PEOPLES DEMOCRATIC PARTY v. ALH. IBRAHIM ALI AMIN & ANOR (2019)

PEOPLES DEMOCRATIC PARTY v. ALH. IBRAHIM ALI AMIN & ANOR

(2019)LCN/13140(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of April, 2019

CA/K/126/2019

RATIO

HEARSAY EVIDENCE: NATURE AND DEFINITION

Hearsay evidence is a second hand information devoid of originality. See FRN v. Usman (2012) 3 SC (Pt. 1) 128, 135.
Hearsay is defined in the Evidence Act at Section 37 to mean:
37 Hearsay means a statement:-
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Expatiating further on the meaning of the Phraseology or term hearsay evidence the Apex Court in Ojo v. Gharoro (2006) ALL FWLR (Pt. 316) 197, 218-219, after citing with approval the locus clasicus case of Subramanian v. Public Prosecutor (1956) 1 WLR 965, 909 held that:
I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition.PER SAIDU TANKO HUSSAINI, J.C.A.

AFFIDAVIT EVIDENCE: AN ADVERSARY HAS A DUTY TO SWEAR TO AN AFFIDAVIT CONTRARY TO THAT OF HIS OPPENENT IN CASE O A DISPUTE

It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established.
See further, the decision in: JAMB v. Orji & Ors, (2007) LPELR-8107 (CA); Iweka v. FRN (2010) LPELR-4344 (CA); Obot v. State (2014) LPELR-23130 (CA); Mkpedem & Ors. v. UBA Plc & Anor (2016) LPELR-42039.PER SAIDU TANKO HUSSAINI, J.C.A.

PRE-ELECTION MATTERS: WHEN A PARTY HAS THE RIGHT TO CONTEST A PRIMARY ELECTION

In Wushishi v. Imam (2017) 18 NWLR (Pt. 1597) 175, 208-209 it was held that an aspirant has the vires to complain as an aggrieved contestant if only the partys primary election took place or were held and he lost. It is at this point a complaint can be lodged as regards the conduct of that election. In this case, since the election did not take place, the respondent could not have been a participant in the election that was not held. The Supreme Court maintained the same position in Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591, 634 where the Court held thus:
Now coming to the definition of aspirant as laid down in Section 156 of the Evidence Act vis-a-vis Section 87(9) of the Electoral Act, I wish to state that for a person to have locus to sue in a Court of law to challenge the nomination of a candidate of a political party, the party must have conducted a primary election in the first place and the complaint must have participated in the nomination exercise and lost. It is only then that he can have the locus to challenge the Court of the primary election. It is also then that the Court by Section 87(9) of the Electoral act can have jurisdiction to entertain the matter. Where a party did not conduct a primary election in its nomination process, no Court will have jurisdiction to entertain a complain on nomination of candidate. See Peoples Democratic Party v. Timipre Sylva(2012) 13 NWLR (Pt. 1316P).PER SAIDU TANKO HUSSAINI, J.C.A.

Justice

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

Justice

PEOPLES DEMOCRATIC PARTYAppellant(s)

AND

1. ALH. IBRAHIM ALI AMIN
2. INDEPENDENT NATIONAL ELECTORAL COMMISSIONRespondent(s)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The 1st Respondent commenced this Suit at the Federal High Court Kano by way of the Originating Summons dated and filed on 15th January, 2019 where he sought for the determination of 7 (Seven) questions listed and itemized at pages 1-3 of the record of appeal. The plaintiff further sought some declaratory and other reliefs in the event that the questions earmarked for determination were answered in the affirmative, in his favour.

At the hearing, of the suit reliance was placed on the affidavit of 8 (eight) paragraphs deposed to by Jamila Garba Usman, in support of the Originating Summons, and the annexures thereto and the written addresses of counsel. The record of appeal containing the Originating Summons and other related papers are at pages 1-22 among others, of the Record of Appeal.

In contesting the suit, the appellant as the defendant raised a Notice of Preliminary Objection and also filed a Counter-affidavit to the Originating Summons to which is annexed some documents marked as Exhibits. The 1st defendant (appellant) further filed a written address in support of

their Preliminary Objection and in opposition to the Originating Summons.

The learned trial Judge at the close of hearing, overruled or dismissed the Preliminary Objection while granting the claim or the reliefs the plaintiff/1st respondent had sought vide the Judgment delivered as aforesaid.

The appellant, ostensibly not pleased with that decision lodged appeal at the registry of the trial Court vide the Notice of appeal dated and filed on the 5th March, 2019 (record: pages 295-309)

