OBINNA MBATA v. BARR. (CHIEF) TONY UMEZURIKE & ORS
(2019)LCN/13139(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of April, 2019
CA/OW/108/2019
RATIO
APPEAL: HOW TO OBJECT TO A GROUND OF APPEAL
We have stated the law, several times, that an objection to a ground(s) of appeal is done by filing a motion on notice to challenge it, not by means of Preliminary Objection which can only be filed to attack the hearing of the appeal, as a whole, that it is incompetent. See the case of Nwaolisah Vs Nwabufoh (2011) LPELR 2115 (SC); Osuji Vs The State (2016) LPELR 40042 (CA); Alaribe Vs Okwuonu (2015) LPELR 24297 CA.PER ITA GEORGE MBABA, J.C.A.
APPEAL: WHAT IS THE PURPOSE OF PARTICULARS OF APPEAL
The particulars of appeal are only meant to explain or throw some light into the way Appellant intends to argue the grounds of appeal in the brief of argument, as per the issue(s) distilled therefrom. See the case of Obiwusi Vs EFCC (2018) LPELR 44536 (CA); Uwazuruike Vs Nwachukwu & Ors (2012) LPELR 15353 CA; Alied Energy Plc Vs Ayenuberu & Ors (2015) LPELR 25798 CA, and Nwosu Vs PDP & Ors (2018) LPELR 44386 SC, where my Lord, Peter Odili JSC (quoting Adekeye JSC inDakolo Vs Rewane Dakolo & Ors (2011) LPELR 915) said:
Grounds of appeal are to be differentiated from their particulars while the grounds of appeal must clearly state what the appellant is complaining about, whereas the essence of the particulars of a ground of appeal is to set out, briefly, the aspect of substantive law or procedural law that is affected by the error or misdirection, identified or complained of in the ground of appeal.PER ITA GEORGE MBABA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
OBINNA MBATA Appellant(s)
AND
1. BARR. (CHIEF) TONY UMEZURIKE
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal against the decision of the Federal High Court, Owerri, in Suit No. FHC/OW/CS/O5/2019, delivered on 20/2/19 by Hon. Justice T.G. Ringim, wherein his lordship entered judgment in favour of the Plaintiff (now 1st Respondent) and granted the Reliefs 1, 2, 3, 5 and 6 sought by him.
At the Lower Court, the 1st Respondent had sought, by Originating Summons, the following Reliefs(in a pre-election matter) against the Defendants (now Appellant and 2nd and 3rd Respondents):
(1) A declaration that the Plaintiff, having won the Primary Election conducted by the 2nd Defendant on 6th October, 2018 for the nomination of candidates to represent the 2nd defendant, the All Progressive Congress, in the General Election for Owerri Federal Constituency seat into the House of Representatives of the Federal Republic of Nigeria, is the Candidate of the 2nd defendant for the Owerri Federal Constituency in the 2019 General Elections.
?(2) A declaration that the Plaintiff being the winner of the said 2nd Defendant Primary Election held on 6th October, 2018, is the
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Candidate of the 2nd Defendant for Owerri Federal Constituency in the 2019 General Election and thus the only person whose name is to be forwarded by the 2nd Defendant to the 3rd Defendant as her Candidate for Owerri Federal Constituency in the 2019 General Election.
(3) A declaration that the 2nd Defendant has no power or right to forward any other person?s name including the 1st Defendant?s name to the 3rd Defendant as its Candidate for Owerri Federal Constituency in the 2019 General Election except the name of the Plaintiff, who won the said Primary Election held on 6th October, 2018.
(4) An Order of Injunction restraining the 2nd Defendant (APC) from forwarding the name of the 1st Defendant or presenting him or any other person to the 3rd Defendant as its Candidate in the 2019 General Elections for Owerri Federal Constituency, except the Plaintiff?s name.
(5) An Order of Injunction restraining the 3rd Defendant, her servants, privies, agents or any other person acting on their instructions from recognizing or holding out and/or dealing with or however relating with the 1st Defendant or any other person apart from the
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Plaintiff, as the candidate of the 2nd Defendant in the 2019 General Elections for Owerri Federal Constituency seat in the House of Representatives of the Federal Republic of Nigeria.
(6) An Order of Injunction restraining the 1st Defendant from parading and/or presenting himself or allowing himself to be paraded or recognized as the Candidate of the 2nd Defendant in the 2019 General Election for Owerri Federal Constituency into the House of Representatives of the Federal Republic of Nigeria.?
