MR. CHIKWEM ONUOHA v. ENGR. (MRS.) ONYEIWU UCHENNA MBA & ORS
(2019)LCN/13100(CA)
In The Court of Appeal of Nigeria
On Saturday, the 13th day of April, 2019
CA/A/252/2019
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
MR. CHIKWEM ONUOHA Appellant(s)
AND
ENGR. (MRS) ONYEIWU UCHENNA MBA & ORS Respondent(s)
RATIO
WHETHER OR NOT FAILURE TO PRODUCE THE RESULT SHEET OF A PRIMARY ELECTION AMOUNTS TO FAILURE TO DISCLOSE A CAUSE OF ACTION
The failure to produce the result sheet of the primary election by the 1st respondent, cannot by any strength of the imagination, amount to failure to disclose a cause of action, as submitted by the learned counsel to the appellant who referred to a result sheet as “credible, reliable and convincing proof.” Cause of action is not proof. The result sheet is what can be employed to prove the cause of action. It is not the cause of action itself. PER YAHAYA, J.C.A.
ABUBAKAR DATTI YAHAYA J.C.A. (Delivering the Leading Judgment) This is an appeal against the decision of the Federal High Court Abuja, delivered on 14th February 2019 wherein all the reliefs of the plaintiff, now 1st respondent, were granted.
?This appeal emanated from the same judgment which was based on the same proceedings as in Appeal No CA/A/251/19 just delivered.
?The 1st respondent as plaintiff filed the Originating Summons, asking the following-
i. Whether, having regards to Sections 221-223 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 85 and 86 of the Electoral Act,2010 as amended), the 1st Defendant is who was screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held by the 1st Defendant on 2nd October 2018 to determine her candidate for Okigwe/Isiala Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election, which primary was witnessed and endorsed by the 3rd Defendant’s designated monitoring team and a certificate of return was issued to the plaintiff.
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ii. Whether, having regards to the combined effect of Section 221-223 of the Constitution of the Federal Republic of Nigeria, 1999 as amended) and Section 87 (4) (c) of the Electoral Act, 2010 as (amended) which among other things guarantee, recognize and prescribe the mode of conducting party primaries only on democratic principles or basis and which enjoins parties to submit to the 3rd Defendant, the name of candidate who emerged winner at primary elections, the 1st Defendant has the power to disqualify or reject the Plaintiff’s candidature which was the choice of the delegates at congress of the 1st Defendant and adopt instead by arbitrary, the 2nd Defendant as her candidate for (Okigwe North) Federal Constituency of Imo State in the 2019 general election.
ii. Whether, in view of Sections 33 and 87(4) of the Electoral Act, 2010 (as amended) and having acquired vested interest in the party ticket as the duly elected candidate of the 1st Defendant in her primary election held on 2nd October 2018, the plaintiff’s candidature can be rejected, disregarded or substituted with the 2nd Defendant for Okigwe/Isiala/ Mbano/Onuimo
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(Okigwe North ) Federal Constituency of Imo State in the 2019 general election when the plaintiff being still alive, has not withdrawn her candidature to contest on the platform of the ls Defendant, nor have any legal impediment.
iv. if question (iii) is answered in the negative, whether having regard to Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiff is in the eyes of the law, the candidate of the 1st Defendant for Okigwe/Isiala Mbano/Onuiomo (Okigwe North) Federal constituency of Imo State in the 2019 and entitled to all the benefit of her candidature as flag bearer of the 1st Defendant
his prayers are for:-
a. A DECLARATION that by virtue of Section 221-223 of the Constitution of the Federal Republic of Nigeria, (1999) as amended and Section 85 and 86 of the Electoral Act, 2010 (as amended) which prescribe the mode of conducting party primaries, the 1St Defendant has no power to disqualify or reject the plaintiff, being choice of the delegate at the party’s primary election held on 2nd October 2018, or through any illegal method, adopt the 2nd Defendant
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as her candidate for Okigwe/Isiala/ Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election.