By the Amended Notice of appeal filed on the 12/3/19 but deemed on 14/3/19 as properly filed and served, it is incontestable that the appeal to this Court is on 13 (thirteen) grounds. Shorn of the particulars, the grounds of appeal are reproduced below for ease of reference and clarity thus: –
GROUND 1
The learned Trial Judge erred in law when the trial Court assumed jurisdiction over the cause of action being the alleged failure of the Appellant to hold Primaries and State Congresses in Kano State which was statute barred by virtue of Section 285(9) of the 4th Alteration to the Constitution 1999 as amended thereby robbing the Honourable Court of

jurisdiction to adjudicate on same and thereby occasioned a grave miscarriage of Justice.
GROUND 2
The learned trial judge erred in law when the Honourable Court held that the cause of action arose on the date the name of Abba Kabir Yusuf (who was not a party to the suit) was forwarded to the 2nd Respondent when in fact from the facts and the reliefs sought, the 1st respondent was questioning and seeking nullification of the conduct of the primaries held on the 1st of October, 2018, the conclusion of the learned trial Court thereby arriving at a wrong conclusion prejudicial to the Appellant.
GROUND 3
The learned trial Court was wrong and erred in law when the Honourable Court assumed jurisdiction over a suit it has no jurisdiction, the pre-condition for assuming jurisdiction being exhaustion of internal party dispute resolution mechanism, having not been shown to have been fulfilled, the conclusion of the lower Court thereby occasioning a grave miscarriage of Justice.
GROUND 4
The learned trial judge erred in law and occasioned a miscarriage of Justice when the Court relied on unlawful evidence in reaching the conclusion that the

Appellant did not conduct State Congresses and Primaries which was the pre-requisite to the conduct of Governorship primaries of the Appellant in Kano State, the conclusion of the learned trial judge thereby occasioned a miscarriage of Justice.
GROUND 5
The learned trial judge erred in law and occasioned a miscarriage of Justice when the Court nullified the primaries and the list of candidate sent to the 2nd respondent, when the list of candidate was not before the Court and the Honourable Court did not invite parties to address on same, thereby reaching a conclusion prejudicial to the Appellant.
GROUND 6
The learned trial judge erred in law and breached the right of the Appellant to fair hearing in not pronouncing on the propriety of the legal status of the 1st respondents evidence which was hearsay, indirect and reliable, thereby occasioning a miscarriage of Justice.
GROUND 7
The learned trial judge erred in law and misdirected himself when the Court believed the hearsay evidence of the 1st Respondent as against the direct eye witness evidence of the Appellant to the effect that there was

State Congresses of the Appellant in Kano, thereby leading to a conclusion that was prejudicial to the Appellant.
GROUND 8
The learned trial judge erred in law when the Court shifted the burden of proof from the 1st Respondent to the Appellant when in fact that the 1st Respondent had not discharged the onus of proving the non-occurrence of the State Congresses thereby occasioning a miscarriage of Justice.
GROUND 9
The learned trial judge misdirected himself when the Court invoked Section 167(d) of the Evidence Act in presuming the existence of the fact that there was a result of the State Congress which the Appellant refused to tender in evidence because it was not favourable to the Appellant, a decision that was prejudicial to the Appellant.
GROUND 10
The learned trial judge erred in law and occasioned a miscarriage of Justice when the Court nullified the list/Name of Abba Kabir Yusuf, sent to the 2nd Respondent without any opportunity of hearing the said Yusuf who was, not made a party to the suit, thereby breaching the right of a party affected to fair hearing.
GROUND 11
The learned trial judge erred in law when the

Court discountenanced and did not pronounce on the fact that a Court of coordinate jurisdiction in Suit No. K/458/2018 Between; Jafar Sani Bello vs. Abba Kabir Yusuf and Ors. had made findings regarding the fact that there was primaries conducted by the Appellant on the 1st and 2nd of October, 2018 and that had put paid to the issue of whether or not there was valid congresses by the Appellant in Kano State.
GROUND 12
The learned trial judge erred in law when he entertained and exercise jurisdiction on the originating summons of the 1st respondent when the 1st respondent was a mere aspirant to the contest of the party primaries of the Peoples Democratic Party (PDP) held on the 1st of October, 2018 in which he was excluded, did not participate in the primaries and therefore had no right to initiate or institute the action pursuant to Section 87 of the Electoral Act, 2010(as amended).
GROUND 13
The learned trial judge erred in law when the Court granted all the reliefs of the 1st Respondent which are contradictory, unenforceable of being obeyed together.

Upon the record of appeal being transmitted on the 06/03/2019, Parties

through their counsel, in obedience to the rules of Court filed and exchanged their briefs of argument, namely:
(1) Appellants amended brief of argument filed on 12/3/2019 and deemed, on the 14/3/2019.
(2) 1st Respondents Notice to affirm the judgment appealed against on grounds other than those relied on by the Court.
(3) 1st Respondents brief of argument filed on 20/3/19
(4) Reply brief filed on the 26/3/2019.

The said briefs of argument were adopted by the respective counsel at the sitting of Court on the 28/3/19 when the appeal came up for hearing.

Learned counsel Asiwaju Adegboyega Awomolo, SAN leading Olajide Olaleye Kumuyi Esq, for the appellant, in adopting his brief of argument (appellants amended brief of argument and Reply brief of argument) urged on the Court to allow the appeal and dismiss the suit at the trial Court.

Mr. M. K. Usman leading Perry Ikoro Esq, for the 1st respondent, similarly adopted his brief of argument as well as the 1st respondents Notice to affirm the decision appealed against on grounds other than those relied upon by the trial Court, pursuant

to Order 19 Rule 7 of the Court of Appeal Rules 2016. He urged on the Court to dismiss the appeal and affirm the Judgment of the Federal High Court delivered on 4/3/2019.

