MR. IRE MATTHEW OWURU & ANOR v. HON. AGI MICHAEL ADIGWU & ANOR(2017)

IRE MATTHEW OWURU & ANOR v. HON. AGI MICHAEL ADIGWU & ANOR

In The Supreme Court of Nigeria

On Friday, the 23rd day of June, 2017

SC.197/2016

RATIO

WHETHER THE FAILURE OF THE COURT OF APPEAL TO CONSIDER ALL THE ISSUES RAISED BEFORE IT WILL AMOUNT TO MISCARRIAGE OF JUSTICE

Generally speaking, the Court of Appeal, being an intermediate Court has a duty to consider all issues placed before it by the parties for determination. The reason is to give the apex Court the benefit of their view on all the issues should there be a further appeal to the Supreme Court. There is however, an exception. In Federal Ministry of Health & Anor v. Comet Shipping Agencies Ltd, (2003) 9 NWLR (pt. 1145) 193 at 220, this Court held as follows:- ”In respect of the second issue of the parties, generally, it is settled that except in this Court, all issues ought and must be considered or dealt with by the intermediate Court. In other words, unless or except in the clearest of cases an intermediate Court such as the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.” See alsoIfeanyichukwu (Osondu) Co. Ltd v. Soleh Boneh Nig. Ltd (2000) 5 NWLR (Pt.656) 322, Owodunni v Registered Trustees of Celestial Church of Christ & 3 Ors (2000) 10 NWLR (Pt.675) 315 at 326. Now, is this case within the exception granted above i.e “in the clearest of cases”? Looking at the real issue in contest between the parties right from the trial Court to the Court below, which I had earlier set out in this judgment, it is clear that the two issues adopted by the Court below captured the main issue in controversy. As I said earlier, the other issues were mere embellishments. It must be noted that in election matters, as observed by the Court below, time is of the essence. Brevity is therefore the watch word. It does not leave room for multiplicity of issues. As observed by this Court in Ugo v Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566, multiplicity of issues tends to reduce most of them to trifles. Most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips. It is therefore my view that failure to consider all the ten issues did not occasion any miscarriage of justice neither have the appellants show how it adversely affected their case. Afterall, the minority judgment which is in their favour was based on the said two issues adopted in the majority Judgment There is nothing to show that appellants were denied fair hearing merely by not resolving all the ten issues. Where a Judge or Court fails to consider an issue adjudged not to be relevant or crucial to the determination of the case or appeal before the Court, the non-reference to it is not a denial of fair hearing and will not amount to miscarriage of justice. See Federal Ministry of Health & Anor v. Comet Shipping Agences Ltd (supra) at p.222 Paras C – E. The summary of all I have said above is that the Court below did not err in deciding the appeal on issues one and two only as the two issues captured the main issue in controversy between the parties, the outcome of the appeal notwithstanding. PER WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

WHETHER IT IS THE PLAINTIFF’S CLAIM THAT DETERMINES THE CAUSE OF ACTION BETWEEN THE PARTIES

I agree that it is the claim of the plaintiff that determines the cause of action between the parties. PER WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

EFFECT OF UNCHALLENGED DEPOSITION MADE IN AN AFFIDAVIT

Given the above scenario, it is my view that the 1st respondent shot himself in the foot when he failed to refute or challenge, in a further affidavit in response to the 1st appellants counter affidavit the weighty allegations against his supposed victory at the primary election. It must be noted that an affidavit evidence constitutes evidence and must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. See Ajomale v. Yaduat (No.2) (1999) 5 NWLR (Pt.191) 266, Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287, Henry Stephens Engineering Ltd v. Yakubu Nig. Ltd (2009) 10 NWLR (Pt.1149) 416 and Tukur v. Uba (2013) 4 NWLR (Pt.1343) 90. PER WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

DUTY OF COURT TO ALWAYS ENSURE JUSTICE

The powers granted the Courts in Section 6 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) are meant to be used to do Justice to all manner of persons. Therefore, at all times, the Courts must be vigilant to make sure that every person who comes to the Temple of justice receives his due share. PER WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

Between

1 MR. IRE MATTHEW OWURU
2. PEOPLES DEMOCRATIC PARTY Appellant(s)

AND

HON. AGI MICHAEL ADIGWU
2 INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

WALTER SAMUEL NKANU ONNOGHEN, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal holden at Makurdi in appeal No CA/M/95/15 delivered on 15th day of December 2015, dismissing the appeal of the appellants and upholding the judgment of the trial Federal High Court also sitting in Makurdi. The facts leading to this appeal are inter alia as follows:-
By an originating summons filed on 25th March, 2015 the 1st respondent herein, as plaintiff, presented two questions to the trial Court for determination and sought the following reliefs against the defendants (now appellants and 2nd respondent):-
i. A declaration that the plaintiff is the validly nominated candidate of the 2nd defendant to contest the April 11th, 2015 House of Assembly Election in Oju 11 State Constituency.
ii. A declaration that being the validly nominated candidate of the 2nd defendant to contest the April 11th, 2015 House of Assembly Election in Oju 11 State Constituency, the plaintiff is the person whose name ought to have been forwarded to the 3rd defendant as the 2nd defendant’s candidate to contest the

