MR. DAN ABIA V. HON. ESEME EYIBOH & ORS
(2012)LCN/5120(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of January, 2012
CA/A/344/2011
RATIO
LAW OF EVIDENCE: ON WHOM LIES THE ONUS TO PROVE AN ASSERTION
It is a settled principle of the law of Evidence that he who asserts must prove his assertion in order to be entitled to the judgment or orders of court in his favour. That is the essence of sections 131 – 133 of the Evidence Act 2011 (sections 135 – 137 of the former Evidence Act). The cases of OLOWU v. OLOWU (1985) 3 NWLR [pt.13] 372; ORJI v. PDP (2009) 14 NWLR [pt.1161] 310 have restated this basic principle of law. If a man comes to court to say that l am the candidate of a political party, duly nominated by the party to be its candidate; the burden of proving that he was duly nominated in accordance with due process of the party for his emergence as such candidate is on such a party. The burden of proof prescribed by section 132 of Evidence Act, 2011 (formerly section 136) is on the party who will lose if no evidence is called that the political party, whose sponsorship he is claiming, participated in the primary election at which he purportedly emerged as such a candidate. PER. EJEMBI EKO, J.C.A.
THE PRINCIPLE OF FAIR HEARING
Certainly, a judgment delivered which did not, or refused to, consider the defence is a clear negation of the basic principle of fair hearing contained in section 36(1) of the 1999 Constitution, as amended, and latin term: audi alteram partem (hear the other side). It is perverse and completely a nullity. It can not stand. PER. EJEMBI EKO, J.C.A.
JUSTICES:
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
MR. DAN ABIA – Appellant(s)
AND
1. HON. ESEME EYIBOH
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PEOPLES’ DEMOCRATIC PARTY (PDP) – Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 11th February, 2011 the 1st Respondent took out against the Independent National Electoral Commission (INEC), Peoples’ Democratic Party (PDP) and Mr. Dan Abia (the present appellant) an originating motion wherein he claimed the following reliefs –
1. AN ORDER setting aside the primaries purportedly held at Uyo Township Stadium on 28th and 29th January, 2011 at which Mr. Don Abia was purportedly elected as the candidate of the Peoples’ Democratic Party for election to the office as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal constituency for the 2011 general elections.
2. AN ORDER setting aside the purported sponsorship of Mr. Don Abia as the candidate of the Peoples’ Democratic Party for election to the office as member of House of Representatives representing Eket/Ibeno/Esit/Onno Federal Constituency for the 2011 general elections.
3. AN ORDER of injunction restraining the 1st Defendant (i.e INEC) by itself, agents, servants, officers, privies and any person acting through or under the from accepting or otherwise acting on the nomination or sponsorship of Mr. Don Abia by the 2nd Defendant (i.e. the PDP) to the office as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency under the flag of the 2nd Defendant (PDP).
4. AN ORDER directing the 1st Respondent to insert the name of the Applicant (i.e. Hon. Eseme Eyiboh) as the PDP candidate for election to office as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency.
5. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The application, treated as an originating summons by the parties, was before the Federal High Court, Abuja presided by his Lordship, A. Abdu Kafarati, J. It was supported by several affidavits. The affidavit of Hon Eseme Eyibo (the applicant), deposed on 11th February, 2011, has 33 paragraphs. The affidavit is at pages 6 – 9 of the Record. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22 and 30 of the said affidavit of Hon. Eseme Eyiboh (1st Respondent in the appeal) are herein below reproduced as follows. That is:-
4. I am currently a member of the House of Representatives elected under the platform of the PDP and representing Eket/Ibeno/Esit/Onno Federal Constituency.
5. I contested with two other persons for sponsorship as candidates of the PDP to the House of Representatives to represent the Eket/Ibeno/Esit/Onna Federal Constituency in the 2007 general elections scheduled for April.
6. Eket/Ibeno/Esit/Onna Federal Constituency comprise the following Local Government Areas:
a. Eket Local Government Area,
b. Ibeno Local Government Area,
c. Esit Eket Local Government Area, and
d. Onna Local Government Area.
The headquarters of the Constituency is Eket.
8. Under our party constitution and guidelines, the primaries MUST hold at the headquarters of the constituency. Copies of the Party Constitution and Electoral Guidelines are attached and respectively marked as Exhibit ‘A’ and Exhibit ‘B’.
9. Hence also the designation of Eket as the venue for the primaries.
10. Primaries were initially scheduled for 7th January, 2011 at the Eket Township stadium but were cancelled due to violence and irregularities. The violence claimed the lives of two delegates as attested to in the Thisday newspaper of Monday, 10th January, 2011, Vol. 15, No 5740.
11. None of the contestants was elected by the delegates in the attempted primaries of 7th January, 2011 as some was annulled consequent to the violence and irregularities.
12. Our party and all three contestants agreed to new primaries to be scheduled later.
13. By the guidelines of the 1st Respondent, the primaries, including re-run, ought to hold on or before 15th January, 2011 and monitored/observed by the 1st Respondent. The 1st Respondent’s instructions to that effect is annexed hereto and marked as Exhibit ‘C’.
