MUSTAPHA & ANOR v. TUKUR & ANOR
(2022)LCN/17071(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, November 24, 2022
CA/YL/207/2022
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. ADAMU BABA MUSTAPHA (PDP) 2. PEOPLES’ DEMOCRATIC PARTY APPELANT(S)
And
1. ABDULHAMID TUKUR 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON DECLARATORY RELIEFS
The reliefs sought by the 1st Respondent at the lower Court are declaratory in the main and being declaratory, the burden and standard of proof is high. Declaratory reliefs are not granted as matter of course. They must be proved by cogent and credible evidence. Declaratory reliefs are not granted on admission or based on the weakness of the case of the adversary. See the following cases on this point:- Adamu V. Nigerian Air Force & Anor (2022) LPELR-56587 (SC) Pp. 13-14 Paras E-A, Akaninwo & Ors V. Nsirim & Ors (2008) LPELR-321 (CA) Pp. 71-77 Paras E-B, Ordia & Anor V. Gov of Delta State & Ors (2022) LPELR-58398 (CA) Pp. 28,- 29, Para B. PER ABUNDAGA, J.C.A.
THE INTERPRETATION OF SECTION 84(12) OF THE ELECTORAL ACT OF 2022
What does Section 84(12) of the Electoral Act, 2022 say?
Section 84(12) of the Electoral Act, 2022 States:
“No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”
As can be seen, there is no mention of resignation of one month, whereas, it is submitted that Paragraph 1 Part VII of PDP Guidelines for Primary Election, 2022 provides:
“Subject to the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any aspirant who is a civil servant or public servant shall resign from such office not later than 30 days before the date of the General Election.
Pursuant to Section 84(12) of the Electoral Act, 2022, any aspirant who is a political appointee shall resign his appointment before the purchase of Expression of interest and nomination form.”
The requirement for resignation before the purchase of Expression and Nomination forms is neither in the Constitution nor Electoral Act, 2022 but in the PDP Electoral Guidelines for primary elections, which is a private document of which judicial notice may not be taken under the Evidence Act. It was submitted by learned counsel to the Appellants that the failure of the 1st Respondent to exhibit or place before the Court the PDP Guidelines was fatal to his case. His submission was bolstered up with the case of Ogah V. Ikpeazu (2017) All FWLR (Pt. 617) 605 at Pp. 4633-6347 Paras G- H. Also cited is the case of APC V. Elebeke (2022) II FWLR (Pt. 1873) 1 at 45 Paras C-D and the case of Ibezim V. Elebeke (2022) 4 FWLR (Pt. 1819) 1 at 51. PER ABUNDAGA, J.C.A.
WHETHER OR NOT A DOCUMENT MEANT TO BE INTERPRETED OR CONSTRUED/CONSTRUCTED BY THE COURT IN AN ACTION INITIATED BY ORIGINATING SUMMONS HAS TO BE PLACED OR EXHIBITED BEFORE THE COURT TO ENABLE IT EXERCISE ITS POWERS OF INTERPRETATION
The case of Dr. Sampson Uchechukwu Ogah V. Dr. Okezie Victor Ikpeazu & Ors (2017) LPELR-42372 (SC) commands better force. It was in that case held:
“It is settled law that a document meant to be interpreted or construed/constructed by the Court in an action initiated by Originating Summons has to be placed or exhibited before the Court to enable it exercise its powers of interpretation, particularly, when the document is not a statutory instrument in respect of which the Court is enjoined, by law to take judicial notice of. The above proposition is grounded on the principle of law that the best evidence of the contents of a document is the production of the document. It is therefore not enough for a party to either quote excerpts from the document in question or present a synopsis of same in his affidavit in support of the Originating Summons. “Per ONNOGHEN, JSC (Pp. 48-49, paras. D-A) this decision is later in time to Osafile & Anor V. Odi & Anor (Supra). The settle position of the law is that where two decisions of the Supreme Court are in conflict, the lower Court is bound by the latter decision and must follow it:- See Kanu V. Asuzu & Anor (2015) PLPER-24376 (CA) Pp. 51-52 Paras A-F, CBN V. Messrs Hybrid Engineering Co. Ltd (2021)LPELR-56468 (CA) Pp. 12 Paras B-C, Mutairu V. State of Lagos (2021) LPELR- 56754 (CA) Pp. 51 Paras A-B.
