MR. CHIBUZOR UWAJE v. MR. EBIELIM MADUEMEZIA & ORS
(2015)LCN/7834(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of March, 2015
CA/B/292/2013
RATIO
COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
It is settled law that the evaluation of evidence is the primary function of the court of trial. Where the court of trial has unquestionably evaluated and appraised the evidence, unless the findings arrived at are perverse, it is not the business of the appellate court to interfere. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1989) 4 SC 98. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO EVALUATE EVIDENCE EVEN IF IT IS UNCONTROVERTED AND UNCHALLENGED TO SEE IF IT IS CREDIBLE ENOUGH TO SUSTAIN THE CLAIM
Evidence, even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A – G KWARA (1993) 2 NWLR (PT 313) 588, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and BUHARI vs. OBASANJO (2005) 8 MJSC 1 at 268. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659: “The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak…that it is unnecessary for the Defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff…” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
MR. CHIBUZOR UWAJE – Appellant(s)
AND
1. MR. EBIELIM MADUEMEZIA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering The Leading Judgment): On 10th March, 2012, the Peoples Democratic Party, the 2nd Respondent herein, held its Congress to elect the party officials for the Local Government Chapter of the Party in Delta State. The Appellant claims to have been duly elected the Chairman of the Peoples Democratic Party for Oshimili South Local Government Area at the said Congress. However, the Appellant alleges that the State Chairman of the party was attempting to replace him with the 1st Respondent who did not contest the election for Chairman of the Oshimili-South Local Government Area Chapter of the Peoples Democratic Party.
Based on this allegation, the Appellant instituted proceedings at the Federal High Court, Asaba Division in Suit No. FHC/ASB/CS/121/2012 by way of Originating Summons for the determination of the following questions:
“1. Whether upon the interpretation of the Peoples Democratic Party (PDP) Constitution of 2009 (as amended), and the PDP Guidelines, a Local Government Party Chairman can emerge or be elected without the participation of the Local Government Area Congress Planning Committee and the elected ward delegates for the said Local Government.
2. If the answer to No. 1 above is in the negative; whether the current attempt by the 2nd Defendant to replace the Plaintiff whom the validly elected PDP delegates elected at the duly organized congress in accordance with the PDP Constitution on 10/3/2012 as Chairman of the party in Oshimili-South Local Government Area of Delta State with the name of the 1st Defendant without the latter contesting a valid election in a duly organized congress as provided for in the PDP Constitution and Guidelines amounts to a violation of the Plaintiff’s rights, thus entitling the latter to the declaratory; injunctive; and other consequential reliefs sought.”
Upon the determination of the aforesaid questions, the Appellant claimed the following reliefs:
“1. A declaration that the purported election of the 1st Defendant as the P.D.P. Chairman for Oshimili-South Local Government Area of Delta State without the 1st Defendant emerging as such through an Oshimili-South Local Government Area Congress by the Oshimili-South Local Government Congress Planning Committee with the duly elected Delegates voting as provided for in the P.D.P. Constitution and Guidelines is in violation of both the P.D.P. Constitution and Guidelines; the Amended Electoral Act 2010; the 1999 Constitution; and the Plaintiff’s right therein; and is consequently null and void and of no legal effect.
2. A consequential order setting aside the purported election of the 1st Defendant as the P.D.P. Chairman for Oshimili-South Local Government Area of Delta State.
3. A declaration that the Plaintiff is the validly elected P.D.P. Chairman for Oshimili-South Local Government Area of Delta State.
4. An order restraining the 2nd – 4th Defendants by themselves, their agents, privies and representatives from holding out and/or recognizing the 1st Defendant as the duly elected Chairman of the P.D.P. for Oshimili-South Local Government Area of Delta State.