April 11th, 2015 Oju 11 State Constituency.
iii. A declaration that the 1st defendant was not qualified to have contested at the State House of Assembly Primary Election of the 2nd defendant for Oju 11 State Constituency held 29th day of November, 2014 and or be returned as the winner of the said Primary Election.
iv. An order directing the defendants to recognize and deem the Plaintiff as the candidate of the 2nd defendant to contest the April 11th 2015 House or Assembly Election in Oju 11 State Constituency
v. An order restraining the 3rd defendant from issuing a Certificate of Return to the 1st defendant in the event that the State Assembly Election scheduled to hold on April 11th, 2015 is held and the 2nd defendant wins in Oju 11 State Constituency before the determination of this suit.
vi. An order directing the 3rd defendant to issue a Certificate of Return to the plaintiff in the event that the State House of Assembly election scheduled to hold on April 11th, 2015 holds before the determination of this suit and the 2nd defendant wins in Oju 11 State Constituency.”

The appellants, as 1st and 2nd defendants, filed their

counter affidavits comprising of the following:-
a. Counter affidavit of Mr. Ire Matthew Owuru
b. Affidavit of Edo Samuel Adanu (the Electoral Officer) who conducted the Primary Election with Mr. Barry Ogbaka.
c. Affidavit of Okpenge Friday Ogor (a delegate who voted at the Primary Election)
d. Affidavit of Okpe Joseph Enyi (a delegate who voted at the Primary Election)
e. Affidavit of Alobo Ode, the agent of the 1st defendant.

Parties also filed their respective addresses.
The case then proceeded to trial at the conclusion of which the learned trial Judge, in a judgment delivered on the 8th day of July, 2015, granted the 1st respondents relief numbers 1, 2 and 6 above, but refused relief 3 and held further that reliefs 4 and 5 were already overtaken by the operation of time and events.

Dissatisfied with the stance of the learned trial Judge, appellants filed notice of appeal on 21st August, 2015 against the said judgment containing 13 grounds of appeal. Ten issues were distilled by the appellants for the determination of the appeal. The Court below, by a split judgment of 2 to 1, identified two (2)

issues for determination, discountenanced the other eight (8) issues and dismissed the appeal of the appellants. The majority judgment however allowed the appeal based also on the said two issues.

The appellants, being dissatisfied with the majority judgment of the lower Court further appealed to this Court vide Notice of Appeal dated and filed on the 5th day of January, 2016. On 1st February, 2017, this Court granted leave to the appellants to amend their Notice of Appeal. The said amended Notice of Appeal is dated and filed on the 2nd day of February, 2017. This appeal is thus predicated on the said amended notice of appeal.

May I, at this juncture, state that the 1st respondent herein has filed a cross appeal in this case which shall be determined after the conclusion of the main appeal, if need be.

On 29th March, 2017 when this appeal was heard, parties identified, adopted and relied on their respective briefs of argument. In the appellants brief settled by A.I WOMBO, Esq and DR. J Y. MUSA which was filed on 20th February, 2017 three issues have been distilled for determination arising from the seven grounds of appeal filed. The

three issues are as hereunder stated:-
”1 Whether the Court below was right in identifying only 2 (two) issues for determination out of the 10 (ten) issues submitted by the appellants when the said two issues did not address all the complaints of the appellants and whether same did not amount to denial of fair hearing to the appellants.
2 Whether the Court below having found that there was uncontroverted affidavit evidence that the 1st appellant won the Primary Election of the 2nd appellant, could still rely on Exhibit E to declare the 1st Respondent the winner and whether such finding is not perverse.
3. Whether having regard to Exhibits 6, 6A and 9 which all confirmed that the 1st appellant won the Primary Election of the 2nd appellant, the Court below was right in affirming the judgment of the trial Court that the 1st Respondent was the winner of the 2nd Appellant’s Primary Election.”

The first respondent has also formulated three similar issues for determination in the brief filed by Henry A. Iyanya, Esq leading others: the issues are couched differently as follows:-
“1. Whether the issues not considered by the lower Court are

material or crucial in the circumstance of this case, to the determination of the issue in contention between the parties.
2. Whether the uncontroverted depositions in the 1st appellant’s affidavit before the trial Court are material to the issues in contention between the parties before the trial Court.
3. Whether Exhibit 6,6A and 9 are valid and relevant to the determination of issue in contention between the parties before the trial Court.

