MUBARAK & ANOR v. INEC & ANOR
(2022)LCN/17145(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, November 22, 2022
CA/YL/174/2022
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
1. HON. ABDULSALAM GAMBO MUBARAK 2. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)
And
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. HON. GARBA CHEDE HAMMAN JULDE RESPONDENT(S)
RATIO
WHETHER OR NOT THE SUCCESS OF AN APPEAL DEPENDS ON THE NUMBER OF GROUNDS OF APPEAL AND/OR ISSUES FORMULATED FROM IT
It must be noted that in election matters, time is of essence, it does not leave room for multiplication of issues. As observed by the Supreme Court in Ugo Vs Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566, multiplicity of issues tends to reduce most of them to trifles, most appeals are won on a few cogent and substantial issues, well framed and presented rather than on numerous trifling slips. See Owuru vs Adigwu (2018)1 NWLR (Pt. 1599).
It has to be re-stated that success of an appeal does not depend on the number of grounds of appeal and/or issues formulated therefrom. What matters is the cogency and validity of the grounds of appeal arising from the judgment appealed against and the issues for determination distilled therefrom. See Ngige Vs INEC (2015)1 NWLR (Pt. 1440) 281 at 327 paras B-C. Multiplicity of grounds of appeal and proliferation of issues derived therefrom becloud the issues in contention to the detriment of the Appellant. It is undesirable to split issues, as both the Supreme Court and this Court frown at proliferation of issues. See Chiadi vs Aggo (2018)2 NWLR (pt. 1603) 175.
Counsels are advised to avoid this attitude. In resolving this appeal all the issues will be considered together except issue 1. The complaint in this appeal is brought about on the basis of the 2nd Respondent’s allegation on the mode adopted by the 2nd Appellant in conducting its primary election of 27th May, 2022 to nominate a candidate for sponsorship in the election to the House of Representatives for Bali/Gassol Federal Constituency of Taraba State in the 2023 General Election. PER HASSAN, J.C.A.
THE POSITION OF LAW ON MAKING AN ORDER FOR DECLARATION OF A RIGHT OF PARTY
It is the law that a Court has no duty to grant a relief that was not claimed by any of the parties. An order for a declaration of a right of a party can only be made when the right of such a party has been proved by cogent evidence and such right must have been pleaded. There must be materials placed before the Court showing that the claimant is entitled to the declaration sought. In this case, no such declaration was claimed and/or evidence made available when the trial Court graciously ordered for conducting fresh election within 14 days in favour of the 2nd Respondent. It is trite law that the Court has no power to award that which was not claimed by a party. See Ekpenyong Vs Nyong (supra) and Oyeyemi Vs Owoeye (supra). PER HASSAN, J.C.A.
WHETHER OR NOT THE TRIAL COURT CAN INTERFERE WITH THE DECISIONS OF A LOWER COURT ON THE BASIS OF MISCARRIAGE OF JUSTICE
The trial Court did not consider and pronounce on the documentary evidence placed before it, which rendered its decision perverse and occasioned a miscarriage of justice.
An appellate Court will interfere with the decision of a lower Court on the basis of miscarriage of justice where the violation of some principles of law or procedure is such that if corrected, a different result will be the outcome or where the neglect of some principle of law or procedure is such that if it had not been neglected a different result will be the outcome. See Ibhade (Ning) Ltd Vs Akwari (2015)13 NWLR (Pt. 1477) 507 at 513. Miscarriage of justice is a failure on the part of the Court to do justice. It is justice misplaced or misappreciated. See Oguntayo Vs Adelaja (2009)15 NWLR (Pt. 1163) 150 and Onagoruwa Vs State (1993)7 NWLR (Pt.3O3) 49.
In the instant case, if the learned trial Judge had properly examined the documentary evidence with the affidavit evidence of the parties he would have arrived at a different conclusion.
This is a case that this Court should justifiably interfere in the finding of fact because the findings of the trial Court were perverse having failed to take material documentary evidence into consideration. See Cameroon Airlines Vs Otutuizu (2011)14 NWLR (Pt. 1278); Arowolo Vs Olowookere (2011)8 NWLR (Pt. 1728) 280; Olowu Vs Nigerian Navy (2011)18 NWLR (Pt. 1279) 659 and Re-Mogaji (1986) NWLR (Pt. 19) 759. PER HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Jalingo, Taraba State delivered on the 20th day of September, 2022 in Suit No. FHC/JAL/CS/23/2022 by Hon. justice S.A. Amobeda.
The 2nd Respondent as Plaintiff at the Court below instituted an action by way of originating summons against the 2nd Appellant as 1st Defendant therein, the 1st Respondent as 2nd Defendant, praying the Court below, for the determination of the following questions.