5. Any other consequential order or orders that this honourable Court might deem fit to make in the circumstances.”
In the course of the proceedings at the Lower Court, the Appellant discontinued the action against the Delta State Chairman of the Peoples Democratic Party, who was originally sued as the 2nd Defendant. The 1st Respondent challenged the jurisdiction of the Lower Court to entertain the action by motion on notice filed on 8th March, 2013. The said motion is at pages 527 – 533 of the Records. The said motion was taken together with the substantive Originating Summons and in its judgment which is at pages 581 – 600 of the Records, the Lower Court upheld its jurisdiction to entertain the action, assumed jurisdiction and determined the Originating Summons on its merits, dismissing the Appellant’s case. Both the Appellant and the 1st Respondent were dissatisfied with the said judgment. They all appealed against the same. The instant appeal is by the Appellant against the decision dismissing his action. The sister appeal by the 1st Respondent herein is Appeal No. CA/B/434/2013 challenging the decision of the Lower Court that it is imbued with the jurisdiction to entertain the action. The judgment in Appeal No. CA/B/434/2013 has just been delivered today, allowing the appeal and holding that the Lower Court did not have the jurisdiction to entertain the Originating Summons filed by the Appellant herein. The success of Appeal No. CA/B/434/2013 ought to signal the nunc dimittis for this appeal; however this is an intermediate appellate court, so it still behoves the court to consider this appeal, in the event of there being a further appeal against the judgment in CA/B/434/2013 to the apex court. See DR. OKEY IKECHUKWU vs. FEDERAL REPUBLIC OF NIGERIA Appeal No. SC. 278/2012 (unreported) delivered on 6th March, 2015. So here we go.
The Appellant’s original Notice of Appeal is at pages 601 – 606 of the Records. With the leave of court granted on 29th October, 2013, the Appellant filed an Amended Notice of Appeal. The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged between the Appellant and the 1st Respondent only. The 2nd and 3rd Respondent did not file any processes and also did not attend court at the hearing of the appeal. By an order of court made on 2nd December, 2014, the appeal was set down for hearing on the briefs of the Appellant and 1st Respondent alone.
The Appellant’s Brief of Argument is dated and filed on 12th November, 2013 pursuant to the order of the court made on 29th October, 2013. The 1st Respondent’s Brief of Argument is dated 10th March, 2014, filed on 14th March, 2014 and deemed as properly filed and served on 5th May, 2014. The Appellant distilled three issues for determination in his Brief of Argument, namely:
“1. Whether the failure of the learned trial Judge to consider the Appellant’s case on the merit on the ground that the Appellant withdrew his claim against the 2nd Defendant, has led to a miscarriage of justice occasioned the Appellant, thereby necessitating the intervention of this Honourable court in order to redress same.
2. Whether the learned trial judge’s finding that the INEC report on the PDP congress was biased was right; and if not; whether the said finding has occasioned a miscarriage of justice on the Appellant.
3. Whether the Appellant’s claim that he as against the 1st Respondent was the validly elected Oshimili-South Local Government PDP Chairman at the P.D.P Congress stood unchallenged.”
The 1st Respondent formulated four issues for determination in his Brief of Argument as follows:
“1. Whether the trial court was wrong in refusing to grant appellant’s reliefs 1, 2 and 4 after holding that a Local Government chairman of the P.D.P. cannot emerge or be elected without the participation of the L.G.A. Congress planning committee and the elected ward delegates of the party.
2. Whether the trial court did not consider and decide the case of the appellant on the merit even though it held that the consideration and resolution of question 2 in the originating summons is academic.
3. Whether the trial court’s evaluation of the INEC official’s report and pronouncements on same are perverse and occasion a miscarriage of justice to the appellant.
4. Was the appellant’s claim that he was duly elected as the chairman of the P.D.P. for Oshimili South L.G.A. of Delta State at a duly organized congress of the party established/made out for the trial court to have declared him duly elected as he claimed?”
At the hearing of the appeal, Chike Onyemenam, Esq., SAN, learned senior counsel for the Appellant adopted the submissions in the Appellant’s Brief and he urged the court to allow the appeal. Equally, G. I. Ugbechie, Esq., learned counsel for the 1st Respondent adopted the submissions in the 1st Respondent’s Brief of Argument, which was settled by O.W. Chibuogwu, Esq., and he urged the court to dismiss the appeal.
There is very little to choose between the issues as distilled by the parties. Given the fact that the said issues are not dissimilar, it is on the basis of the issues as distilled by the Appellant that I will consider and determine this appeal.