It was however, the view of Musibau Ade, Esq, of counsel for the 2nd respondent that only two issues are germane for the determination of the appeal. The two issues as contained in the brief filed on 10/3/17 are really the same as those distilled by the appellants and 1st respondent. I do not therefore intend to reproduce them. I shall determine this appeal based on the three issues submitted by the appellants and the 1st respondent. I intend to resolve issue one separately while issues two and three will be taken together since they speak the same language.

On the first issue, it is the submission of learned counsel for appellants that although the two issues identified by the Court below were part

of the ten issues submitted by appellants, they did not cover all the contentions and grievances which the appellants argued before the Court below. It is his contention that an intermediate Court, not being the final Court in the adjudicatory system, must consider all the issues presented before it except where one issue would determine the appeal, such as issue of jurisdiction.
According to him, the two issues which the Court below considered are not issues of jurisdiction and did not address the other contending issues raised by the appellants and thus, there was a denial of the right of fair hearing of the appellants, relying on Oro v. Falade (1995) 5 NWLR (Pt. 396) at 402, Garba v. Mohammed (2016) 16 NWLR (Pt.1537) 114 at 162, FCDA v. Sule (1994) 3 NWLR (Pt.332) 257 at 282, Sanusi v. Smith (2009) 18 NWLR (Pt.1173) 330 at 356.

Learned counsel concluded that the failure to consider all the issues led to miscarriage of justice against the appellants, relying on the case of Adigun v. AG. Oyo State (1987) 1 NWLR (Pt.53) 678 at 7121. Learned counsel then urged the Court to resolve the issue in favour of the appellants and allow the

appeal.

On his part, learned counsel for the 1st respondent referred the Court to page 758 of the record where the lower Court held that most of the issues formulated by the appellants are only suitable for academic exercise to which the Courts are not favourably disposed and that the justice of the case would be met based only on issues one and two as formulated by the appellants. He thus submitted that the decision of the lower Court cannot be faulted in view of the decision of this Court in African International Bank Ltd. v. Integrated Dimension System ltd (2015) 12 WRN 1 and Akpabio v. Akpan Udoedehe (2012) 43 WRN 26.

It was a further submission of learned counsel that although the Court of Appeal, being an intermediate Court ought to endeavour to pronounce on all issues before it, there are exceptions, referring to AIB Ltd. v. IDS Ltd (supra). According to learned counsel, it is not the law, as argued by the learned counsel for the appellants, that it is only when issue of jurisdiction is involved that the lower Court can ignore other issues. He further opined that appellants failed to show that the issues not so considered are material or

substantial in the circumstance of the appeal. He urged the Court to resolve the issue in favour of the 1st respondent.

In view of the fact that the 2nd respondent has conceded to this appeal, it becomes unnecessary to consider the arguments contained in their brief.

It seems to me most appropriate at this juncture, to identify the main complaint and real controversy between the parties both at the trial Court and at the Court below in order to be able to do justice to the issue at hand.
At page 410 of the record, the learned trial judge identified the main dispute between the parties as follows:-
“While the plaintiff claims he scored 11 votes against the 10 scored by the 1st defendant the 1st defendant claims he scored 11 votes against the 10 of the plaintiff.”

The Court below agreed with the learned trial judge as to the subject matter of the case between the parties in the following words, contained at pages 676 – 768 of the record, thus:-
“As rightly submitted by the learned counsel to the appellants in their reply brief, the kernel of the forgoing claims borders on who between the 1st appellant and the 1st respondent won

or did not win the primary election conducted (sic) 29th November, 2014
The bottom line of the instant claims is for the Court to declare that it was he the 1st Respondent as opposed to the 1st appellant that won the primary election in issue.

There is no doubt that the learned trial Judge, in entering judgment for the plaintiff (now 1st respondent) relied heavily on exhibit R (Electoral Guidelines for Primary Election 2014) of the 2nd appellant and exhibit E (the result sheet signed by the returning officer). It follows that any issue on appeal which centres and considers the above position would do justice to the case. All other issues would be, to my mind, mere embellishment. It is interesting to note that the minority judgment of the Court below which the appellants accept as the correct position in this matter, also determined the appeal based on the two issues adopted by the majority decision.

May I state here that the grouse of the appellants in this issue is that the Court below did not consider all the ten issues submitted to it but only chose two which, according to the learned counsel for the appellants, did not

fully address their grievances. It has nothing to do with the Court formulating issues outside those presented by the parties. This must be noted.

In selecting only two issues for the determination of the appeal, the Court below, at page 758 of the record gave as reason, the following:-
”Bearing in mind the nature of election matters wherein time and brevity is of the essence, there is little or no room for proliferation of issues as is evident in the issues as donated for determination by the Appellant. Most of the issues are suitable for academic exercise to which the Courts are not favourably disposed to. I think and I so hold that the justice of this appeal can be met based only on issues one and two as fathomed by the appellants.