1. Whether the 1st Defendant can conduct its primary elections with the State Executives of the party whose election was set aside and declared null and void by a judgment of the Court and forward the list of its nominated candidates to the 3rd Defendant without conducting primary elections as required by the Electoral Act, 2022.
2. Whether the plaintiff who was an aspirant of the Defendant for the conduct of the primary elections scheduled to hold on the 27th day of May, 2022 to elect a candidate to be sponsored by the 1st defendant for Bali/Gassol Federal Constituency Elections into House of Representative of the National Assembly of the Federal Republic of Nigeria in the elections to be held by the 3rd Defendant in February, 2023 is entitled to have his name submitted to the 3rd Defendant for reason of the fact that the 1st Defendant failed/neglected to conduct the primary elections as scheduled by it, to be conducted by direct primary elections in line with the provisions of Section 84(4)(a), (b) and (c) of the Electoral Act, 2022.
3. Whether the purported primary elections which the 1st Defendant claimed to have conducted which returned the 3rd Defendant have complied with the provisions contained in Section (82)(1), (2) and (3) of the Electoral Act, 2022.
4. Whether the 1st Defendant can unilaterally submit the name of the 3rd Defendant to the 2nd Defendant as its candidate without conducting a free, fair and transparent primary elections as envisaged by Electoral Act 2022, having regard to the provisions of Section 83(1), (2), (3) and (4) of the Electoral Act, 2022.
Upon determination of the questions, the Plaintiff/2nd Respondent prayed for five reliefs.
The originating summons is supported by affidavit of twenty paragraphs and seven annextures attached. The Appellants as 1st and 3rd Defendants filed a counter affidavit of thirty one paragraphs with Exhibits attached. The learned trial Judge after considering the case of the parties delivered his judgment on the 20th of September, 2022 granting three of the reliefs and refused to grant two of the reliefs namely reliefs 3 and 5. Relief 3 is for a declaration that failure of the 1st Defendant to comply with the provisions of the Electoral Act has caused the plaintiff financial losses, having paid N10,000.000.00 (Ten Million Naira) only for the Nomination Forms and relief 5 is for a mandatory order to refund to the plaintiff the N10,000,000.00 for the purchase of the nomination forms.
Dissatisfied with the judgment, the Appellants appealed to this Court on twelve grounds of appeal with their particulars and reliefs sought.
The Appellants’ Brief settled by F.K Idepefo SAN was dated 12th October, 2022 and filed on the 13th of October, 2022. The Appellants’ Reply Brief was dated and filed on the 28th of October, 2022. Learned Senior Counsel distilled eight issues for determination as follows.
1. “Whether the learned trial Judge was right when he held that Section 97 of the Sheriff and Civil Process Act does not apply to the process of the Federal High Court?” (Ground 1)
2. “Whether the learned trial Judge was right when he granted the 2nd Respondent a relief that the 2nd Appellant shall within 14 days from the date of judgment of the Court to conduct fresh House of Representatives Primary election for Bali/Gassol Federal Constituency of Taraba State?”
3. “Whether the learned trial Judge was right when in the Judgment of the Court heavy reliance was placed on the 2nd Respondent’s originating summons and the affidavit in support of the originating summons without first resolving the Appellants objection to the competence of the originating summons and affidavit in support of the originating summons as regards alterations and interlineations in the originating summons and affidavit in support?” (Ground 4).
4. Whether the learned trial Judge properly placed the onus of proof when he held that it was the duty of the Appellants to show that there was accreditation, actual voting, collation of votes, announcement of results and declaration of winner after the Appellants had tendered the results of the Election as Exhibits “APC 10″ – “APC 32″ respectively and INEC Monitoring Report on the conduct of the Primary Election as Exhibits “APC 6″ and “APC 7″ respectively. (Ground 10).
5. “Whether the learned trial Judge was competent to make a different case for the 2nd Respondent by disagreeing with issue formulated for determination by the 2nd Respondent (as plaintiff) and proceeded to resolve the issue without calling on the parties to address the Court on the new and inconsistent issue formulated by the trial Court?” (Grounds 3 and 9).
6. “Whether the learned trial Judge decided rightly when the Court held that the primary election conducted by the 2nd Appellant on 27th May, 2022 was spearheaded by the State Executives of the 2nd Appellant whose elections was voided and therefore the election conducted on 27th May, 2022 was null and void?” (Ground 5).
7. “Whether the learned trial Judge decided rightly when the Court held that the notice of election for the conduct of direct primary election was 3 days as against the 21 days Notice specified by Section 82 of the Electoral Act, 2022 and therefore the election conducted by the 2nd Appellant on 27th May, 2022 is null and void?” (Ground 6).