ISSUE NUMBER ONE
Whether the failure of the learned trial Judge to consider the Appellant’s case on the merit on the ground that the Appellant withdrew his claim against the 2nd Defendant, has led to a miscarriage of justice occasioned the Appellant, thereby necessitating the intervention of this Honourable court in order to redress same.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the Lower Court failed to consider his action on the merits on the ground that he had discontinued the action against the Delta State Chairman of the Peoples Democratic Party whom he accused of being the mastermind of the replacement of his name with that of the 1st Respondent and that this occasioned a miscarriage of justice. The case of EGOLUM vs. OBASANJO (1999) 5 SC (PT 1) 22 at 25 – 26 was referred to and it was posited that rather than not consider the case on the merit, the court should ignore or strike out the allegations against a person who is not a party to the action. It was posited that even if question two of the Originating Summons which alleged misconduct against the Delta State Chairman of the Peoples Democratic Party had not been raised, the Lower Court, on the basis of question one of the Originating Summons, could still have determined that the 1st Respondent was not validly elected the Oshimili South Local Government Area Chairman of the Peoples Democratic Party. This appellate court was urged to evaluate the case presented by the parties as it was entirely documentary and did not involve the demeanour of witnesses. The cases of MOMOH vs. UMORU (2011) ALL FWLR (PT 588) 797 at 847D – E and AYUYA vs. YONRIN (2011) ALL FWLR (PT 583) 1842 at 1861E and 1863F were cited in support.
The Appellant redacted the facts on which he premised his action and submitted that the Lower Court wrongly dismissed the Appellant’s claim on the ground that the Appellant failed to prove that the 1st and 2nd Respondents failed to comply with the Guidelines of the Peoples Democratic Party. It is the further submission of the Appellant that the issue of not complying with the internal dispute resolution mechanism of the Peoples Democratic Party does not arise because, inter alia, an Appeal Panel was never appointed and that several protests were addressed to the Party which “fell on deaf ears”. It was postulated Section 87(9) of the Electoral Act 2010 as amended gives unfettered rights and access to the Court by any aggrieved party member, notwithstanding any rules of the political party to the contrary. The case of UGWU vs. ARARUME (2007) ALL FWLR (PT 377) 807 at 865 F-H was referred to for the proposition that the provision of the Peoples Democratic Party Constitution which bars party members from going to seek legal redress without first exhausting the internal remedies within the party was unconstitutional. The Appellant maintained that the facts before the court established that there was no Congress at which the 1st Respondent was elected Chairman of the Oshimili South Local Government Area Chapter of the Peoples Democratic Party.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that the Appellant seeks declaratory reliefs and had to satisfy the Court that on the evidence presented he is entitled to the grant of the reliefs. The cases of JIKATORO vs. DANTORO (2004) ALL FWLR (PT 216) 390 at 409H – 410B, NWOKEDIASO vs. ONUOHA (2001) FWLR (PT 59) 1326 at 1341E-F and KADIR vs. YUSUF (2003) FWLR (PT 151) 1930 at 1941H – 1942A were referred to. It was contended that the onus of proof was on the Appellant to prove that the Congress at which he emerged Chairman was the only and valid Congress, but that he failed to discharge the onus of proof. It was posited that contrary to the contention of the Appellant that it was the LGA Congress Planning Committee that was to organise and conduct the election, the Guidelines clearly showed, as rightly found by the Lower Court, that it was the LGA Congress Committee of the Party.
The 1st Respondent maintained that it is the prerogative of a political party to determine which of its primaries/elections is the genuine and valid one. The case of EMEKA vs. OKADIGBO (2012) ALL FWLR (PT 651) 1426 was cited in support. It was posited that the refusal of the 2nd Respondent to unseat the 1st Respondent shows that it recognised the Congress from which the 1st Respondent emerged as the genuine Congress.