Agencies Ltd, (2003) 9 NWLR (pt. 1145) 193 at 220, this Court held as follows:-
”In respect of the second issue of the parties, generally, it is settled that except in this Court, all issues ought and must be considered or dealt with by the intermediate Court. In other words, unless or except in the clearest of cases an intermediate Court such as the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.
See alsoIfeanyichukwu (Osondu) Co. Ltd v. Soleh Boneh Nig. Ltd (2000) 5 NWLR (Pt.656) 322, Owodunni v Registered Trustees of Celestial Church of Christ & 3 Ors (2000) 10 NWLR (Pt.675) 315 at 326.
Now, is this case within the exception granted above i.e in the clearest of cases Looking at the real issue in contest between the parties right from the trial Court to the Court below, which I had earlier set out in this judgment, it is clear that the two issues adopted by the Court below captured the main issue in controversy. As I said earlier, the other issues were mere embellishments. It must be noted that in election matters, as observed by the Court below, time is of the

essence. Brevity is therefore the watch word. It does not leave room for multiplicity of issues. As observed by this Court in Ugo v Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566, multiplicity of issues tends to reduce most of them to trifles. Most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips.
It is therefore my view that failure to consider all the ten issues did not occasion any miscarriage of justice neither have the appellants show how it adversely affected their case. Afterall, the minority judgment which is in their favour was based on the said two issues adopted in the majority Judgment There is nothing to show that appellants were denied fair hearing merely by not resolving all the ten issues. Where a Judge or Court fails to consider an issue adjudged not to be relevant or crucial to the determination of the case or appeal before the Court, the non-reference to it is not a denial of fair hearing and will not amount to miscarriage of justice. See Federal Ministry of Health & Anor v. Comet Shipping Agences Ltd (supra) at p.222 Paras C – E.
The

summary of all I have said above is that the Court below did not err in deciding the appeal on issues one and two only as the two issues captured the main issue in controversy between the parties, the outcome of the appeal notwithstanding. Issue one is thus resolved against the appellants.

As I hinted earlier, I shall determine issues two and three together.
On issue two, learned counsel for the appellants referred to the judgment of the Court below from page 772 of the record which he quoted in-extenso and made the following deductions:-
“1. That the Court below admitted that the affidavit of Samuel Edo Adanu (The Electoral Officer at the primary election) was un-challenged.
2. That the Court below admitted in the majority judgment that the effect of an unchallenged affidavit is that it is deemed admitted.
3. That paragraph 6 of the uncontroverted affidavit of Samuel Edo Adanu shows that the 1st appellant won the primaries.
4. The Court below admitted that the affidavit of Samuel Edo Adanu to the effect that Barry Ogbaka was intent on frustrating the outcome of the primary election was unchallenged and erroneously went on

to say that “….. but that is beside the point.

Accordingly learned counsel submitted that the foregoing shows that appellants had rebutted the presumption of correctness and regularity of exhibit E (Election Result) which the Court below relied upon to affirm the judgment of the learned trial Judge that the 1st respondent was the winner of the Primary Election. He opined that it was therefore wrong for the Court below to say that “but that is beside the point because that is the main and cardinal point. It is his further submission that the finding of the lower Court to the effect that the provision of exhibit R are mandatory and went ahead to give effect to exhibit E on the basis that exhibit R permits only the returning officer to sign Primary Election result was in error, contending that exhibit R is subject to Section 87 (4) (c) (11) of the Electoral Act 2010 (as amended) relying on the case of Gbilere v. Ading (2014) 16 NWLR (Pt. 1433) 394 at 428 Paras B – E, and Amaechi v. INEC (2008) 5 NWLR (Pt.1080)227 at 315 – 316 and 324 paras B C.

Finally on the issue, learned counsel submitted that the concurrent

findings of the lower Courts are perverse and ought to be upturned. He urged the Court to uphold the minority judgment of Omoleye, JCA as it is more in accord with the demands of justice in the case.

On the third issue, learned counsel for appellants submitted that both the 2nd respondent and the Police, the authors of exhibits 6 and 6A respectively, are disinterested parties whose report on the primary Election of the 2nd appellant ought to be taken as correct. Furthermore, that as there was documentary conflict between the case of the plaintiff (now 1st respondent) and the appellants, it was erroneous for the Court below to affirm the judgment of the learned trial Judge without any oral evidence to resolve the conflict, referring to NBN v. Alakija (1978) 9 – 10 SC 59 at 71, Nwosu v I.S.E.S.A (1990) 2 NWLR (Pt. 135) 688 and Section 116 of the Evidence Act 2011.