b. A DECLARATION that the plaintiff’s candidature cannot be rejected revoked or substituted with the name of the 2nd Defendant or any other person when the plaintiff is still alive and has not withdrawn her candidature nor surfers any illegal impediment.
c. A DECLARATION that the 1st Defendant was wrong to have forwarded the name of the 2nd Defendant to the 3rd Defendant as her candidate representing Okigwe/Isiala/Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election as against the name of the plaintiff who scored the highest number of votes in the primary election conducted by the 1st Defendant on 2nd October 2018 and was issues a certificate of return to the effect.
d. AN ORDER of this Honourable Court directing the 1st Defendant to take all necessary steps required of under the Electoral Act to ensure that the plaintiff’s name is duly submitted to the 3rd Defendant as her candidate for Okigwe/Isiala/Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019
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general election.
e. AN ORDER directing the 3rd Defendant to forthwith remove the name of the 2nd Defendant as the candidate of the 1st Defendant representing Okigwe/Isiala/ Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State in the 2019 general election and replace same with the name of the plaintiff.
f. Such further other reliefs as may be considered appropriate in the circumstances of this case.
?On being served with processes, the appellant as second respondent, filed a Preliminary Objection on the competence of the Suit for lack of cause of action and the jurisdiction of the trial Court to hear and determine it. The trial Court did not consider the preliminary objection. It went on to determine the case and it granted all reliefs prayed for by the 1st respondent.
The appellant in dissatisfaction with the judgment, filed this appeal and filed his brief on the 1st of April 2019, but deemed filed on the 4th of April 2019, in it, Mr I. Nwachukwu identified two issues to be-
1. Whether the trial Court did not occasion a miscarriage of justice when it discountenanced and failed to consider the appellant’s Notice of Preliminary
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Objection and assumed jurisdiction to entertain the matter.
2. Whether the trial Court properly considered and evaluated the affidavit and documentary Evidence before it in resolving the Suit in favour of the 1st respondent.
The 1st respondent’s brief of argument settled by Mr Tairu Adebayo on 4th April, 2019 identified two Issues also for resolution, which are-
1. Whether the trial was right when it considerably dismissed the appellant’s preliminary objection and assumed jurisdiction in this Suit.
2. Whether the trial Court evaluated the documentary evidence before it before resolving the issues placed before it in favour of the 1st respondent and whether this Honourable Court should disturb the findings of facts by the trial Court.
The appellant filed a Reply brief on the 9th of April 2019. But deemed filed on the 10th of April 2019. I shall utilise the issues raised by the appellant in resolving this appeal.
ISSUE 1
“Whether the lower Court did not occasion a miscarriage of justice when it discountenanced and failed to consider the appellant’s Notice of Preliminary Objection and assumed
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jurisdiction to entertain the matter.”
(distilled from ground 7 of the amended notice of appeal).
Learned Counsel for the appellant submitted that at page 373 of the record, the trial Judge declined to consider the appellant’s preliminary objection due to the fact that the parties and the Suit number of the said notice of Preliminary Objection were different from those in the case before him. Counsel argued that this is not correct and that the appellant did not challenge the Suit on the ground that where there are conflicts in affidavit evidence, no court has jurisdiction to determine the Suit without calling evidence, as held by the trial Judge.
Counsel argued that the stand of the trial Judge had breached the right of fair hearing of the appellant and urged court to hold so. Alternately, he urged this Court to assume jurisdiction under Section 15 of the Court of Appeal Act 2004, and resolve the Preliminary Objection with respect to jurisdiction as no cause of action was disclosed. He urged us to resolve the issue in favour of the appellant.
?In response, learned counsel for the 1st respondent submitted that the trial
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Court was right in dismissing the Preliminary Objection of the appellant and that this is a technicality and a diversionary issue. He urged us to resolve the issue against the appellant.
