MR. UGOCHUKWU IGNATIUS ANAGWU v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2010)LCN/4136(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of December, 2010
CA/E/378/2008
RATIO
OMNIBUS GROUND OF APPEAL: WHAT IS OMNIBUS GROUND OF APPEAL
An Omnibus Ground of Appeal is a ground which complains that the judgment is “against the weight of evidence’. It is an attack on the finding of fact of the trial court. See Etowa Enang v. Fidelis Adu (1981) 11 – 12 SC 25 at 26. PER ABDU ABOKI J.C.A.
OMNIBUS GROUND OF APPEAL: IMPLICATION OF EMPLOYING OR USING THE PHRASE “OMNIBUS GROUND OF APPEAL”
When an appellant employs or uses the phrase, that the judgment is against the weight of evidence, it implies that the judgment of the court cannot be supported by the weight of the evidence adduced by the successful party, which the trial court either wrongly accepted, or that the inference drawn or conclusion reached by the trial court based on the evidence it accepts cannot be justified. See Anyaoku v. Adi (1986) 3 NWLR pt. 31 page 731. It also implies that the judgment given in favour of the successful party is against the totality of the evidence adduced before the trial court. See Nkwocha v. MTN (Nig) Communication Ltd (2008) 11 NWLR pt. 1099 page 439 at 464 – 468. A.G, Akwa Ibom State v. Essien (2004) 7 NWLR pt. 872 page 288. Sha v. Kwan (2000) 5 SC 178. An attack in the judgment of the trial court as being against the weight of evidence being an Omnibus Ground of Appeal permits an Appellant to raise issues relating to admissibility of evidence relevance and credibility of evidence. It is the law that an appellant who is challenging specific findings of fact by a trial court on a specific issue is required to do so by substantive Ground of Appeal. See Abdullahi v. Oba (1998) 6 NWLR pt. 554 page 420. Ndiwe v. Okocha (1992) 7 NWLR pt. 252 page 129. In Ajibona v. Kolawole (1996) 12 SCNJ 270 at 277 – 280, the Supreme Court said on the import of the complaint that judgment is against the weight of evidence on finding of fact on specific issue thus:- ‘The complaint of necessity against the totality of evidence adduced before the court and not on a finding of fact on a specific issue or document as the case may be. In the later case, the finding should be raised as a substantive ground of appeal. Also in Nkwocha v. MTN (Nig) Communications Ltd. (2008) 11 NWLR pt 1099 page 439 al 464 – 465, the court said of an appellant challenging a specific finding of fact thus’:- ‘An appellant who is challenging a specific finding of fact by a trial not under the Omnibus Ground of Appeal: See Abdullahi v.Obam (1998) 6 NWLR pt. 554 page 470 at 428’. Ndiwe v. Okocha (1992) 7 NWLR pt. 252 page 129. PER ABDU ABOKI J.C.A.
GROUNDS OF APPEAL: WHETHER WHERE THE TRIAL COURT MAKES A FINDING OF FACT ON A SPECIFIC ISSUE BEFORE IT, SUCH ISSUES SHOULD BE RAISED AS SUBSTANTIAL GROUNDS OF APPEAL BY THE APPELLANT WHO IS CHALLENGING THE FINDING OF FACT AND NOT UNDER THE OMNIBUS GROUND OF APPEAL
Where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive Ground of appeal by the appellant who is challenging the Finding of fact and it cannot be covered under the Omnibus Ground of Appeal. See Ndiwe v. Okocha (1992) 7 NWLR pt. 252 page 129 at 139 – 140. PER ABDU ABOKI J.C.A.
GROUNDS OF APPEAL: EFFECT OF AN ISSUE FOR DETERMINATION BASED ON INCOMPETENT GROUNDS OF APPEAL
It is trite that an issue for determination which is based on incompetent Ground (s) of Appeal is worthless, unarguable and should equally be struck out. This is so because it is the ground of appeal that provides the legal basis for any attack on the judgment of a trial court. See Obi v. Duke (2006) 1 NWLR pt. 961 page 375 at 409. UBA Plc v. A.C.B. (Nig.) Ltd. (2005) 12 NWLR pt 939 page 232. Thor Ltd. v. F.C.M.B. Ltd. (2002) 4 NWLR pt. 757 page 427. John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR pt. 470 page101 at 113, Ononwu v. R.C.C. Ltd. (1995) 7 NWLR pt.406 page 214. Sadiku v. A.G. Lagos State (1994) 7 NWLR pt. 355 PAGE 235. PER ABDU ABOKI J.C.A.
GROUNDS OF APPEAL: POSITION OF THE LAW WHERE BOTH INCOMPETENT AND COMPETENT GROUNDS OF APPEAL ARE DEPLOYED AS ISSUE FOR DETERMINATION
In situations such as in the present appeal, where both incompetent and competent Grounds of Appeal are deployed, as issue for determination, the incompetent subsumes the competent Ground and it becomes impossible to separate argument advanced on the competent and the incompetent Grounds on the issue. In Ayalogu v. Agu (1998) 1 NWLR pt. 532 page 129 Salami JCA said of the role of the Court in such a situation thus:- ‘This is the mixed grill served and I am of the firm view that it is not the business of the court to sift chaff from grain by performing a surgical operation on the appellant’s brief to extract argument in respect of the valid grounds from the invalid ones, as such exercise may involve the court in descending into the arena and the dust rising therefrom may of necessity becloud its judgment. The duty of the court is that of an empire whose function is the interest of justice is to tend the rope and not to step into the brawl by existing argument on good grounds of appeal from those of bad ones’. See Honika Saw Mill (Nig) Ltd. v. Hary Okojie Hoff (1994) 2 NWLR pt. 326 page 252. S.B. Bakere v. African Continental Bank (1986) 3 NWLR pt. 26 page 247. Khal v. Yar’adua (2003) 16 NWLR pt. 84 page 446. PER ABDU ABOKI J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
MR. UGOCHUKWU IGNATIUS ANAGWU Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. PEOPLE DEMOCRATIC PARTY
3. MR. NNAMDI EZIKE. MR. UGOCHUKWU IGNATIUS ANAGWU Respondent(s)
ABDU ABOKI J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Enugu determined by Hon. Justice A.O. Faji but delivered on 15th May, 2008 by Hon. Justice P.F. Olayiwola, consequent upon the transfer of the learned trial Judge A.O. Faji J. to Federal High Court Yenagoa.
The lower court in its judgment dismissed the preliminary objection raised by the Respondents’ against the propriety of the suit and the main suit.
The Appellant commenced the suit at the Lower Court by an Amended Originating Summons dated. 29th November, 2007, the Appellant sought six (6) Declaratory reliefs and two orders which are adumbrated as follows:-
1. A DECLARATION that the 1st Defendants statutory power to Substitute a nominated candidate of a political party, under section 34 of the Electoral Act 2006, is qualified and NOT absolute.
2. A DECLARATION that the 1st Defendant has no power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead.
3. A DECLARATION that the 1st Defendant CANNOT substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.
4. A DECLARATION that is view section 36 of the 1999 Constitution the 1st Defendant CANNOT fairly and constitutionally determine the cogency and verifiability of substitution of nominated candidate without some form of notice to the candidate or hearing or some form of inquiry notice to the candidate or hearing or some form of inquiry from or input by the affected candidate.
5. A DECLARATION that the legislature innovation introduced for the first time by section 34 of the Electoral
Act is aimed at deepening and strengthening democracy in Nigeria in relation to substitution of nominated candidate in an election.
6. A DECLARATION that the substitution of the plaintiff by the 1st Defendant as the duly nominated candidate of the Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Nnewi South I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary unlawful, illegal, unconstitutional null and void.
7. AN ORDER setting aside the purported substitution, same being in excess of the statutory powers of 1st Defendant, in abuse of power breach of duty to act fairly, unreasonable, legal, unconstitutional, null and void.
8. AN ORDER OF MANDATORY INJUNCTION directing the 1st Defendant to restore the plaintiff as the duly nominated candidate of the Peoples Democratic Party for election into the State House of Assembly in respect of Nnewi South I State Constituency of Anambra State’.
The Appellant from the several affidavit filed in support of the originating summons had claimed that he was the person duly nominated, verified, cleared and his name published as the candidate of the People Democratic Party (PDP) for Nnewi South Constituency of Anambra State having won the primary election conducted by the
2nd Respondent.
The Appellant alleged that sometimes on 22nd of February, 2007, he received information that his name has been substituted by the 2nd Respondent and upon a visit to the 1st Defendants headquarter at Abuja; he confirmed that it was indeed the truth. The Appellant at the Lower Court claimed that since elections were scheduled to hold on the 14th of April 2007, the said substitution was not made within the 60 days period allowed by Section 34 of the Electoral Act 2006 and that no cogent and verifiable reason was furnished for his substitution.
The Appellant on the 4th December, 2007 again filed a further affidavit in which he deposed that the election complained about has indeed been held on the 28th of April, 2007 and, that the 3rd Respondent was returned as the winner on the platform of the 2nd Respondent.
In a counter-affidavit filed on the 14th December, 2007, in opposition to the originating summons, the 1st Respondent contended that the substitution was effected within the stipulated time and in substantial compliance with the Electoral Act, 2006.
The 2nd and 3rd Respondents as Defendants in the lower court filed a Joint Counter Affidavit on the 13th of December, 2007 in opposition to the originating summons in which they contended that the 2nd Defendant acted well within its powers on the issue of nomination and substitution of the party’s candidate for the constituency. That the plaintiff Appellant’s name was never displayed as alleged and that Exhibit A annexed to the originating summons was not an authentic document as same does not bear the stamp or signature of the National Chairman and Secretary of the party.
They further contended that upon the verification of petition against the primaries, hearing from the parties involved and after taking into account many factors which will improve the chances of the party at the General election, the 2nd Respondent effected the substitution of the Appellant by a letter of 5th February, 2007 delivered to the 1st Respondent.
Upon the receipt of the said letter the 1st Defendant requested for additional clarification, which was embodied in another letter of the 2nd Respondent dated 13th February, 2007.
The 2nd and 3rd Respondents contended that the 2nd Defendant duly supplied cogent and verifiable reasons for substitution, which was accepted by the 1st Respondent.
The Respondents in their counter-affidavit raised preliminary objections to the originating summons.
The 1st Respondent’s Notice of Preliminary Objection dated 12th May, 2009 and filed the same date reads as follows:-
‘2. AND TAKE NOTICE that the grounds of the said objection are predicated on the following.
i. ‘Grounds 5 which contains the omnibus grounds of appeal couched in the following words is incompetent.
‘On the whole, the judgment of the lower court, in so far as it relates to the findings that the 2nd Respondent’s primary election was inconclusive and that it is o cogent reason to substitute the Appellant, already nominated by the 2nd Respondent as its candidate, is against the weight of evidence’ .
The 1st Respondent’s argument on its preliminary objection to this appeal is incorporated in its brief of argument dated and filed 12/5/09.
It has been argued on behalf of the 1st Respondent that the Appellant’s Notice of Appeal dated l5th May 2008 consists of five (5) grounds of Appeal and that the 5th and last Ground of Appeal was premised on the omnibus grounds of appeal which reads:-
‘On the whole, the judgment of the lower court, in so far as it relates to the finding that the 2nd Respondent’s primary Election was inconclusive and that it’s cogent reason to substitute the Appellant, already nominated by the 2nd Respondent or its candidate, is against the weight of evidence’.
It is submitted on behalf of the 1st Respondent that it is from this ground that the Appellant distilled issue No. 2 for determination in the appeal which stated:-
‘Whether the evaluation of evidence and finding of lower court on the alleged reason for substituting the appellant were not perverse and ought to be set aside by the Court of Appeal’.