Appellant (as 1st Defendant) had filed a Counter affidavit to the Originating Summons, together with a Written Address in opposition of the Suit. After hearing the case and considering the written addresses of the parties and the evidence adduced, the trial Court held as follows:
?Now having answered all the posers, particularly, No.4 in the affirmative, i.e. that it was the Plaintiff who scored the highest votes in the APC, 2018 Primary Election for the House of Representative seat in the Owerri Federal Constituency it could safely be held that the Plaintiff is most eligible to be declared winner and his name be forwarded to the INEC by his
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party, the APC. This will be in consonance with the Provisions of Section 87(4)(c)(ii) of the Electoral Act . Accordingly, thisHonourable Court hold as follows:
(1) That the 2nd Defendant has no powers to ignore the Plaintiff who won the Primary Election conducted by her on 6th October, 2018 as the 2nd Defendant?s Candidate for Owerri Federal Constituency in 2019 General Elections and instead forwarded the 1st Defendant name or any other person contrary to Section 87(4) (c)(ii) of the Electoral Act, 2010 (as amended);
(2) That the 3rd Defendant cannot accept nor recognize any other name than that of the Plaintiff forwarded to it by the 2nd Defendant as her candidate for Owerri Federal Constituency in the forthcoming 2019 General Elections.
In the light of the above and since cause follows event, the Plaintiff who won the said primary election ought to be declared winner and has (sic) his name forwarded to the 3rd Defendant by the 2nd Defendant, shall have all the 6 Reliefs claimed, save the 4th Relief which has already been overtaken by the event of the 3rd Defendant (sic) having earlier forwarded the name of the 1st Defendant in error.
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Accordingly, Reliefs 1, 2, 3, 5 and 6 shall be granted as prayed. See pages 375 to 376 of the Records of Appeal).
That is the decision Appellant appealled against in this Appeal, as per the Amended Notice of Appeal, filed on 8/4/19, with the leave of this Court, granted on 12/4/19. Appellant filed his brief of arguments on 8/4/19, which was deemed duly filed upon the Records of Appeal being regularized on 12/4/19. Appellant donated four (4) Issues for the determination of the Appeal, as follows:
(1) Whether the Learned trial Court was right when he (sic) held that the 1st Respondent relied heavily on paragraphs 9 and 10 of the Affidavit in support of the Originating Summons and Exhibits ON1 to ON12 and this laudly suggest that the Plaintiff had scored the highest votes cast in the Primary Election, thus, the cases of Etim Vs Akpan supra and Eze Vs People Democratic Party supra are thus distinguishable from this case. (Ground 4)
(2) Whether the Learned trial Judge was right when he held that no issue was joined on the result obtained from 10 Wards of Owerri West and 11 Wards of Owerri Municipal and this narrow (sic) the task of the Court to determining
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which of the results of Owerri West and 11 Wards (sic) of Owerri Municipal are authentic. (Ground 5)
(3) Whether the learned trial judge was right when he held that the 2nd Respondent, having certified the result, Exhibits B1 and B2 exhibited by the 1st Respondent and withdrew her defence against the Plaintiff, suggest that such result are the authentic results of the Primary election held on 6/10/2018 at the 12 words (sic) of Owerri North Local Government for the House of Representatives Seat in the Owerri Federal Constituency and a clear suggestion that the claims of the 1st Respondent is capable of being believed. (Grounds 2, 6 and 9).
(4) Whether the learned trial judge was right when he held that the 1st Respondent scored the highest votes in the APC, 2018 Primary Election for the House of Representative seat for the Owerri Federal Constituency and ought to be declared a winner and his name forwarded to INEC, the 3rd Respondent, by his party, the APC. (Grounds 7 and 8).
Appellant?s Counsel, Okechukwu Ajunwa Esq., who settled Appellant?s brief, on issue 1, said the basis of the Respondents? case at the Court below was
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paragraph 8 of the Affidavit in support not, only paragraphs 9 and 10 of the Process ? affidavit in support; that the real issue was not about scoring the highest votes cast at the primary election as per Exhibits ON1 to ON12, but about the fact that the said election was conducted by the Internal Electoral Committee of 5 members in each of the 3 Local government Areas. He referred us to pages 7 and 8 of the Records of Appeal.
Counsel said that the body that conducted the election in which Appellant scored the highest votes (as per Exhibits A1-A33 and B), wherein he was declared the winner of the election, was the National Working Committee (NWC) members of the 2nd Defendant (2nd Respondent herein) headed by Brig. General Agbabiaka Mni (Rtd) and Abubakar B. Jijiwa, MFR, as the Chairman and Secretary, respectively, with Akas Paschal Esq., appointed as returning officer. He relied on paragraphs 9, 10, 11 and 12 of his Counter Affidavit (on pages 269 ? 271 of the Records of Appeal).
?Counsel said issues were joined on the Committee that conducted the election that produced the result relied upon by the 1st Respondent (as per Exhibits ON1 to
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ON12) as opposed to the one that conducted the election with the result, relied on by the Appellant (? as per the Exhibits 1 ? A33 to B). He referred us to Appellant?s Counter affidavit, paragraph 9, and the 1st Respondent?s supporting affidavit, paragraph 8, as to the authentic or proper body (Committee) competent to conduct the Primary Election. Counsel insisted that the authentic body to conduct the Primary election was the one constituted by the National Working Committee of the 2nd Respondent. He relied on the case of Etim Vs Akpan & Ors (2018) LPELR ? 44904 SC, and Eze Vs People Democratic Party (2018) LPELR ? 44907 SC, for the purpose of identifying the appropriate body (committee) that can conduct primary election; he said that the said cases are apposite and applicable to the facts of this case.