8. “Whether from the totality of affidavit and documentary evidence upon the record, the 2nd Respondent proved his case as to be entitled to the judgment delivered in his favour by the trial Court?” (Grounds 7, 8, 11 and 12).
Learned Senior Counsel adopted both briefs and urged the Court to allow the appeal.
The 2nd Respondent’s Brief settled by S.I. Waziri was dated 21st October, 2022 and filed on the 22nd of October, 2022. The learned counsel adopted the eight issues of the Appellants as issues formulated by him. He adopted the brief and urged the Court to dismiss the appeal
Issue One
“Whether the learned trial Judge was right when he held that Section 97 of the Sheriff and Civil Process Act does not apply to the process of the Federal High Court?”
The contention of Learned Senior Counsel for the Appellants is that the originating summons of the 2nd Respondent at pages 1- 5 of the record was not endorsed for service outside Taraba State contrary to the provision of Section 97 of the Sheriff and Civil Process Act.
That objection raised on the non-compliance with the mandatory provision of Section 97 of the Sheriff and Civil Process Act, the trial Court dismissed the Appellants’ objection to the jurisdiction of the Federal High Court. That Section 97 of the Sheriff and Civil Process Act compulsorily provides for what a summons for service in another state should contain and failure to subscribe the endorsement on the writ of summons renders the writ of summons invalid. He referred to the provisions of Section 97 of the Sheriff and Civil Process Act and relied on the Supreme Court case of Reuben Izeze Vs INEC (2018) 11 NWLR (Pt.1629)110 at 127-128 paras D-C; Joel Omajali Vs Okala Edilo David & Ors (2019) LPELR -49381 (SC). He urged the Court to resolve in favour of the Appellants.
Counsel for the 2nd Respondent in response relied on the case of John lyingab Biem Vs S.O.P & Ors Appeal No. SC/341/2019 as the current decision of the Supreme Court with regard to the requirement for endorsement of a writ to be served outside jurisdiction of the Court, in this case the Federal High Court. That the Supreme Court has departed from its decision in the case of Izeze Vs INEC (supra).
The Court is urged to resolve in favour of the 2nd Respondent.
Section 97 of the Sheriff and Civil Process Act provides;
“Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such state or the Capital Territory, have endorsed thereon a Notice to the following effect (that is to say).
“This summons (as the case may be) is to be served out of the state (or as the case may be) and in the state (or as the case may be)”.
However, it is observed at page 5 of the Record there is an endorsement of the originating summons stated therein thus:
“This summons is for service on the Defendants out of the jurisdiction of Taraba State and in the jurisdiction of the Federal Capital Territory Abuja date this 7th day of June, 2022 signed by the Registrar.”
It goes without saying that there is compliance with Section 97 of the Sheriff and Civil Process Act. Issue one is resolved against the Appellants.
Issue Two
“Whether the learned trial Judge was right when he granted the 2nd Respondent a Relief that the 2nd Appellant shall within 14 days from the date of judgment of the Court to conduct fresh House of Representatives Primary Election for Bali/Gassol Federal Constituency of Taraba State?”.
On this issue, Learned Senior Counsel for the Appellants argued that the reliefs claimed by the 2nd Respondent in his originating summons do not include an order of Court for the conduct of fresh Primary Election when the trial Court awarded the relief that was not claimed.
Relying on the case of Ekpenyong & Ors Vs Nyong (1975) LPELR -1090 (SC) pp 11-12 paras E-E, it is submitted that a Court of law is not a father Christmas and should never grant a relief not claimed by a plaintiff. Learned Senior Counsel conceded that in some special circumstances a Court of law may grant reliefs that are incidental to the occasion but before such is done, the Court must hear the view of the parties before making an order different from the one claimed by the parties. He relied on this submission in the case of Oyeyemi & Ors Vs Owoeye & Anr (2017) LPELR -41903 (SC) pp 55-56 paras D-B.
That the order for conducting fresh primary election made by the learned trial Judge presupposes that no primary election in the eye of the law had been conducted by the Appellant. He referred to Section 82(1) of the Electoral Act, 2022 which provides that Notice of Convention shall be given to the Independent National Electoral Commission at least 21 days before the date of convention, while in the instant case the trial Judge ordered for fresh primary election to be conducted within 14 days from the date of Judgment.
That contrary to the provision of Section 82(1) of the Electoral Act, 2022, the learned trial Judge also directed that the Notice of Convention shall not be later than 7 days to the date of election.