It is contended that grounds 1,2,3 are also related to Ground 4 and 5 and issue No. 2. Ground 5 of the Appellant’s Ground of Appeal it is submitted is grossly incompetent. The omnibus ground it argued implied that the judgment of the trial court cannot be supported by the weight of evidence adduced by the successful party which the trial court wrongly accepted, or that the inference drawn or conclusion reached by the trial court based on the accepted evidence cannot be justified. The court was referred to the cases of Ajibona v. Kolawole (1996) 12 SCNJ 270 at 277 – 280. Nkwocha v. MTN (Nig) Communications Ltd. (2008) 11 NWLR pt. 1099 page 439 at 464 – 46 Calabar East Co-operative Thrift and Credit Society Ltd. (1999) 14 NWLR pt. 638 page 22 at 246. Onaga v. Micho & Co. (1961) 2 SCNLR 101.
It is argued on behalf of the 1st Respondent that an appellant who is challenging a specified finding of fact by a trial court on a specific issue should do so by a substantive Ground of Appeal and not under the omnibus Ground of Appeal.
The court is referred to the cases of Abdullahi v. Oba (1998) 6 NWLR pt. 554 page 420 at 428.
Ndukwe v. Okocha (1992) 7 NWLR pt. 252 page 129.
It is submitted that where the trial court makes a finding of fact on a specified issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal. The case of Ndakwe v. Okocha (supra) at 139-140 is referred.
It is further submitted on behalf of the 1st Respondent that the appellant’s suit did not go through the full-blown trial as to warrant taking or adducing any evidence before the trial court. It is argued that ground 5 of the Appellant’s Ground of Appeal contained in the Notice of Appeal and issue No. 2 distilled therefrom is grossly incompetent and unarguable. The court was referred to the cases of Obi v. Dike (2006) 1 NWLR pt. 961 page 375 at 409. Ojong v. Duke (2003) 14 NWLR pt. 841 page 581 at 622. Wille v. Bagunjoko (2007) 6 NWLR pt. 1029 page 125 at 13. Ayalogu v. Agu (1998) 1 NWLR pt. 532 page 129. Adetoju Korede v. Prince Adedajo Adedokun & Anor unreported Appeal No. CA/1/14/92. Honika Sawmill (Nig Ltd. v. Hary Okojie Hoff (1994) 2 NWLR pt. 326 page 252. S.B Bakare v. African Continental Bank (1986) 5 S.C. 45 at 50 – 52; (1986) 3 NWLR pt. 26 page 47. Khalil v. Yar’adua (2003) 10 NWLR pt. 84 page 446.
It has been contended on behalf of the 1st Respondent that an issue for determination can only be distilled from a competent ground of appeal. An issue for determination formulated from an incompetent ground of appeal must be struck out.
In reply to the Preliminary objection, learned counsel for the Appellant contended that the 1st Respondent misconceived the nature of a trial on originating summons and wrongly conclude that the omnibus ground is unavailable for such trials. He argued that the Appellants suit did not ‘warrant striking or adducing evidence.
He contended that the issue raised by the 1st Respondent’s Preliminary objection is whether originating summons’ proceedings can raise an issue of weight to be attached to affidavit and documentary evidence weighed on the imaginary scale. Learned counsel maintained that contrary to the position of the 1st Respondent.
there was “full-blown trial on affidavit and documentary evidence.
The court was referred to the case of Alamieyesegha v. Igonuwere (No.2) (2007) NWLR pt. 1034 page 524 at 589.
Learned counsel maintained that even where it is often the case with trial on originating summons, there are no major dispute of facts in parties affidavit, affidavit evidence still take the place of oral evidence in such proceedings and the trial court has a duty to evaluate and construe documentary evidence and attach weight before reaching a finding, except that issue for determination is that of law. He cited in support of the submission the cases of Gonzee (Nig) Ltd. v. NERDC (2005) 13 NWLR pt. 943 page 634. Ezomo v. N.N.B. (2006) 14 NWLR pt. 1000 page 624 at 658.
Eyo v. Inyang (2001) 1 NWLR pt. 715 page 304.
Learned counsel for the Appellant submitted that the same duty placed on a trial court to evaluate oral evidence and documentary evidence tendered by witnesses in trial on pleadings is also applicable to affidavit evidence and exhibited documents in a trial based on originating summons.
He further submitted that in originating summons proceedings, the presence of affidavit and documentary evidence in respect of which the sacred judicial function of evaluation of evidence ought to be carried out, contemplates an accommodation for the Omnibus Grounds if an appellant is not satisfied with the treatment of weight of evidence by the trial court. He maintained that in a suit governed by originating summons, it is proper to lay a complaint on the Omnibus Ground to the Court of Appeal from evaluation of documentary and affidavit evidence. Learned counsel contended that the cases of Nkwocha v. MTN, Ajimbona v. Kolawole (sapra), Ojong v. Duke (supra), cited by the 1st Respondent are not apposite to the present case.
Leamed counsel contended that the Appellant can complain to the Court of Appeal, if he conceives that the judgment is not supported by the weight of evidence adduced.
He argued that the Omnibus Ground has always been accepted as a veritable tool to challenge wrongful appraisal of evidence and wrong assertion of totality of weight of evidence to reach final decision. Leamed counsel submitted that the interest of substantial justice as opposed to technicality should guide treatment of Grounds of Appeal. The court was referred to the cases of Aderonmu v. Olowu (2000) 4 NWLR pt. 625 page 253 at 265 – 266 and 272.
Umoh v. I.T.G C (2001) 4 NWLR Pt. 703 Page 281 at 293 – 295. Zenith Plastic Industry Ltd. v. Samotech (2007) 16 NWLR pt. 1060 page 314 at 336, Adeyeri v. Okobi (1997) 6 NWLR pt. 510 page 534 at 543.
Daniel-Kaluo v. Daniel-Kaluo (2005) 4 NWLR pt. 915 page 305 at 317.
Learned counsel urged the court to hold that Ground 5 in the Notice of Appeal is competent. He submitted that if the court finds as it has been urged that there were issues of evidence and weight before the lower court and that being so, that Ground 5 is competent, the 1stRespondent’s contention that issues Nos. 1 and 2 should be struck out would be of no moment. Learned counsel maintained that issue No. 1 has not been challenged and it is, in its view sufficient to sustain the appeal. He argued that issue 2 can survive with or without Ground 5 which is challenged.
Learned counsel insisted that even in the absence of the Omnibus Ground, Ground 4 which is the main basis for issue 2 is clearly severable from the issue of weight of evidence. He argued that a Ground challenging specific finding on evidence, like Ground 4 and another challenging the weight of evidence like Ground 5 when argued together are clearly severable. He maintained that complaints against a specific finding and against total weight of evidence are not a mixed grill.
Learned counsel argued that the preliminary objection not being well founded in law and fact is liable to be overruled. He urged the court to overrule the 1st Respondent’s Preliminary objection and dismiss same.
In the instant appeal, counsel to the 1st Respondent has alleged that Ground 5 contained in the Appellants Notice of Appeal is an Omnibus Ground.
An Omnibus Ground of Appeal is a ground which complains that the judgment is “against the weight of evidence’. It is an attack on the finding of fact of the trial court. See Etowa Enang v. Fidelis Adu (1981) 11 – 12 SC 25 at 26.
When an appellant employs or uses the phrase, that the judgment is against the weight of evidence, it implies that the judgment of the court cannot be supported by the weight of the evidence adduced by the successful party, which the trial court either wrongly accepted, or that the inference drawn or conclusion reached by the trial court based on the evidence it accepts cannot be justified.
See Anyaoku v. Adi (1986) 3 NWLR pt. 31 page 731.
It also implies that the judgment given in favour of the successful party is against the totality of the evidence adduced before the trial court. See Nkwocha v. MTN (Nig) Communication Ltd (2008) 11 NWLR pt. 1099 page 439 at 464 – 468. A.G, Akwa Ibom State v. Essien (2004) 7 NWLR pt. 872 page 288. Sha v. Kwan (2000) 5 SC 178.
An attack in the judgment of the trial court as being against the weight of evidence being an Omnibus Ground of Appeal permits an Appellant to raise issues relating to admissibility of evidence relevance and credibility of evidence. It is the law that an appellant who is challenging specific findings of fact by a trial court on a specific issue is required to do so by substantive Ground of Appeal.
See Abdullahi v. Oba (1998) 6 NWLR pt. 554 page 420. Ndiwe v. Okocha (1992) 7 NWLR pt. 252 page 129.
In Ajibona v. Kolawole (1996) 12 SCNJ 270 at 277 – 280, the Supreme Court said on the import of the complaint that judgment is against the weight of evidence on finding of fact on specific issue thus:-
‘The complaint of necessity against the totality of evidence adduced before the court and not on a finding of fact on a specific issue or document as the case may be. In the later case, the finding should be raised as a substantive ground of appeal. Also in Nkwocha v. MTN (Nig) Communications Ltd. (2008)11 NWLR pt 1099 page 439 at 464 – 465, the court said of an appellant challenging a specific finding of fact thus’:-
‘An appellant who is challenging a specific finding of fact by a trial not under the Omnibus Ground of Appeal: See Abdullahi v.Obam (1998) 6 NWLR pt. 554 page 470 at 428’. Ndiwe v. Okocha (1992) 7 NWLR pt. 252 page 129.
Where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive Ground of appeal by the appellant who is challenging the Finding of fact and it cannot be covered under the Omnibus Ground of Appeal. See Ndiwe v. Okocha (1992) 7 NWLR pt. 252 page 129 at 139 – 140′.
In the instant Appeal, Ground five of the Notice of Appeal which is the subject of the Preliminary objection filed by the 1st Respondent located at page 249 of the Record of Appeal, is adumbrated as follows:-
‘On the whole, the judgment of the lower court in so far as it relates to the finding that the 2nd Respondent’s primary election was inconclusive and that it is cogent reason to substitute the Appellant already nominated by the 2od Respondent as its candidate, is against the weight of evidence’.
A careful reading of this Ground of Appeal as couched, no doubt reveals that it is an attack on a specific finding of fact of the trial court that the 2nd Respondent’s primary election was inconclusive and that it is a cogent reason to substitute the Appellant.
The specific issue before the court is whether the substitution of the Appellant who claimed to be the candidate nominated by the 2nd
Respondent is proper.
I am of the opinion that Ground five of the Appellants Ground of Appeal which is an Omnibus Ground of Appeal is most incompetent and it is accordingly struck out. Having struck out Ground Five of the Notice of Appeal, the next matter to be attended to be the continuation of that issue formulated from the said Ground of Appeal.
It is trite that an issue for determination which is based on incompetent Ground (s) of Appeal is worthless, unarguable and should equally be struck out. This is so because it is the ground of appeal that provides the legal basis for any attack on the judgment of a trial court. See
Obi v. Duke (2006) 1 NWLR pt. 961 page 375 at 409.
UBA Plc v. A.C.B. (Nig.) Ltd. (2005) 12 NWLR pt 939 page 232.
Thor Ltd. v. F.C.M.B. Ltd. (2002) 4 NWLR pt. 757 page 427.
John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR pt. 470 page 101 at 113,
Ononwu v. R.C.C. Ltd. (1995) 7 NWLR pt.406 page 214.
Sadiku v. A.G. Lagos State (1994) 7 NWLR pt. 355 PAGE 235.
In the instant appeal, two issues for determination were raised from the five Grounds of Appeal. Issue No.1 relates to Ground 1, 2, and 3, while issue No. 2 relates to Ground 4 and 5.
Learned counsel to the 1st Respondent in their brief of argument submitted that the Ground 5 of the Appellants’ Ground of Appeal and issue No. 2 distilled therefrom is grossly incompetent and unarguable.
In his reply counsel to the 1st Respondent argued that Ground 4 is the main basis for issue No. 2 and clearly severable form the issue of weight of evidence. He insisted that a Ground challenging specific finding on evidence, like Ground 4 and another challenging the weight of evidence like Ground 5, when argued together are clearly severable and that complaint against a specific finding and against total weight of evidence are not a mixed grill.