The 2nd respondent did not file any brief of argument and so by this stance, the party is bound by the outcome of this appeal.

ISSUES FOR DETERMINATION
The appellant, by the amended appellants brief of argument, formulated 4 (four) Issues for determination of Court thus:
(1) Whether the Federal High Court has the jurisdiction to exercise judicial power to entertain and grant the 1st Respondents reliefs in view of Section 285(9) of the 4th Alteration to the Constitution of the Federal Republic of Nigeria 1999 (as amended).
(2) Whether the claims of the 1st respondent ought not to have been dismissed on merit having regards to the compelling evidence brought forth by the Appellant.
(3) Whether the learned trial judge was right when he granted all the reliefs of the 1st Respondent.
(4) Whether the learned trial judge was right in granting all the claims of the 1st respondent when the alternative claims are at variance with the substantive

claim.

In the brief of argument for the 1st respondent, 4 (four) issues similar to those of the appellants were raised, or identified thus:
(1) Whether the Federal High Court does not have the jurisdiction to entertain the 1st Respondents case and grant the reliefs therein in view of Section 285(9) of the (4th alteration) to the Constitution of the Federal Republic of Nigeria 1999 as amended.
(2) Whether the claims of the 1st Respondent ought not to have been granted on merit having regards to the compelling affidavit evidence in support of the case.
(3) Whether the learned trial judge was not right when he granted all the reliefs of the 1st respondent.
(4) Whether the trial Court was not right to have granted the main as well as the alternative reliefs or whether the grant of all the reliefs occasioned a miscarriage of Justice on the Appellant.

I will abide by the 4 (four) issues raised and contained in the appellants amended brief of argument in determining this appeal, the appellant being the party aggrieved.

Issue No. 1 in the appellants brief of argument, no doubt, raises

jurisdictional questions touching on the competence of the action instituted at the trial Court. In arguing this point, the appellant through his counsel argued affirmatively, that the suit instituted by the 1st respondent was caught up by the provision of S. 285(9), of the Constitution of FRN, 4th Alteration Act, having failed to file his suit within 14 days from the date the cause of action arose in the case. Learned counsel for the appellant in reference to paragraphs 6 and 7 of the affidavit in support of the Originating Summons argued that since the cause of action arose on the 30th September, 2018 or 1st October, 2018 or 2nd October, 2018, by reason of the failure, neglect or refusal of the appellant to hold State Congress and conduct Gubernatorial Primary for Kano State, the 1st respondent at that point ought to have taken action timeously in obedience to provisions of S. 285(9) of the Constitution, 4th Alteration Act, when the right of action accrued to him but did not, rather he waited for 43 days to commence the suit. We were urged to hold that the suit so commenced by him on 15th November, 2018 was belated and same ought to be struck out as

incompetent.

Arguing this point to the contrary learned counsel for the respondent alluded to the provisions of Section 285(9) of the Constitution as altered, 4th Alteration Act, Section 87(c) of the Electoral Act, 2010 (as amended) and paragraphs 6 and 7 of the affidavit in support of the Originating Summons to submit that the appellant had a statutory duty to hold or conduct Governorship Primaries for the election of a candidate for the PDP in the general elections and the party having thus failed or neglected to conduct that exercise, the decision taken by it (appellant) to forward the name of Abba K. Yusuf to INEC, (2nd respondent) on the 2nd November, 2018 whereas primary election did not take place, gave rise to the cause of action. He argued that the 1st respondent who filed his suit on the 13/11/2018 did so within the 14 days contemplated by Section 285(9) of the Constitution, (as amended). On the meaning and definition of cause of action, learned 1st respondents counsel referred us to the decision in A. G. Adamawa v. A. G. Federation (2014) 14 NWLR (Pt. 1428) 515, 550; Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 1, 20; Adimora v. Ajufo (1988)

3 NWLR (Pt. 80) 1. Learned counsel further argued that no cause of action would have accrued for the benefit of the 1st respondent without the submission of the name Abba K. Yusuf on 2/11/18 hence the cause of action crystallized on that date. We were urged to hold that Suit No. FHC/KN/CS/33/2019 is not statute barred considering that the 1st respondent filed his case on 13th Nov. 2018 just 11(eleven) days after the cause of action arose hence within the statutory time limit set under the Constitution at Section 285(9), 4th alteration Act.

As indicated before, Issue No. 1 being an Issue touching on the competence of the trial Court to assume jurisdiction over the matter brought to it, must be addressed and dealt with expeditiously.

Proceedings of the suit which gave rise to this appeal all fall within the purview of Section 285(9) of the Constitution (as amended), 4th Alteration Act, being a Pre-election matter. It follows therefore that, for a Pre-election matter to be valid, it must be commenced in accordance with the dictates of that enactment. Pre-election matters are cases related to actions, conduct or any event taking place or which took

place or occurred before the main or general Election. Pre-Election matters are complaints in respect of Issues which arise before the holding or conduct of an Election. See Tukur Ibrahim v. Alhaji Yahay Ishaq Umar (2013)LPELR-22805 (CA);INEC & Anor v. Hon. (Barr.) Joe Etene (2013) LPELR-22108 (CA).