?Counsel said the trial Court did not consider the paragraph 8 of 1st Respondent?s supporting affidavit ? which stated that Internal Committee of the party made up of 5 members from each of the 3 Local Government Areas, constituting the Federal constituency, conducted the Primary Election. He argued that
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Appellant had relied on paragraph 9 of the Counter-Affidavit, to say that the Primary Election that produced him was conducted by National Working Committee (NWC) members of the 2nd Respondent, headed by Brig. Gen B.I. Agbabikaka and Abubakar B. Jijiwa MFR, as Chairman and Secretary.
He relied on the case of Nwokedi Vs Egbe (2005) 9 NWLR (Pt.930) 293 on the need for the Court to resolve all the issues raised before it for resolution. He added that it is incompetent for a Court to, suo motu, make a case for a party, or parties, and then proceed to give judgment on the case so formulated, contrary to the case of the parties before it. He relied on Adegoke Vs Adibi (1992) 5 NWLR (Pt.242) 410; Osolu Vs Osolu (2003) SCNJ 162. He urged us to resolve the issue for Appellant.
?On Issue 2, Counsel said the parties joined issues on the result obtained from 10 Wards of Owerri West and 11 Wards of Owerri Municipal; that a combined reading of paragraphs 8, 9 and 10 of 1st Respondent?s affidavit in support of the Suit, would show that 1st Respondent?s case was that the election that produced the result sheet for the 10 Wards of Owerri West, 11 Wards of Owerri
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Municipal and 12 Wards of Owerri North, was conducted by the Internal Electoral Committee of 5 members in each of the 3 LGAs. Counsel argued that Appellant had denied that source of the result and had pleaded his own, which was conducted by the National Working Committee (NWC) members. Thus, having joined issues thereon, with regards to the source of result claimed by the 1st Respondent, it was for the trial Court to resolve the same. He relied on Ekeocha and Anor. Vs Ekeocha (2013) LPELR ? 22492 CA; Bankole & Anor. Vs Denapo & Anor. (2019) LPELR ? 46444 CA.
On Issue 3, whether certification by the 2nd Respondent of the result ? Exhibits B1 to B12, exhibited by 1st Respondent, and the withdrawal of defence by the 2nd Respondent against the Plaintiff, suggested that that result was authentic, Counsel answered in the negative. He said that Exhibits B1 to B12 were private documents, and so certification of the same did not attract the presumption of regularity, thus the trial Court was right in its holding on the point.
?However, Counsel asserted that the 2nd Respondent, having certified the result ? Exhibits B1 to B12, and
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withdrew her defence against the Plaintiff, did not suggest that the result of the Primary election was authentic. He re-stated that, because the result in the Primary Election, as per Exhibit B1 to B12 was not conducted by the credible Body ? NWC of 2nd Respondent, it ceased to be authentic. Thus, 1st Respondent did not establish his claim. Counsel added that the Suit, being a declaratory relief, 1st Respondent had a duty to lead credible evidence to prove same on the strength of his case, not on the weakness of the defence. He relied on the case of Ogunyemi & Ors Vs Soneye & Anor. (2018) LPELR ? 44877 CA; Emenike Vs PDP & Ors (2012) 12 NWLR (Pt.1315) 556. Thus, Counsel said the withdrawal of the defence by 2nd Respondent (if that was done) was of no moment, as the 1st Respondent still had the duty to prove his case, on the strength of his case. Counsel said the trial Court was therefore, in error to imply that the withdrawal of the defence against 1st Respondent accrued to the benefit of the Plaintiff (1st Respondent), when it held:
?As if the APC is never done with the chain reaction in 2018/2019 Owerri Federal Constituency
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Politics, it came out to deny the Plaintiff, initially, in Court, then in a twist of event, changed her face from grin to green. The APC withdrew the processes she filed against the Plaintiff to see to his victory in this Court. The writing is in the wall, that APC has moved to embrace the Plaintiff, after abandoning him. This is still the domestic affairs of the Party, which the Court needs not query the APC to explain her seeming undemocratic inconsistencies.? (See pages 377 to 378 of the Records)
Counsel, however, said there was no evidence, on the Records, to support the above views of the trial Court (that 2nd Respondent withdrew the defence and embraced 1st Respondent); he said that a Court cannot decide an issue on speculation, and relied on the case of ACCESS BANK PLC VS Ajayi (2018) LPELR ? 43813 CA; Ivienagbor Vs Bazuaye & Anor (1999) LPELR ? 1562 at 14:
?A Court cannot decide issues on speculation; no matter how close what it relies on may seem to be on the facts. Speculation is not an aspect of inference that maybe drawn from facts that are laid before the Court. Inference is a reasonable deduction from facts,
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whereas speculation is a mere variant of imaginative guess, which, even when it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it. See Overseas Construction Co. Ltd Vs Creek Enterprises Ltd (1985) 16 NSCC (Pt.2) 1371 at 1373.?