The 1st Respondent asserts that the Lower Court duly considered the Appellant’s case on the merits, conclusively holding at page 600 of the Records that the Appellant did not place facts before the court to show that due process was not followed in the conduct of the election that produced the 1st Respondent. It was opined that even if the Lower Court erred in making the pronouncement on the effect of discontinuing the action against the Delta State Chairman of the Peoples Democratic Party, which fact was not conceded, that the paramount consideration was whether the decision was right and not whether the reason for the decision was right or sufficient. The cases of ADEWUMI vs. A-G EKITI STATE (2002) FWLR (PT 92) 1835 at 1870C, AGBANELO vs. UBN (2000) 77 LRCN 1140 at 1173 and OKAFOR vs. A-G (2001) FWLR (PT 58) 1127 at 1152F-G were relied upon. The 1st Respondent contended that the Lower Court rightly found at page 599 of the Records that the Appellant’s election was improper, invalid and not in keeping with the Constitution and Guidelines of the Peoples Democratic Party. The 1st Respondent further submitted that it does not suffice for an appellant to prove that a court of trial committed an error in law, it must be further shown that but for the error the decision would have been in his favour. That it is by proving that the error occasioned a miscarriage of justice that the decision of a court of trial will be reversed. The cases of AJUWON vs. AKANNI (1993) 12 SCNJ 32 at 52, BAYOL vs. AHEMBA (1999) 14 NWLR (PT 623) 381 at 397E-G and ADEJUMO vs. AYANTEGBE (1989) 6 SCNJ (PT 1) 76 at 86 were called in aid.
RESOLUTION OF ISSUE NUMBER ONE
The Appellant’s contention on this issue as formulated is that the Lower Court failed to consider his case on the merits. However in a seeming volte face, the Appellant argues that the findings of the Lower Court occasioned a grave miscarriage of justice. This is clearly approbating and reprobating; it is either that the Lower Court did not consider the case on the merits on the ground that the Appellant discontinued the case against the Delta State Chairman of the Peoples Democratic Party, or that it considered the case on the merits. Be that as it may, the Lower Court did state as follows at page 600 of the Records:
“Before ending this judgment let me observe that the 2nd question raised for the determination of this case became wasted and merely academic when the suit was withdrawn against the 2nd Defendant by the Plaintiff.”
I make haste to state that the Lower Court did in fact consider the merits of the Appellant’s case, culminating in the conclusion reached by the Lower Court that the Appellant did not place facts before the court to show that due process was not followed in the conduct of the election which produced the 1st Respondent (See page 600 of the Records). The judgment of the Lower Court spans from pages 581 – 600 of the Records. From pages 589 – 594 of the Records the Lower Court in the judgment dealt with the challenge to its jurisdiction, concluding at page 594 that it had jurisdiction. Thereafter the Lower Court considered the affidavit evidence and the documentary evidence presented by the parties before holding that the facts before the court did not show that due process was not followed in the conduct of the election which produced the 1st Respondent. This spans from pages 594 – 600 of the records. Without a doubt, the Lower Court duly considered the case of the Appellant on the merits.
The Appellant posited that the decision of the Lower Court dismissing his case on the ground that he failed to prove that the 1st Respondent and 2nd Respondent failed to comply with the Guidelines of the Peoples Democratic Party is wrong. The learned counsel for the 1st Respondent rightly submitted that the Appellant has the onus of establishing his case. The Lower Court having evaluated the affidavit evidence before it held that the Appellant failed to discharge the onus and accordingly failed to prove his case. It is settled law that the evaluation of evidence is the primary function of the court of trial. Where the court of trial has unquestionably evaluated and appraised the evidence, unless the findings arrived at are perverse, it is not the business of the appellate court to interfere. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1989) 4 SC 98.
The law is that the conclusions of a trial court of the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66 and EBOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. The conclusion of the Lower Court on the facts, which is presumed to be correct is that the Appellant did not show that due process was not followed in the conduct of the election which produced the 1st Defendant. There is nothing on the Records or in the submissions of the Appellant to displace this conclusion. The said finding of the Lower Court on the available evidence is not perverse.