Section 285(9) of the Constitution as altered by the 4th Alteration Act, provides:
(9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
By the foregoing provision, it is mandatory for the person who was, or is not satisfied with the conduct of proceedings or decision in any Pre-Election matter to come out and contest it within a space of 14 days from the date of the happening of the event, decision or action complained of to confer jurisdiction on the Courts to entertain the matter.

In deciding whether the Courts have jurisdiction to entertain any matter before it, in a matter such as the one covered by the case on appeal, recourse should be had to the

Originating Summons, the affidavit in support of same as if it were pleadings in a statement of claim in order to ascertain if indeed, the Court has jurisdiction in the matter. See P.D.P v. Timipreye Sylva & Ors (2012) 13 NWLR (Pt. 13) 85; Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274.

In the affidavit in support of the Originating Summons, is the affidavit of 8(eight) paragraphs deposed to on behalf of the 1st respondent stating a variety of facts but I find most poignant, those facts contained at paragraphs 6 and 7 of the said affidavit which state thus:
6. That I was further informed by the plaintiff and I believe him to be true and correct as follows:-
(a) that by the 1st Respondent Electoral Guidelines 2018, a State Congress was scheduled to be held in Kano State on the 8th September, 2018 for the purpose of electing 3 man Adhoc delegate per ward for the purpose of participating, conducting and or electing a Governorship Candidate.
(b) That to the best of his knowledge the State Congress did not take place.
(c) That complaints were sent to the 1st Respondent Leadership at the National Secretariat and several promises

were made to organize same.
(d) That despite the several promises made by the Leadership of the 1st Respondent to address the complaints of the plaintiff and other Governorship aspirants no steps were taken by the 1st Respondent leadership to conduct the state congress.
(e) That with the failure, refusal and neglect of the 1st Respondent Leadership to conduct the state congress, the election of the 3 man Adhoc delegate per ward did not hold in Kano State.
(f) That by not electing the 3 man Adhoc ward delegates the 1st Respondent did not prepare the road map for the conduct of Governorship primary election in Kano State.
7. That additional information by the plaintiff to me which I still believe to be true and correct as follows are:-
(a) That the 1st respondent by notice fixed Governorship primary election across the country for 30th September, 2018.
(b) That while information available to him and other aspirants was that the Governorship primary elections were taking place in other states of the Federation, no arrangements were made for the conduct of the Governorship primary election in Kano State.
(c) That the Plaintiff

and other aspirants like Prof. Hafiz Ringim, Salihu Sagir Takai, Dr. Akilu Indabawa, Hon. Sadiq Wali waited at the state party Secretariat till 4:30am of 1st October, 2018 before departing to their various houses and or destinations.
(d) That no electoral committee for the conduct of the Governorship Primary Election were seen or sighted by the Plaintiff in Kano State.
(e) That the plaintiff and the other aspirants made representations to the 1st Respondent Leadership on the 1st of October, 2018.
(f) That at a meeting with the Leadership of the 1st Respondent at Abuja on the 3rd October, 2018, the National Chairman Prince Uche Secondus and National Organizing Secretary Col. Austin Akunbondu (Rtd) promised to organize the primary election immediately after the National Convention schedule for Port Harcourt on the 5th 6th of October, 2018.
(g) That despite repeated demands the 1st Respondent has failed, refused and/or neglected to conduct the Kano State governorship primary election.
(h) That to the surprise, irritation and disbelief of the plaintiff the 1st respondent purport to unilaterally submit the name of Abba K. Yusuf as

Governorship candidate to the 2nd Respondent on the 2nd November, 2018 when no Governorship Primary Election took place for that purpose.

It is thus discernible from the foregoing paragraphs the fact that:-
(i) Kano State Congress of the Peoples Democratic Party (PDP) was scheduled to hold on the 8/9/2018.
(ii) At the State Congress a 3 man Ad hoc delegate per ward was to be elected.
(iii) Kano State chapter of the Congress did not hold.
(iv) Complaints were laid or made at certain quarters in respect of (iii) above but all to no avail.
(v) The 3 man Adhoc delegates per ward was never elected.
(vi) The Governorship Primary Election for the Peoples Democratic Party (PDP) was Scheduled for 30th September, 2018 throughout the country.
(vii) Governorship Primary election did not hold in Kano State as scheduled.
(viii) Complaints were made in respect of (vii) above.
(ix) Leadership of the Party gave or made firm commitments to organize Governorship Primary in Kano State.
(x) That exercise still, did not hold despite repeated demands.
(xi) The name of one Abba K. Yusuf was submitted to

the 2nd Respondent (INEC) as the Governorship Candidate for the Peoples Democratic Party (PDP) on 2/11/18.