Counsel said that the trial Court was therefore, wrong to hold that the 2nd Respondent having certified the result ? Exhibits B1 to B12, and withdrew her defence against the Plaintiff, suggested that such results were authentic!
On Issue 4, whether the trial Court was right to hold that 1st Respondent scored the highest number of votes at the Primary election to be declared winner, Counsel answered in the negative. Counsel said the starting point in the case was rather the construction of Section 87(4)(c) of the Electoral Act, 2010 (as amended), and whether the same operated to the benefit of the 1st Respondent in this case. Counsel relied on the said provisions of Section 87(4) (c)(i)(ii). He also relied on the case of Etim Vs Akpan & Ors (2018) LPELR ? 44904 SC (and other Cases), to say that a Claimant must establish strict compliance with that
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provision 87(4)(c) of the Electoral Act, to succeed; he referred again, to the body that conducted the 1st Respondent?s primary election i.e. the Internal Electoral Committee of 5 members in each of the 3 LGAs, instead of the Committee of National Working Committee of the Party ? 2nd Respondent. He relied again on Etim Vs Akpan (supra), to the effect that being a pre-election matter, the primary election must be conducted by the National Working Committee of the 2nd Respondent.
He said that in that case of Etim Vs Akpan (supra) the Supreme Court said:
?This is a pre-election matter arising from 2nd respondent?s primary election for the nomination of its candidate for the 2015 Akwa Ibom North East Senatorial Election. For the Appellant to succeed, he must establish that he took part in the Primary election conducted by the National Working Committee of the 2nd Respondent. See Emeka Vs Okadigbo (2012) 18 NWLR (Pt.1331) 55; Emenike Vs PDP (2012) NWLR (Pt.1315) 556? and Senator Abubakar Saddiq Yar?Adua & Ors Vs Senator Abdu Umar Yandoma & Ors (2014) LPELR ? SC. Since the Appellant is relying on Exhibit 8 to prove his
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entitlement to the declaratory reliefs, he must prove that Exhibit 8 is indeed, the authentic result sheet issued by officers appointed by the 2nd Respondent?s National Working Committee to conduct the Primary Election he claims to have won and was denied the opportunity of being the party?s candidate at the senatorial election
Counsel asserted that there was evidence that the results of the Primary Election, in Exhibits B1 to B12, relied upon by the 1st Respondent, did not emanate from the National Working Committee of the 2nd Respondent, charged with the responsibility of conducting the primaries; that the 1st Respondent had admitted that much.
He urged us to resolve the Issues for the Appellant and to allow the Appeal.
The Respondents had been given up to 16/4/19, upon Appellant?s application for abridgement of time, granted on 12/4/19, to file their (Respondents?) briefs. At the hearing of this Appeal on 17/4/19, the 1st and 2nd Respondents had filed a motion for leave to compile and transmit additional Records of Appeal and to deem the Additional Records, already transmitted as duly done. The
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application was granted, and so the Brief of Argument, filed by the 1st and 2nd Respondents, on same date (17/4/19) was therefore deemed duly done.
In the Brief, the 1st and 2nd Respondents raised a Preliminary objection to grounds 2, 3, 4, 5, 8 and 9 of the Appeal, saying:
(a) The said grounds are fresh issues which did not emanate from the judgment of the Court appealed against.
(b) The said grounds did not arise from the issues decided by the Lower Court.
(c) The said grounds were not raised or conversed (canvassed) at the Lower Court, so as to enable the Court below give its opinion on them.
(d) Grounds 3, 4, 5 and 6 of the Amended Notice of Appeal are argumentative and conclusions.
They urged us to strike out those grounds of Appeal. They also, in the alternative adopted the Issues as raised by Appellant?s Counsel for the determination of the Appeal.
RESOLUTION OF THE PRELIMINARY OBJECTION
I have observed that the purported Preliminary Objection, was actually, an objection to some grounds of the Appeal, not an objection to the hearing of the Appeal, as envisaged by Order 10 Rule 1 of the Court of Appeal
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Rules, 2016. We have stated the law, several times, that an objection to a ground(s) of appeal is done by filing a motion on notice to challenge it, not by means of Preliminary Objection which can only be filed to attack the hearing of the appeal, as a whole, that it is incompetent. See the case of Nwaolisah Vs Nwabufoh (2011) LPELR ? 2115 (SC); Osuji Vs The State (2016) LPELR ? 40042 (CA); Alaribe Vs Okwuonu (2015) LPELR ? 24297 CA.
In any case, I do not think the 1st and 2nd Respondents are right to say that the said grounds of Appeal complained of, raised fresh issues which did not emanate from the judgment, or which were not canvassed at the Lower Court. A close look at the grounds of Appeal (reproduced below, but without their particulars) tells it all, that they were embedded in and arose from the case and judgment appealed against:
Ground One:
The learned trial Judge erred in law when he resolved conflicting affidavit evidence without calling for parol evidence.