Therefore, the Court is bound to follow the decision in the case of Dr. Sampson Uchechukwu Ogah V. Dr. Okezie Victor Ikpeazu & Ors (2017) (Supra). “PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The People’s Democratic Party (PDP), 2nd Appellant conducted primary election for the nomination of its flag bearer for election, come 2023 into the Adamawa State House of Assembly for Yola South State constituency on 22/5/2022. The 1st Appellant, the 1st Respondent and one Jamila Muhammed Hayatu were aspirants at the primary election which produced 1st Appellant as winner who polled 20 votes to beat the 1st Respondent who came second with one vote. Jamila Muhammed Hayatu recorded zero vote.
The 1st Respondent was dissatisfied with the result and petitioned the appeals Committee of the 2nd Appellant which dismissed his petition. Still undaunted, the 1st Respondent decided to approach the trial Court vide an originating summons in which he posed the following questions:
1. Whether by the combined effect of Section 84(12) of the Electoral Act 2022 (as amended) and Paragraph 1 of PART VII of the People’s Democratic Party Electoral Guidelines for Primary Election, 2022, the 1st Defendant is eligible to participate as a candidate for State House of Assembly Primary Election of Yola South State constituency Adamawa State held on the 22/5/2022 conducted by the 2nd Defendant and supervised by the 3rd Defendant.
2. Whether by the combined effect of Section 84(12) of the Electoral Act 2022 (as amended) and paragraph 1 of PART VII of the People’s Democratic Party Electoral Guidelines for Primary Elections 2022, the 1st Defendant being a political appointee as the Special Assistant (SA) on youth empowerment to the Governor of Adamawa State Rt. Hon. Ahmadu Umaru Fintiri having not resigned his appointment is eligible to participate as a candidate for State House of Assembly primary Election of Yola South State constituency of Adamawa State held on the 22/5/2022 conducted by the 2nd Defendant and supervised by the 3rd Defendant.
Upon the determination of these questions, he sought the following reliefs:
1. A DECLARATION that the 1st defendant is not competent to participate in the primary election conducted by 2nd Defendant and supervised by the 3rd Defendant into the seat of Member House of Assembly Yola South State Constituency of Adamawa State held on the 22nd May, 2022 having not resigned on his Appointment as the Special Assistant (SA) to His Excellency Rt. Hon. Umaru Fintiri, the Governor of Adamawa State in the light of the provisions of Section 84(12) of the Electoral Act, 2022 (as amended) and paragraph 1 of PART VII of the People’s Democratic Party Electoral Guidelines for Primary Elections 2022.
2. AN ORDER of the Honourable Court declaring the purported declaration of the 1st Defendant by 2nd Defendant as the Winner of the primary election conducted by 2nd Defendant supervised by the 3rd Defendant into the seat of Member House of Assembly Yola South State Constituency of Adamawa State held on the 2nd May, 2022 having not resigned on his appointment as the Special Assistant to His Excellency Rt. Hon. Ahmadu Umaru Fintiri, the Governor of Adamawa State is unconstitutional, null and void and of no effect whatsoever.
3. A DECLARATION that the Primary election conducted by 2nd Defendant and supervised by the 3rd Defendant into the seat of Member House of Assembly Yola South State Constituency of Adamawa State held on the 22nd May, 2022 being next in votes to the 1st Defendant with one vote, in the light of the provisions of Section 84(12) of the Electoral Act, 2022 (as amended) and Paragraph 1 of PART VII of the People’s Democratic Party Electoral Guidelines for Primary Elections 2022.
4. AN ORDER of the Honourable Court directing the 2nd Defendant to withdraw the certificate of return issued to the 1st defendant and issue a fresh certificate of return to the plaintiff as the winner of the primary election conducted by 2nd Defendant and supervised by the 3rd Defendant into the seat of Member House of Assembly Yola South State Constituency of Adamawa State held on the 22nd May, 2022.