In situations such as in the present appeal, where both incompetent and competent Grounds of Appeal are deployed, as issue for determination, the incompetent subsumes the competent Ground and it becomes impossible to separate argument advanced on the competent and the incompetent Grounds on the issue.
In Ayalogu v. Agu (1998) 1 NWLR pt. 532 page 129 Salami JCA said of the role of the Court in such a situation thus:-
‘This is the mixed grill served and I am of the firm view that it is not the business of the court to sift chaff from grain by performing a surgical operation on the appellant’s brief to extract argument in respect of the valid grounds from the invalid ones, as such exercise may involve the court in descending into the arena and the dust rising therefrom may of necessity becloud its judgment. The duty of the court is that of an empire whose function is the interest of justice is to tend the rope and not to step into the brawl by existing argument on good grounds of appeal from those of bad ones’. See Honika Saw Mill (Nig) Ltd. v. Hary Okojie Hoff (1994) 2 NWLR pt. 326 page 252.
S.B. Bakere v. African Continental Bank (1986) 3 NWLR pt. 26 page 247.
Khal v. Yar’adua (2003) 16 NWLR pt. 84 page 446.
In the instant appeal, I am of the opinion that issue 2 and all the arguments canvassed in support are incompetent and are hereby struck out, but issue 1 distilled from Ground. 1, 2, and 3 is competent.
The preliminary objection raised on behalf of the 1st Respondent succeeds in part.
The Notice of preliminary Objection filed by the 2nd Respondent on 22nd September, 2010 is reproduced thus:-
‘TAKE NOTICE that the 2nd Respondent shall at the hearing of the Appeal object to the competence of the Appeal on the following ground:-
(i) Ground 2 and 5 of the Grounds of Appeal did not arise from the judgment complained of issue 1 and 2 distilled therefrom were with respect to non-existent grounds of Appeal and therefore incompetent.
Having argued Grounds 1,3, and 4 together with grounds 2 and 5 in issue I and 2, ground 1,3 and 4 are also rendered defective and incompetent.
Learned counsel for the 2nd Respondent in his submission on the Preliminary objection to Grounds 2 and 5 of the Grounds of Appeal argued that Ground 2 as couched presupposes that the lower court made specific finding on and held that the preliminary election of the 2nd Respondent was inconclusive and by so doing find the Appellant guilty of a criminal offence without hearing from him.
Learned counsel contended that the lower court did not find the said primary election was in fact inconclusive or that the Appellant engaged in thuggery or otherwise. He insisted that what the lower court did as required by section 34 of the Electoral Act 2006, was to find that the reasons given for the substitution including the inconclusiveness of the primary election was a fact which is cogent, and which could be refused. He contended that Ground 2 in the manner, it is couched cannot by any stretch of imagination be complaining about any decision rendered by the lower court. He insisted that the lower court only found that the reasons advanced for substituting the Appellant was cogent and verifiable.
Learned counsel referred the court to the Webster Universal Dictionary and Thesaurus (2005) at page 109 on the definition of the word “cogent”.
Learned counsel maintained that the lower court only need to confirm that the reasons given were persuasive and capable of being verified and not that the court was persuaded by same or had verified same, as the Appellant concluded and complained of in his Ground of Appeal. He argued that the lower court went further to state that the issue being an intra party matter, the court cannot inquire into same.
Learned counsel contended that it would therefore be unfair to import something which the lower court made no specific finding on into its judgment, through a ground of appeal, and on that basis, set aside the judgment of the lower court as the Appellant is urging the court to do in the instant Appeal. Learned counsel submitted that, that will indeed be a travesty of justice.
Learned counsel argued that the same malady as in Ground 2 also infested Ground 5 of the Grounds of Appeal. He contended that the said Ground 5 also proceeded in the pedestal that the lower court held that the primary election of the 2nd Respondent was inconclusive where as the court did not make any such finding in its judgment, nor did the said ground evolved from the judgment.
He submitted that grounds of appeal must arise from the judgment appealed against and that where a ground of appeal is not borne out by the decision it purports to have evolved from, the ground would have to be discountenanced by the appellate court.
Learned counsel referred the court to the cases of Lambert v. Nigeria Navy (2006) 7 NWLR pt. 980 page 514 at 532.
Obatoyinbo v. Oshatobo (1996) 5 NWLR pt. 450 page 531 at 549. International Offshore Construction Ltd. & 4 Ors. v. Shoreline Liftboati Nigeria Ltd. (2003) 16 NWLR pt. 845 page 157 at 176.
Dr. (Mrs.) Gloria Abiolu v. Mrs. Grace Olawoye (2006) 13 NWLR pt. 996 page 1 at 20.
Learned counsel submitted that the consequences of striking out ground 2 and 5 of the Grounds of Appeal is that issues 1 and 2 distilled therefrom were with respect to a non-existence Grounds of Appeal and therefore without support. He referred the court to the cases of Okonkwo v. Ogboga (1996) 5 NWLR pt. 449 page 420 at 429.
Mucas Hospital Limted v. Chief Omotayo Fasuyi (2004) 1 NWLR pt. 874 page 67 at 81.
Learned counsel urged the court to strike out both grounds 2 and 5 of the grounds of appeal as well as issues 1 and 2 distilled therefrom.
Learned counsel further argued that for the reason that Grounds 2 and 5 were argued with Grounds 1, 3 and 4 in respect of issues 1 and 2 in the Appellants brief of argument, all argument rendered with respect to the Appellants Grounds of Appeal are incompetent.
He contended that it is not the duty of the Court of Appeal to sift through the argument on the Appellant’s issues 1 and 2 to determine which could be ascribed to ground 2 and 5 and which could be assigned to grounds 1, 3 and 4. The effect in law he maintained is that all arguments offered in favour of the competent ground will be tendered by the incompetent ground and will accordingly be disregarded and struck out.
Learned counsel referred the court to the cases of Governor Ekiti State v. Osayonu (2005) 2 NWLR pt. 909 page 161 at 179. Ayalogu v. Agu (1998) 1 NWLR pt.532 page 129 at 143. Kadzi International Ltd. v. Kano Tannery Co. Ltd. (2004) 4 NWLR pt. 864 page 545 at 563. Bereyen v. Gbobo (1989) 1 NWLR pt. 97 page 372 at 386.
Nwadike v. Ibekwe (1989) 4 NWLR pt. 67 page 718. Korede v. Adedokun (2001) 15 NWLR pt. 736 page 483.
A.S.R. Co. Ltd. v. O.O. Biosha & Co. Ltd. (1997) 11 NWLR pt. 527 page 145 at 157.
Learned counsel submitted that this is not a situation where they often use as ready excuse of “Sins” of counsel should not be visited on the litigant or undue reliance on technicalities should avail the Appellant. He referred the court to the cases of Ativie v. Kabelmetal (Nig.) Ltd. (2008) 10 NWLR pt. 1095 page 399 at 425.
Okafor v. Nwike (2007) 10 NWLR pt. 1043 page 521.
In reply to the preliminary objection of the 2nd Respondent’s leamed counsel to the Appellant urged the court to dismiss the preliminary objection which he said is clearly misconceived. He reproduced exhibit 2, the letter of substitution dated February 13, 2007 and submitted that the reasons given for the Appellants’ substitution is that the party’s primary was infested by intimidation, unauthorized changes of delegates list, vote buying which resulted in the election being inconclusive. Exhibit X he maintained added “thuggery and other allegations unbecoming of a candidate of our great party” to the list.
Learned counsel insisted that the argument made on behalf of the 2nd Respondent that the lower court did not uphold the reason of alleged inconclusiveness of the primary election, and so that ground does not stem from the judgment being appealed was not correct.
Learned counsel argued that elementarily, the word uphold means to support, to maintain, and to defend something in the face of opposition. To hold that a fact is “cogent” is to support and defend the authenticity or verifiability of that fact. He submitted that it is therefore unsustainable to argue that Ground 2 which alleges that the lower court upheld the reason for substitution does not stem from the judgment of the court especially the passage at page 234 of the Record where the reason was clearly and unequivocally upheld. Learned counsel maintained that the Ground is clearly a valid complaint from the judgment of the court, and the only ground upon which the Appellant’s case was dismissed by the lower court.
He argued that all the cases cited by learned counsel for the 2nd Respondent on the point are irrelevant in the circumstances and he urged the court to so hold.
Learned counsel urged the court to overrule the 2nd Respondent’s Preliminary Objection.
Learned counsel contended that the instant appeal is not academic and that the ground of appeal is challenging the ratio decidendi of the judgment being appealed. He cited the case of Nwankwo v. EDCSVA (2007) 5 NWLR pt. 1027 page 77 at 395, of 402 – 404.
On the issue of the competent of the Grounds of Appeal, learned counsel for the Appellant submitted that the five grounds are competent and arguable. He referred the court to the cases of APC Ltd. v. NDIC (NUB Ltd.) (2006) 15 NWLR (pt. 1002) page 404 at 427. Usman v. Kaduna State House of Assembly (2002) 11 NWLR pt. 1044 page 148. Sosanya v. Onadeko (2005) 5 NWLR pt. 926 page 185 at 212 – 213. Adesina v. Arowolo (2004) 8 NWLR pt. 870 page 601 at 612.
The 3rd Respondent’s Notice of Preliminary Objection dated and filed 27th March, 2007 is adumbrated as follows:-
‘NOTICE is hereby given that the 3rd Respondent shall raise a preliminary objection that the Grounds of Appeal of the Notice and Grounds of Appeal be struck out for being incompetent.
GROUNDS OF OBJECTION:-
(1) The Appellant’s Grounds of Appeal are vague, general in terms and discloses no reasonable Ground of Appeal.
(2) The Appellant’s Grounds of Appeal did not challenge the ratio decidendi of the judgment.
(3) There are no competent Grounds of Appeal upon which the Appellant can maintain his action.
In the submission on behalf of the 3rd Respondent, preliminary objection which has been incorporated in the Respondent’s brief of argument, learned counsel submitted that none of the five (5) Grounds of Appeal challenged the ratio decidendi of the judgment, where the court held that the substitution was done more than 60 days before the election. He argued that the content of Exhibit 2 was not challenged by the Plaintiff/Appellant and that it therefore amounted to an admission. Learned counsel submitted that it would amount to an academic exercise for this court to consider the issues formulated from the five (5) Grounds of Appeal since a resolution of the issues either way will not upturn the specific findings of the trial court.
He argued that the Grounds of Appeal are general in terms and does not complain of specific findings made by the Trial Court in its judgment. He referred the court to the case of Adeyemi v. Olakunri (1999) 14 NWLR pt. 638.
Learned counsel submitted that the five (5) Grounds of Appeal are incompetent. He referred to the cases of Globe Fishing Industries Ltd. v. Cokes (1990) NWLR pt 162 page 65 at 300. F.G. Bolu v. Bankole (1986) 3 NWLR pt 27 page 141.
He further submitted that any issue arising from the said grounds of appeal will also be incompetent. He contended that issue I and 2 which arose from the five (5) Grounds of Appeal in the Appellant’s brief are incompetent and should be struck out.
Learned counsel insisted that the court cannot pronounce on an issue or finding which the parties have not appealed against. He cites on this point the cases of Bhojsons Plc. v. Daniel Kalio (2006) All FWLR pt. 312 page 2038 at 2042 – 2043. Oshodi v. Eyifunmi (2000) 13 NWLR pt. 684 page 298.
He further contended that the legal-effect of failure to appeal is that such findings are in law deemed to be correct and that any order of court not appealed against subsists. He referred to the cases of Standard (Nig) Engr. Co. Ltd. v. N.B.CJ. (2000) AA FWLR pt. 316 page 255 at 256 – 257.
Learned counsel submitted that there is no competent ground of appeal upon which the Appellant can maintain his action. He urged the court to strike out the Grounds of Appeal as being incompetent.