Learned Senior Counsel argued that one of the reasons why the learned trial Judge nullified the primary election conducted by the 2nd Appellant was on the length of time given by the 2nd Appellant to the 1st Respondent. He submitted that a Court of law should not make an order incapable of being enforced or is in conflict with the decision rendered by the Court. The Court was referred to University of Jos Vs Dr. M.C. Ikegwuoha (2013) LPELR -20233 (SC) 25 paras B-C and Somade &. Ors Vs Jaiyesimi (2006) LPELR -11866 (CA).
Learned Senior Counsel also referred to Section 29 of the Electoral Act 2022 which provides for submission of lists of candidates which appears to be in conflict with the timetable of the activities scheduled for the conduct of General Election by the Constitution. The Court is urged to resolve in favour of the Appellants.
Learned counsel for the 2nd Respondent submitted on this issue that it was as a result of refusing reliefs 3 and 5 in the originating summons that the trial Court order for fresh primary election within 14 days from the date of judgment which in its opinion is incidental to the occasion. Counsel referred to Oyeyemi & Ors Vs Owoeye & Anor (2017) LPELR -41903 (SC) on his submission and urged the Court to resolve issue two in favour of the 2nd Respondent.
Issue Three
“Whether the learned trial Judge was right when in the judgment of the Court heavy reliance was placed on the 2nd Respondent’s originating summons and the affidavit in support of the originating summons without first resolving the Appellants objection to the competence of the originating summons and affidavit in support of the originating summons as regards alterations and interlineations in the originating summons and affidavit in support?”.
Arguing on this issue, Learned Senior Counsel for the Appellants referred to pages 1 and 6 of the record and paragraphs 3 and 5 of the affidavit in support of originating summons to show that the designation of the parties was altered by the 2nd Respondent at pages 1 and 6 of the record without an amendment being sought and obtained before the alteration or countersigned by the commissioner for oath reflected at page 6 of the record.
Also in paragraph 5 of the affidavit in support of the originating summons the figure 3rd was twice altered to read 3rd without interlineation or alteration being countersigned by the commissioner for oath.
Learned Senior Counsel submitted that the attention of the trial Court was drawn to the alteration as reflected at pages 394-395 of the Record of Appeal which objection had the potency of terminating the originating summons without going into its substance. That the issue was ignored and not resolved by the trial Court.
It is submitted that Courts of law are set up to settle disputes between parties and decisions arrived at by leaning only to one side cannot be supported. The Court was referred to New Resources International Ltd Vs Oranusi (2011) 2 NWLR (Pt. 1230) 102 at 118 paras B-E.
That it is settled law, failure to consider the case of a party is a breach of fair hearing which goes to the root of the judgment delivered by the Court. The cases of Shell Petroleum Dev. Co. Ltd Vs E.M.A Akpan & Ors (2014) LPELR 23530 (CA) 25-26 paras E-B and Muhammed Vs A.B.U Zaria (2014) 7 NWLR (Pt. 1407) 500 at 538 paras D-F among others were referred to. The Court is urged to resolve issue three in favour of the Appellants.
Learned counsel for the 2nd Respondent submitted in response that pre-election matters generally are sui generis cases by which technicalities like typographical errors which are corrected cannot render the process invalid for failure to be countersigned by the commissioner for oath. He referred to Sections 118 and 113 of the Evidence Act, 2011, and urged the Court to discountenance the submission on this issue.
Issue Four
Whether the learned trial Judge properly placed the onus of proof when he held that it was the duty of the Appellants to show that there was accreditation, actual voting, collation of votes, announcement of results and declaration of winner after the Appellants had tendered the results of the Election as Exhibits “APC 10″ – “APC 32” respectively and INEC Monitoring Report on the conduct of the Primary Election as Exhibits “APC 6″ and “APC 7” respectively?
Learned Senior Counsel submitted that it was the 2nd Respondent who alleged in paragraph 14 of the affidavit in support of the originating summons that his supporters were not given the opportunity to vote. That the Appellants in defence of the allegation tendered Exhibits “APC 10” – “APC 35” which can be found at pages 160-186 of the record, where every ward result has the number of registered members, number of accredited voters, total votes cast and the votes scored by each aspirant, that the results showed that the 2nd Respondent/Plaintiff was voted for in all the wards in the constituency. And Exhibits “APC 6” and “APC 7” at pages 136-137 are INEC Reports of monitoring the primary election. That since it is the 2nd Respondent who alleges non conduct of the election and disenfranchisement, it is his duty to call for registered voter from each polling point to testify for non-conduct of election or disfranchisement to rebut the presumption in favour of the election result. He relied on PDP Vs Umana & 5 Ors (2016) 42 WRN 20; Ezeanua Vs Onyema (2011)10 WRN 21 at 55; Awuse Vs Odili (2005) ALL FWLR (Pt.253) 720 and Obun Vs Ebu (2007)6 WRN 105 at 163 among others.