5. AN ORDER of the Honourable Court to restrain the 1st Defendant from parading himself as the winner of the primary election conducted by 2nd Defendant supervised by the 3rd Defendant into the seat of Member House of Assembly Yola South State Constituency of Adamawa State held on the 22nd May, 2022 having not resigned on his appointment as the Special Assistant to His Excellency Rt. Hon. Ahmadu Umaru Fintiri, the Governor of Adamawa State in the light of the provisions of Section 84(12) of the Electoral Act, 2022 (as amended) and paragraph 1 of PART VII of the People’s Democratic Party Electoral Guidelines for Primary Election 2022.
The originating summons which was filed on 3/6/2022 is supported with an affidavit of 15 paragraphs and Exhibits, viz Exhibits A1 and A2 B, C1 and C2, and D. It is accompanied with a written address Exhibits A1 and A2 are nomination and expression of interest forms, Exhibit B is the certificate of clearance, C1 and C2 are Pay-slips issued by the office of the Accountant General of Adamawa State and Exhibit D is a copy of 1st Respondent’s petition to the Appeals Committee, dated 23/5/2022.
Issues were joined between the 1st Respondent and the 2nd Appellant. Thereafter, the matter proceeded to trial on conclusion of which the trial Court delivered its judgment in which the claims of the Plaintiff (now 1st Respondent) were granted. In tune with the judgment, the Court held that the 2nd defendant (1st Appellant) was not qualified to contest in the primary election, and declared the 1st Respondent being the runner up as the winner. The Court further ordered the 2nd Appellant to withdraw the certificate of return from the 1st Appellant and a fresh one issued to the 1st Respondent.
The Appellants felt disenchanted with the judgment and appealed to this Court vide a notice of appeal filed on 24/10/2022. The notice of appeal contains Nine (9) grounds of appeal. The following reliefs were prayed for:
1. An order of the Honourable Court of Appeal setting aside the judgment of the trial Court of 17th October, 2022 and dismissing Plaintiff’s suit.
2. An Order of the Honourable Court of Appeal setting aside the disqualification and the nullification of the nomination of the 1st Appellant as a candidate for Yola South State Constituency election for the Adamawa State House of Assembly.
3. An Order of the Honourable Court of Appeal nullifying the Declaration of 1st Respondent as the Candidate of the 2nd Appellant and directing 2nd Appellant to withdraw the Certificate of Return issued to 1st Appellant.
4. An Order of the Honourable Court of Appeal dismissing the Plaintiff’s claim.
The record of appeal was transmitted on 28/10/2022.
On due compilation of the record of appeal as stated above, briefs of argument were filed. The appellants’ brief of argument filed on 1/11/2022 was settled by Idi Isa Esq., while the 1st Respondent’s brief of argument, settled by Hassan G. Maidawa, Esq., was filed on 8/11/2022. The appellants filed a reply brief on 12/11/2022.
The appeal came up for hearing on 14/11/2022, whereat, Idi All Esq., representing the Appellants identified the Appellants’ brief of argument and adopted same and urged the Court to allow the appeal while Hassan G. Maidawa who represented the 1st Respondent identified his brief and adopted it and urged the Court to dismiss the appeal.
The 2nd Respondent was represented by Stephen Ibyem lyono Paul.
The Appellants distilled three issues for determination in their brief of argument. The issues are as follows:
1. Was the trial Court right in granting the reliefs sought in the Originating Summons based on the Peoples’ Democratic Party Electoral Guidelines for Primary Election 2022 that was not placed or exhibited before it?
2. Whether upon a comprehensive review of the Originating Summons, the Constitution of Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act 2022 (as amended), the trial Court rightly held that 1st appellant did not resign his appointment before buying the expression of interest and nomination forms of the 2nd appellant for primary election for Yola South Constituency of Adamawa State House of Assembly and is thereby disqualified, and nullifying the nomination of 1st Appellant as candidate of 2nd Appellant (Grounds 2, 4, 5, 6 and 7).
3. Whether the trial Court was right to direct 2nd appellant to issue a certificate of return to 1st Respondent who scored one vote because he is runner up at the primary election where the winner was disqualified (Grounds 8 and 9).
On his part, the 1st Respondent formulated two issues for determination in his brief, The issues as formulated are:
1. Whether Ground 3 of the Notice of Appeal and issue 1 in the Appellants’ Brief of Argument are competent without leave of the Hon. Court been (Sic) sought and obtained by Appellants (Distilled from ground 3 of the notice of Appeal)
2. Whether having regard to the circumstances of this case the lower Court was right in granting the 1st Respondent’s reliefs and declared him as the winner of the primary election held on the 22/5/2022 by 2nd Appellant under the supervision of the 2nd Respondent (Distilled from grounds 2, 4, 5, 6, 7, 8 and 9 of the Notice of Appeal).