In reply to the preliminary objection of the 3rd Respondent, Learned counsel for the Appellant submitted that the 3’d Respondent has not been able to demonstrate with clarity anywhere in his brief that all or any of the five grounds of appeal on the Notice of Appeal is vague, general in terms and discloses no reasonable Ground of Appeal. He argued that the 3rd Respondent had not furnished the court with clear argument supporting decided authorities.
C.N. v. Okojie (2002) 1 NWLR pt. 768 page 48. Iwam v. Sheriff (2005) 4 NWLR pt. 914 page 80 at 133.
Governor Ekiti State v. Osayomi (2005) 2 NWLR pt. 909 page 67 at 79. Nwabueze v. Nwora (2005) 1 NWLR pt. 926 page I at 21 – 25. Atuyeye v. Ashamu (2002) 1 NWLR pt. 768 page 48.
It is submitted on behalf of the Appellant that it is not a requirement for the validity of a ground of appeal that the passage of the judgment must be quoted verbatim. He urged the court to hold that Grounds four and five appealed the finding on alleged admission by the Appellant of the 2nd Respondent’s alleged inquiry.
On the general prayers under section 15 of the Court of Appeal Act, learned counsel referred the court to the cases of Peter Obi v. INEC & 7 Ors. (2007) 11 NWLR pt 1044 page 565.
Ladoju v. INEC (2007) 12 NWLR pt. 1047 page 9 at 160.
Learned counsel for the Appellant urged the court to overrule the 3rd Respondent’s Preliminary objection.
A Preliminary Objection is a threshold application opposing something that has occurred or is about to occur in court, seeking the judges immediate ruling on the point.
Arguments on the preliminary objection are taken first before those on the main subject matter of the dispute presented for adjudication.
In arguing preliminary objection, counsel should avoid the temptation of strolling into domain of the main issues in controversy either at trial or on appeal.
In the instant appeal, both counsel to the 2nd, 3rd and that of the Appellant had strayed extensively into the main issues to be canvassed in the appeal instead of restraining themselves to the preliminary point of objection.
The points of objection by the Respondent are very similar.
The only difference is the way the individual counsel to the Respondents presented the case of their client.
I find it most appropriate therefore to extend the opinion expressed in the Ruling of this court on the preliminary objection raised by the 1st Respondent to those of the 2nd and 3rd Respondents against the hearing of this appeal, as the decision of this court.
Now that all the points of Preliminary objection have been examined, attention will be focused on the issues presented for determination in this appeal by the parties. The only competent issue for determination in the Appellants brief is issue I and it reads as follows:-
‘Whether the lower court was right to hold that the Appellant’s substitution was carried out in compliance with Section 34 of the electoral Act 2006, particularly in view of binding precedents on the issue of Substitution of candidates for election?’
The 1st Respondent presented a sole issue for determination and it is adumbrated as follows:-
‘Whether the lower court was not Right to have held that the Appellant’s substitution was carried out in compliance with Section 34 of the Electoral Act, 2006’.
The second Respondent submitted two issues for determination in the appeal thus:-
‘1. Whether the learned trial judge’.
‘2. Whether the evaluation of evidence and finding of the lower court on the reason for substituting the Appellant were preserve (sic)’
The 3rd Respondent adopted the two issues as formulated by the Appellant in his Brief of Argument to wit:
‘1. Whether the lower court was right to hold that the Appellant’s substitution was carried out in compliance with section 34 of the Electoral Act 2006, particularly in view of binding precedents on the issue of substitution of candidates for election?
‘2. Whether the evaluation of evidence and finding of the lower court on the alleged reason for substituting the Appellant were not perverse and right to be set aside by the Ground of Appeal.
The issues distilled by all the parties to this appeal are the same.
The dispute between the parties to this appeal is on the lawfulness of the substitution of candidates for an election.
I am of the opinion that issue one is capable of disposing of the issue in dispute. I adopt issue one as presented by the Appellant for the determination of the Appeal.
The Appellant in his brief of argument dated and filed on 11/11/08 submitted on the issue that the lower ground wrongly held that the reason for Appellant’s substitution was cogent and verifiable.
Learned counsel for the appellant in submission on the issue argued that the reasons given by the lower court for its decision has been expressly rejected by the court in an earlier decision and that the lower court neither followed nor distinguished the decision cited before it. He submitted that the position of the law is that to be lawful substitution of a candidate by a political party must be based on cogent and verifiable reasons. The court was referred to Section 34 (2) of the Electoral Act 2006.
Learned counsel argued that the decision of the lower court is in conflict with the decision of the court in Udoeme and 4 Ors. v. INEC & 6 ors. CA/E/155/2002 delivered on 21st January, 2008, whose facts are the same as the facts in the present appeal.
Learned counsel for the appellant contended that the only valid document to be construed in the present case is Exhibit X on the reason for the substitution. He argued that exhibit 2 relied upon by the lower court was invalid not having been signed by the 2nd Respondent’s National Secretary in line with Article 50 of the 2nd Respondents’ Guidelines Exhibit L.
Learned counsel argued that the Lower Court not having distinguished the decision of Udoeme v. INEC on striking similar facts, the only other option open to the lower court was to apply that decision. He urged the court to uphold the originating summons and hold that there was no cogent and verifiable reason for the Appellants’ substitution. Learned counsel contended that the failure of the lower court to follow Udoeme v. INEC is sufficient to allow this Appeal.
The court was referred to the case of chief Benson chucks Nwawulu v. INEC & 2 Ors. CA/E/406/2007 delivered on 10th July, 2008.
Learned counsel for the Appellant commended to the court the test for determining what is cogent and verifiable in (Igwu v. Ararume (supra) at page 465.
Learned counsel referred the court to Exhibit A the result of the PDP’s primary election in which counsel said the appellant squarely won. Exhibit G he said is a letter of congratulation dated 5th December, 2006 addressed to the Appellant by the State Chairman of PDP.
Learned counsel argued that this documentary evidence is evidence of peaceful conclusion of the primary election. The Appellant he maintained was issued with Form CF001 and Form EC4B (iii), Affidavit of candidate’s Particulars and Nomination Form respectively. The Forms he insisted are not obtainable by candidates; they came from INEC to political parties who issue them to their candidates. He maintained that the 2nd Respondent issued these forms to the Appellants, who in turn filled and returned them and his name was publicly displaced in his constituency.
Learned counsel insisted that these facts are hugely inconsistent with a treatment to be meted to one whose primary election was ‘inconclusive’.
Learned counsel however conceded that the 2nd Respondent has the power to substitute its candidate on cogent reason. He argued that in the instant case, the reason that the primary election was inconclusive was shown by several acts of the 2nd Respondent not to be true.
Learned counsel for the Appellant mentioned that there is judicial discretion to determine the truth value of a reason for substitution and that it is for the court to make certain that the reason is true. He contended that it is not a matter to be abandoned at the alter of non-justibility of the domestic domain of the political party as the lower court erroneously did.
Learned counsel argued that the cases of Onuoha v. Okafor (supra) and the Rule in Foss v. Harbottle have no application in a reason for substitution under Section 34(2) of the electoral Act. He submitted that a politic al party can nominate any candidate of its choice without judicial scrutiny but that once nominated, the court can scrutinize the reason for subsequent substitution, even if where allegedly based on investigative inquiry. He argued that if this is not so, all future substitutions will be based on ‘investigative inquiries’ of the 2nd Respondent and unjustifiable.
Learned counsel insisted that the 2nd Respondent ought not to be allowed to reopen the issue of party primaries at the time of the substitution. He concluded that the cases of Onuoha v. Okafor (sapra) and Foss v. Harbottle, may only have relevance to nomination ab initio and not a subsequent substitution.
Learned counsel for the Appellant submitted that another reason why the appeal should be allowed is that the case of the Appellant was that he was not informed nor given any notice by the 1st and 2nd Respondents on the steps and procedures or reasons for the substitution. He referred the court to paragraph 18(d) (e) of the main Affidavit in support in the Amended Originating summons and also paragraph 5 of the further-Affidavit in support of the Amended Originating summons. He maintained that none of the Respondents contradicted the strong allegation that the Appellant was left in the dark as to the procedure leading to the substitution.
Learned counsel stated that the 2nd and 3rd Respondents delivered Exhibit 2 in which they alleged intimidation, unauthorized changes of delegates list, vote buying which resulted to the inconclusiveness of the party primaries and as a result of which a panel was set up “to conduct extensive inquiry” as a result of which the panel decided that the 3rd Respondent should replace the Appellant (whose name was already submitted) as “consensus PDP Candidate.
He argued that Exhibit 2 is null and void (as per Article 50 of Exhibit L) and the decision in Udoeme v. INEC. Learned counsel maintained that the invalidity of Exhibit 2 was canvassed before the lower court and judicial authorities cited before the lower court, but that the lower court not only failed to directly reject the argument, but based its entire decision on Exhibit 2.
Learned counsel urged the court to nullify Exhibit 2 which the lower court failed to do. He urged that assuming without conceding, that Exhibit 2 is valid. The Appellant still contend that the lower court was wrong to accept the allegations therein as cogent reason for Appellant’s substitution.
Learned counsel further argued that while the Appellant maintained he was not notified, informed nor carried along in the process of substitution, nowhere, in the Respondents’ counter- affidavit did they claim that the Appellant was informed, heard or carried along. Exhibit 2 he contended did not allege that the Appellant was interviewed by the “panel of Inquiry’, on the issues of alleged thuggery, forgery, intimidation and other crimes and misconducts alleged. He further contended that Exhibit 2 did not even link the Appellant to the allegations, but that the panel which did not hear the appellant nor linked him with the allegation yet ‘recommended’ change of the Appellant nomination.
Learned counsel maintained that the issue of audi alterem partem in substitution was pointedly canvassed before the lower court and the decision of the Court of Appeal in Ararume v. INEC (supra) was cited to the court. He urged that all the argument canvassed but not considered by the lower court form one of the bases for rejection of the reasons of the alleged intimidation, thuggery, vote-buying etc.
He insisted that Exhibit 2 is null and void because the 2nd Respondent said so in its guideline and the Supreme Court, he maintained has held that the party constitution and Rules must be upheld unless they are unconstitutional. The court was referred to the case of Ugwu v. Ararume (supra) at 450 -451 and 461-463.
Learned counsel argued that if the court upholds this position, what will be left is Exhibit X tendered from the Bar which like ‘Exhibit 2′ also said that the earlier name was substituted for reasons of vote buying, intimidation, thuggery and other allegations unbecoming of a PDP candidate and that those were the same reason rejected by the court in the case of (Udoeme v. INEC (supra) on the ground that the panel investigating allegations of vote buying, thuggery, forgery of delegates, or intimidation etc. could not possibly decide on them without hearing the Appellant. He argued that apart from the undesirable reasons in it, Exhibit X did not mention the name of the “earlier” candidate. It did not say who perpetuated the crime in issue.
Learned counsel submitted that the lower court after finding that the Appellant was the nominated candidate, it ought to have struck down Exhibit X for uncertainty and vagueness as to whom it sought to substitute and for not linking the alleged crime to anybody to show its connection with the substitution.
Learned counsel argued that INEC, which was supposed to verify the allegations failed to do its work. He submitted that the failure of INEC to verify as required by law was pointed out to the lower court but same point was not considered at all. He maintained that pursuant to its powers to make rules and guidelines under Section 161 of the Electoral Act 2006, INEC made rules for substitution. It made Form C.F. 004C “State Assembly Election: Notice of withdrawal/substitution of candidate pursuant to Section 34 and 36 of the Electoral Act 2006.” The relevant Form CF004C in the instant case was delivered as Exhibit 3 by the 2nd and 3rd Respondent. The authorities in subsidiary legislation, Buhari v. Obasanjo (supra) were cited but that the lower court did not consider the argument in its judgment.
The document Exhibit 3 learned counsel maintained was produced from the 1st Respondent’s custody, and that it clearly shows that the Appellant was not part of the entire substitution process. His photograph is missing, his signature is missing and that the 1st Respondent showed it did not act on the Form as the name; signature and the remarks of the approving officer are conspicuously missing.