Learned counsel urged that exhibit E, which the learned trial Judge relied upon to declare the 1st respondent the winner of the Primary Election and which was also relied upon by the Court below in affirming the judgment of the trial Court, is in conflict with exhibit 6, 6A and exhibit 9

and therefore, the judgment ought to be set aside on this ground.

On his part, learned counsel for the 1st respondent submitted that the correct position of the law is that an opposing party will be obligated to challenge depositions in an affidavit only if they are relevant to the issue in contention between the parties; that the cause of action was whose name ought to be forwarded to INEC and not who won the primary election. It is the claim of the plaintiff that determines the issue in contention between the parties, he opined, relying on the case of Dekit Construction Co. Ltd v. Adebayo (2010) 20 WRN 153 at 159.

It is the contention of learned counsel that a challenge to result declared by a returning officer is a cause of action of its own and that is a weapon of attack and not a weapon of defence. He submitted that the depositions of various deponents to the affidavit attached to the appellants counter affidavit to the effect the 1st appellant won the primary election are therefore immaterial and that the 1st respondent was not expected to respond to them. He stressed that this means that the 1st respondent admitted those

depositions but that they were ignored because they were not relevant to the issue in contention, referring to the cases of Neka B.B.B. Manu v. ACB Ltd (2004) 15 WRN 1 at 12 and R-Benkay Nig. Ltd v. Cadbury (2012) 39 WRN 1 at 8.

Learned counsel then urged the Court to hold that the lower Court was right when it held that the uncontroverted deposition in the appellants affidavit were beside the points because the issue before the Court was not to determine who won the election but whose name ought to be forwarded to the 2nd respondent as 2nd appellants candidate based on the declaration contained in exhibits E F. He also urged the Court to resolve this issue in favour of the 1st respondent.

On the 3rd issue, learned counsel submitted that the appellants exhibit 6 (INEC report), 6A (Police report) and 9 (result sheet issued to 1st appellant) are irrelevant to the determination of the issue before the trial Court. he stated further that the report of the 2nd respondent (exhibit 6) cannot be useful to the appellant since it is not the 2nd respondent that conducted the primary election. He urged the Court to resolve

this issue in favour of the 1st respondent.

In resolving these two issues, I think it is wise to further and in a more detailed manner, determine the real issue in controversy between the parties at the trial Court which gave birth to this appeal. I agree that it is the claim of the plaintiff that determines the cause of action between the parties. In the 1st respondents affidavit in support of his originating summons (as plaintiff at the trial Court), paragraphs eleven, seventeen and forty two are instructive here. I shall reproduce them as follows:-
11. That I know as a fact that upon the case of votes at the primary election, I polled a total number of Eleven (11) votes while the 1st defendant and Hon. Jarius Erube polled Ten (10) and six (6) votes respectively hence I (the plaintiff) was declared the winner of the primary election. A copy of the Result Sheet issued by the Primary Election Ad – hoc committee of the 2nd defendant that conducted the primary election is attached hereto and marked as Exhibit E.
17. That to my mortification and utter dismay, when the 3rd defendant, in accordance with the provisions of Section 31

(3) of the Electoral Act, 2010, published the personal particulars of the 2nd defendants candidate received by it for the Oju 11 State Constituency, I saw that it was the 1st defendant whose personal particulars were published as the 2nd Defendants candidate for Oju 11 State Constituency at the State Houses of Assembly Elections scheduled to hold on April, 2015.
42. That I expected that at the end of the day my name would be restored as the 2nd Defendants candidate for the Oju 11 State Constituency come the April 11, 2015 State Assembly Elections but my expectation was dashed when I saw the 3rd Defendants publication of its final list of House of Assembly candidates in Benue State still reflecting the 1st Defendants name.

From the above paragraphs, it is crystal clear that there was a dispute as to who won the said primary election. The learned counsel for the 1st respondent argued that there was no such dispute but that the dispute was as to whose name ought to be submitted to INEC (the 2nd respondent). For me there is no difference at all. If any, it is like a difference between six and half a dozen. Maybe a lesson in semantics.

Paragraphs 13, 14, 15, 24 and 35 of the 1st appellants counter affidavit add credence to the fact that the dispute was as to who won the primaries. The paragraphs state as follows:-
“13 That the result of the primary election was publicly announced by Samuel Edo Adanu, the Electoral Officer and the scores of aspirants were as follows:
(a) Mr. Ire Matthew Owuru -11 votes
(b) Agi Michael Adigwu – 10 votes
(c) Dr. Jarius Erube – 6 votes
14. That I know as a fact that Exhibit E to the supporting affidavit to the originating summons is one of the electoral materials that Barry Ogbaka ran away with after the announcement of the result of the primary election at Obusa in Oju.
15. That Exhibit E to the supporting affidavit of the originating summons is not a product of primary election of 29th November, 2014 that took place in Obusa, Oju which I also contested.
24. That some officials of the 3rd defendant and the police among others attended and monitored the conduct of the said primary election and wrote reports to the effect that same was free, fair and credible and I emerged the winner of the said primary election. A

certified true copy of the report of 3rd defendants officials who monitored the primaries and that of the police are hereby exhibited as Exhibits 6 and 6A.
35. That Samuel Edo Adanu, the Electoral Officer entered the said scores on the result sheet, signed same but Barry Ogbaka, the Returning Officer left the venue without signing the said result. Find attached said result as Exhibit 9.