From the available evidence, it is clear that there were two Congresses conducted at which the Appellant and the 1st Respondent variously emerged Chairman of the Oshimili South Local Government Chapter of the Peoples Democratic Party. In such circumstances where there are two Congresses, the input of the political party in question is of paramount importance in arriving at the Congress that is to be accepted. See UZODINMA vs. IZUNASO (2011) 5 MJSC (PT 1) 27 and EMEKA vs. OKADIGBO (2012) LPELR (9338) 1. It is evident that the Peoples Democratic Party, the 2nd Respondent, accepted the congress which produced the 1st Respondent. This is underscored by the submission of the Appellant that his complaints and protests on the recognition of the 1st Respondent ”fell on deaf ears”. Quite apart from the affidavit evidence filed by the parties, the Report of the official of the 3rd Respondent who monitored the Congresses makes it clear, as found by the Lower Court at page 598 of the Records, that two Congresses were conducted by the Peoples Democratic Party.
Having held that the Lower Court duly considered the Appellant’s case on the merits and that the evaluation of the evidence by the Lower Court is not perverse, the decision of the Lower Court on the facts cannot be faulted since the Appellant could not displace the legal presumption that the conclusions of the Lower Court on the facts are correct. Accordingly, I resolve this Issue Number One against the Appellant.
ISSUE NUMBER TWO
Whether the learned trial judge’s finding that the INEC Report on the PDP Congress was biased was right; and if not; whether the said finding has occasioned a miscarriage of justice on the Appellant.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submitted that the Lower Court grossly erred by concluding that the Report of the Independent National Electoral Commission (INEC), the 3rd Respondent, on the outcome of the Congress that its officials monitored and observed was biased. It was posited that but for this erroneous conclusion the Lower Court would have used the said Report to come to the conclusion that the Appellant established his case on the balance of probabilities and that the failure in this regard resulted in a perverse finding and occasioned a miscarriage of justice.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent argues that a document before a court has to be given an integral construction, not piecemeal. It was posited that the attempt by the INEC official to introduce a second Report betrays the mind-set/intention of the official. It was contended that the Report which is at pages 462 – 463 of the Records referred to two parallel Congresses and that it was clear from the Report that both Congresses were held by the Peoples Democratic Party.
RESOLUTION OF ISSUE NUMBER TWO
The submission of the Appellant on this issue seems to elevate the Report of the 3rd Appellant to a pedestal where it does not belong.
The election subject of this action is the election of a political party. It is not an election conducted by INEC, the 3rd Respondent. It seems that what is paramount in the circumstances is the input of the political party in question. In EMEKA vs. OKADIGBO (2012) LPELR (9338) 1 at 53, Rhodes – Vivour, JSC stated:
“In the Uzodinma case I said in the leading judgment that:
‘… in an action to determine who a party nominated as its candidate the input of the party is of paramount importance. INEC on the other hand is merely a nominal party with little or no stake in the matter. INEC should remain neutral in the matter. After all INEC cannot be seen to sympathise more than the bereaved.’
Onnoghen, JSC also observed:
‘Secondly the 3rd respondent INEC as an umpire is expected to remain impartial in disputes of this nature.’
…In issues of the domestic affair of a political party INEC expected to remain neutral.”
So the settled legal position is that INEC, the 3rd Respondent, should be neutral. See also A – G FEDERATION vs. ABUBAKAR (2007) 10 NWLR (PT 1041) 1 and UZODINMA vs. IZUNASO (NO. 2) (2011) 17 NWLR (PT 1275) 30.
It would appear that the 3rd Respondent having issued the Report contained at pages 462 – 463 of the Records and which is reproduced in the judgment of the Lower Court at pages 597 – 598 of the Records, seems to have abandoned its neutrality when it subsequently sought to introduce a second Report. The stricture of bias by the Lower Court is consequently well founded. It seemed there was a design by INEC to become more Catholic than the Pope and more royal than the king. I agree with the finding of the Lower Court and the submissions of the 1st Respondent’s counsel that the INEC Report showed that there was a Congress by the Peoples Democratic Party which had ended about 10am when the INEC official claimed he arrived at the venue of the Congress. I therefore do not agree that the INEC Report should have been used to find that the Appellant established his case on the balance of probability and that the failure to so use it was perverse and occasioned a miscarriage of justice. What was paramount was the input of the Peoples Democratic Party which tilted in favour of recognition of the 1st Respondent as the duly elected Chairman for the Oshimili South Local Government Area Chapter of the Party. This issue is therefore resolved in favour of the 1st Respondent.