?On cause of action, learned counsel submitted that it had been disclosed. He referred to OKAFOR V. BENDE DIVISION UNION JOS BRANCH (2017)ALL FWLR (pt913) 917 at 944-945 and V.B.N PLC V. EZIKPE (2017)ALL FWLR (pt 915) 126 at 1303. He referred to the Originating Summons and submitted that a combination of factual situation had given rise to a cause of action for the 1st respondent against the appellant. He urged us to resolve the issue in favour of the 1st respondent.
I have looked at the Preliminary Objection filed by appellant as 2nd defendant. It is at page 244 of the record. The Suit number therein bears the same Suit Number with the case as seen in the originating Summons-page 3 of the record. The parties are also the same. Again, the Preliminary Objection States-
“AND TAKE FURTHER NOTICE that the grounds of the said objective are as follows
(i) the Suit as constituted does not reveal any cause action.”
?In view of the above, the decision of the
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trial Judge at page 373 of the record, declining to consider the preliminary Objection, on the reasons he gave, cannot stand. I need to state here, that learned counsel for the 1st respondent is not correct, when he submitted that the trial judge had dismissed the Preliminary Objection. He did no such thing. He simply declined to consider it. That action was not justified and had breached the right to fair hearing which ought to be accorded the appellant. See OKOLO V IBEZIM. (2018) LPELR-44892 (CA).
I set aside the decision of the trial Judge in that wise. Since this is a Pre-election appeal with a life time, it would not be appropriate to send the matter back to the trial Court for the determination of the Preliminary Objection especially as it is not fatal to the proceedings.
I invoke the powers conferred on this Court, by the Section 15 of the Court of Appeal Act 2004 and will determine the Preliminary Objection with respect to the jurisdiction of the Court regarding cause of action.
?Learned counsel for the appellant submitted that the Suit did not disclose a cause of action in view of the fact that the 1st respondent who claimed to have
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won the primary election, did not present credible, reliable and convincing proof in the form of the result sheet to satisfy the court that she won the primary election. He referred to ODOM V PDP (2013) LPELR-21195 and OLLEY V. TUNJI (2013)10 NWLR (pt 1362) 275. He urged us to terminate the plaintiff’s claim on the authority of OGBIMI V. OLOLO & ORS (1993) 7 NWLR (Pt 304) 128 at 136.
Learned Counsel for the 1st respondent countered and submitted that the Originating Summons indeed disclosed cause of action. I agree with this submission. Paragraphs 5 6 7 8 9 and 22 of affidavit in support of the Originating Summons clearly deposed to the fact that the 1st respondent indicated her interest to contest for the seat of Okigwe/Isiala/Mbano/Onuimo (Okigwe North) Federal Constituency of Imo State, bought the form, participated in the primary election conducted by the 2nd respondent, won the majority votes, was declared winner thereof and presented with a certificate of return. Instead of her name to be submitted to the 3rd respondent to participate in the general election, it was the name of the appellant that was forwarded to the 3rd
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respondent when he did not win the majority votes at the primary election. A combination of these facts has given the 1st respondent the material upon which to complain against the action of the defendants. That has clearly, given her the cause of action.
The failure to produce the result sheet of the primary election by the 1st respondent, cannot by any strength of the imagination, amount to failure to disclose a cause of action, as submitted by the learned counsel to the appellant who referred to a result sheet as “credible, reliable and convincing proof.” Cause of action is not proof. The result sheet is what can be employed to prove the cause of action. It is not the cause of action itself.
?In view of this, the Preliminary Objection is misconceived and it is Struck out. Issue No 1 in this substantially resolved in favour of the 1st respondent and against the appellant.
ISSUE NO 2
“Whether the trial court properly considered and evaluated the affidavit and documentary evidence before it in resolving the suit in favour of the 1st respondent” (Distilled from ground, 1,2,3,4,5,& 6 of the amended notice of appeal).