Issue one in the 1st Respondent’s brief is supposedly a preliminary objection. But it has not conformed to a notice of preliminary objection under the Court of Appeal Rules 2021. Order 10 Rule 1 of the Court of Court of Appeal Rules, 2021 provides:
”A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with ten hard/physical copies and an electronic copy thereof with the Registry within the same time. The preliminary object shall be argued in the respondent’s brief of argument.”
Alternatively, a preliminary objection may be raised in the Respondent’s brief of argument, but before same is heard, the Respondent must seek leave to move it prior to the hearing of the appeal, with at least 3 days notice given to the Appellant before the hearing date. See the case of Fagge V. Amadu (2015) LPELR-25920 (CA) Pp. 47 Paras A-C, Ekwunife V. Ngene (1999) LPELR-6072 (CA) Pp. 9-13 Paras A-C.
There is non-compliance with the rules and practice of the Court by the 1st Respondent. Therefore, the preliminary objection is incompetent. Issue one in which it is raised is hereby discountenanced. That leaves the 1st Respondent with a sole issue.
I will therefore determine the appeal on the issues raised by the Appellants. However, issues one and two will be considered together.
Issues
1. Was the trial Court right in granting the reliefs sought in the Originating Summons based on the Peoples’ Democratic Party Electoral Guidelines for Primary Election 2022 that was not placed or exhibited before it? (Grounds 1, 3 and 9)
2. Whether upon a comprehensive review of the Originating Summons, the Constitution of Federal Republic of Nigeria, 1999 (as amended) and The Electoral Act 2022 (as amended) the trial Court rightly held that 1st appellant did not resign his appoint before buying the expression of interest and nomination forms of the 2nd appellant for primary election for Yola South Constituency of Adamawa State House of Assembly and is thereby disqualified, and nullifying the nomination of 1st Appellant as candidate of 2nd Appellant (Grounds 2, 4, 5, 6, and 7)
I have read all the briefs in the appeal, and the whole issues boilt down to, whether the 1st Respondent proved that the 1st Appellant was indeed not qualified by virtue of Section 84(12) of the Electoral Act, 2022 and Paragraph 1 Part VII of the Peoples Democratic Party Electoral guidelines for Primary Election, 2022 to contest the primary election, the 1st defendant (now 1st Appellant) being a political appointee.
The reliefs sought by the 1st Respondent at the lower Court are declaratory in the main and being declaratory, the burden and standard of proof is high. Declaratory reliefs are not granted as matter of course. They must be proved by cogent and credible evidence. Declaratory reliefs are not granted on admission or based on the weakness of the case of the adversary. See the following cases on this point:- Adamu V. Nigerian Air Force & Anor (2022) LPELR-56587 (SC) Pp. 13-14 Paras E-A, Akaninwo & Ors V. Nsirim & Ors (2008) LPELR-321 (CA) Pp. 71-77 Paras E-B, Ordia & Anor V. Gov of Delta State & Ors (2022) LPELR-58398 (CA) Pp. 28,- 29, Para B.
The 1st Respondent tended to rely on the admission made by the 1st Appellant that he did not resign before he bought the expression of interest form which he alleged was bought for him by his promoters or sponsors. The reliefs which the 1st Respondent sought being declaratory he must fare better than rely on this admission. He must prove that the 2nd Appellant’s Guidelines make specific provision that the 1st Respondent must resign a month before purchasing the expression of interest form. The party guidelines for primary election must be put in evidence.
This is especially so that the 1st Respondent’s case was built on it, and the judgment of the trial Court is largely predicated upon it and Section 84(12) of the Electoral Act, 2022. Your Lordships may wish to refer to pages 209, 210 and 200 of the record of appeal. At page 11 of the record, the learned trial Judge stated:
“Therefore, the pertinent question to ask from the claim of the plaintiff is, has the 1st defendant resigned his appointment before obtaining nomination and expression of interest form in accordance with Section 84(12) of the Electoral Act, 2022 and Paragraph 1 Part – VII of PDP Guidelines for Primary Election 2022?”