ISSUE NUMBER THREE
Whether the Appellant’s claim that he as against the 1st Respondent was the validly elected Oshimili-South Local Government PDP Chairman at the P.D.P Congress stood unchallenged.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the counter affidavit filed by the 2nd Respondent is defective as the deponent of the counter affidavit is counsel in the matter who did not have personal knowledge of the facts deposed to. Section 115 of the Evidence Act, 2011 and the cases of MAJA vs. SAMOURIS (2002) FWLR (PT 98) 818 at 840B – G and VEEPEE IND. LTD vs. COCOA IND. LTD (2008) ALL FWLR (PT 452) 1667 at 1684H – 1685B were referred to. The court was urged to strike out the incompetent counter affidavit and enter judgment against the 2nd Respondent as his case against the 2nd Respondent stood unchallenged and it is deemed to have admitted the Appellant’s claims.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that the 2nd Respondent is not the only Respondent in the case and that the question of whether or not the Appellant was duly elected is a legal matter to be determined on the basis of the Constitution and Guidelines of the Peoples Democratic Party, which were placed before the court by the Appellant and the 1st Respondent.
RESOLUTION OF ISSUE NUMBER THREE
The learned counsel for the 1st Respondent has rightly submitted that apart from the counter affidavit of the 2nd Respondent, there is also the counter affidavit filed by the 1st Respondent which the court is bound to consider before deciding the case one way or the other. Howbeit, even if the facts in the affidavit of the Appellant are unchallenged and uncontroverted on account of the counter affidavit of the 2nd Respondent being defective, post-haste, it is not every fact that is placed before a court that is deserving of rebuttal. Evidence, even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A – G KWARA (1993) 2 NWLR (PT 313) 588, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and BUHARI vs. OBASANJO (2005) 8 MJSC 1 at 268. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659:
“The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak…that it is unnecessary for the Defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff…”
On the peculiar facts of this matter, a favourable resolution for the Appellant is dependent on the interpretation of the Peoples Democratic Party Constitution and Guidelines. The interpretation will not be dependent on the counter affidavit of the 2nd Respondent as the said documents were placed before the court, other than through the medium of the 2nd Respondents counter affidavit. The diacritic facts and circumstances of this matter are such that the Appellant is not entitled to judgment based simply on the fact that the counter affidavit of the 2nd Respondent is defective. The court still had the bounden duty to evaluate the evidence by interpreting the documents upon which the Appellant premised his case. The evaluation of the evidence and interpretation placed on the documents which I have already stated that there are no grounds for this court to interfere, resulted in the finding that the Appellant did not prove his case. In the general scheme of this matter, the fact of any defect in the counter affidavit of the 2nd Respondent can scarcely afford the Appellant any cold comfort. This issue is therefore resolved against the Appellant.
CONCLUSION
It seems that the lawn that this judgment represents has been perfectly mowed. Every blade of grass has been tended to. It only remains to state that this, appeal has no whit, iota or scintilla of merit. The same fails and it is hereby dismissed. In any event, the success of this appeal would have afforded scant consolation for the Appellant as the effect of the decision in the sister Appeal No. CA/B/434/2013 delivered earlier today, is that the Lower Court did not have the jurisdiction to entertain the Appellant’s action and the proceedings however brilliantly conducted are a nullity. Therefore the beneficial value of any success in this appeal would have been zilch. The 1st Respondent is entitled to the costs of this appeal which I assess and fix at N50,000.00.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU JCA. I am in complete agreement with his reasoning and conclusions that the appeal is completely bereft of any merit and should be dismissed. Appeal dismissed. I abide by the order as to costs in the lead judgment.
HAMMA AKAWU BARKA, J.C.A.: I have the singular advantage of reading in draft the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU JCA. I am in total agreement with the erudite reasoning and conclusion reached therein; and I have nothing useful to add.
I too would dismiss this appeal as lacking in merit. I also abide as to the order of costs made.
Appearances
Chike Onyemenam, Esq., SAN (with S. I. Abudei, Esq. and P. O. C. Nwokoro, Esq.)For Appellant
AND
G. I. Ugbechie, Esq., for the 1st Respondent.
2nd and 3rd Respondents absent and not represented by Counsel.For Respondent