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Learned counsel for the appellant has, in similar fashion to the argument of the appellant in Appeal No CA/A/251/2019, submitted that a perusal of the judgment will lead to the conclusion that NONE of the documentary evidence of the appellant was considered by the trial court and that he only glossed over them and rejected them without proffering any reasons.
?As I found in CA/A/251/2019, this submission is not borne by the record; The trial judge considered the affidavits of the parties and found that in Exhibit APGA3, the result sheet, the appellant scored the least votes-O, but that the 1st respondent scored the highest votes. He examined the counter- affidavit of the 2nd respondent and found that exhibits APGA A ?F alluded to in the counter affidavit, were not attached, thereto-page 369 of the record. He considered exhibits TQA1 and TQA2 in his evaluation of the evidence and gave probative value to exhibit TQA1 and used it to make a finding of the genuiness of the certificate of return issued to the 1st respondent. I therefore do not find any merit in the submission of the appellant. That the trial Judge did not consider any documentary evidence. This was a very
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farfetched submission that is not grounded on the record of the trial Court.
Learned counsel has also attacked the failure of 1st respondent to produce and tender the result sheet of the Primary election, relying on ODOM & ORS V. PDP & ORS (2013)LPELR-21195 (CA), which established that a result, sheet is a prima fade evidence of a conclusive election. I do not understand this authority as saying that a result sheet is the only prima facie evidence of a conclusive election in my view, there may be another document that can play the same role. As submitted by learned counsel for the 1st respondent in the brief, the Certificate of return has written on its face that the recipient “scored the highest number of votes.” ?There is no ambiguity to this. It simply connotes that following the election, it was the recipient who scored the highest votes and was thus entitled to be issued with the certificate of return. That is why, only one certificate of return is issued to the winner. If 2 (two) certificates of return are issued, there must be something wrong and it is the duty of the Courts to unravel the problem. The trial court did just this. It
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relied on exhibit TQAI and found for the 1st respondent. This leads me to the challenge of exhibit TQAI by the appellant as contrary to Section 84 (4) of the Evidence Act and so inadmissible.
Once more I record my position in CA/A/251/2019 which was based on exactly the same submission as in his appeal. At page 85 of the record, containing the Further Affidavit of the 1st respondent here, paragraph 5 thereof, deposed to the fact that Exhibit TQAI was made from a Samsung S8 phone and printed via HP colour LaserJet c1515n using HP Computer CN R34313433ph4. Being used in the normal cause of business. Further details were provided in the further Affidavit of the 1st respondent in respond to the appellant’s counter affidavit. I am therefore in agreement with the counsel for the 1st respondent, that Section 84 (4) of the Evidence Act 2011, was complied with and so the admission of exhibits TQAI was in order.
?The trial Court had thus admitted admissible evidence. It reviewed and evaluated the evidence led before it and had reached the right conclusion. There is no miscarriage of justice and this Court is therefore not in a position to interfere with
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it- ANEKWE V STATE (2014) 10 NWLR (pt 1415) 353 at 381; ADEYE ORS V. ADESANYA & ANOR (2001) 6 NWLR (pt 708)1. Issue no 2 is thus resolved in favour of the 1st respondent and against the appellant.
The result is that this appeal has no merit and it is dismissed. I affirm the judgment of the trial Court delivered on 14th February 2019 in suit NO FHC/ABJ/CS/1302/18.
No Order as to costs.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I have read the lead judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA. I agree with his reasoning and conclusion in dismissing the appeal. I, too, dismiss the appeal.
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Appearances:
Isaac NwachukwuFor Appellant(s)
Tairu Adebayo for the 1st respondent.
M. S Ibrahim and A.S. Elukpo for the 2nd respondentFor Respondent(s)
Appearances
Isaac NwachukwuFor Appellant
AND
Tairu Adebayo for the 1st respondent.
M. S Ibrahim and A.S. Elukpo for the 2nd respondentFor Respondent