14. On account of the said failed earlier attempt to hold primaries regarding the Eket Federal Constituency, the 2nd Respondent eventually fixed Friday, 28th January, 2011 for the primaries at the Eket Township Stadium. A copy of the letter dated 27th January, 2011 (12 days after the deadline fixed by INEC for primaries) written by the National Organizing Secretary of the PDP constituting the Primaries Election Panel is attached and marked as Exhibit ‘D’.
Eket/Ibeno/Esit/Onno Federal Constituency at Akwa Ibom State is listed as No 8 for the primaries.
15. As at this date, the 2nd Respondent was already out of the time required by the 1st Respondent’s guidelines for all political parties to hold primaries. The deadline fixed for all primaries to hold was 15th January, 2011.
17. On the date fixed for the primaries being 28th January, 2011, I was at the Eket Township Stadium along with most of the other delegates.
18. We waited all day and all through to the following day, 29th January, 2011 for the panel conducting the primaries to come.
19. The panel appointed by the 2nd Respondent from Abuja never came and no primaries held at the Eket Township stadium or anywhere in Eket/Ibeno/Esit/Onna Federal Constituency.
20. I was surprised to hear on Nigerian Television Authority and other news media that Eket/Ibeno/Esit/Onno Federal Constituency is one of the constituencies in which the 2nd Respondent is sponsoring a candidate, and that this was as a result of primaries that held of Uyo Township stadium. The 1st Respondent has published a list which contains the name of the 3rd Respondent as the flog bearer.
27. Uyo is not the headquarters of Eket/Ibeno/Esit/Onno Federal Constituency.
22. Uyo is not even within Eket/Ibeno/Esit/Onno Federal Constituency.
30. I am confident that if the delegates who waited with me at Eket Township stadium had participated in the primaries, I would have won by an overwhelming majority.
This affidavit is quite revealing. The combined effect of paragraphs 15, 17 and 18 of the said affidavit is that
i. as at 28th and 29th January, 2011 the PDP “was already out of the time required by the (INEC) guidelines for all political parties to hold primaries. The deadline fixed for all primaries to hold was 15th January , 2011”. Nobody said that INEC granted PDP an extension of time after the deadline.
ii. Exhibit ‘C’ is INEC letter to the PDP warning them of the futility of conducting primary elections after the elapse of the deadline on 15th January, 2011 and that the deadline “has not been extended by the commission.”
iii. The PDP panel appointed to conduct the primary election in the Eket/Ibeno/Esit/Onna Federal Constituency “never came and no primaries held at the Eket Township stadium or anywhere – in the Federal Constituency.”
iv. Hon. Eseme Eyiboh (Applicant/1st Respondent) never said he was nominated or elected as the PDP candidate at Eket either on 28th or 29th day of January, 2011.
The affidavit of Hon. Eyina Ukana Eyina, deposed on 7th April, 2011, in paragraphs 7, 8, 9, 10 and 11 thereof at page 124 of the Record, was intended to fill a lacuna. The affidavit avers inter alia:
7. That on the 28th January, 2011, I was of the Eket Township stadium, Eket along with other delegates for the scheduled Primary Elections.
8. White waiting for the officials appointed by the [PDP] to conduct the primary to arrive from Abuja I had a meeting with a caucus of the delegates present, who together, from a majority of delegates for the Primaries and we all agreed to vote unanimously for the Applicant (i.e. Hon. Eseme Eyiboh).
9. That because I was present at the meeting, I know that the reason why the delegates agreed to vote overwhelmingly for the Applicant is that, the Applicant is the incumbent member of the House of Representatives representing the Eket Federal Constituency and we all believed that he performed very well, and executed his mandate to the best of his ability and satisfaction of the Constituents through the execution of development projects and human capacity development initiatives.
10. That after taking the decision to vote for the Applicant, all the delegates as well as myself, waited endlessly and even late into the night but the officers from 2nd Respondent (PDP) did not come to Eket or any other place within the Eket Federal Constituency to conduct the scheduled Primary election.
11. That the other delegates and myself waited late into the night and eventually, having not seen the officers of the 2nd Respondent (i.e. PDP) before we dispersed, we unanimously resolved through affirmation that the Applicant (i.e. Hon Eseme Eyibo) be returned as consensus candidate of the 2nd respondent (i.e. the PDP) and the same was communicated to the 2nd Respondent.
Hon. Eseme Eyiboh (Applicant/1st Respondent and Hon Eyina Ukana Eyina, both deponents of an affidavit each, do not seem to be on one page. paragraphs 17 and 18 of Hon. Eseme Eyiboh’s affidavit aver that nothing happened on 28th January, 2011 and that he and the delegates at Eket Township stadium waited all day and night all through to the following day, 29th January, 2011 for the panel conducting the primaries to come.” Hon. Eyina Ukana Eyina, on the other hand, is saying that the delegates, including himself, having waited all day on 28th January, 2011 until “late into the night and eventually, having not seen the officers of the 2nd Respondent (i.e. the PDP) – we unanimously resolved through affirmation that [Hon Eseme Eyiboh] be returned as consensus candidate of the (PDP) and the same was communicated to the (PDP).