What does Section 84(12) of the Electoral Act, 2022 say?
Section 84(12) of the Electoral Act, 2022 States:
“No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”
As can be seen, there is no mention of resignation of one month, whereas, it is submitted that Paragraph 1 Part VII of PDP Guidelines for Primary Election, 2022 provides:
“Subject to the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended), any aspirant who is a civil servant or public servant shall resign from such office not later than 30 days before the date of the General Election.
Pursuant to Section 84(12) of the Electoral Act, 2022, any aspirant who is a political appointee shall resign his appointment before the purchase of Expression of interest and nomination form.”
The requirement for resignation before the purchase of Expression and Nomination forms is neither in the Constitution nor Electoral Act, 2022 but in the PDP Electoral Guidelines for primary elections, which is a private document of which judicial notice may not be taken under the Evidence Act. It was submitted by learned counsel to the Appellants that the failure of the 1st Respondent to exhibit or place before the Court the PDP Guidelines was fatal to his case. His submission was bolstered up with the case of Ogah V. Ikpeazu (2017) All FWLR (Pt. 617) 605 at Pp. 4633-6347 Paras G- H. Also cited is the case of APC V. Elebeke (2022) II FWLR (Pt. 1873) 1 at 45 Paras C-D and the case of Ibezim V. Elebeke (2022) 4 FWLR (Pt. 1819) 1 at 51.
Learned counsel to the 1st Respondent submitted that the decision of the apex Court in Osafile & Anor V. Odi & Nor (1990) LPELR-2783 (SC) Pp. 45-47 is that the document can either be placed before the Court or counsel can produce the document or relevant portion of it can be quoted in written address or brief of argument.
The case of Dr. Sampson Uchechukwu Ogah V. Dr. Okezie Victor Ikpeazu & Ors (2017) LPELR-42372 (SC) commands better force. It was in that case held:
“It is settled law that a document meant to be interpreted or construed/constructed by the Court in an action initiated by Originating Summons has to be placed or exhibited before the Court to enable it exercise its powers of interpretation, particularly, when the document is not a statutory instrument in respect of which the Court is enjoined, by law to take judicial notice of. The above proposition is grounded on the principle of law that the best evidence of the contents of a document is the production of the document. It is therefore not enough for a party to either quote excerpts from the document in question or present a synopsis of same in his affidavit in support of the Originating Summons. “Per ONNOGHEN, JSC (Pp. 48-49, paras. D-A) this decision is later in time to Osafile & Anor V. Odi & Anor (Supra). The settle position of the law is that where two decisions of the Supreme Court are in conflict, the lower Court is bound by the latter decision and must follow it:- See Kanu V. Asuzu & Anor (2015) PLPER-24376 (CA) Pp. 51-52 Paras A-F, CBN V. Messrs Hybrid Engineering Co. Ltd (2021)LPELR-56468 (CA) Pp. 12 Paras B-C, Mutairu V. State of Lagos (2021) LPELR- 56754 (CA) Pp. 51 Paras A-B.
Therefore, the Court is bound to follow the decision in the case of Dr. Sampson Uchechukwu Ogah V. Dr. Okezie Victor Ikpeazu & Ors (2017) (Supra).”
In his judgment, the learned trial judge was authoritative as if the document was placed before it. The learned trial judge fell into palpable error, and I refuse to do same.
The substratum of the 1st Respondent’s case is the PDP Electoral Guidelines for Primary Elections. Without it placed before the Court and with credible evidence led in proof, the judgment of the trial Court was speculative or at least a judgment ladened with extraneous evidence.
Issues one and two considered together are hereby resolved in favour of the Appellants and against the 1st Respondent.
The consideration of issue three therefore becomes otiose.
In the above premises, the appeal is hereby allowed. Consequently, the judgment of the lower Court is hereby set aside. I dismiss the 1st Respondent’s case at the lower Court. In the event the judgment had already been complied with, I hereby order that a fresh certificate of return be re-issued to the 1st Respondent.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, James Sambo Abundaga, JCA.
I agree with the reasoning and conclusion reached therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
Appearances:
Idi Ali For Appellant(s)
Hassan Hussaini Maidawa for 1st Respondent
Stephen Ibyem, with him, Tyono Paul for 2nd Respondent For Respondent(s)