Learned counsel insisted that the 1st Respondent has no discretion other than to do the proper thing. He contended that INEC Rules and Guidelines are subsidiary legislation or bye-laws, and that they are binding as law provided they are not ultra vires, the constitution, the Electoral Act 2006 or other laws. He referred the court to the case of Buhari v. Obasanjo (supra) at 316.
He submitted that in view of Section 16 of the Electoral Act 2006, INEC is bound to verify the reasons furnished for substitution of a candidate. He referred the court to the case of Ugwu v. Ararume (supra) at 441 at 522 and, submitted that INEC has a duty to verify the reason given by a political party for substitution before accepting an application, and that a political party which chooses to give intimidation, falsification of figures, thuggery, forgery, vote-buying etc reasons for substituting a nominated candidate up to the point that it allegedly set up a “panel” to conduct an “extensive inquiry,’ into the allegations has a corresponding duty to hear out the candidate. He maintained that a political party is not a court but where it chooses to set up a “panel of inquiry” (as alleged in 2nd and 3.d Respondent’s Exhibit 20 to investigate allegations (some even criminal in nature) and come to a decision affecting a person, it is bound to observe rules of natural justice, the most elementary one, is hear the other side. He referred to the case of (Udoeme v. INEC (supra) at 23-24. Learned counsel for the Appellant urged the court to hold that the 1st and 2nd Respondents could not vocally, investigate the weighty allegations in Exhibit 2 without giving the Appellant opportunity to say his own side. The 1st Respondent’s learned counsel maintained, neglected its responsibility to verify, the weighty allegations as shown from Exhibit 3 (Substitution Form). The court is urged to set aside Exhibit 2 for being null and void. He further urged the court to reject the reason in Exhibit X, the reason not being cogent, especially when the grave allegation therein were allegedly investigated by the 2nd Respondents’ “Panel of Inquiry” without references to the Appellant.
Learned counsel for the Appellant urged the court to resolve issue No.1 in favour of the Appellant. Mr. S.O. Ibrahim Esq., learned counsel for the 1st Respondent in his submission on issue one said that the Electoral body (INEC) has enormous role to play in determining the cogency and verifiability of a reason or reasons proferred by a political party in subsisting any candidate. He referred to the case of Amaechi v. INEC & Others (supra) and Section 85 of the Electoral Act 2006.
Learned counsel submitted that the trial court carefully considered provisions of Section 34(1) and (2) vis-avis Section g5 of the Electoral Act, 2006 before arriving at its decision that the Appellant’s substitution was carried out in compliance with Section 24 of the Electoral Act. 2006.
He also referred the court to Sections 4 (1) (a), (Z) 74 (1) (a), 85 and 149 of the evidence Act. Learned counsel submitted that the court should not disturb the findings of the lower court that is exercised judiciously and judicially. He referred the court to the cases of Ubale v. Dadiya (2005) 15 NWLR pt.111 page 499 at 505 and urged the court to sustain the decision of the lower court on the issue.
Leamed counsel for the Appellant submitted that facts in an affidavit which are not denied will be taken as admitted. He contended that where a material fact in an affidavit is not controverter by opposing party like the Appellant in the instant case, then the fact is ipso facto deemed admitted. He contended that the cases of Udoeme v. INEC (supra) and Ugwu v. Ararume were cited out of con. He urged the court to hold that the lower court complied with the provisions of Section 34 of the Electoral Act in dismissing the Appellant’s case. He cited the case of ANPP v. REC Akwa Ibom state (2008) 8 NWLR pt. 1090 page 453 at 544.
Learned counsel maintained that the facts, circumstances and decision of the lower court in the case is quite very peculiar and distinct from the decisions of lower court that gave rise to the decisions in Udoeme v. INEC (supra) and Nwawulu v. INEC and 2 Ors. (supra). He urged the court to resolve the sole issue for determination against the Appellant.
In reply to the 1st Respondent’s argument. Learned counsel to the Appellant submitted that the argument advanced in support of the sole issue did not help the 1st Respondent’s case. He referred to order 17 rule 4(2) of the Court of Appeal Rules 2007 and submitted that the 1st Respondent’s Brief failed to answer most of the material points in the Appellant’s Brief. He argued that all the points raised in the Appellant’s Brief, including but not limited to failure of the lower court follows binding precedents, the issue of want of fairness in Appellants’ substitution etc ought to be deemed conceded by the 1st Respondent. The court was urged to so hold.
Learned counsel for the Appellant contended that the 1st Respondent’s Brief of argument raised three new points as follows:-
(a) That under the Evidence Act, the lower court could take judicial notice of the statutory provision of Section 85(2) of the Electoral Act to presume that the 1stt Respondent was actually present at the 2nd Respondent’s Party primary election.
That there was admission of the content of Exhibit 2 since the Appellant did not file a further Affidavit to deny the contents.
That the facts and circumstances of the instant appeal are different from facts of Udoeme v. INEC (unreported) CA/E/I55/07 Enugu Division, 21st January, 2008 and Nwawulu v. INEC and 2 Ors. CA/E/406/2007 (unreported), Enugu Division, 10th July, 2008.
Leamed counsel maintained that the lower court had in its judgment stood on the provision of Section 35 (2) (b) of the Electoral Act 2006 to find that the 1st Respondent was actually present at the party’s primary election which the 2nd and 3rd Respondents claimed was marred by criminal activities. He urged the court to observe that there is nothing from all the counter-affidavits filed by the three Respondents that remotely suggests that the 1st Respondent attended the allegedly marred Primary Election. Learned counsel submitted that in the absence of the deposition of fact that the 1st Respondent was actually present at the party’s primary election, an inference could not be down from a permissive statutory provision that INEC “may” attend, to conclude that INEC actually attended.
He contended that the fact that INEC was present at party’s Primary and witnessed commission of criminal activities is such a serious issue of fact that ought to be pleaded and supported by strong evidence. He submitted that it is not a matter the proof of which can be dispersed with under Section 4(r) and 149 of the Evidence Act or be judicially noticed under Section 74 (1) (a) of the Evidence Act as the 1st Respondent contends. He invited the court’s attention to the case of Ugwu v. Ararume (supra) at page 441 and 522.
Learned counsel maintained that the 1st Respondent even by its case, woefully failed to show that it verified the alleged reason of criminal activities, Exhibited to their counter affidavit as Exhibit ‘A’, a copy of the “Substitution From”
Learned counsel submitted that a document speaks for itself and that the lower court did not require oral evidence to contradict it but to go ahead and construe its content. He referred the court to the cases of Yadis (Nig.) v. G.N.LC. Ltd (2007) 14 NWLR pt. 1055 page 584 at 610.
Gonzee Nigeria Ltd. V. NERDC (2005) 13 NWLR pt. 943 page 634.
Learned counsel contended that the 1st Respondent did demonstrate why it holds the view that the facts and circumstances of the present case are not the same with Udoeme v. INEC and Nwawulu v. INEC earlier decided by the court and referred to the lower court. He argued that the decision were neither followed nor distinguished contrary to the position of the Supreme Court and this court on issue of precedents. The court’s attention was invited to the cases of G/oral Transport Oceanico SA v. Free Enterprises Nig. Ltd.
(2001) 5 NWLR pt. 706 page 426 at 441. Nkwocha v. MTN (2008) 11 NWLR pt. 1099 page 439 at 457.
Learned counsel for the Appellant urged the court to allow the appeal, since the 1st Respondent’s Brief has not challenged most of the material points in the Appellant’s Brief of Argument.
In his submission on behalf of the 2nd Respondent’s learned counsel, submitted that the case of the 2nd Respondent which the lower court argued with, was that due to the irregularities that took place in the primaries and back in the 3rd Respondents petition, Exhibit 4, the 2nd Respondent conducted an inquiry in which the Appellant participated and due to reasons of time constraint to cancel the said primaries and forward the name of the 3rd Respondent as its candidate for the election.
Learned counsel maintained that the Appellant in his quest to establish that he won the primaries produced Exhibit A and B, both of which he maintained are defective.
Learned counsel argued that the Appellant was unable to show that his name was forwarded by the 2nd Respondent to the 1st Respondent. Learned counsel contended that the 2nd Respondent has deposed at paragraph 10 of its counter-affidavit that it was certain individuals who without authority forwarded names not yet verified by the 2nd Respondent.
Learned counsel submitted that the Appellant did not deny this averment and is in law deemed to have admitted same. He referred the court to the case of Egbuna v. Egbuna (1989) 2 NWLR pt. 106 page 733 at 777.
He argued that Exhibit 2 gave clarification and reasons why the 2nd Respondent was substituting its candidate for the election. He maintained that it was exhibit X which forwarded the name of the 3rd Respondent and that it was duly signed by the National Chairman and Secretary of the 2nd Respondent. He insisted that exhibit 2 was written on the request of the 1st Respondent for additional information on the substitution.
Learned counsel argued that the present appeal under consideration is different from the situation in the case of Amaechi v. INEC and its line of cases where political party gave no reason at all for requesting for a change of its candidate. He submitted that where a political party states that its primaries were beset with intimidation, thuggery and buying of votes, as a basis for nullification of the faulted election, the reasons are not only cogent but clearly verifiable.
Learned counsel contended that there is no averment in any of the affidavits of the Appellant that what transpired in those other cases like Udoeme v. INEC (supra) also happened in this case, except what he alleged in his oral address to the court which is not evidence on which the court may act. He submitted that it is trite that the courts as well as parties are not allowed to speculate. He referred the court to the cases of lkenta Best (Nig) Ltd. V. A .G. Rivers State (2008) 6 NWLR pt. 1084 page 612 at 649. Orvhue v. NEPA (1998) NWLR pt. 557 page 187.
Zabusky v Israel Aircraft Industries (2008) 2 NWLR pt. 1070 page 109.
He maintained that the Appellant’s argument that he ought to have been heard from by INEC and the application of Section 36 of the constitution of the Federal Republic of Nigeria is a misconception of Section 34 of the Electoral Act. He contended that throughout the lead judgment of Tobi JSC in Ararume v. INEC (supra) relied upon by the Appellant, the Supreme Court did not deal with the issues of fair hearing and that affirmation of the judgment of the Court of Appeal in that case was not on the ground of fair hearing.
Learned counsel argued that the internal affair of the party is not subject of Judicial Review. He insisted that the case of Ararume v. INEC (supra) did not hold that it was not the preserve of INEC to make a determination in the cogency of the reasons given, nor did the court held that it is within its jurisdiction to conduct any inquiry into the validity of the reasons given by INEC.
Learned counsel submitted that for the reasons that Exhibit 1 and 2 letters of change of name bear the signature of the returning officers of the 2nd Respondent duly authorized to forward or substitute the names of candidates, the source of the documents are unimpeachable. He contended that on the contrary, the Appellant failed to provide any documents signed by the said authorized national officers of the 2nd Respondent forwarding his name.
Learned counsel further submitted that the suit was commenced by Originating Summons which means that the proceedings were not supposed to be hostile. He argued that the effect of the Appellant attempts to impugn the veracity of Exhibits X and 2 is that the case which he commenced ought not to have been heard as an Originating Summons.
He urged the court to hold that there is no evidence on which Exhibit 2 and X could be impugned and that the reasons therein contained were ex facie cogent and verifiable, besides, the Appellant did not allege fraud or give particulars of fraud with respect to Exhibit X in any of the processes filed and cannot sustain such allegation in the absence of any pleading or evidence on same and cannot be heard at this late stage on the said allegation of fraud. He submitted that Exhibit 2 and X cannot therefore be impugned by the mere reason that the term “substitution” was utilized.
In the reply to the 2nd Respondent’s submission on the lone issue for determination, it has been argued on behalf of the Appellant that the effect of Exhibit 2 or any reply deposition claiming that “parties” were heard could have been that issues were joined on whether the Appellant was heard or not in respect of the allegations and not that Appellant admitted the contents of Exhibit 2.
