oath can be administered is not the real or main essence of the provision.

The latin maxim expressio unius est exclusio alterius which appellant’s counsel relied on to contend that other persons or bodies before whom oath can be administered are excluded by the express mention of only ‘the High Court of a State’ does not provide a fool-proof means of discovering the intention of the legislature. In the  The Interpretation and Application of Statutes 234 – 35 (1975) quoted in the Black’s Law Dictionary 8th ed Pp 620 – 621, it is stated of the maxim that:

‘Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of con. Without conual support, therefore, there is not even a mild presumption here. Accordingly, the maxim is at best a description, after the fact, of what the court has discovered from con’.

Given the con of Section 31(2) of the Electoral Act, 2010 (as amended) swearing to the affidavit (form CF 001) before any other person or at any other place outside the High Court of a State is not fatal provided it is done before any of the persons mentioned in Section 10(1) of the Oaths Act which includes a notary public, as in this instance. The terms of Section 31(2) of the Electoral Act, 2010 do not expressly or by necessary implication manifestly exclude such procedure as contemplated by section 10(1) of the Oaths Act.

As regards the contention that the use of the name ‘J.E. Ezanwata & Associates’ as the name of the notary public nullifies 1st respondent’s form CF 001, it is my view that the cases cited by appellant’s counsel do not apply to form CF 001 as they all relate to originating Court processes and not that form. At the worse, the use of the name supra renders the form voidable. Such defect can not be raised for the first time at an appellate Court.

I therefore enter a negative answer to issue 4 and resolve it against the appellant.

Before I reach the denouement of this judgment, I shall comment on the seemingly minor delay that attended the hearing of this matter after it was remitted to this Court for hearing by the Supreme Court. The order of the Supreme Court was received by the Deputy Chief Registrar of this Court on 20/7/2018. That was after the annual vacation of this Court had commenced. The first time the appeal came up for hearing thereafter was on 17/9/2018 when appellant’s counsel, T.D. Pepe, Esq. asked for an adjournment to bring the relevant processes before the Court. The appeal was therefore adjourned to 22/10/2018 when it was heard and judgment was reserved. The judgment is being delivered today. So much for the ‘delay’ in re-hearing the appeal.

Having resolved issues 2, 3, and 5 in favour of the appellant, I reach the conclusion that the appeal is meritorious and it succeeds. It is allowed. The judgment of the lower Court is hereby set aside. I do not agree with the supplication of 1st and 2nd respondents’ counsel that the matter be sent back to the lower Court for re-hearing. It is unnecessary and a self serving attempt to buy time.

Consequent upon the above, I hereby enter judgment in favour of the appellant in terms of the reliefs 1, 2, 3, 4, 5 and 6 of the originating summons.

Having unlawfully occupied the seat of member of House of Assembly, Benue State, Kwande West Constituency, the 1st respondent is ordered to vacate the seat for the appellant.

The 1st respondent is further ordered to pay to the appellant all the allowances and salaries he received as a member of the House of Assembly, Benue State, from the date of his swearing in to the date of his vacation of the seat.

I assess the costs of this appeal at N200,000:00 in favour of the appellant against the 1st and 2nd respondents.

JUMMAI HANNATU SANKEY, J.C.A.: My Lord, Ekanem, J.C.A. obliged me with the draft of the leading Judgment now delivered. I agree with his Lordship that being meritorious, the Appeal ought to be sustained.

As demonstrated in the leading Judgment, the Respondents, in particular the 2nd and 3rd Respondents, flagrantly flouted Section 87(9) of the Electoral Act in causing and permitting the name of the Appellant which had been submitted to the 3rd Respondent as the candidate who scored the highest votes at the Primary election in accordance with Sections 87(4) (C) (ii) and 87(9) of the Electoral Act, 2010, to be substituted with the name of the 1st Respondent on account of a purported appeal to an Appeal Panel of the 2nd Respondent. Such an Appeal Panel set up by a Political Party to consider complaints arising from Its Primary election has been held by this Court to be nothing but –

“… a clog to access the Court as far as Section 87(9) of the Electoral Act Is concerned.”

This finding was further confirmed in an appeal to the Supreme Court. See Gassol V Tutare (2013) LPELR-20232(SC) at 32, per Galadima, JSC. It is therefore worth reiterating the stance of the Apex Court on this, which is that once a candidate emerges with the highest number of votes cast at the Primary Election of a Political Party and his name is duly submitted as such, he becomes the duly elected candidate of that Party. Thereafter, it is only the Courts listed in Section 87(9) of the Electoral Act (supra) that possesses the requisite judicial power to address any grievances arising from such Primaries, and not any Appeal Panel that may be set up by the Political Party, which was neither established by law nor vested with judicial powers under Sections 87(4) (c) (ii) and 87(9) of the Act (supra).

Consequently the Appellant, who scored the highest votes at the Primary Election, whose name was duly submitted to the 2nd Respondent who issued him with Form EC4B (III) and Form CF OO1E (Nomination Form and affidavit in support of personal particulars) which he filled and returned to the 2nd Respondent, who in turn submitted them to the 3rd Respondent along with its list of candidates within the prescribed time, is the lawful and valid candidate of the 2nd Respondent for Kwande West Constituency at the election.

It is therefore for this and for the more detailed reasons well articulated in the leading Judgment, that I too find merit in the Appeal. It succeeds and is accordingly allowed. I also endorse the consequential orders made therein.

ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Joseph F. Ekanem, JCA, made available to me before now the draft copy of the Judgment just delivered in which this appeal has been allowed. I agree with, and adopt as mine, the comprehensive resolution of the issues raised therein. I will only make few comments in support.

To my mind, this appeal mainly turns on the issue of fair hearing. A hearing is taken to be fair when all parties to a dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or is not given an opportunity to be heard, the hearing cannot qualify as fair hearing; Mbanefo v Molokwu (2014,) LPELR-22257 (SC); Dangote Gen. ile Products Ltd Ors v Hascon Associates (Nig) Ltd & Anor (2013) LPELR-20665(SC). While an administrative body may set up its own rules and adopt any procedure it so desires, as long as the civil rights and obligations of a party appearing before it is affected or will be affected, the principles of fair hearing ought to be applied by the administrative body in order to validate its proceedings and decision. The administrative body must act in good faith and fairly listen to both sides; Adeniyi v. Governing Council of Yabatech (1993) LPELR-128(SC); Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; Baba v Nigerian civil Aviation & Anor (1991) LPELR- 692 (SC). Thus, an administrative body, which is acting in a quasi-judicial capacity, must conduct its inquiry in accordance with the principles of natural justice. The appeal committee of the 2nd Respondent failed to give the Appellant an opportunity to be heard. Its proceedings and subsequent decision cannot therefore be validated. Further Invalidating the proceedings of the said appeal committee is the fact that its own guidelines on composition of the appeal committee were not complied with. The proceedings and decision of the said appeal committee therefore amounted to a nullity.

For this reason and for the more comprehensive reasons given in the lead Judgment, I also allow this appeal and abide by the orders made in the lead Judgment, including the order as to costs.

 

Appearances:

T.D. Pepe, Esq. with him, J.V. Ogizi, Esq.For Appellant(s)

L.A. Izabi-Undie, Esq. with him, Bemva Akortsaha, Esq.-for 1st and 2nd respondents.
U.O. Sule, Esq. with him, Dr T.B. Maiyaki and N.C. Kumbut, Esq.- for 3rd respondent.
For Respondent(s)