Contrary to the averments of the Applicant/ 1st Respondent, the Appellant as the 3rd Respondent on the originating motion, had deposed to the Counter-Affidavit at pages 310 – 393 of the Record that the PDP had originally scheduled the National Assembly Primaries for 5th – 6th January, 2011 that due to logistic demands the primaries were held on 7th – 8th January, 2011 at Eket Township stadium and that the contest was between himself and Applicant/1st Respondent (Hon. Eseme Eyiboh). He further averred that the primary election was peaceful and that while he won with 586 votes, the Applicant/1st Respondent scored 179 votes. He exhibited the Report of the Electoral panel sent by the PDP to conduct the primary election and the INEC report on the same as Exhibits ‘DAN 44 and DAN 45’ respectively.
Exhibit ‘DAN46’ is THE NATIONAL NEWSPAPER advertorial publication of the two reports, Exhibits ‘DAN44′ and DAN45’ – the publication of 14th January, 2011.
The Appellant denied vehemently the cancellation or annulment of his victory at the 7th – 8th January, 2011 primary election conducted at Eket Township stadium. He further averred at pages 313 – 314 of the Record –
16. That Eket Federal Constituency was never of any time whatsoever/howsoever included in the list of constituencies for re-run election primaries as the primary held on 7th – 8th January, 2011 was unchallenged, subsisting and valid.
17. That on January 25, 2011 exactly 17 days after the primary aforementioned the National Working Committee (NWC) with the consent and approval of the National Executive Committee (the highest organs of the party) ratified the primary election and upheld my candidature upon the recommendation of the 7 man Committee constituted by the party and I was pursuant thereof issued with the [INEC] Forms CF.007 and EC4B (iv) as the duly elected candidate of the [PDP] for the Eket Federal Constituency in the House of Representatives election in April, 2011.
18. That on 28th January, 2011 at about 5 pm, the Applicant’s Word Chairman, Mr. John Peter Eyefia called and informed me of the purported re-run primary for Eket Federal Constituency slated for 8.00 am the following morning, January 29, 2011, at Uyo Township stadium at the behest of the Applicant and with the connivance of same anti-democratic forces within the party and the government circles.
19. That I immediately caused o protest to be filed on my behalf with the Chairman of the (INEC), through the office of the Resident Electoral Commission of the (INEC) IN Uyo, Akwa Ibom State. Here with annexed and marked as Exhibit ‘DAN 47’ is the protest letter aforesaid dated 28th January, 2011.
27. That notwithstanding the foregoing I mobilized my supporters at enormous cast to the venue of the purported re-run election, under protest.
22. That a fresh accreditation of delegates was done and election was thereafter conducted and yet again I garnered the highest number of votes and was declared elected with a total of 773 votes against the Applicant’s (i.e. Hon Eseme Eyiboh’s) miserable 5 votes.
From the foregoing averments, the Appellant, as the 3rd Respondent at the trial Court, attended the primary election conducted at Uyo under protest and was still able to poll 773 votes out of 778 at stake. He had not compromised or waived any right of his.
Issues were joined and the parties through their respective counsel concluded arguments on 9th May, 2011. Thereafter the trial Court adjourned the matter to 19th May, 2011 for Ruling. On the said 19th May, 2011 the trial Court did not sit. Its judgment contained at pages 457 – 466 of the Record was delivered on 1st June, 2011. The summary of the judgment on the merits is as follows. That it is not in dispute that the primary election that produced the 3rd Defendant (the Appellant) as candidate of the 2nd Defendant (PDP) for Eket Federal Constituency took place in Uyo, which is not part of Eket Federal Constituency. Consequently, in view of the mandatory provisions of section 87 (4) (C) (i) of the Electoral Act, 2010, as amended, and Article 17.2 (d) of the PDP Constitution, requiring the party to hold its congress for selection its candidates at the constituency headquarters, the election of the 3rd Defendant (the Appellant) as the PDP candidate for Eket Federal constituency was illegal and invalid. (This must be reference to the primary election of 29th January, 2011 that Appellant attended under protest).
ii. The trial Court found that the officers of the PDP appointed to conduct the re-run election at Eket did not arrive at Eket on 28th and 29th January, 2011 to conduct the re-run primary election and that since it was not the fault of the plaintiff (Hon. Eseme Eyiboh) or the delegates that the officers did not arrive at Eket to conduct the rerun primary election “the justice of the case demands that the plaintiff be returned as the candidate of the (PDP) for Eket Federal Constituency.” And it there and then ordered that “the 2nd Defendant (i.e. the PDP having won the seat for Eket Federal Constituency the Plaintiff (i.e. Hon. Eseme Eyiboh) is to be returned as the winner of the said election and I so ordered. The Plaintiff is to take the place of 3rd Defendant (i.e. the Appellant). Prayers 1, 2 and 4 are granted as prayed.”