It was further submitted on behalf of the Appellant that the issue of alleged “admission” of Exhibit 2 does not arise at all and that it was for the lower court to evaluate it as was done in Udoeme v. INEC (supra) and Nwawulu v. INEC (supra). He contended that in all the case, Exhibit 2 was constituted in light of its content and not that the substituted candidate should have denied the content.
Learned counsel for the Appellant urged the court to allow the appeal, since the 2no Respondent’s brief has not challenged many of the material points in the Appellant’s Brief of Argument.
In the brief of argument filed on behalf of the 3rd Respondent, it is submitted that it is settled law that Appellant’s claim is determined in the present case, by the Originating Summons and the Affidavit with the supporting document, which the court is called upon to interpret, construe and consequently make a declaration or order. He argued that the claim of the Appellant is determined on the strength of his case and not on the weakness of the defence case. The court was referred to the case of Awuse v. Odili (2000) All FWLR pt. 261 page 248 at 313.
Learned counsel for the 3d Respondent submitted that the materials required or necessary for the grant of the declaratory relief in an action commenced by Originating Summons must be well supported in the summons. The court he argued is called upon to look at the affidavit and supporting document attached thereof in order to construe or answer the question and grant reliefs in the summons, since issue of fact ought not to be a controversy.
The claim of the Appellant that the substitution was carried out outside the statutory period which was enlisted by the Respondents on issue which the lower court made a finding on was not appealed against by the Appellant and did not form any part of the argument in the Appellant’s Brief. He argued that the Appellant cannot be heard to question that finding in this court since the Appellant has conceded to that part of the decision of the trial court. The court was referred to the case of NBCI v. Integrated Gas (Nig) Ltd, (2005) 4 NWLR pt. 916 page 617 at 639.
Ijali v. Leventis & co. Ltd. (1959) SCNLR 255. Dabup v. Kolo (1993) 9 NWLR pt. 317 page 254 at 269.
It has been submitted on behalf of the 3rd Respondent that a clear reading of the originating Summons and the affidavit in support showed that the Appellant did not state the reason for his substitution.
It is contended on behalf of the 3rd Respondent that no material was placed before the trial court in the Originating Summons such that would have enable the trial court determine the issue in favour of the Appellant.
Learned counsel for the 3rd Respondent argued that it is only when the Appellant has raised the reason for his substitution in his Originating Summons could there be an issue joined for determination by the lower court since facts are not in dispute in matters relating to originating summons.
Learned counsel contended that the reason for the substitution of the Appellant was first raised by the 1st and 2nd Respondent in their Counter-Affidavit, Exhibit 2. He argued that ordinarily the Appellant is entitled to file further affidavit challenging the reason in Exhibit 2.
He maintained that since no further affidavit challenged the content of Exhibit 2, the lower court was perfectly right in its decision to construe the content of Exhibit 2 as art admission.
Learned counsel submitted that since the Appellant has not challenged the finding of the lower court in its five (5) Grounds of Appeal’ it follows that the decision of the lower court is correct on the point. He urged the court to uphold the decision of the lower court.
He referred the court to the case of NBCI v. Integrated Gas (Nig) Ltd. (supra).
On the hereby reliance placed by the learned counsel for Appellant on the case of Mr. Emeka Festus Udoeme & 4 or v. INEC and 6 Ors CA/E/155/2007, delivered on 21st January, 2008, which he said the lower court refused to follow, learned counsel for the 3rd Respondent submitted that the case citied is distinguishable and not applicable to the instant appeal both on the grounds of fact and law.
Learned counsel for the 3rd Respondent maintained that even if the decision cited is binding on the lower court, it does not represent the law on the matter, but that the lower court came to the correct decision. He urged the court not to reverse the correct decision of the lower court. He referred the court to the case of Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria, Ugbonla & Ors (2003) 2 NWLR pt. 804 page 399 at 422 – 243.
Learned counsel submitted that parties are to be consistent in their case, they cannot make one case in the Trial Court and another in the Court of Appeal. He contended that the Appellant in his Originating Summons did not request the lower court to construe the content of Exhibit 2. He maintained that in the Originating Summons, the Appellant did not state that Exhibit 2 was the basis or reason for his substitution.
Learned counsel for the 3rd Respondent argued that the Appellant cannot in law present an entirely totally new case in the Court of Appeal distinct and different from what he had presented in the lower court. He referred the court to the case of Okoro v. Egbuoh (2006) 15 NWLR pt. 1001 page 23. F.B.N. plc v. A.C.B. Ltd. (2006) 1 NWLR pt. 962 page 475.
He urged the court to dismiss the Appellant’s appeal as lacking in merit.
In the Appellant’s reply to the 3’d Respondent’s brief of argument, it was argued that the 3rd Respondent’s brief showed that the brief failed to answer any material point in the Appellant’s Brief.
It was therefore submitted that all the points raise in the Appellant’s brief, including but not limited to failure of the lower court to follow binding precedents is deemed conceded by the 3rd Respondent. The court is urged to so hold.
On the alleged failure to state reason for substitution, it was argued on behalf of the Appellant that the lower court was not urged by any party to hold that the Originating Summons did not state the reason for substitution and therefore no such finding was made.
It was submitted on behalf of the Appellant that the point is incompetent and ought to be struck out as it does not flow from any ground of appeal and is at variance with the judgment of the lower court.
It was further submitted on behalf of the Appellant that from the stand point of the statute and state of pleadings, the onus was squarely on the Respondents to furnish the reason for the Appellant’s substitution. It was argued that the onus was never on the Appellant’ Learned counsel for the Appellant insisted that section 34 of the Electoral Act places the responsibility of valid substitution on the 1st and 2nd Respondents. He insisted that it is the 1st and 2nd Respondents that are the ones to show in their counter-affidavit the reason for substitution.
Learned counsel maintained that the Appellant’s case was that he was never informed of the reason for his substitution nor did the 1st and 2nd Respondents even entered any communication with him in respect of the entire transaction, and that it remained so until when the parties met in court.
On the alleged admission of Exhibit 2, it was submitted on behalf of the Appellant that contrary to the contention, the inference by the lower court that the Appellant admitted the content of Exhibit 2 with regards to alleged inquiry by the 2nd Respondent is wrong and that it is a subject of this appeal. He submitted that the only effect of exhibit 2 would have been that issues were joined on whether he was part of the process and not that Appellant admitted its content.
The court was referred to Section 92 and 132(1) of the Evidence Act and the cases of Yadic (Nig) Ltd v. G.N.I.C. Ltd. (2007) 14 NWLR pt. 1055 page 584 at 610. Agbokoba v. INEC (supra) at pages 54-56.
It has been contended on behalf of the Appellant that in the case of Nwawulu v. INEC (supra) Udoeme v. INEC (supra), and Agbakoba v. INEC (supra) similar documents to Exhibit 2 and X in the present case were construed in the light of their content and not that the substituted candidate should have denied the content. The court was urged to allow the appeal.
The action at the lower court giving rise to the present appeal was commenced by Originating Summons.
In general terms, Originating Summons is used for non-contentious actions that is, those actions where facts are not likely to be in dispute. Where facts are in dispute, an originating summons procedure will not be appropriate; the appellant must come by ways of writ of summons. Where the proceedings are hostile in the sense that there are serious disputes on facts, an originating summon should not be used by a plaintiff to commence his suit. See Inakogu v. Adeleke (2007) 4 NWLR pt. 1025 page 423.
Osunbade v. Oyewunmi (2007) All FWLR pt. 368 page 1004.
Other circumstances when an action may be commenced by Originating Summons include inter-alia where:-
(a) The sole issue is one of construction of a statute or written law, or deed, or will, or contract, or an instrument made under any statute or written law or other documents or other question of law.
(b) Where the Rules of court, or any statute or written law specifically, provides that such action are required to be commenced by Originating Summons for example the fundamental right (enforcement procedure) Rules 1979, and certain applications under the companies proceedings Rules 1992.
(c) Where a statute or any written law provides for a right but does not specify means by which application may be brought under the same statute for example actions for prerogative order of certioran, mandamm, prohibition,Habeas corpus, and Judicial Review and certain action under the Companies Proceeding Rules 1992. It may be used also where a statute has not provided for it.
See Balonwu v. Obi (2007) 5 NWLR pt. 1028, page 488. Akunnia v. Attorney General Anambra (1977) 5 SC 16.
Doherty v. Doherty (1964) NWLR 144.
Where an action is commenced by an Originating Summons instead of Writ of Summons, the appropriate order to be made by the court is to direct that pleadings be filed. However, if the facts are contained in an affidavit which has been controverted, the court has a duty to invite the parties to adduce oral evidence to resolve the issues in controversy. See Dapialong v Lalong (2007) 5 NWLR pt. 1026 page 199. Osundade v. Oyewunmi (2007) All FWLR pt. 368 page 1004. Falobi v. Falobi (1976) 9 – 10 SC II.
In the instant appeal fraught with, controversy on issues of fact it was wrong and most inappropriate to have commenced the action at the lower court by an Originating Summons. The lower court should have directed parties to file pleadings so that oral evidence could be taken in the matter.
However, since the procedure applied in commencing an action does not make it incompetent, in the present circumstance, what is of importance to this court is the question of the justice of the case. See Dapialong v. Lalong (supra).
Fanfa Oil Ltd. v. A.G. Federation (2003) 18 NWLR pt. 852 page 453.
F.G.N. v. Zebra Energy Ltd. (2002) 18 NWLR pt. 798 page 162.
The issue in controversy in this appeal relates to the lawfulness of a political party changing candidate. Since the electoral Act 2006 has made provision for such situation, it will be prudent at the unset to examine the provisions:-
Section 34:-
(l) “A political party intending to change of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election.
(2) Any application made pursuant to subsection of this section shall give cogent and verifiable reasons.
(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.”
The Supreme Court of Nigeria has cause to interpret the provisions of Section 34 of the Electoral Act 2006 in the cases of Ugwu v. Arurume (2007)12 NWLR pt. 1048 page 367.
Amaechi v. INEC (2008)5 NWLR pt. 1080 page 227.
Section 34 of the Electoral Act, 2006 recognizes the right of a political party to change or substitute one candidate for another but under certain conditions, the conditions being:-
(a) applying for the change/substitute not later than 60 days to the election.
(b) giving cogent and verifiable reasons for the intended change/substitution.
See Ehinlanwo v. Oke (2008) 16 NWLR pt. 1113 page 357 at 409.
The Appellant has established that he was properly nominated but substituted with the 3’d Respondent at the request or prompting of the 2nd Respondent, to the 1st Respondent.
The critical issue to be examined is whether the substitution of the Appellant was in accordance with the provision of Section 34(1) and (2) of the Electoral Act 2006.
Section 34(1) of the Electoral Act stipulates that a political party intending to change any of its candidates for any election shall inform the commission of such change in writing not later than 60 days to the election.
The Appellant deposed on paragraph 11, of the affidavit in support of the Amended Originating Summons at page 50 of the Record of Appeal, thus:-
’11 Notwithstanding my listing by the 1st Defendant as duly nominated, verified and cleared candidate, the 1st Defendant substituted my name on the candidate’s list less than 60 days to the Election.’ The appellant also in paragraph 6 and 7 of his further Affidavit in support of the Amended Originating Summons at page 77-78 of the record of appeal deposed as follows:-
‘6. On 2nd April, 2007, the 1st Defendant went ahead to conduct election into the Nnewi South I State constituency of Anambra State, while the Suit is pending before the Honourable Court, in which it retained the 2nd Defendant as winner and the 3rd Defendant as the candidate of the 2nd Defendant’.
‘9. I verily believe that I have been and remain the duly nominated candidate of the 2nd Respondent in respect of the election conducted in the said constituency, while result is pending, and I verily believe it will be in the interest of justice for Honourable Court’.