That the burden of proof is on the Plaintiff/2nd Respondent to rebut the presumption in favour of the election result. The Court was referred to Omajali Vs David (2019) 17 NWLR (Pt. 1702) 433 at 460-461 paras A-D.
It is submitted that the law is settled that where the onus of proof is misplaced, the effect of the judgment is that, it cannot stand and must be set aside. The case of Ewo Vs Ani (2004) LPELR -1182 (SC) 24-25 paras F-A among others was referred to.
That the misplacement of the burden of proof by the learned trial Judge resulted in the learned trial Judge making series of pronouncements not supported by law, evidence on record nor can be justified in the occasion. The Court was referred to Maisaje Vs Bashir (2001)20 WRN 69 at 78 and urged to resolve in favour of the Appellants.
Responding, learned counsel for the 2nd Respondent, submitted that the burden of proof placed on the 2nd Respondent has already been established that there was no primary elections conducted in Taraba State having regard to the originating summons, affidavit in support of the originating summon, further affidavit and reply on points of law. The Court was referred to Nelson Vs Ebanga (1998)8 NWLR (Pt.563) 701 and Oyewunmi Vs Ogunesan (1990)3 NWLR (Pt. 137) 182 among others and urged the Court to resolve in favour of the 2nd Respondent.
Issue Five
“Whether the learned trial Judge was competent to make a different case for the 2nd Respondent by disagreeing with issue formulated for determination by the 2nd Respondent (plaintiff) and proceeded to resolve the issue without calling on the parties to address the Court on the new and inconsistent issue formulated by the trial Court?”
It is submitted that the 2nd Respondent anchored his case on the basis that the mode of election adopted by the 2nd Appellant was direct mode of primary election. That the trial Court disagreed with the 2nd Respondent and found that the evidence relied upon by the Plaintiff/2nd Respondent in this assertion is unreliable. But the learned trial Judge suo motu formulated issues for determination of the originating summons as:
“What mode of Primary Election did the 1st Defendant adopt for the nomination of the House of Representatives candidate in Taraba for the 2023 General Election”.
Learned Senior Counsel argued that the above issue formulated by the learned trial Judge is at variance with the question for determination in the originating summons. That it is trite law a Court cannot make a case for the party. The Court was referred to Ominiyi Vs Adegboyega (2015) LPELR 24399 (SC) 27 para E-F and Ogundele & Anor Vs Agiri & Anor (2009) LPELR -2328 (SC) 43 paras B-C and the judgment of the trial Court at page 448 lines 14 and pg. 449 line 7, to submit that the trial Court having formulated the issue suo motu parties ought to have been called to address the Court. The Court is urged to resolve in favour of the Appellant.
Responding, learned counsel for the 2nd Respondent submitted that the issue raised by the learned trial Judge was to confirm the fact the primary elections of the 2nd Appellant Taraba State was not conducted through direct mode of primary election and we are urged to resolve in favour of the 2nd Respondent.
Issue Six
“Whether the learned trial Judge decided rightly when the Court held that the primary election conducted by the 2nd Appellant on 27th May, 2022 was spearheaded by the State Executives of the 2nd Appellant whose elections was voided and therefore the election conducted on 27th May, 2022 was null and void?”.
Arguing, Learned Senior Counsel referred to the deposition of the 2nd Respondent in paragraphs 12 and 13 of the affidavit in support of his originating summons, alleging that the Federal High Court nullified the election of the Taraba State Executive Chapter, to submit that the Appellants disputed to the allegation by paragraphs 9 and 10 of their Counter Affidavit in opposition to the originating summons. That the learned trial Judge did not resolve the conflict in the depositions of the parties with regard to the allegation that the State Executive of the 2nd Appellant spearheaded the conduct of the primary election. It is a material issue that ought to be resolved but that the trial Court made no reference to the depositions in paragraphs 10, 11, 12 and 13 of the Appellants’ Counter Affidavit.
That the trial Court was without vires to make finding without first evaluating the evidence before it. He relied on Obahaya Vs Latifa Obahaya (2022) LPELR -57141 (CA) 11 para D and Adenugba & Anor Vs Woli Elijah (2007) LPELR-8290 (CA) 10-11. Learned Senior Counsel’s contention is that there is no legal justification to nullify the primary election conducted by the National Working Committee of the 2nd Appellant on a bare allegation that the State EXCO of the Appellant spearheaded the conduct of the primary election, when there is an order for stay granted against the judgment of the State Executive EXCOS on 13th April, 2022 as against the decision of the trial Court that the order for stay was made on 10th June, 2022. The Court is urged to resolve in favour of the Appellants.