I do not see in the judgment where the defence of the Appellant, that he filled INEC FORMS CF.001 and EC4B (iv) as the PDP’S duly elected candidate pursuant to the primary election held on 7th – 8th January, 2011 wherein he polled 586 votes against the Plaintiff’s 179 votes and that both the National Working Committee and the National Executive Committee had ratified the said primary election and his candidature, was ever considered. The terse judgment also did not consider the averment of the Appellant that he attended Uyo congress on 29th January, 2011 under Protest.
The parties have exchanged Briefs of argument, which at the hearing of the appeal they had adopted as their respective arguments in the appeal. The appeal was argued on the basis of the Notice of Appeal dated 30th June, 2011 but filed on 1st July, 2011. That Notice has 8 grounds of appeal as per the supplementary Record II transmitted on 11th July, 2011.
Chief Olanipekun, SAN had, on behalf of the Plaintiff/1st Respondent, raised preliminary objection to “grounds 1 and 6 of the Notice of Appeal, as well as issue 1 formulated in the Appellant’s Brief of Argument. The grounds of the said objection are that –
i. The Appellant did not seek leave of this Honourable Court to raise a fresh issue on appeal.
ii. The Appellant did not appeal against vital findings of the lower court which constitute the substratum of the judgment.
iii. The Appellant’s grounds of appeal are inconsistent and mutually exclusive.
iv. This Court lacks jurisdiction to adjudicate on grounds 1 and 6 and any issue raised there under regarding the validity of the primary election at Eket on 28th and 29th January, 2011 where the 1st Respondent was validly nominated.
The said grounds 1 and 6 of Notice of Appeal, shorn of their particulars, read thus –
1. The learned trial Judge erred in law when he ordered that the 1st Respondent be returned as the candidate of the Peoples Democratic Party for Eket/Ibeno/Esit/Onna Federal Constituency when the Plaintiff/1st Respondent did not prove that he won the party’s primary election or general election conducted by the appropriate organ or officer of the 3rd Defendant/Respondent for the said Constituency, which error occasioned a grave miscarriage of justice.
6. The learned trial Judge erred in law when he ordered the 1st Respondent to be returned as the winner of the said election, when there is no such relief before the court.
I had earlier reproduced the reliefs claimed by the 1st Respondent, as the plaintiff. I have seriously considered the submissions of Chief Olanipekun, SAN for the 1st Respondent/Objector and the response of L.O. Fagbemi, SAN of counsel to the Appellant. I am of the firm opinion that the preliminary objection is misconceived.
The case of the 1st Respondent, as rightly observed by his counsel, the learned silk, is “that he was nominated at the party primaries” and that throws on him the burden of proving that he won the party primary election. That in my view is the substance or the essence of Ground one of the Notice of Appeal. Ground 5 of the Notice Appeal is a complaint that the trial Judge granted a relief that the 1st Respondent did not seek before him.
Chief Olanipekun, SAN further submitted that Grounds 1 and 6 are inconsistent, mutually exclusive and are not stated in alternative.
With all deference, I do not agree with this contention. As I earlier stated ground 1 raises the issue of the 1st Respondent, as the Plaintiff, not proving his case in order to be entitled to the judgment of the trial Court; while Ground 6 questions the propriety of the trial Court granting, in favour of the 1st Respondent, a relief that he did not seek.
The merits of these complaints of the Appellant are entirely a different ball game.
The preliminary objection, misconceived as it is, is hereby dismissed.
From the eight (8) grounds of appeal the Appellant, through L.O. Fagbemi, SAN, has formulated the following three (3) issues for determination, that is –
1. Whether having regard to the facts and circumstances of this case the trial Judge was right to have returned the 1st Respondent as the winner of 9th April, 2011 election for Eket/Ibeno/Esit/Onna Federal Constituency ? Grounds 1 and 6.
2. Whether the learned trial Judge was right to have set aside the sponsorship, and candidacy of the Appellant for Eket/Ibeno/Esit/Onno Federal Constituency in the face of unchallenged evidence that, he won the primary elections for the constituency which elections were not set aside by anybody? Grounds 3, 4, 5, 7 and 8.
3. Whether in the face of serious inconsistency and conflict in affidavit evidence, the trial Judge ought to have called for oral evidence to resolve the seeming conflict and whether in any event failure to call for oral evidence is not sufficient to warrant the decision of the trial Judge being set aside? Ground 2.
The three (3) issues formulated for the determination of the appeal from the 8 grounds of appeal by the 1st Respondent are as follows, i.e.:
1. Considering the state of affidavit evidence before the lower court vis-avis the mandatory provisions of section 87 of the Electoral Act, 2010 (as amended) and the necessary provisions of the PDP Constitution and Guidelines for the conduct of Primary elections, whether the lower court was not right to have given judgment in favour of the Respondent? Grounds 1, 3, 4, 5, 7 and 8.