Ground Two:
The learned trial Judge erred in law when he relied on struck out evidence to enter judgment for the 1st Respondent.
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Ground Three:
The judgment is against the weight of evidence.
Ground Four:
The learned trial Judge erred in law when he held that a cursory look at the case of the Plaintiff vis–vis the critical question as to who scored the highest votes in the said primary election suggest that the Plaintiff relies heavily on paragraphs 9 and 10 of the Affidavit in support of the Originating summons and Exhibit ON1 to ON12. These laudably suggest that the Plaintiff has scored the highest votes in the said primary election. Compare with Etim Vs Akpan & Ors supra. And Eze Vs People Democratic Party supra which were centred on identification of the committee that conducted the primary election as a measure of genuine of Certificate of Return. These cases are thus distinguishable.
Ground Five:
The learned trial judge erred in law when he held that since facts of results as obtained from the 10 Wards of Owerri West and 11 Wards of Owerri Municipal are exhibits by both the Plaintiff and 1st Defendant in strikingly similar figures in all respect, no issue could be seen to have been joined here. They are thus deem to be facts admitted. This narrows my task to
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determining which of the results of the 12 Wards of Owerri North are authentic.
Ground Six:
The learned trial Judge erred in law when he held that for political party, 2nd Defendant, to have not only authenticate the results exhibited by the Plaintiff, Exhibit B1 to B12, which are the only result in issue; and withdrew her defence against the Plaintiff, suggest that such result are the authentic results of the primary election held on 6/10/2018 at the 12 Wards of Owerri North Local Government Area for the House of Representative seat in the Owerri Federal Constituency and a clear suggestion that the claim of the Plaintiff is capable of being believed.
Ground Seven:
The learned trial Judge erred in law when he held that in his humble opinion, the Plaintiff is obviously the one who scored the highest votes as deduced from the figures of the result, Exhibits B1 to B12, ON1 to ON10 and OM1 to OM11 and as captured in the summary of the result sheet.
Ground Eight:
The learned trial Judge erred in law when he granted reliefs 1, 2, 3, 5 and 6 sought by the Plaintiff in his Originating Summons on the ground that the Plaintiff scored the
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highest votes in the APC 2018 Primary election for House of Representative seat in the Owerri Federal Constituency and ought to be declared a winner and has his name forwarded to INEC by his party, APC.
Ground Nine:
The Learned trial Judge erred in law when he held that it becomes clear to him that the APC could easily abandon a process that brought the Plaintiff as the person who scored the highest vote in her primary election to declare and forwarded the name of the 1st Defendant as a candidate in the general election. The APC came out to deny the Plaintiff initially in Court, then in a twist of event changed her face from grin to green. The APC withdraw the processes she filed against the Plaintiff to see to his victory in this Court. The writing is in the wall, that APC has moved to embrace the Plaintiff after abandoning him. This is still the internal affairs of the party which the Court needs not query the APC to explain the seeming undemocratic inconsistencies.
As I earlier said, those grounds are integral to the case, and the judgment appealed against are even quoted, copiously.
?In the same way, I think the grounds 3, 4, 5 and 6 of
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the Appeal (above) are not argumentative and conclusions, though the Appellant?s was verbose and delved into too much detail in marshaling out the particulars of grounds 4 and 5, as if he would not file brief of Argument, thereto. It is however on the basis of the ground of appeal (not its particulars) that the ground can be faulted, for being argumentative or conclusion. The particulars of appeal are only meant to explain or throw some light into the way Appellant intends to argue the grounds of appeal in the brief of argument, as per the issue(s) distilled therefrom. See the case of Obiwusi Vs EFCC (2018) LPELR ? 44536 (CA); Uwazuruike Vs Nwachukwu & Ors (2012) LPELR ? 15353 CA; Alied Energy Plc Vs Ayenuberu & Ors (2015) LPELR ? 25798 CA, and Nwosu Vs PDP & Ors (2018) LPELR ? 44386 SC, where my Lord, Peter Odili JSC (quoting Adekeye JSC inDakolo Vs Rewane ? Dakolo & Ors (2011) LPELR ? 915) said:
?Grounds of appeal are to be differentiated from their particulars ? while the grounds of appeal must clearly state what the appellant is complaining about, whereas the essence of the particulars of a
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ground of appeal is to set out, briefly, the aspect of substantive law or procedural law that is affected by the error or misdirection, identified or complained of in the ground of appeal.?
The said grounds of appeal are therefore safe, for the purpose of the appeal.
Arguing the Appeal, Learned Counsel for 1st and 2nd Respondents, Chukwuemeka Okoro Esq., on Issue 1 and 4 (which he argued, together), said Appellant by the Issue, was challenging the competence of the Suit at the trial Court; that he had every opportunity to have raised the issue at the lower Court, to give the trial Court opportunity to rule on it, but failed; thus, that appellant lost the right to raise same on appeal. He said that fresh issues, which were not the basis of the decision appealed against, cannot be raised on appeal, without the leave of the appellate Court; and that the application to raise fresh issue must satisfy stringent conditions, namely:
(1) It must involve substantial point of law and appellant;
(2) Must satisfy the Court that he has placed before the Lower Court, all the facts establishing the issue.