Responding, learned counsel for the 2nd Respondent submitted that the trial Court at page 448 lines 7-13 of the record held that the counter affidavit of the Appellants are laden with empty and bare averments which are not supported by any cogent and credible document. That the combined effects of the counter affidavit of the Appellants and 1st Respondent were thoroughly analyzed by the learned trial Judge to arrive at its conclusion. He urged the Court to resolve in favour of the 2nd Respondent.
Issue Seven
“Whether the learned trial Judge decided rightly when the Court held that the notice of election for the conduct of direct primary election was 3 days as against the 21 days Notice specified by Section 82 of the Electoral Act, 2022 and therefore the election conducted by the 2nd Appellant on 27th May, 2022 is null and void?”.
On this issue, Learned Senior Counsel submitted that as a matter of law, with regard to the Statutory Notice required to be given under Section 82 and 83 of the Electoral Act, 2022, it is only the Independent National Electoral Commission (INEC) that has the locus standi to complain that adequate notice was not given to her. He relied on P.D.P Vs Senator Basheer Garba Mohammed (2015) LPELR – 40859 (CA) 34-36.
Referring to the letter of May 19th, 2022 with reference No. APC/NHDQ/INEC/19/54 written to INEC, it is submitted that the letter of 25th May, 2022 was to provide further information on the notice earlier served. That the law is settled, a rescheduled primary does not require fresh notice of 21 days. The Court was referred to Tejumade & Anor Vs Olanrewaju & Ors (2015) LPELR -25985 (CA) 28-43 paras B-B.
It is also submitted that the decision to nullify the primary election of a political party on the strength that does not relate to the conduct of election in Taraba State on which the learned trial Judge so found by relying on Exhibit “H2” at page 11 of the record cannot be justified. We are urged to set aside the judgment delivered by the trial Court.
In response, learned counsel for the 2nd Respondent referred to Exhibit “H2″ and paragraph 7 of the counter affidavit of the 1st Respondent, to submit that the 2nd Appellant did not give notice to conduct its primary election as stipulated in Section 82 of the Electoral Act, 2022, That Exhibit “H2” attached to paragraph 5 of the affidavit in support of the originating summons did not include Taraba State among the states that are to conduct the direct mode of primary election, which means there was no notice to the 1st Respondent that the 2nd Appellant was going to conduct its primary election for Taraba State by direct mode of primary election as envisaged by the Electoral Act, 2022.
The Court was referred to Ugwu Vs Ararume (2007) ALL FWLR (Pt.377) 807 at 875 paras D-G and urged to resolve in favour of the 2nd Respondent.
Issue Eight
“Whether from the totality of affidavit and documentary evidence upon the record, the 2nd Respondent proved his case as to be entitled to the judgment delivered in his favour by the trial Court?.”
It is the submission of the Learned Senior Counsel that evaluation of evidence is primarily the duty of the trial Judge who puts all the evidence on an imaginary scale to see which side outweighs the other. He referred to Lafia Local Government Vs Executive Governor Nasarawa State (2012) LPELR – 20602 (SC) 23 paras E-F and Ajagbe Vs Idowu (2011) LPELR – 279 (SC) 3 paras B-C.
That where the trial Court fails to properly evaluate the evidence, the appellate Court will evaluate. That contrary to the pronouncement of the trial Judge, there is no evidence on record proffered by the 2nd Respondent to justify judgment in his favour if only the Appellants’ Exhibits “APC 6” and “APC 7” attached to paragraph 30 of their counter affidavit were properly evaluated.
That the conclusion of the trial Court reached in the absence of proper evaluation of evidence has occasioned a miscarriage of justice we are urged to resolve in favour of the Appellants.
For his part, Learned counsel for the 2nd Respondent submitted that from the resolutions reached by the learned trial Judge and the weight and quality of the evidence adduced by the 2nd Respondent, he deserved the judgment in his favour. We are urged to discountenance the submission of the Appellants on this issue and resolve in favour of the 2nd Respondent.
The Appellants’ Reply Brief is discountenanced for embellishing the argument already canvassed. The 2nd Respondent did not raise any new issue that requires the filing of a Reply Brief.
The Court of Appeal being an intermediate Court has a duty, unless or except in the clearest of cases, to consider all issues placed before it by the parties for determination.