It has been argued and premium was placed on the importance of holding State Congress of the Party and the Governorship Primary in Kano State in line with the partys guidelines, the Constitution of the Party and indeed the Electoral Act 2010 (as amended).
It is provided at Section 87(1) of the Electoral Act (as amended) that:
A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
It is in the light of provisions like this and provisions of the PDP guidelines and Constitution similar to this, that make it imperative for all political parties to hold or conduct Primary Elections as a pre-condition before a name can be sent or forwarded to the 2nd Respondent (INEC) as the CANDIDATE for the governorship Elections for that party in the State, in this case, the appellant (PDP). According to the Appellants counsel non-compliance or failure of compliance with provisions of those enactments on the 30th September, 2018, and on

the 1st and 2nd October, 2018 as alleged by the 1st respondent afforded him good reasons to approach the Courts to seek redress within the compass of S. 285 (9) of the Constitution, (as amended) but he waited or procrastinated until the time allowed for the filing of such actions frittered away.

This argument for the appellant leads me to the question as to when indeed, the cause of action arose in this case on appeal?
A cause of action is a fact or set of facts which gives a person a right to judicial relief. It consists of every fact which would be necessary for the plaintiff to prove if traversed as to support his right to judgment. See Asaboro v. PAN Ocean Oil Corp. Nig. Ltd. (2017) 7 NWLR (Pt. 1563) 42, 67-68, 71; Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 1; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.
A cause of action arises to the plaintiff the moment an act is done or an event happens and or a default or neglect in doing something which in each case gives the plaintiff the right of action. As soon as the cause of action arises, time begins to run against the person in whom the cause of action has arisen. See: Omotayo v. NRC (1993) 7 NWLR

(Pt. 257) 471.

The failure or neglect by the appellant to hold or conduct governorship Primaries on the 1st or 2nd October, 2018 in Kano State as alleged by the 1st respondent in his affidavit to the Originating Summons, is indeed worrisome, but this fact alone without more does not in my view confer on the 1st respondent, that interest, special interest if I may say, peculiar to him, as to constitute or confer on him a right, distinct from general interests or general rights, sufficient to maintain an action notwithstanding provision of S. 87(9) of the Electoral Act. That special right or interest reared its head on the 2nd November, 2018, when the appellant on its own forwarded to INEC (the 2nd Respondent) the name of Abba K. Yusuf as the Governorship Candidate for PDP in Kano State, from amongst the names of all other aspirants or contestants, and this, is even in disregard of the PDPs own Statute and the Electoral Act. The step the PDP took on the 2/11/18 pass for an event. It is also a decision of the PDP. It is an event because the submission of the name of Abba K. Yusuf was made to the 2nd Respondent, INEC. That event arose from the decision

taken by the PDP to submit that name.

The 1st respondent has said he was an aspirant. He had cause or reason to express his displeasure over the way and manner the name of Abba K. Yusuf was submitted to INEC on the 2/11/18. The cause of action crystallized on the said date and the 1st respondent filed his suit, the (Originating Summons) on the 13th November, 2018.

Between the 2nd November, 2018 and 13th November, 2018 is a period of 11 days, thus within, the 14 days time line, the Constitution had allowed for actions or suits of this nature to be filed, hence the suit was/is not only competent but the trial Court rightly assumed jurisdiction over the case on this part.

Issue No. 1 accordingly is resolved against the appellant and in favour of the respondent.
Having therefore addressed this Constitutional question, I can now proceed to Issue Nos. 2, 3 and 4 in that order, formulated for determination in this appeal.

For the avoidance of doubt, Issue No. 2 raises the question of whether the claims of the 1st respondent ought not to have been dismissed on merit having regards to the compelling evidence brought forth by the

appellant. Put differently, did the plaintiff (1st respondent) prove his claim at the trial Court to warrant any relief be made in his favour. Additionally, has he done all that is required of him to command a Judgment being entered in his favour?

Having gone through the brief of argument for the appellant, on this point, they are positive that plaintiffs case at the trial Court merited an order of dismissal. Their reasons are not far-fetched. It was contended firstly, that the 1st respondent only presented and relied on hearsay evidence as deposed to in the affidavit in support of the Originating Summons. Hearsay evidence, it is contended, is inadmissible evidence hence the trial Court was in error when it acted on hearsay evidence to found for the 1st respondent.

He cited and relied on the decision in JAMB v. ORJI & Ors. (2007) LPELR-8107 (CA) or (2008) 2 NWLR (Pt. 1072); Iweka v. FRN (2010) LPELR-4344 (CA); OBOT v. State (2014) LPELR-23130 (CA); Mkpedem & Ors v. UBA Plc & Anor (2016) LPELR-42039 (CA). Learned counsel further submit that there is no reliable, verifiable and concrete evidence available upon which a declaratory

relief can be granted once evidence of hearsay is expunged from record or discountenanced. The case of Omisore v. Aregbesola (2015) LPELR-24803 (SC); Oladimeji v. Ajayi (2012) LPELR-20408 (CA) were cited and relied on.