He relied on Frama Vs Hozaife (2013) LPELR
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? 20270; Malami & Anor Vs Ohikhuare & Ors (2017) SC. He added that Appellant did not place before the Lower Court any fact relating to the issue.
Counsel, however, conceded that paragraphs 9 and 10 of the 1st Respondent affidavit in support of the Suit, as well as Exhibits ON1 to ON12, which the 1st Respondent heavily relied on, clearly summarized the case or claim of the 1st Respondent, which gave rise to the cause of action. But he argued that the authorities in Etim Vs Akpan (supra) and Eze Vs PDP (supra) which Appellant cited and relied upon, did not apply to the facts of this case; that the facts in those cases were distinguishable from the facts of this case, in which two aspirants in a primary election parade two different sets of results from one primary election of the 2nd Respondent, conducted on 6/10/18.
Counsel said the trial Court was therefore right, when it held:
?In my humble opinion, the Plaintiff is obviously the one who scored the highest votes as deducted from the figures of the results i.e. Exhibits B1 to B12, OW-1 to OM-11 and as captured in the summary of the result. (Pages 372 to 374 of the Records)
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Counsel added that the case was fought on affidavit evidence, as the facts therein were not contentious, relying on Alfa Vs Attai & Ors (2017) LPLER ? 42579 (SC); Ejura Vs Idris (2006) 4 NWLR (Pt.971) 538.
On issues 2 and 3 (argued together), Counsel for Respondents said both the 1st Respondent and Appellant at the Court below, tendered exactly similar results from Owerri-West and Owerri Municipal Local Government Areas, which were also signed by the same officials of the 2nd Respondent, who conducted the exercise, but they however, tendered radically different results for Owerri-North L.G! Counsel said by this, the parties admitted and were on the same page, as to the correctness of the said results from the two Local Government Areas ? Owerri-West and Owerri-Municipal, thereby narrowing the only remaining area of conflict, that is, the result of Owerri-North L.G.A. He argued that the trial Court was therefore right when it held that:
since facts of result as obtained from the 10 wards of Owerri North and 11 wards of Owerri-Municipal are exhibited by both the plaintiff and 1st defendant in a
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strikingly similar figures in all respect, no issue could be seen to have been joined here? They are, thus deemed to be facts admitted. This narrows my task to determining which of the results of the 12 wards of Owerri-North are authentic.? (page 265 ? 266 of the Records of Appeal).
Counsel urged us not to disturb that finding and decision of the trial Court, as the law is that such findings are not easily disturbed, except they are perverse.
Counsel said that the lone issue that called for the determination by the lower Court was, in the circumstances where there were two conflicting results of the same Local Government (Owerri-North), which of the two results emanated from the 2nd Respondent, who conducted the said Primary Election?
Counsel settled for the Exhibits B1 to B12, which he said emanated from the Custody of the 2nd Respondent, and were certified as being genuine and correct. He relied on Section 146(1) (2) of the Evidence Act, 2011, saying the law presumes certified true copy of every document. He said that shifted the burden to the other party, to rebut the presumption, and which Appellant could not. Counsel
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relied on the case of Jalingo V. Nyame (1992)3 NWLR (Pt.231) 538; House of Reps. Vs SPDCN (2010)11 NWLR (Pt.1205)213; Cardoso Vs Daniel (1986)2 NWLR (Pt.20).
Counsel urged us to resolve the Issues against the Appellant and to dismiss the Appeal.
The 3rd Respondent filed no Brief.
RESOLUTION OF THE ISSUES
I think 4 issues, distilled by the Appellant and which, in my opinion, were inelegantly couched, can be reviewed into one, as I think the real issue thrown up for the determination of this Appeal is:
?Whether the trial Court was right to hold for the 1st Respondent as having won the nomination of the 2nd Respondent by scoring the highest votes at the Primary Elections held on 6/10/18 to select candidate of the 2nd Respondent for the 2019 General Elections into the House of Representatives of Federal Republic of Nigeria, representing the Owerri Federal Constituency, when the said Primary Election was conducted by the Internal Electoral Committee of 5 members each of the 3 Local Government Areas, constituted by the 2nd Respondent, headed by the Returning Officers of Owerri North, Owerri-Municipal and Owerri-West, as opposed to a
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Committee by the National Working Committee (NWC) of the 2nd Respondent which Appellant relied on.?
In paragraphs 8 to 10 of the 1st Respondent?s affidavit in support of his originating summons he had deposed, as follows:
8) That the 2nd Defendant constituted and deployed her internal electoral committee of 5 members in each of the 3 L.G.As. headed by the returning officers who conducted the election to wit: Mr. Emmanuel Okoroacha for Owerri-North, Dr.Oby Oguzie for Owerri Municipal and Mr. Clinton Ofurum for Owerri West.