It must be noted that in election matters, time is of essence, it does not leave room for multiplication of issues. As observed by the Supreme Court in Ugo Vs Obiekwe & Anor (1989) 1 NWLR (Pt.99) 566, multiplicity of issues tends to reduce most of them to trifles, most appeals are won on a few cogent and substantial issues, well framed and presented rather than on numerous trifling slips. See Owuru vs Adigwu (2018)1 NWLR (Pt. 1599).
It has to be re-stated that success of an appeal does not depend on the number of grounds of appeal and/or issues formulated therefrom. What matters is the cogency and validity of the grounds of appeal arising from the judgment appealed against and the issues for determination distilled therefrom. See Ngige Vs INEC (2015)1 NWLR (Pt. 1440) 281 at 327 paras B-C. Multiplicity of grounds of appeal and proliferation of issues derived therefrom becloud the issues in contention to the detriment of the Appellant. It is undesirable to split issues, as both the Supreme Court and this Court frown at proliferation of issues. See Chiadi vs Aggo (2018)2 NWLR (pt. 1603) 175.
Counsels are advised to avoid this attitude. In resolving this appeal all the issues will be considered together except issue 1. The complaint in this appeal is brought about on the basis of the 2nd Respondent’s allegation on the mode adopted by the 2nd Appellant in conducting its primary election of 27th May, 2022 to nominate a candidate for sponsorship in the election to the House of Representatives for Bali/Gassol Federal Constituency of Taraba State in the 2023 General Election.
The contention of the Appellants is that the 2nd Respondent did not include an order for conducting a fresh primary election when the trial Court awarded the relief that was not claimed for. While the 2nd Respondent’s counsel argued that the order for conducting fresh election was made incidental to the occasion.
It is the law that a Court has no duty to grant a relief that was not claimed by any of the parties.
An order for a declaration of a right of a party can only be made when the right of such a party has been proved by cogent evidence and such right must have been pleaded. There must be materials placed before the Court showing that the claimant is entitled to the declaration sought. In this case, no such declaration was claimed and/or evidence made available when the trial Court graciously ordered for conducting fresh election within 14 days in favour of the 2nd Respondent. It is trite law that the Court has no power to award that which was not claimed by a party. See Ekpenyong Vs Nyong (supra) and Oyeyemi Vs Owoeye (supra).
The finding of the trial Court in this regard is perverse and has occasioned a miscarriage of justice. Issue two is resolved in favour of the Appellants and against the 2nd Respondent.
On issue three which relates to alteration and interlineation in the originating summons, I had recourse to the record of Appeal and observed that the complaint of the Appellants therein does not affect the substance of the case before the trial Court since it is a typographical error which was corrected. Section 113 of the Evidence Act, 2011 reads:
“The Court may permit an affidavit to be used, notwithstanding that it is defective in form, according to this Act, if the Court is satisfied that it has been sworn before a person duly authorized.”
The affidavit in support of the originating summons has been duly sworn in before the commissioner for oath and the alteration complained of is the figure 2nd that was misplaced to be 3rd and which has been corrected. And the designation of the party that was handwritten does not affect the substance of the case. Such minimal alteration and interlineation can be ignored in the circumstance of his case, a pre-election matter which is sui generis. Thus, time of objection is discountenanced.
Issue three is resolved against the Appellants and in favour of the 2nd Respondent.
Issue four relates to the burden of proof placed on the Appellants by the learned trial Judge. From the evidence on record both the 1st Appellant and the 2nd Respondent were aspirants at the primary election conducted by the 2nd Appellant on the 27th of May, 2022 for the House of Representatives for Bali/Gassol Federal Constituency, Taraba State. However, the contention of the 2nd Respondent is that there was no election conducted and by paragraph 9 of his affidavit in support of the originating summons, he deposed that to his knowledge the 1st Appellant was not cleared to participate in the primary election. The 2nd Respondent also alleged that his supporters were not given the opportunity to vote. The Appellants in response tendered Exhibits “APC 10” – “APC 32” the result sheets of the primary election and Exhibits “APC 6” and “APC 7” INEC Monitoring Report of the conduct of the primary election.
At pages 160-186 are the All Progressives Congress House of Representatives Ward Summary Result Sheets indicating the aspirants that participated with their scores, that is Exhibits “APC 10” – “APC 35” Exhibit “APC 6” is the Monitoring Report issued by INEC, the 1st Respondent where in its Resolution stated thus:
“The All Progressives Congress (APC) adopted the direct mode of election for Federal House of Representatives Constituency election affirmed by the delegates at Bali Constituency center and Hon. Abdulsalam Gambo Mubarak garnered with total votes of Eight Thousand Five Hundred and Ninety-Seven (8,597) declared winner and returned elected.”