Learned appellants counsel in reference to the counter-affidavit filed by the appellant at the trial Court argued that the facts deposed therein showed that Governorship Primary Election took place in Kano on the 1st of October, 2018 when the Candidature of Abba K. Yusuf emerged and yet the trial judge discountenanced this uncontradicted evidence in the absence of a further affidavit for the 1st respondent; I think I should stop here for a while and clarify issues as to whether or not the 1st respondent filed a further affidavit sequel to the counter-affidavit of the appellant/1st defendant at the trial Court. The 1st respondent has argued that he filed a Reply to the Counter-affidavit of the appellant.
In the record of Appeal at pages 281-285 is contained a process headed or titled Plaintiffs Reply to 1st Defendants Counter-affidavit. Same was deposed to and filed on the 5th February, 2019 that is to say it was

filed after the counter-affidavit filed by the Appellant on the 30th January, 2019. Refer to pages 89-96 of the record of appeal. In other words the process tagged as Plaintiffs\reply to 1st Defendants Counter-affidavit is, to all intents and purposes, an answer to facts deposed to and contained in the counter-affidavit of the appellant. The plaintiffs Reply to 1st Defendants counter-affidavit filed on the 5th February, 2019, came in at a time, when the affidavit filed in support of the Originating Summons on the 15/1/2019 had been filed. Since Plaintiffs Reply to 1st Defendants Counter-affidavit emanated from the same source just like the affidavit in support of the Summons, but much latter in point of time, the same that is, Plaintiffs Reply to 1st Defendants Counter-affidavit is indeed, the plaintiffs Further and Better affidavit, the differences in the nomenclature notwithstanding, it is still a further affidavit of the 1st respondent. In coming to this conclusion I am not unmindful of the rules governing the making of affidavit evidence as provided for in the Evidence Act, 2011, Cap. E.14 at

Sections 117-120 of the Act. I am equally mindful of the decision in Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266, where the Apex Court held thus that:-
I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established.
The appeal before us in the instant, is not a case where the party on the other side can be said, had failed to respond to the opponents affidavit evidence or counter-affidavit evidence. Indeed plaintiffs reply to 1st defendants Counter-affidavit as the title suggest is not only a further affidavit to the plaintiffs supporting affidavit to the Originating Summons, it is an answer or Reply to facts contained in the counter-affidavit of the appellant. It is

therefore not correct (as the appellant or counsel seem to suggest) that a further affidavit was not filed. The record of appeal before us state otherwise.
Therefore, in addressing this appeal or issues arising from the appeal, the affidavit in support of the Originating Summons, the counter-affidavit of the 1st defendant (appellant) and the plaintiffs Reply (further affidavit) to 1st defendants counter-affidavit are all relevant documents or processes which I can fall back to in resolving issues arising in the appeal. I felt I should quickly come in to correct the wrong impression so created by the appellant or his counsel before it is, digested into the system. I believe I have passed a message. Having done that, I think I should now revisit the argument being canvassed by the appellant under the heading still being considered.

On the non-joinder of Abba K. Yusuf as a party to the suit, it is argued that the said Abba K. Yusuf ought to have been joined as a necessary party being the evidence by the PDP and the person affected in the judgment of the trial Court who would have been denied his right to fair hearing, relying on the

decision in: Oyeyemi v. Owoeye (2012) LPELR-41903 (CA). He argued further stating that non-joinder of Abba K. Yusuf meant that proper parties were not before the Court hence the suit instituted by the 1st respondent was not properly constituted even more so by reason of reliefs 6, 7, 8 and 9 of the reliefs contained in the Originating Summons at page 4 of the record of appeal. It was argued that the reliefs aforesaid directly affect the person presented to INEC, the 2nd respondent herein by the appellant as the Gubernatorial Candidate and acknowledged by the 1st respondent himself at paragraph 7th of the affidavit in support of the Originating Summons.

On the need or necessity of joining the candidate presented by the appellant as a party to the suit, counsel cited and relied on the decision in Mojie v. Mbamah (2006) 15 NWLR (Pt. 1003) 466 (SC); Ikechukwu v. Nwonye (2015) 3 NWLR (Pt. 1466) 367, 400 (SC). We were urged to hold that in the absence of the joinder of Abba K. Yusuf as a party, the reliefs granted by the trial Court as it affects the person of Abba K. Yusuf is of no consequence, and the decision of the trial Court being a breach of his right to

fair hearing. We were urged to so hold.

The question posed under Issue No. 3 is whether the learned trial judge was right when he granted all the reliefs of the 1st respondent?

From all the submission made under issue No. 3 of his brief, it is apparent that the question of the correctness of the judgment and order made at the trial Court by which the 1st respondent was granted the reliefs he sought, was in the front burner. Learned appellants counsel has contended, firstly, that contrary to the insinuation by the 1st respondent that Primary Election did not hold to produce a candidate, Election indeed took place and the first respondent was not a participant and cannot therefore in the true sense of the word be said he was an aspirant in the primary election notwithstanding that he (1st respondent) purchased nomination form and was screened. That the mere fact that the 1st respondent indicated interest to contest in the primary election did not make him an aspirant within the provision of Section 87(9) of the Electoral Act, 2010 (as amended) on account of non-participation in the primary election where a candidate emerged from that exercise.

Citing therefore the decision in Wushishi v. Imam (2017) 18 NWLR (Pt. 1597) 175, 208-209, learned appellants counsel submitted that the 1st respondent has/had no locus standi to invoke the jurisdiction of the trial Federal High Court. We were further referred to the decision in Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591, 634 on the meaning or definition of the word or term: aspirant, and the implication for non-participation in the primary election.