2. Considering the extant provisions of the law, whether the 1st Respondent’s action was not properly commenced at the lower court by way of originating motion?
3. Was the lower court not in order to have made the consequential order returning the 1st Respondent as the duty elected candidate for the Eket/Ibeno/Esit/Onno Federal Constituency in Akwo Ibom State.
Let me comment briefly on the 1st Respondent’s issue No 2, which apparently is purported to have arisen from Ground 2 of the Notice of Appeal. The Ground does not question the propriety of commencing the action by way of an originating motion. Rather, the said ground 2 complains that the learned trial Judge erred in law when he proceeded with the case of the Plaintiff on originating motion, when having regard to the facts before him oral evidence will be required to determine the case, and no question of interpretation was raised for the consideration of the court.
The law is now settled that an issue for determination in an appeal must flow directly from the ground(s) of appeal. It cannot flow from nowhere or invacuo and it is incompetent if it flows from nowhere. See IHEANACHO v. EJIOGU (1995) 4 NWLR [pt.389] 324; LORI v AKUKALIA (1998) 12 NWLR [pt.579] 592. 1st Respondent’s issue 2, being incompetent as it flows from nowhere, is hereby struck out. Chief Olusola Oke of counsel for the PDP (3rd Respondent in the appeal) has adopted Appellant’s issues 1 and 2, which he argued together. He offered no argument on Appellant’s issue 3.
INEC, as the 2nd Respondent, has chosen to remain indifferent. He has not joined the dispute by advancing any argument for or against any of the active combatants, contending that it is a nominal Party, and that
By its statutory existence (it) is an independent body with constitutional powers to conduct elections in Nigeria. It must not only be an umpire, it must be seen, in the eyes of reasonable men, to be an impartial umpire in the conduct of an election. INEC must never by act of omission or commission place itself in favour of one party against another one.
This their stance, is in line with the admonition of the Supreme Court in A.G. FEDERATTON v. ABUBAKAR (2007) 10 NWLR [pt.1041] 1 at pages 106 and 182- 183. The stance is quite commendable since the dispute is purely internal affair of the PDP.
L.O. Fagbemi, SAN has submitted correctly under Appellant’s issue 3 that it is now trite principle of law that, no court has jurisdiction or competence to determine a matter on conflicting affidavit evidence without calling oral evidence. Reliance is placed on the authorities of D.P.C.C. LTD v. B.P.C. LTD (2008) NWLR [pt.1077] 376; FALOBI v. FALOBI (L976) 9 – 10 SC 1; OLU-IBUKUN v. OLU-IBUKUN (1974) 2 SC 4.
In DOHERTY v. DOHERTY (1969) NMLR 24 it was held that originating summons should not be the proper initiating process where the proceedings are hostile proceedings. That is, proceedings in which facts are apparently disputable. Authorities however justify the use of originating summons where the sole or the main question or dispute centres on interpretation of documents.
In this case the Appellant, as the 3rd Defendant, founded his defence to the action, among others on the existence of primary election between himself and the Plaintiff/1st Respondent that was conducted on 7th – 8th January 2011 by the electoral panel appointed by the PDP at the National level. In proof of this assertion he attached documents, particularly Exhibits ‘DAN 44’, ‘DAN 45’, and ‘DAN 46’. This fact was originally denied by the 1st Respondent who claimed that the exercise was postponed because it was marred by violence. The Appellant put in the Electoral Panel Report and also the report of INEC that monitored the primary election to refute the 1st Respondent’s assertion or denial. The 1st Respondent averred in paragraphs 10 and 11 of the supporting affidavit that the primary election scheduled for 7th January 2011 was cancelled because of violence, irregularities and malpractices, was attested to by the THISDAY Newspaper of Monday 10th January, 2011. The newspaper was not exhibited. I do not think there are any serious dispute of facts on this. The Electoral panel issued their report, Exhibit ‘DAN 44’, on the conduct of the election. INEC, that monitored the primary election, also issued their report, Exhibit ‘DAN 45’, which corroborates the Appellant’s assertion that the primary election was not only actually conducted on 7th – 8th January, 2011 at Eket Township stadium, it was peaceful.
On the new primary election said to have been scheduled for 28th or 29th January, 2011 the Appellant averred that he raised his protest to that exercise in writing. He exhibited his protest letter. This thus belied the 1st Respondent’s contention that he and the Appellant met and agreed that a new primary election be conducted.
The fact that the Appellant raised issue of 1st Respondent’s Exhibit ‘D’ being a suspect document does not ipso facto make that a serious disputed fact. His objection to the document was articulated in the particulars of mutilation. It is clear from the particulars of mutilation that the grounds of objection are inherent in the document itself. By that, it is clearly a question of interpretation. It is therefore into the document itself and nowhere else one has to prise to resolve the objection.
From the foregoing I am of the firm view that the learned silk for the Appellant is not on any firm grounds on this issue. Accordingly, the issue shall be, and is hereby, resolved against the Appellant.