While the 2nd Respondent came 3rd in the election. It follows therefore the 2nd respondent who alleged that there was no election conducted and that his supporters were disenfranchised owes the burden of proof in this case. By virtue of Section 131 of the Evidence Act, 2011.
“Whoever desires any Court to right of liability dependent on the existence of fact which he asserts must prove that those facts exist.”
This the 2nd Respondent has failed to do in this case. It was therefore erroneous for the trial Court to shift the burden of proof on the Appellants when by their counter affidavit and Exhibits attached proved the allegations made by the 2nd Respondent as false because the result sheets clearly proved the participation of the 2nd Respondent at the election and the number of votes he scored. If as he wants the Court to believe that his supporters were not given the opportunity to vote, how come he came third with the votes credited to his name? Even in his further affidavit to the originating summons, the assertion therein was that primary election was not conducted in Bali/Gassol Constituency on 27th May, 2022. There was no challenge to the Result Sheets tendered by the Appellants to show that election was conducted, which is deemed accepted.
Evaluation of evidence and findings of facts are within the province of the trial Court and appellate Court would only interfere if such evaluation and findings are perverse and show a misapplication of the facts. See Durowaiye Vs U.B.N Plc (2015) 16 NWLR (Pt. 1484) 19.
A decision of Court is perverse when the Judge took into account, matter that he should not have shuts his eyes to the obvious. See Bi-Courtney Ltd Vs A.G. Federation (2019) 10 NWLR (Pt. 1679) 112 at 119.
In the instant case, the trial Court was wrong to nullify the primary election conducted by the 2nd Appellant on the basis that enough notice was not given to INEC the 1st Respondent, the aspirants and members of the party. However, neither INEC, aspirants or members of the party complained of short notice to justify the nullification. Section 82(1) of the Electoral Act, 2022 relied upon by the trial Court for non-compliance with the statutory notice to be given to INEC will not avail the 2nd Respondent, so also Exhibit H2 relied upon.
The trial Court did not consider and pronounce on the documentary evidence placed before it, which rendered its decision perverse and occasioned a miscarriage of justice.
An appellate Court will interfere with the decision of a lower Court on the basis of miscarriage of justice where the violation of some principles of law or procedure is such that if corrected, a different result will be the outcome or where the neglect of some principle of law or procedure is such that if it had not been neglected a different result will be the outcome. See Ibhade (Ning) Ltd Vs Akwari (2015)13 NWLR (Pt. 1477) 507 at 513. Miscarriage of justice is a failure on the part of the Court to do justice. It is justice misplaced or misappreciated. See Oguntayo Vs Adelaja (2009)15 NWLR (Pt. 1163) 150 and Onagoruwa Vs State (1993)7 NWLR (Pt.3O3) 49.
In the instant case, if the learned trial Judge had properly examined the documentary evidence with the affidavit evidence of the parties he would have arrived at a different conclusion.
This is a case that this Court should justifiably interfere in the finding of fact because the findings of the trial Court were perverse having failed to take material documentary evidence into consideration. See Cameroon Airlines Vs Otutuizu (2011)14 NWLR (Pt. 1278); Arowolo Vs Olowookere (2011)8 NWLR (Pt. 1728) 280; Olowu Vs Nigerian Navy (2011)18 NWLR (Pt. 1279) 659 and Re-Mogaji (1986) NWLR (Pt. 19) 759.
I resolve issues 1 and 3 against the Appellants and in favour of the 2nd Respondent. Issues 2, 4, 7 and 8 in favour of the Appellants and against the 2nd Respondent. Issues 5 and 6 are irrelevant and they are accordingly struck out. The appeal succeeds in part and it is allowed. The judgment of the trial Court delivered on 20th September, 2022 in Suit No. FHC/JAL/CS/2022 is hereby set aside. The name of Abdulsalam Sambo Mubarak should be returned as winner and the candidate for All Progressives Congress representing Bali/Gassol for House of Representatives Federal Constituency in the 2023 general election. N100,000.00 costs for the 1st Appellant against the 2nd Respondent is awarded.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in advance, the draft copy of the judgment just delivered by my learned brother T. Y. Hassan, JCA. I agree with the reasoning and conclusion reached.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft, the judgment delivered by my learned brother T. Y. Hassan, JCA. I adopt the reasoning and conclusion reached in the judgment as mine, with nothing useful to add.
Appearances:
F. K. Idopefo, (SAN) with him, Boniface lorkumbur, Esq. I.A. Simon, Esq. M. D. Arosanyin, Esq. S. y. Audu, Esq. and S. A. Tyongbegha, Esq. For Appellant(s)
S. D. Toklen, Esq. For 1st Respondent
S. I. Waziri, Esq. For 2nd Respondent For Respondent(s)