Learned counsel for the appellant in response to the claim or contention that gubernatorial primary did not hold in Kano State argued most forcefully that it is for that same reason that the 1st respondent lack the locus standi to even institute the suit to invoke the jurisdiction of the trial Court. In this regard, it was argued that the trial Court granted reliefs 7, 8, 9 and 10 without jurisdiction. We were urged to so hold.

Issue No. 4, the last of the Issues penciled down for determination, raises the question whether the reliefs claimed, by their nature, are grantable. Issue No. 4 was couched in this manner namely:
Whether the learned trial judge was right when he

granted all the reliefs by the 1st respondent?

We were referred to all the reliefs contained in the originating summons including the relief claimed in the alternative. We were further referred to the order/judgment of the trial Court particularly at page 347 of the record where the Court made an order as follows:-
An order is hereby made granted (sic) the reliefs as prayed more particularly relief 7 and 10 as stated on the body of the originating summons.

In reference to this order made, learned counsel argued that the trial judge granted all the reliefs sought by the 1st respondent and refused none including the relief made in the alternative, notwithstanding that the main relief and the relief sought in the alternative cannot stand side by side because of their contradictory nature. We were referred to the decision in Nwangba v. Ubani (1977) 10 NWLR (Pt. 525) 559, 574-575 (CA) to urge on the Court to hold as perverse the holding/decision/order made at the trial Court, allow this appeal, set aside the judgment of the trial Court and dismiss the claim at that Court.

In response to Issues 2, 3 and 4, see the arguments

contained in the 1st respondents brief of argument at pages 11-32 of his brief of argument. It was submitted in response to issue No. 2 in particular that evidence led in support of the Originating Summons vide facts deposed to in the supporting affidavit were neither hearsay, nor do they run contrary to the rule in making of affidavit evidence. We were referred to S. 115 Evidence Act. We were also referred to the plaintiffs reply (further affidavit) to 1st defendants counter-affidavit where it is contended that the 1st respondent made specific denial contrary to the claim made by the appellant and their counsel.

On the question whether the appellant met with the condition precedent for the holding of governorship primaries, it was argued by reference to the PDP Electoral Guidelines, 2018 and paragraph 6(a), (b), (c), (d), (e), (f) of the affidavit in support of the Originating Summons, that the State Congress to elect delegates at ward level was not held and the appellant was not bold enough to exhibit results of that congress if ever it took place. Learned counsel argued that the failure to exhibit the result of congress to their

Counter-affidavit was fatal to their case and he relied on: Chairman EFCC v. Little Child (2016) 3 NWLR (Pt. 1498) 72, 95. Learned counsel argued that the onus was on the Appellant by virtue of S. 136(1) (2) of the Evidence Act to prove that ward congresses were conducted but they failed to discharge this burden on them under Section 131(1) of the Evidence Act.

We were urged to hold that while the appellant failed to put up credible defence, the 1st respondent as plaintiff discharged the burden of proof on him on a balance of probabilities hence the trial Court was right to find merit in the case of the 1st respondent. On the reference made by the appellant to the case of Jafar Sani Bello v. Abba K. Yusuf & 3 ors: Suit No. K/4581/2018 and annexed to the Counter-affidavit, we were urged to discountenance same as the case was not heard on the merit but terminated on account of the same being statute barred hence same cannot be the reference point that Governorship Primary took place and same was held in Kano where a candidate emerged for the PDP for the general elections.

On the question whether Abba K. Yusuf should have been joined as a necessary

party to the Suit before the trial Court, it was argued that the necessity for joining him does not arise since there was no claim against him and he is not the person saddled with the responsibility of conducting the primary election hence the jurisdiction of the trial Court was not ousted on account of the non-joiner of Abba K. Yusuf as a party. Relying further onBello v. INEC (2010) 8 NWLR (Pt. 1196) 342, (SC); Okoye v. Nigerian Construction & Furniture coy. Ltd. (1991) 6 NWLR (Pt. 199) 501; Ibrahim v. Ojonye (2012) 3 NWLR (Pt. 1286) 108, it was argued that non-joinder of Abba K. Yusuf cannot defeat the 1st respondents action, the Court rather, should proceed with the case and deal with the matter in controversy so far as regards the rights and interests of parties before it.

It was further argued in the 1st respondents brief that the issue raised with regard to denial of hearing to Abba K. Yusuf cannot fly since no attempt was made by him to join and was denied hearing. It was argued in any case that the appellant lack the necessary vires to complain on behalf of Abba K. Yusuf on the Issue of denial of fair hearing. Further on the

issue of non-joinder, it was argued, based on the facts in the printed record that Abba K. Yusuf, knew of the existence of this case on appeal rather than apply to be joined as an interested party, he chose to stay away hence by reason of Section 243(a) of the 1999 Constitution of FRN he cannot complain through a proxy against the judgment of the trial Court. We were urged to resolve Issue No. 2 in favour of the 1st respondent.