The remaining two issues formulated by the Appellant and the 1st Respondent are not in any way dissimilar. Accordingly, they shall be treated together as Chief Olusola Oke of counsel to the PDP had done.
I had earlier reproduced the reliefs of the 1st Respondent at the trial court. I had similarly reproduced some salient portions of the affidavits of the 1st Respondent himself and of Hon. Eyina Ukana Eyina in support of the originating motion. I have no doubt whatsoever in me that the two affidavits disproved the assertion of the 1st Respondent, as the plaintiff, that the PDP, on whose platform the 1st Respondent is claiming that he had been duly nominated as a candidate, conducted no primary election either on the 28th or 29th January, 2011. It is a settled principle of the law of Evidence that he who asserts must prove his assertion in order to be entitled to the judgment or orders of court in his favour. That is the essence of sections 131 – 133 of the Evidence Act 2011 (sections 135 – 137 of the former Evidence Act). The cases of OLOWU v. OLOWU (1985) 3 NWLR [pt.13] 372; ORJI v. PDP (2009) 14 NWLR [pt.1161] 310 have restated this basic principle of law.
If a man comes to court to say that l am the candidate of a political party, duly nominated by the party to be its candidate; the burden of proving that he was duly nominated in accordance with due process of the party for his emergence as such candidate is on such a party. The burden of proof prescribed by section 132 of Evidence Act, 2011 (formerly section 136) is on the party who will lose if no evidence is called that the political party, whose sponsorship he is claiming, participated in the primary election at which he purportedly emerged as such a candidate.
Paragraphs 17, 18 and 19 of the 1st Respondent’s own affidavit read together with paragraphs 7, 8, 9, 10 and 11 of the affidavit of Hon. Eyina Ukana Eyina leave no doubt that the PDP or its electoral panel did not participate in the process resulting in the purported emergence of the 1st Respondent as the PDP candidate for Eket/Ibeno/Esit/Onna Federal Constituency for the April 2011 general elections. As sentiments command no place in judicial adjudication, these averments alone were enough to warrant the dismissal of the suit of the 1st Respondent at the trial court. Chief Olanipekun, SAN clearly got it wrong when he submitted that 1st Respondent was, on 28th January, 2011 “unanimously elected as the candidate for the constituency.”
This suit of the 1st Respondent, as submitted by Chief Olanipekun, SAN in paragraph 3.7 of the 1st Respondent’s Brief, was primarily against the PDP, for it is the party that is vested with jurisdiction by the Electoral Act, the PDP Constitution and the PDP Electoral Guidelines to conduct the primary election to nominate its candidate. The parties and the court, as submitted by Mr. Fagbemi, SAN for the Appellant, are bound by the pleadings. The averments of Hon. Eseme Eyiboh (1st Respondent) and Hon. Eyina Ukana Eyina in their respective affidavits are binding on the 1st Respondent and the trial court. They prove substantial failure or weakness of the case of the 1st Respondent. Had the learned trial Judge considered these devastating pieces of evidence it would have had no other business than entering an order dismissing the suit of the 1st Respondent. In WAZIRI IBRAHIM v. SHEHU SHAGARI (1993) 1NSCC 431 where the witnesses called by the petitioner testified to the contrary of the very essence/substance of the case presented by the petitioner the Supreme Court held that in such situation the petitioner’s case was entitled to be dismissed. The portion of the speech of Irikefe, JSC at page 434 of the Report says it all. It reads.
As would be expected in such a situation, these witnesses, as it were, helped the petitioner to disprove all the allegations he had sought to rely upon. In other words, the petitioner with his eyes wide open pulled down brick by brick, the edifice he had erected. The result of the poor strategy was that the Federal High Court had no difficulty arriving at the conclusion, which it did, that the petition had not been proved – and in dismissing it.
Chief Wole Olanipekun, SAN for the 1st Respondent submits, and I agree, that it is trite law, on authority of section 123 Evidence Act and ONYENGE v. EBERE (2004) 12 NWLR [pt.889] 20 at page 39, that what is admitted needs no further proof. The totality of the affidavit evidence in support of the 1st Respondent case suggests or proves that PDP did not participate in the 1st Respondent’s nomination process. As observed by Rhodes-Vivour JSC in UZODINMA v IZUNASO (2011) 9 EPR 757, in every nomination process or primary election the input of the political party is of paramount importance. The PDP, therefore, can not be neglected or sidelined in its own nomination process. It is clear from paragraphs 8, 9, 10 and 11 of the affidavit of Hon. Eyina Ukana Eyina that PDP, on whose ticket the 1st Respondent purports to be a candidate, did not participate in any nomination exercise either on 28th or 29th January, 2011 at Eket where from the 1st Respondent emerged as a candidate in accordance with the due process of law.