9) That after the election and collection (sic) of results at the various L.G.As, I scored the highest number of votes cast in the election and was thus declared the winner of the election.
10) That the summary of the results of the said Primary Election for Owerri Federal Constituency as announced and declared by the Returning Officers were as follows:
A. Barr. Tony Umuezuruike
Owerri ?North 21,182
Owerri-West 374
Owerri Municipal 873
Total = 22,429
B. ObinnaMbata
Owerri-North 2,433
Owerri-West 2,257
Owerri Municipal 1,640
Total = 6,330
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C. Lloyd Emeka
Owerri-North 3,149
Owerri-West 628
Owerri Municipal 1,736
Total = 5,513
Copies of the result sheets of the 33 Wards of the 3 Local Government Areas that make up the Owerri Federal Constituency are hereto annexed as Exhibits ?ON -1 to ON ? 12?
?OW-1 to OW-10? and ?OM-1 to OM ? 11?
In paragraphs 11 and 12 of the affidavit, the 1st Respondents said that after he was declared winner and congratulated by the Chieftains of the 2nd Respondent, the 2nd Respondent surprisingly, started making some clandestine moves to forward the name of the 1st Defendant to the 3rd Defendant as her candidate for Owerri Federal Constituency in the 2019 General Election, instead of him (1st Respondent). See pages 7 and 8 of the Records of Appeal.
But the 2nd Respondent had filed a counter affidavit, denying the Claimant (1st Respondent) and his claim, and stating that the claimant did not participate in the primaries election and therefore could not have won (See paragraph 5(g) of the 2nd Respondent?s Counter affidavit, on page 238 of the Records of Appeal). It rather adopted
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the Appellant, as its candidate, who won the primary election, and said that it had submitted the name of the Appellant to the 3rd Respondent, as its candidate for the 2019 General Election to the House of Representatives for the seat of Owerri Federal Constituency. See paragraph 5(i)-(j) of the said counter affidavit ? page 238 of the Records of Appeal.
Appellant, on his part, had deposed that he was the winner of the primaries election conducted by the 2nd Respondent, and his name forwarded by the 2nd Respondent to the 3rd Respondent for the general election for Owerri Federal Constituency. He deposed that the primary election was conducted by the National Working Committee of the 2nd Respondent. See paragraphs 9, 10 and 11 of the Appellant?s Counter affidavit on pages 269 to 271 of the Records of Appeal:
9) That the primary elections was conducted by the National Working Committee (NWC) members of the 2nd Respondent, the All Progressive Congress, headed by the duo of Brig. Gen. B.I. Agbabiaka Mni (Rtd) and Abubakar B. Jijiwa. MFR as Chairman and Secretary, respectively. With Akas Paschal, Esq appointed as returning officer for the
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Owerri Federal Constituency.
10) That I contested the election against several other screened and cleared contestants, including the plaintiff herein upon which I scored the highest number of votes to emerge the winner.
11. That the summary of the results of the primary elections for the 33 wards in the Owerri Federal Constituency for all the candidates, as declared by the returning officer, are as follows:
Owerri North L.G.A
Barr. Obinna Mbata 8758
Barr. Tony Umuezuruike 4899
Hon. Chukwuemeka Lloyd 2904
Owerri Municipal
Barr.Obinna Mbata 1640
Barr. Tony Umuezuruike 873
Hon. Chukwuemeka Lloyd 1736
Owerri-West L.G.A
Barr. Obinna Mbata 2257
Barr. Tony Umuezuruike 374
Hon. Chukwuemeka Lloyd 628
Barr. Obinna Mbata 12,655 Votes
Barr. Tony Umuezuruike 6,146 Votes
Hon. Chukwuemeka Lloyd 5268 Votes.?
Appellant had argued that only the National Working Committee of the 2nd Respondent was/is competent to conduct Primary Election to select candidate to stand Election to the House of Representative. He relied on the case ofEtim Vs Akpan & Ors (2018) LPELR ? 44904 SC and on
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Section 87(4)c(1) of the Electoral Act, as amended. I noticed that the Respondents did not respond to this issue as they tactfully avoided or ignored it.
Section 87 (1) (2) (3) (4) (a) (b) (c) of the Electoral Act, 2010 (as amended) provides as follows:
(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below:
(a) In case of nomination to the position of presidential candidate, a party shall:
(i) hold a special presidential convention in the Federal Capital Territory or any other place within the Federation that is agreed by the National Executive Committee of the party where delegates
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shall vote for each of the aspirants at the designated centre; and
(ii) the aspirant with the highest number of votes at the end of voting, shall be declared the winner of the Presidential primaries of the political party and the aspirant name shall be forwarded to the Independent National Electoral Commission as the candidate of the party;
(b) In the case of nomination to the positions of Governorship candidate, a political party shall, where it intends to sponsor candidates:
(i) hold a special congress in the State Capital with delegates voting for each of the aspirants at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party; and
(ii) the aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant?s name shall be forwarded to the Commission as the candidate of the party, for the particular State;
(c) In the case of nomination to the position of a candidate to the Senate, House of Representatives and State House of Assembly, a political party shall, where it intends to sponsor candidates:
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(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centre on specified date; and
(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant?s name shall be forwarded to the Commission as the candidate of the party.