The 1st Respondent in its Counter-Affidavit to the Originating Summons stated thus:-
‘7. That paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15 , 16, 17 and 18 are false and same is accordingly denied. In specific answer thereto I aver as follows:-
A. That the 3rd Defendant substitution by the 2nd was done within the stipulated time and in substantial Compliance to the provision of the Electoral Act, 2006.
A copy of the said substitution form is herewith attached as Exhibit A1-2.
The Appellant joined issues with the Respondent on whether the substitution was carried out not less than 60 days to the election as required by Section 34(1) of the Electoral Act.
The lower court made a finding of fact on the issue at page 242 of the Record of Appeal and it reads as follows:-
‘Section 34 envisages two conditions:-
1. The substitution must be done not less than 60 days to the election.
The party must give cogent and verifiable reasons for the Substitution for it to be effective.
From the evidence before me, it is clear that the election ultimately took place on 28/4/2007 as shown in paragraph 7 of the plaintiff’s further affidavit though in the affidavit in support of the originating summons, plaintiff had stated that the election would take place on 14/4/07. Exhibit L and X were received by INEC on 5/2/07 and 69 13/2/2007 respectively, rnore than 60 days before the election of 28/4/07.
The entire evidence before the lower court leading to its finding of fact on the issue of whether the substitution was carried out not less than 60 days to the election is entirely affidavit evidence and there was no question of credibility of witness. This court is in a good position as the lower court to evaluate the evidence and draw its own inferences and conclusions. It is clear from the evidence on the face of the printed record that the Appellant has not established that his substitution was carried out less than 60 days to the election.
In the present case, in the absence of any compelling reason or evidence outside what is contained on the printed record this court will not interfere with the finding of fact of the lower court. See A. G. Federation v. Abubakar (2007) 10 NWLR pt. 1041 page 1 at 140- 141. Bisimillahi v. Yagba East L.G. (2003) 4 NWLR pt. 810 page 329.
The second and most important requirement which a political party intending to substitute a candidate must satisfy before the substitution can be effective is that it must give cogent and verifiable reasons for the substitution in writing.
On the duty on political party wishing to substitute or replace its candidate for election, the Supreme Court said in the case of Amaechi v. INEC (2008) 5 NWLR pt. 1080 page 227 at 365-366 thus:-
‘The obligation of giving or providing cogent and verifiable reasons in its application to substitute or replace any candidate for any election under the Electoral Act, 2006, lies squarely on the shoulders of a political Party wishing to effect the change. There is no obligation whatsoever on INEC or the court to which any complaint on the compliance or otherwise with section 34 of the Electoral Act, 2006 may be brought to look outside the applications for the relevant facts, as reasons for wanting to effect the change or substitution of candidates. In order words, the cogent and verifiable reasons contemplated under Section 34(2) of the Electoral Act 2006, are cogent and verifiable reasons given by the political party applicant wishing to effect any change of candidate in its application to INEC, specified in that Section of the Act. Therefore, any reason or reasons plucked out or extracted from any source outside the letter or application for the substitution of cThe provisions of Section 34(2) of the Electoral Act 2006 is mandatory and it is aimed at protecting the right of the candidate originally presented by the political party for the election irrespective of how he emerged as a candidate from arbitrary change by a political party. See Ehinlanwo v. Oke (2008) 16 NWLR pt. 1113 page 357 at 409,424-425.
Where no cogent and verifiable reason is given by the political party concerned, the substitution or change of candidate cannot be effected and the original candidate presented to the commission by the political party in accordance with the law remains the candidate for the party for the particular election. See Ugwu v. Ararume (2007)12 NWLR pt. 1048 page 365. Amaechi v. INEC (2008) 5 NWLR pt. 1080 page 227.
Ehinlanwo v. Oke (2008) 16 NWLR pt. 1113 page 357 at 403-405.
andidate by the respondents or the court below ………is not a reason within the contemplation or requirement of Section 34(2) of the Electoral Act, 2006’.
In the present case, the lower court at page 42 of the Record of Appeal made the following findings:-
‘I am of the view that exhibit 2 and X both contain these two requirements especially the last paragraph of Exhibit X which says:
‘This is for your necessary action’.
‘In terms of form therefore as well as timing exhibit 2 and X has complied with the requirement of Section 34 of the Act’.
I have earlier said in this judgment that the facts before the lower court are entirely affidavit evidence and that the court is in a vantage position as the lower court to evaluate same and draw its own inference and conclusions.
It is not in dispute that the 2nd Respondent sent two letters to the 1st Respondent intimating it of the 2no Respondent’s desire to substitute its candidate for the Nnewi South I constituency, Anambra State. The letters were received by the 1st Respondent on 5th February, 2007 and 13th February, 2007 respectively.
It is for this reason that I will now examine both exhibits 2 and X and they are hereby reproduced for ease of reference.
Exhibit 2 is at page 162 of the Record of Appeal, it is a letter from the 2no Respondent (PDP) to Prof. Maurice Iwu, and Chairman INEC signed by the National Chairman of Party Senator (Dr.) Amadu Ali GCON and received by the Commission (INEC) on 13th February, 2007. The letter was duly certified by V.C. Chukwumah Esq. Hon.
National Commission on 12/6/2007. It reads:-
‘PEOPLES DEMOCRATIC PARTY (PDP) POWER TO THE PEOPLE
Motto: Justice, Unity and Progress.
National Secretariat: Plot 1970, Wadata Plaza, Michael Opara Street, Wuse, Zone 5 Abuja. Tel. 09:5232569, 5233429. Fax- 09-231299.
February 13, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Abuja.
SUBSTITUTION OF PDP CANDIDATE FOR NNEWI SOUTH 1 CONSTITUENCY, ANAMBRA STATE.
Further to our letter to you dated 5th February, 2009, over the above subject, we write to intimate you that following the allegation of intimidation, unauthorized changes of delegates list, vote buying which resulted to the inconclusiveness of the party primaries of November 18,2006, a panel was set up to conduct an exclusive inquiry. The panel after an extensive inquiry and due to want of time to conduce another primary, recommended that Barr. Nnamdi Ezike is the consensus PDP candidate for the above constituency.
The purpose of this letter is to affirm that Barr. Nnamdi Ezike is the party for Nnewi South 1, Anambra State.
Signed.
SEN. (DR.) AMADU ALI GCON,
National Chairman’.
Exhibit X is the second letter from the 2nd Respondent (PDP) to the 1st Respondent (INEC), it is dated February 5, 2007. It is a certified true copy and was received by the commission on 5th February, 2007, and signed by Sen. (Dr.) Amadu Ali GCON, National Chairman and Ojo Maduekwe CFR, National Secretary. It is at page 286 of the Record of Appeal and is reproduced for ease of reference.
PEOPLES DEMOCRATIC PARTY (PDP) POWER TO THE PEOPLE
Motto: Justice, Unity and Progress National Secretariate: Plot 1970, Wadata Plaza and Michael Opara Street, Wuse, Zone 5, Abuja.
Tel: 09:5232569, 5233429, Fax: 09-5231299.
February 5, 2007,
Prof. Maurice Iwu,
Chairman,
INEC.
Abuja.
SUBSTITUTION: PDP CANDIDATE FOR NNEWI SOUTH 1 STATE CONSTITUENCY, ANAMBRA STATE.
This is to confirm that Nnamdi Ezike (Barr.) is the PDP Candidate for Nnewi South 1 Constituency, Anambra State. Nnamdi Ezike (Barr.) substitutes the earlier name for the aforementioned constituency which was submitted without enough information and for reasons, of vote buying, intimidation, thuggery and other allegations unbecoming of a candidate of our great party.
This is for your necessary action.
Signed, Signed,
SEN. (DR.) AMADU ALI GCON OJO MADUEKWE CFR
National Chairman. National Secretary’.
On whether the reasons given by the 2nd Respondent for the substitution were cogent and verifiable, the lower court at pages 243- 244 of the Record of Appeal made a finding of fact on both exhibit 2 and X which I reproduce as follows:-
‘I am of the view that allegation of electoral malpractice are cogent enough to make a party change its candidate.
Otherwise, why should a political party pat forward such a candidate? Are they verifiable? And by whom?
They are verifiable by INEC who was present when these events took place. Plaintiff has posited that the allegations arc grave and that he ought to have been heard. 2nd Defendant conducted an inquiry – this inquiry to my mind is an internal matter of the party which the court cannot inquire into otherwise the court would be weeding into the internal affairs of a political party contrary to ONUORAH v. OKAFOR and the Rule in FOSS v. HARBOTTLE. Furthermore to require political parties to conduct quasi judicial proceedings in matters of this nature would be an unnecessary clog in the wheel and as said in Exhibit 2, the party would have conducted fresh primaries but for want of time. It therefore chose a consensus candidate.
The 2nd and 3rd Defendants Counter-Affidavit was filed on 13/12/07. The plaintiff filed a 2nd further affidavit on 14/12/2007 but did not challenge the contents of exhibit 2, Plaintiff cannot say that there was no inquiry or that he was not invited to any such inquiry. As MR. ANUMONYE said in his closing arguments. Plaintiff could file an affidavit even before the Day of Judgment to controvert facts but he did not. That cannot definitely be due to lack of time. It was an admission of the contents of Exhibit 2 and that exhibit stands unchallenged and uncontroverted.
It was contended that exhibit X is unreliable and no weight should be attached to it on the grounds that there are different ink colors on same. Indeed, counsel called it a fraud but did not stale in an affidavit not give the particulars of such fraud even though he had enough time to do so. It may be ventured that the certification on exhibit X could not but have a different color from the main body of the documents. This to my mind takes some force away from counsel’s allegation of fraud. Exhibit X to my mind is not an unreliable document; at least counsel had not duly shown it to be so (by affidavit evidence).
I therefore find that the substitution in this case was made in accordance with Section 34 of the Act as it was made more than 60 days to the election. It is an application giving information to INEC about the intention to change the candidate. More importantly, it gave cogent and verifiable reasons’.
This finding of fact by the lower court was not appealed against by the Appellant and the appellant did not present any argument on this issue in his brief. He cannot therefore be heard to question that finding in the Appellate court, since he has conceded to that part of the decision of the lower court. I am fortified in my opinion by the case of NBCI v. Integrated Gas (Nig) Ltd. (2005) 4 NWLR pt. 916 page 617 at 639. Where Supreme Court held thus:-
‘Where a party has not appealed against a finding of the trial Court or Court of Appeal, he cannot be heard to question that finding on Appeal. See Ijali v. Leventis & Co. Ltd. (1959) SCNLR 255 (1959) 4 FSC 108;
Dabup v. Kolo (1993) 9 NWLR pt. 317′ 254 at 269’.
I have utilized my vantage position like the lower court to examine Exhibits 2 and X. They appear to be untainted and not compromised. I find them to be very reliable documents which can be acted upon and I so hold.
The grouse of the Appellant is that he won the primaries and should have been the lawful candidate to contest the Election into the State House of Assembly to represent Nnewi South I State constituency of Anambra State, but was substituted with the 3rd Respondent by his party PDP, the 2nd Respondent.
The reasons given by the 2nd Respondent for the substitution inter alia is an inconclusive primary resulting from vote buying, thuggery, unauthorized changes of delegates list and other conducts unbecoming of a member of their party.
The Appellant has invited the court to interfere with substitution made by the 1st Respondent at the request of 2nd Respondent.
The position of the law is that the court does not normally interfere with how a political party arrives at its list of candidates forwarded to INEC as the chosen candidates for a particular election into an elective office. The failure to act on the result of primaries per se may not be enforceable in a court of law. See Ehenlanwo v. Oke (supra) at page 414 – 415.
A political party despite the fact that a candidate won at the primaries could still take a number of factors into consideration in arriving at the final list of its candidate to be sent to INEC, such factors may include the ability of the candidate to attract votes, thus enhancing the prospects of the party winning the election.
Although a candidate is said to have won an election, but in reality and in consonance with the provisions of Section 221 of the Constitution of the Federal Republic of Nigeria 1999, it is his party that has won the election, since the law only recognizes a political party as the institution conferred with the responsibility of canvassing for votes. See Amaechi v. INEC (supra) at page 317.