Given the above scenario, it is my view that the 1st respondent shot himself in the foot when he failed to refute or challenge, in a further affidavit in response to the 1st appellants counter affidavit the weighty allegations against his supposed victory at the primary election. It must be noted that an affidavit evidence constitutes evidence and must be so construed.
Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. See Ajomale v. Yaduat (No.2) (1999) 5 NWLR (Pt.191) 266, Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287, Henry Stephens Engineering Ltd v. Yakubu Nig. Ltd (2009) 10 NWLR (Pt.1149) 416 and Tukur v. Uba (2013) 4 NWLR (Pt.1343) 90.

The Court below found as a fact that the 1st

respondent failed to respond to critical facts or evidence contained in the counter affidavit of the 1st appellant. The lower Court also found as a fact that the said failure was fatal to the case of the 1st respondent. However, the Court of Appeal went on to say that the uncontroverted depositions in the appellants’ affidavit were “beside the point. Reason Because the issue before the Court was not to determine who won the election but whose name ought to be forwarded to the 2nd respondent as 2nd appellants candidate based on the declaration contained in exhibits E and F.

In my respectful view, this is where the error was committed by the Court below. How could the Court determine the name of the person who ought to have been forwarded to the 2nd respondent without first and foremost deciding who won the primary election This is much more demanding in view of the conflicting evidence adduced in the appellants counter affidavit and the affidavit of the first respondent. Each contended that he won the primary election. It is my considered view that all the exhibits attached to both affidavits ought to have been given due consideration before

arriving at a decision and not to sheepishly follow the 2nd appellants’ Guidelines for the conduct of primary Elections in 2014. This error made the Court below to affirm the decision of the learned trial judge to adopt exhibit E as the basis for entering judgment for the plaintiff (now 1st respondent), without more.

There was nothing before the trial Court to contradict the contents of the counter affidavit of the appellants that exhibit E was conducted by Barry Agbaka who had earlier failed to sign the declaration of result sheet (exhibit 9). Exhibits 6 and 6A were reports of independent observers ie INEC and the police respectively. These corroborated the evidence of the appellants that the 1st appellant scored eleven (votes) against ten (10) votes scored by the 1st respondent. It is my view that the Court below and, indeed the trial Court, ought to have given these exhibits a dispassionate attention. Their failure to accord these exhibits due attention made their findings and conclusions perverse which, indeed led to serious miscarriage of justice.

The powers granted the Courts in Section 6 of the Constitution of the Federal Republic of

Nigeria 1999, (as amended) are meant to be used to do Justice to all manner of persons. Therefore, at all times, the Courts must be vigilant to make sure that every person who comes to the Temple of justice receives his due share. If the majority judgment of the Court of Appeal on this matter is allowed to stand. It would mean that the 1st appellant, whom the Court below admitted won the primary election, would be denied of his electoral victory just because the Returning Officer refused to sign the result sheet as directed by the appeal panel of the 2nd appellant.

The Courts below ought not to have closed their eyes against exhibits 6, 6A and 9 which clearly titled the case in favour of the appellants.

It is on this note that I resolve issues two and three in favour of the appellants.
In conclusion, it is my view that this appeal is meritorious and ought to be allowed based on issues 2 and 3 resolved in favour of the appellants.
I therefore make the following orders:-
1. The judgment of the Court of Appeal in appeal No. CA/M/95/2015 delivered on the 15th day of December 2015 is hereby set aside.
2. I hereby affirm

that 1st appellant was the rightful winner of the 2nd appellants primary election held on the 29th day of November 2014 having scored the highest number of votes cast at the Primary Election, that the forwarding of the name of the 1st appellant to the 2nd respondent by the 2nd appellant as its candidate for the Benue State House of Assembly, Oju 11 State Constituency election held on the 11th April, 2015 was proper and valid.
3. Cost of this action is assessed at N100,000 in favour of the appellants against the 1st Respondent in the lower Court and N500.000 also against the 1st respondent but in favour of appellants in this Court.
Appeal allowed.