There are several judicial interpretation and application of the above provisions, particularly, Section 87 (4) (c), to the effect that it is only the National Working Committee or National Executive Committee of a Political Party (like the 2nd Respondent) that can conduct a primary election to select its candidate for any general election to the offices of president, Governor, National Assembly or State Assembly, by empanelling a committee to do so. See the case ofEmeka Vs Okadigbo (2012)18 NWLR (Pt.1331)55 at 87; Emenike Vs PDP (2012) 12 NWLR (Pt.1315) 556 at 594; Yar?Adua Vs Yandoma (2015) NWLR (Pt.1448)123 at 198.
In the recent case of Senator Ayogu Eze Vs PDP & Ors (2018) LPELR ? 44907 SC,
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my lord, Eko JSC, summed the legal position again as follows:
that the only legitimate or valid primary election of a political party is the primary election conducted by the electoral panel constituted by either the National Working Committee (NWC) or the National Executive Committee (NEC) of the political party.?
In the case of Yar?Adua and Ors Vs Yandoma & Ors (2014) LPELR ? 24217 (SC), it was specifically stated that:
?A primary election conducted by the State Executive Committee of a Political party is not recognized by the Electoral Act, 2010 (as amended). Section 87(4) of the Act vests that power on the National Executive Committee of the party. A primary election conducted by the State Executive Committee of a political party is illegal.? Per Peter-Odili JSC.
I think the 1st Respondent in this case had destroyed the foundation of his claim, when he pleaded or averred, and so confidently, that the primary election that produced him was conducted by ?Internal Electoral Committee of 5 members in each of the 3 Local Government Areas?, that constituted the Federal Constituency,
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headed by returning officers of each of the three local Governments. (See paragraph 8 of the supporting Affidavit, on page 7 of the Records of Appeal. He did not explain who exactly constituted the said ?Internal Electoral Committee. I am surprise that the learned trial judge did not consider the obvious effect of such defeating admission by the 1st Respondent, despite the avalanche of decisions of this Court and Apex Court on the point.
Of course, Appellant had pleaded that the primary election that produced him was conducted by the National Working Committee Members of the 2nd Respondent. See paragraph 9 of the Counter affidavit the 1st Defendant, on page 269 of the Records of Appeal. That suggests there were two Primary Elections on 6/10/18, for that purpose.
There was no onus on Appellant to establish his claim, as he was not the plaintiff. The burden was on the plaintiff (1st Respondent) to establish his claim that he was validly nominated or selected by due process as candidate of the 2nd Respondent for the said General Election. And, being a declaratory relief, he was bound to succeed on the strength of his own case, not on the weakness
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of the defence. See the case ofAlao Vs Akano & Ors (2005) LPELR ? 409 SC; Owoade Vs Omitola (1988)2 NWLR (Pt.77) 413; Nduul Vs Wayo & Ors (2018) LPELR ? 45151 SC.
The trial Court was therefore in gross error, when it speculated, that because the 2nd Respondent, who earlier denied the 1st Respondent, but later withdrew the processes it filed against the Plaintiff, to see to his victory, it (the Court) ?cannot say much more, but simply find for the Plaintiff.? (Page 378 of the Records of Appeal). I think withdrawal of the processed filed by 2nd Defendant, even if that was proved, cannot be the ground to grant the reliefs sought by the Plaintiff, where the Plaintiff could not or has not proved his claims by credible evidence, produced by him, in a declaratory relief.
In this particular case, the pleading or averment by the Plaintiff that the primary election was conducted by Internal Electoral Committee of the Owerri Federal Constituency, had already, in my opinion, spelt doom to his case.
?I therefore resolve the issue in favour of the Appellant and allow the appeal. I set aside the decision of the trial Court, in Suit No.
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FHC/OW/CS/5/2019, delivered on 20/2/2019 and order a dismissal of the Suit.
The obvious implication of this is that all the orders made by the trial Court in the case on 20/2/19 are nullified and so the submission of the name of the Appellant, and his nomination/recognition as candidate of the 2nd Respondent to the 3rd Respondent for 2019 General Election to the said Owerri Federal Constituency seat in the House of Representatives remains, valid.
The parties shall bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
?AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
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Appearances:
Okechukwu Ajunwa, Esq.For Appellant(s)
Chukwuemeka Okoro, Esq. for 1st and 2nd Respondents.
3rd Respondent unrepresented
For Respondent(s)
Appearances
Okechukwu Ajunwa, Esq.For Appellant
AND
Chukwuemeka Okoro, Esq. for 1st and 2nd Respondents.
3rd Respondent unrepresentedFor Respondent