The role of the court in such disputes pertaining to nomination is to answer the question which of the two contesting candidates was validly nominated candidate for the election.
The court will however interfere with the nomination process if after interpretation of a specific statute, such as the electoral act it discovers that the due process of the law has not been followed. See Ehinlanwo v. Oke (supra) at page 414 – 415. Amaechi v. INEC (supra) at page 317.
I have earlier said in this judgment that the complaint of the Appellant is that he was unlawfully substituted with the 3 rd Respondent. He has contended that the 1″ Respondent did not verify the reasons submitted to it by the 2nd Respondent for the substitution.
The question to be answered is how the court can ascertain whether the body saddled with the responsibility of verifying the reasons for the substitution had actually discharged that responsibility. In order to bring out the true intention of the legislature, I am of the opinion that the provisions of Section 34(2) of the Electoral Act 2006, should be read in conjunction with Section 85 of the Electoral Act 2006.
Section 85 makes it mandatory that a political party inform INEC of the date and time of holding a convention or a congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral Act2006.
The obligation on the political parties to inform INEC of such congress is to ensure that INEC would know and keep a record of candidates who won at the primaries. See Amaechi v. INEC (supra) at pages 296 and 316. Another advantage to be derived by INEC under the provisions of Section 85 of the Electoral Act 2006 is that, it will be in a better position to know whether the primaries were conducted smoothly without a hitch or whether it was inconclusive as a result of some untoward conduct of some individuals.
I am of the opinion that a community reading of Section 34(2) and 85 of the Electoral Act will give rise to a presumption that INEC was present during such primaries of a political party.
In the instant case, the presumption is that the 1st Respondent (INEC) was present during the primaries of 18th November 2006 held by the 2nd Respondent in Anambra State, which the 2nd Respondent claimed to be inconclusive due to intimidation, vote buying and unauthorized changes of delegates list.
It is a basic rule of evidence that he who asserts must prove his claim in order to succeed.
In the instant case, there is no iota of evidence to support the claim of the Appellant that the 1st Respondent (INEC) was not present at the primaries conducted by the 2nd Respondent in Anambra State to nominate candidates for Nnewi South I State Constituency for the Anambra State House of Assembly. The presumption that INEC was present at the primaries has not been rebutted.
The claim of the Appellant that INEC did not verify the reason supplied by the 2nd Respondent for substituting him therefore fails.
I am fortified in this opinion by the decision of the Supreme Court in Amaechi v. INEC (supra) at page 317 per Oguntade JSC.
‘The cogency or the verifiability of the reason for the withdrawal of a candidate’s name has to be considered against the background that INEC officials pursuant to Section 85 of the Electoral Act above, would have been present at a meeting or congress of a party called for the nomination of a candidate for an elective office. INEC would thus know the results of each party primary when a political party later asks to substitute a candidate; it does so against the background of the result of the primary election. If there is a Problem with a candidate who comes first, then the Party will opt for the ld and later for the 3rd etc. in that order’ I am of the opinion that where INEC accedes to the request of a political party for substitution of its candidate for an election, the presumption is that it must have verified those cogent and verifiable reasons placed before it for the substitution.
The Appellant in his brief of argument heavily relied on the decision of this court in the case of Mr. Emeka Festus Udoeme & Ors. V. INEC & 6 Ors.CA/E/155/2007 delivered on 21st January, 2008 and has urged the court to follow the said decision because in his opinion the facts and conclusion reached in that case are similar to the present case.
I have carefully perused the case of Emeka Festus Udoeme & 4 Ors. v. INEC & 6 Ors. and I am of the opinion that it is not on all four with the present case, that case is clearly distinguishable from the case at hand. In the case of Emeka Festus Udoeme v. INEC the plaintiff at the lower court gave what he claimed to be the reason for his substitution, and supported same with a document attached to the affidavit in support of his originating summons and the court was invited to construe the said document to determine whether it contains reasons which are cogent and verifiable as required under Section 34 of the Electoral Act 2006.
Infact, this court when the matter came on appeal observed at page 18 of the judgment.
‘It is necessary to recapitulate that this case was essentially predicated on substitution arising from exhibit I and 2 which emanated from the 2nd Appellant’.
However, in the instant case, the Appellant who was the plaintiff at the lower court did not state the reasons given for his substitution nor did he present any documentary evidence containing the reasons for his substitution.
The Appellant placed nothing before the lower court in support of his originating summons for it to examine or construe to discover whether the reason for the substitution of the Appellant has complied with the provisions of Section 34 of the Electoral Act 2006.
The only documents containing the reasons for the substitution examined and construed by the lower court are those presented by the 1st and 2nd Respondents and admitted as Exhibits 2 and X. It is trite law that content of a written document cannot be altered or varied by oral evidence or by the submission of counsel. Another distinguishing aspect between the present case and that of Udoeme v. INEC is the opinion of the court with regards to the documents construed.
In Udoeme v. INEC this court (but differently constituted) observed that Exhibit 1 does not give any reason for the substitution. The court said at page 18 paragraphs 5 thus:
‘The conclusion then will be that Exhibit 1 which has the signature of the Chairman and the National Secretary does not carry any reason for substitution’.
In the case at hand, a document similar to Exhibit I in Udoeme v. INEC is Exhibit X and I have held that it is a reliable document which can be acted upon and that it contains reasons for the substitution which were given as ‘vote buying, intimidation, thugery and other allegation unbecoming of a candidate of our great party’
The court also found in the Udoeme v. INEC case that disciplinary action was taken against those found to have participated in the alleged wrong doing. The court made the following findings at page 21 – 22 of that judgment thus:
‘It was in respect of those found to have participated in the alleged wrongs-doing that the 2nd appellant decided to take and infact took a disciplinary action against the Respondent.
From the facts and surrounding circumstances of the case, it is very clear that the Respondent must be taken as having been participated in the alleged wrong activities’.
In the instant case, the Appellant did not claim that he was subjected to any disciplinary action to warrant the claim that he was not given a fair hearing.
It is my view that the lower court in the present case came to a right decision and I do not see any compelling reason to set it aside.
The Supreme Court said in the case of Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria Ugbonka & Ors. (2003)2 NWLR pt. 804 page 399 at 422 – 423 thus:
‘It does not matter that the court below may not have gone into the available details of conclusion which put together and considered, must lead to the conclusion that the plaintiffs claim was properly dismissed, It is in law enough that it reached the right decision and I consider it did.
In order words, if the conclusion reached by the court below is correct, that cannot be affected by the fact that it was arrived at on insufficient or even some wrong reasons”
I have indicated in this judgment that the Appellant in his Amended originating Summons did not request the lower court to construe the content of either Exhibits 2 or X.
However before this court, the Appellant in his brief of argument at page 12 paragraph 4.7 alluded to the need for the court to construe Exhibit X thus:-
‘It needs to be said that the only valid document to be construed in the present case is Exhibit X”
In law, an appellant cannot present a new or different case from the one he presented at the trial court. In Okoro v. Egbuoh (2006) 15 NWLR pt. 1001 page 23. The Supreme Court per Tobi JSC said on this point of law thus:-
‘While an applicant is free to employ clever or trickish methods to re-open his case made at the trial court to obtain judgment on appeal, an appellate court will be guided by the principle of law that a party is bound to make the same case in both the trial court and at the Court of Appeal. An appellate Court will not encourage or better allow a party make a case of the trail court and then take or make a somersault on appeal. That will be tantamount to blowing hot and cold with the same breath, a conduct which equity with its hands of fairness and fair play will not allow’ See also FBN PLC. v. ACB Ltd (2006) 1 NWLR pt. 962 page 475.
Learned counsel for the Appellant had also relied on the cases of Amaechi v. INEC (supra) and Ugwu v. Ararume (supra) in his submission that the reasons given for the substitution of the Appellant were not cogent and verifiable.
The two cases referred the court are not apposite to the present case. In those two cases, the reason given by the PDP for the substitution was, error and the Supreme Court held that the reason did not meet the requirement of section 34 of the Electoral Act, 2006.
However, in the present case the reason given by the 2nd Respondent as can be gleaned from Exhibit X are vote buying, intimidation, thuggrey, and other allegation unbecoming of a candidate of their great party.
I am of the opinion that the reasons given by the 2nd Respondent for substituting the Appellant as contained in Exhibits 2 and X are cogent and verifiable reasons as contemplated under Section 34(2) of the Electoral Act 2006.
The substitution of the Appellant with the 3rd Respondent is Proper and lawful having satisfied all the requirements of Section 34(1) and (2) of the Electoral Act 2006.
This Appeal lacks merit and it is hereby dismissed. There shall be no order as to costs.
AMINA A. AUGIE, J.C.A.: I have read in advance the lead Judgment just delivered by my learned brother, Aboki, JCA, and I agree with him that the appeal lacks merit’ The issue of substitution of candidates by political parties has been settled by the supreme court. If the reason for the substitution is cogent and verifiable then the substitution is in order, if not, it will be set aside, and that is all there is to it. As the Supreme Court per Niki Tobi, JSC observed in Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365 – “it does not matter who is substituted for whom, in so far as the reasons for the Substitution are cogent and verifiable” In that case, the reason given for The substitution was that Ararume’s name had been sent in error, but the Supreme Court held that the reason of error did not qualify as a cogent and verifiable reason to effect substitution. In Ehinlawon v. Oke (2008) 16 NWLR (Pt. /1/3) 357, where the reason given for the substitution was stated to be “without enough information” the Supreme Court held-
” – – The said reason, if it may be so considered/regarded, amounts to no reason at all neither is it cogent and verifiable, as statutorily required. I have to emphasize the point that Section 34 (2) seeks to protect the right of sponsorship of a candidate whose name had been submitted…”
The Supreme Court held in Ugwu v. Ararume (supra) that the expression-..cogent and verifiable reason” in the Electoral Act means a reason self-demonstrating of its truth and which can be checked and found to be true, and the truth in the reason given must be self-evident and without any suggestion of untruth Muhammad’ JSC further stated.
“- – The reason(s) to be adduced by a political party to INEC before the Commission can accede to the substitution must be genuine, convincing compelling and persuading. It should not be flimsy or dubious. It must be clear and unequivocal. Again, should INEC venture to confirm the veracity of these reasons, the political party must be willing and ready to subject such reasons to the scrutiny of INEC for self-satisfaction. (Highlights mine)
In this case, the reason for the substitution is vote buying intimidation, thuggery and other allegations unbecoming of a candidate” of the party.
Obviously, inconclusive primaries due to vote buying, thuggery, unauthorized changes of delegates list, and other conducts unbecoming of a member of their party, which is the reason given by the Peoples Democratic Party [PDP] for substituting the Appellant with the 3rd Respondent is not in the same class and cannot be equated with the reasons of “error” or “without enough information” that were rejected by the Supreme Court for not being cogent and verifiable The fact that an inquiry was carried out before the substitution is a verifiable fact and one that would be easy to verify, should INEC venture to confirm its veracity’ Clearly, the reason given in this case is a cogent and verifiable reason.
The appeal therefore fails and is also dismissed by me. I abide by the consequential orders in the lead Judgment, including that on costs
MOHAMMED L. TSAMIYA, J.C.A.: I have had the opportunity of reading the judgment of my learned brother ABOKI, JCA. I quite agree that the appeal lacks rnerit and that it should be dismissed.
Accordingly, I too hereby dismiss the appeal with no order as to costs.
The judgment of the lower court delivered on 15/5/2008 is up held.
Appearances
Fidelis MbadughaFor Appellant
AND
S.O. Ibrahim with Frank Megwa (Mrs) and O. Ikoroha (Mrs)
Dr. O. Ikpeazu SAN with O. Anumonye, M.J Oputa and C.B.
Anyigbo
Mike Okoye with Pat lgwebuike (Mrs)For Respondent