CROSS APPEAL
The 1st respondent in the main appeal filed a cross appeal vide his notice of cross appeal deemed properly filed and settled on 1st day of February, 2017. The facts upon which the cross appeal is anchored are the same as those in the main appeal. It becomes unnecessary to reproduce them here. Three issues are distilled for determination as follows:-
”1. Was the Appellants issue two before the lower Court competently raised
2. Whether the lower Court was right to hold

in essence, that the State Electoral Appeal Panel sat to hear any complaint from the 1st appellant in view of paragraphs 3, 4, 7 and 8 of the 1st Respondents reply affidavit and Exhibits R1 and R2 before the trial Court.
3. Was the issue as to who won the primary Election before the trial Court for determination”

I have just decided the main appeal and a look at the three issues raised for determination in this cross appeal will reveal that they have been either fully or partially discussed and decided upon in the main appeal. Also, having held in the main appeal that the 1st appellant won the primary election of the 2nd appellant for the Oju 11 State Constituency of Benue State held on 29th November, 2014 and that the 2nd appellant was right when it forwarded the name of the 1st appellant to the 2nd Respondent (INEC), there is nothing left to be decided in the cross appeal.

Accordingly, I see no merit in the cross appeal. It is a ploy to waste the time of this Court. It deserves an order of dismissal. I hereby order accordingly. I make no order as to costs.
Appeal allowed. Cross appeal dismissed.

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MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother WALTER S. N. ONNOGHEN the HON. Chief Justice of Nigeria, just delivered, I adopt same as mine in allowing the appeal and dismissing the cross appeal. I abide by the consequential orders made in the lead judgment.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in advance the judgment of my learned brother, WALTER SAMUEL NKANU ONNOGHEN, CJN just delivered. I agree with the reasoning and conclusion that there is merit in this appeal and it deserves to be allowed.

The suit at the trial Court was instituted by way of originating summons with affidavits in support and in opposition thereto. Documents were attached to the affidavits and marked as Exhibits. In actions commenced by originating summons, the affidavits evidence takes the place of pleadings. The averments are on oath and are of the same evidential value as a witness statement on oath frontloaded in a suit commenced by writ of summons in which pleadings are filed. The counter affidavit serves as a statement

of defence. Thus, every material averment in any affidavit filed in respect of an originating summons must be specifically denied by the adverse party otherwise the averments will stand unchallenged and will be deemed admitted. See: Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 427 @ 684 – 685 H – B; E G; Ogoejeofo Vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205: Egbuna Vs Egbuna (1989) 2 NWLR (Pt.106) 773.
Similarly, where there are averments in a counter affidavit asserting a particular state of affairs which are not challenged by a further affidavit, such averments will be deemed admitted.

In the instant case, the 1st respondent, who was the plaintiff at the trial Court failed to contradict the very serious allegations in the appellants’ counter affidavit of malpractice and irregularity in the conduct of the primary election particularly as it relates to the conduct of the Returning Officer, Barry Ogbaka. The 1st respondents case was further compounded by Exhibits 6 and 6A, reports of independent observers (INEC & the Police) which supported the averments in the appellant’s counter affidavit.

Contrary to the majority opinion of the

lower Court, the failure to controvert crucial averments in the appellant’s counter affidavit was a fundamental omission that was fatal to the 1st respondents case. The only way the trial Court could determine whose name ought to have been forwarded to the 2nd respondent was by first determining who won the primary election. In order to do so the Court was bound to consider the entirety of the evidence before it.

It has been said time and again by this Court that Courts must always strive to do substantial justice and avoid reliance on technicalities to truncate a party’s case.

In the instant case, there was uncontroverted evidence of the tactic employed by Barry Ogbaka, the Returning Officer in trying to frustrate the appellant’s victory by refusing to sign the result sheet (Exhibit 9) knowing fully well that by the 2nd Appellant’s Electoral Guidelines for Primary Election (Exhibit R), particularly Part VI Section 43(d) thereof, a result sheet not signed by the Returning Officer shall be invalid unless otherwise approved by the National Executive Committee on the recommendation of the National Working committee of the party. To allow the

inaction of the Returning Officer in the circumstances of this case to stand would encourage others to simply withhold their signatures from the primary election result sheets as a ploy to thwart the will of the people as expressed by the outcome of the election exercise and impose a candidate on them.

Weighing the evidence proffered by the appellants against the evidence of the 1st respondent, the scale preponderates in the appellant’s favour in the absence of any specific response to the incriminating averments in the appellants’ counter affidavit and the documentary evidence annexed thereto.
Exhibit E relied upon by the 1st respondent was clearly discredited by the averments in the counter affidavit and the corroborative evidence contained in Exhibits 6 and 6A. The Court below erred in disregarding them.

For these and the more elaborate reasons stated in the lead judgment, I find this appeal to be meritorious. It is accordingly allowed.