The affidavit of Hon. Eyina Ukana Eyina, particularly paragraphs 10 and 11 thereof, is to the effect that following the failure of PDP Electoral panel to arrive at Eket for the conduct of the primary election the delegates sympathetic to 1st Respondent’s cause merely, by affirmation, expressed their wish that the 1st Respondent be adopted as consensus candidate. That resolution, which is a mere wishful thinking, was not any binding resolution. In any case there is no evidence that the PDP adopted and acted on that wishful prayer/request. It is, my Lords, beyond any doubt that there can be no legitimate nomination exercise without the participation of the political party that would sponsor the candidate. It is mandatory under section 87 (1) Electoral Act, 2010, as amended, that a political party seeking to nominate a candidate shall hold primaries for all aspirants to the elective post. Section 87 (4) and (6) of the Electoral Act clearly negate the procedure of affirmation (by unaccredited delegates and without the participation of the party) alluded to and relied upon in the affidavit of Hon. Eyina Ukana Eyina. For every nomination process it is imperative that the political party, this time the PDP, shall hold a congress or special convention. And where there is even a single aspirant for the elective post the political party shall convene a special congress or convention at a designated centre on a specific date for the confirmation of such an aspirant. In this case the 1st Respondent admits there were two other aspirants. One aspirant and his supporters can not resolve ex parte and ex cathedra and impose themselves on the party.
The 1st Respondent, by his own showing, has not proved that his purported nomination as the PDP candidate complied with the mandatory provisions of the PDP Electoral Guidelines, Exhibit ‘B’, particularly Articles 27, 30 and 31 thereof. Because no Electoral panel attended the venue where 1st Respondent’s supporters assembled to pass a resolution, by affirmation, that the 1st Respondent be accepted by the PDP as a consensus candidate for the Eket/Ibeno/Esit/Onna Federal Constituency the mandatory Result sheet form Code PD004/NA was not filled and none was shown. Article 32(a) of the Electoral Guidelines, Exhibit ‘B’, is very clear: No result shall be upheld as valid until it has been entered in the appropriate Form PD004/NA designated for it.
The trial court did not consider all the vital evidential materials before it. The judgment is clearly perverse. The trial court not only closed its eyes to the pieces of evidence constituting admission against interest made by the 1st Respondent. It also did not consider the defence of the Appellant. The Appellant was not only relying on his victory at the Uyo primary election purportedly conducted on 29th January, 2011 at Uyo Township stadium. He insisted on the earlier primaries conducted at Eket on 7th – 8th January, 2011 and posited further that he attended the Uyo exercise on 29th January, 2011 under protest. The trial court, unfortunately, did not bother to consider the Appellant’s evidence proving this assertion. Certainly, a judgment delivered which did not, or refused to, consider the defence is a clear negation of the basic principle of fair hearing contained in section 36(1) of the 1999 Constitution, as amended, and latin term: audi alteram partem (hear the other side). It is perverse and completely a nullity. It can not stand.
Exhibit ‘C’ forms part of the case of the 1st Respondent. It is the INEC letter of 24th January, 2011 which drew the attention of the PDP to the fact that “the Time Table and schedule of Activities for 2011 Elections issued by the commission pursuant to the powers vested on it by section 153 of the Electoral Act, 2010 as amended” had “since elapsed on 15th January, 2011 and it has not been extended by the commission.” By this letter, Exhibit ‘C’, the 1st Respondent has shown not only the illegality of the purported “nomination” of himself from the illegal exercise of 28th or 29th January, 2011 at Eket township stadium, but also of the Uyo nomination exercise from which the delegate voted overwhelmingly for the Appellant. The unintended consequence of Exhibit ‘C’ is the inference that the PDP avoided the exercise in Eket Township stadium either on 28th or 29th January, 2011 because it was profane and illegal to do so in view of Exhibit ‘C’.
I have read the 1st Respondent’s Brief thoroughly and I am impressed by the argument of Chief Olanipekun, SAN to the effect that it is an established judicial policy, founded on sound public policy, that a court of law lacks the necessary power or vires to give judgment which is based or founded upon a breach of the law of the land. That policy is expressed in the latin maxim: exturpi causa non oritur action (i.e. from a base cause nothing can arise) or another latin maxim: Ex dolo malo non oritur actio (i.e, the court of law or equity will not lend its aid to an immoral or illegal act or cause). In GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71 at 72 it was held that the courts of justice administer only the law of the land and would not help a party who breaks it. These principles do not aid the 1st Respondent in any way. Rather, they should have formed the basis for dismissal of his suit.
The learned trial Judge at pages 465 – 466 of the Record found:
Since the failure of the [PDP] to arrive at Eket for the primaries as communicated to the parties was not due to the fault of the Plaintiff or the delegates present the justice of it demands that the Plaintiff be returned as the candidate of [PDP] for Eket Federal Constituency.
Just like that? It is on this perverse and/or outrageous reasoning that he granted the 1st Respondent’s prayer by directing INEC to insert the name of the 1st Respondent, Hon. Eseme Eyiboh, as the PDP candidate for Eket/Ibeno/Esit/Onna Federal Constituency, and further directed that the 1st Respondent “is to take the place of” the Appellant. There is no legal justification for these orders. The 1st Respondent did not prove that he won any primary election conducted by the PDP in pursuance of the Electoral Act, the PDP Constitution and the PDP Electoral Guidelines that would entitle him to become the PDP candidate or that he was the candidate sponsored by the PDP in the April 2011election. There is no evidence on Record that the 1st Respondent went through the rigours of satisfying or compling with the provisions of the Electoral Act for his formal nomination as a candidate of any political party to entitle him to be placed on the ballot by INEC. This case is clearly distinguishable from AMAECHI v. INEC (2009) 5 NWLR [pt.1080] 227. Mr. Amaechi was nominated, and presented by the PDP as the PDP candidate to INEC, in accordance with the due process of law. In addition, Mr. Amaechi had filed formal nomination process in accordance with the Electoral Act.
There is no evidence that INEC knows the 1st Respondent as the candidate of the PDP for Eket/Ibeno/Esit/Onna Federal Constituency.
These orders, be they consequential or substantive, made by the Federal High Court have no backing of the law. It was submitted by Chief Olanipekun, SAN for the 1st Respondent that, what the lower court did was to enforce the supremacy of the law and call off the impunity of the PDP. This submission has no place in the instant case. It may be good elsewhere. Enforcement of the supremacy of the law, or the rule of law, is a negation of brazen illegality, which the judgment and the orders of the trial court seem to endorse or suggest. Let me, for the Records, agree with the Appellant that there was no relief for substitution to warrant the order made that the 1st Respondent shall take the place of the Appellant, obviously in the House of Representatives as the person or member representing Eket/Ibeno/Esit/Onna Federal Constituency.
The 1st Respondent admitted in paragraph 5.6 of his Brief that “the lower court did not pronounce on the validity of the PDP primaries conducted on the 7th and 8th January, 2011”. The result of that exercise therefore remained extant to vest in the Appellant some accrued right as the PDP’s only candidate for Eket/Ibeno/Esit/Onna Federal Constituency as at the date of the purported primaries on 28th or 29th January, the date of the general election and the date of the judgment of the lower court.
On the whole, issues 1 and 2 of the Appellant as argued by the parties, are hereby resolved in favour of the Appellant, and against the 1st Respondent. The appeal on those issues is allowed. The judgment and the orders of the learned trial Judge in the suit no FHC/ABJ/CS/177/2011 of 1st June, 2011 are hereby set aside. The justice of the matter, to borrow the phrase of the learned trial Judge, demands that the said suit of the 1st Respondent be and it is hereby dismissed in its entirety, and that shall be the order of the trial Court.
For avoidance of any doubt, and in case the 1st Respondent would have, on the authority of the orders in the suit no FHC/ABJ/CS/177/2011 made on 1st June, 2011, sneaked into the hallowed chambers of the House of Representatives purporting to represent Eket/Ibeno/Esit/Onna Federal Constituency, it is hereby ordered that the 1st Respondent shall forthwith vacate the seat for the Appellant.
The suit is a mere artifice, and unfortunately the trial court gave it a stamp of state action, contrived or employed by the 1st Respondent to undemocratically smuggle himself to the House of Representatives. True democrats should not adopt unwholesome tactics that undermine the democracy they, themselves, call nascent democracy. Democracy is not a “do or die” affair. Democrats should learn to respect the will of the people.
The Appellant is entitled to costs. Accordingly, costs assessed at N100,000.00 are hereby awarded to the Appellant against the 1st Respondent.
ZAINAB A. BULKACHUWA, (OFR) J.C.A.: I have been privileged to read the draft of the judgment just delivered by my brother EJEMBI EKO, JCA.
I agree fully with the reasoning and conclusions reached in allowing the appeal.
The 1st respondent having not complied with the provisions of the Electoral Act, 2010, the Peoples Democratic Party Constitution and its electoral guidelines was not his party’s candidate for the House of Representatives elections for representing Eket/Ibeno/Esit/Onna Federal Constituency of Akwa Ibom State. He was not entitled to the reliefs granted by the lower court in its judgment delivered on 1st June, 2011 which to say the least is perverse in giving an electoral seat to a party through the back door.
I adopt the reasoning in the lead judgment of Eko, JCA in allowing the appeal and abide by the consequential orders therein including orders as to costs.
REGINA OBIAGELI NWODO, J.C.A.: I have read before now the judgment of my learned brother, Ejembi Eko, JCA just delivered. I agree with the reasoning contained therein and I allow the appeal.
Appearances
L.O. Fagbemi SAN with A.O. Popoola, A.F. Yusuf, Akeem Umoru, J.O. Nwota (Miss) and G.A. Ashaolu For Appellant
AND
Wole Olanipekun, SAN with Israel Usman, Dr. Olubumi Ayeni, Gbenga Adeyemi, F.R. Onoja, Samuel Abbah, and J.D. Musa for 1st Respondent.
Adeola Adedipe with Zekeri Garba for 2nd Respondent.
Chief Olusola Oke with J.O. Mafo and Mulikat Kilani (Miss) for 3rd Respondent. For Respondent