With the success of the appeal there is nothing left to determine in the cross appeal. It is hereby dismissed. I abide by the order made on costs.
Appeal allowed.
Cross Appeal

dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had the privilege of reading in draft the lead judgment delivered by my learned brother, Walter Samuel Nkanu Onnoghen, CJN, and I agree with him that this Appeal must be allowed because to hold to the contrary would actually encourage and perpetuate malfeasance by electoral officers, whose duties involve the conduct of elections.

He said all there is to say in the lead Judgment and it is clear from his sound reasoning in the lead judgment that the Court below lost the plot in its majority judgment when it affirmed the decision of the trial Court to adopt the Exhibit E as the basis for its Judgment.

Apparently, the Court below, despite its earlier finding that the first Respondent’s failure to respond to critical facts contained in the first Appellants Counter-Affidavit was fatal to his case, proceeded to say that the uncontroverted depositions in the Appellants’ Affidavit were beside the point. Its reason for saying so, and for affirming the decision of the trial Court in favour of the first Respondent is that the issue before the Court was not

to determine, who won the election, but whose name ought to be forwarded to the second Respondent.

This is not like the metaphorical question of which came first – Chicken or Egg It is a clear case of putting the cart before the horse. How do you determine whose name ought to be forwarded to INEC, without resolving the question of – who actually won the election

More so, in this case, where the two contenders each claimed they won the election. But the Court below in its majority judgment discountenanced Exhibits 6 & 6A, Reports of Independent Observers, which corroborated the Appellants’ evidence that the first Appellant scored eleven votes, as against ten scored by the first Respondent, and found in favour of the first Respondent, which is unacceptable.

In my view, to allow the majority judgment of the Court below to stand would be to allow the Returning Officer, who refused to sign the Result Sheet as directed by the second Appellant’s Appeal Panel, get away with malfeasance, and perpetuate a chain of such iniquity; as Politicians would gladly stand on that decision to make use of such officers to scuttle elections because this

Court had sanctioned same.

In the circumstances, and for the eloquent and incisive reasons stated by my learned brother, the Hon. Chief Justice of Nigeria, in the lead Judgment, which I adopt wholly as mine, I also allow this Appeal and dismiss the Cross-Appeal, I also make no order as cost.

EJEMBI EKO, J.S.C.: I read in draft the Judgment just delivered by my Lord, WALTER SAMUEL NKANU ONNOGHEN, Honourable, the Chief Justice of Nigeria.
The Judgment had addressed and resolved all the salient issues in the appeal.
It represents my views in the appeal and I hereby adopt it, including all the Orders made therein.

The learned counsel for the 1st Respondent had submitted that there was no dispute as to who won the primary election and that the only dispute was as to whose name ought to be submitted to INEC (the 2nd respondent). The audaciously preposterous argument is the best evidence of the impunity that has become the bane of the counterfeit democracy being practised in all the political parties. The class of unemployed elites wearing the toga of politicians have turned politics to a game

played by jungle brutes in which the end justifies the means even in the face of laid down rules.

Section 87, Electoral Act, 2010 as amended, contains the rules for the disputed primary election.
The salient portions of Section 87 of Act provide thus –
“87 (1). A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants for all elective offices.
(2). The procedure for the nomination of candidates by political party for the various elective positions shall be by direct or indirect primaries.
(3).
(4). A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined below-
(a)
(b)
(c) in the case of nomination to the position of a candidate to the – House of Assembly, a political party shall, where it intends to sponsor candidates
(i). hold special congresses in the House of Assembly Constituency -, with delegates voting for each of the aspirant in the designated centre on specified dates; and
(ii). the aspirant with the highest number of votes at the end

of voting shall be declared the winner of the primaries of the party and the aspirants name shall be forwarded to the commission as the candidate of the party.
There is nothing ambigous about these provisions.
The lawyer, as it is presumed, knows the law. Even if the rogue returning officer, one Barry Ogbaka, needed an interpreter in order to appreciate or understand the full import of Section 87 of the Electoral Act, particularly Sub-section (4)(c)(iii) thereof, certainly the ignorance of the law would not be an excuse for the learned counsel for the 1st respondent who, also an officer of the Court in the Temple of Justice, should know better. I expect him to live above board like Caesars wife.
I think I should remind the counsel to the 1st respondent that Rule 32(3) (i) & (k) of Professional Conduct for Legal Practitioners, 2007 provide thus:
“32.(3). In appearing in his professional capacity before a Court or Tribunal, a lawyer SHALL NOT
(j). promote a case which to his knowledge is false; or
(k) in any other way do or perform any act which may obviously amount to an abuse of the process of the Court or which

is dishonourable and unworthy of all officer of the law charged, as a lawyer, with the duty of aiding in the administration of justice.”
I say no more. The Rule, above reproduced, speaks for itself.

I allow the appeal. The cross-appeal lacking in substance is hereby dismissed. All Orders made in the Lead Judgment are hereby adopted by me.

Appearances