Relative to Issue No. 3, that is: Whether the learned trial judge was right when he granted all the reliefs of the 1st respondent, Learned counsel for the 1st respondent gave affirmative answers to the question based primarily on provisions of Section 87(1) (9) of the Electoral Act, 2010 (as amended) and Article 50(2) of the PDP Constitution, 2017 (as amended), both of which, it is argued, gave a right of remedy to the person who complained that the party (appellant in this case) was in breach of the rules of the game. Learned respondents counsel in his brief of argument contended that the trial Court granted the reliefs sought by the 1st respondent based on the complaint that the appellant did not conduct primaries and yet

presented Abba K. Yusuf as the candidate for the party in the governorship election. We were urged to resolve Issue No. 3 in favour of the respondent.

Under Issue No. 4, the question is: Whether the learned trial judge was right in granting all the claims of the 1st respondent when the alternative claims are at variance with the substantive claim. Learned counsel for the 1st respondent in his brief believed that the trial Court was right in granting both the main and the alternative reliefs which according to him are not contradictory. In any case, the grant of both reliefs did not occasion any miscarriage of Justice. We were urged to so hold and resolve issue 4 in favour of the 1st respondent.

Before I address those submissions of counsel relative to Issue No. 2, 3 and 4 argued, it is proper I think at this point in time to look at the 1st respondent Notice seeking to affirm the decision of the trial Court delivered on the 4th March, 2019 on grounds other than those relied upon by the trial Court. The notice dated the 14th March, 2019 was filed on the 15th March, 2019 pursuant to order 19 Rule 7 of the Court of Appeal Rules, 2016.

The Notice,

though predicated on 12 (twelve) grounds, the gravamen in this contention, is that material averments of the 1st respondent were not controverted by the Appellant in its counter-affidavit to the Originating Summons. In addressing this point in his brief of argument, the 1st respondent or his counsel formulated a lone issue at page 30 of his brief of argument thus:
Whether in view of paragraphs 5, 8, 9, 10, 12, 13, 14, 15, 21, 22 & 23 of the Appellants Counter-affidavit to the originating summons, the trial Court ought not to come to the conclusion that the material averments I the 1st Respondent affidavit in support of the originating summons remained substantially uncontroverted and unchallenged and enter judgment on that further ground.

He proceeded in his brief to submit that:
(i) Paragraphs 8, 12, 13 14, 15, 20 and 23 of the counter-affidavit are speculative and offensive to Section 115(1) and (2) of the Evidence Act, 2011 and same ought to have been struck out.
(ii) That paragraphs 9 and 21 of the counter-affidavit violate Section 115(4) of the Evidence Act and ought to be struck out.
(iii) That paragraph

13 of the counter-affidavit is misleading in that Exhibit B and C attached to the counter-affidavit shows that there are issues with the primary elections if at all it took place.
(iv) That Exhibit, B and C dealt with eligibility of Abba K. Yusuf contrary to paragraph 22 of the counter-affidavit hence same is false.

For the above stated reasons it was submitted that paragraphs 8, 9, 10, 12, 13, 14, 15, 20, 21 22 and 23 of the Appellants counter-affidavit to the Originating Summons ought to have been struck out by the trial Court for being incompetent for non-compliance with Section 115(1), (2), (3) and (4) of the Evidence Act, 2011 said to be mandatory provisions. Learned counsel has relied on the decision in Military Governor of Lagos State v. Ojukwu (2001) FWLR (Pt. 50) 1779; Gozie Agbakoba v. INEC (2008) NWLR (Pt. 1119) 489, 549, to submit that if the above stated paragraphs of the counter-affidavit which he described as offensive were struck out, the material averments on the affidavit in support of the Originating Summons would have remained substantially uncontroverted and unchallenged. Hence deemed to have been another

ground for the trial Court to give judgment in favour of the respondent. He urged us to so hold. We were urged to allow the 1st respondents said notice and affirm the judgment of the Court below delivered on 4/3/2019.

The appellant filed a Reply to the 1st Respondent Notice stating that the 1st respondent did not demonstrate, either before this Court or at the trial Court how those paragraphs of the counter-affidavit under attack offended the provisions of the Act or how they were speculative. Rather the paragraphs under reference were facts within the personal knowledge of the deponent. We were urge to discountenance the submissions of counsel for the 1st respondent in its entirety and allow this appeal.

Herewith reproduced below are the controversial paragraphs in the counter-affidavit under attack, namely:
PARAGRAPH:-
5. That I know as a fact that the 2nd defendant is a law abiding political party which follows its rules and regulations.
8. That I know as a fact that the plaintiff is raising the issue of non-compliance with the party guideline for the first time before this Honourable Court and same was never raised at

any time with the 1st defendant at any level of the partys hierarchy.
9. That I am told by the Chairman of the Kano State Chapter of the 1st Defendant on the 28th day of January, 2019 at the State Head Quarters of the 1st defendant at about 9 pm in the process of discussing this matter that the plaintiff has never raised this issue of state congress with him wither personally or officially as there was indeed state congress.
10. That I also know that there was and is still no dispute in any Court in Nigeria arising from the conduct or alleged non-conduct of the state congresses due to the satisfactory conduct of same.
12. That I also know as a fact that by the conduct of a well-organized state congress where three delegates were appointed per ward, the 1st defendant created a solid and well-built foundation and Road map for the conduct of Governorship primary election in Kano State for the aspirants under the platform of the 1st defendant.
13. That being a National Delegate I know that state congresses were conducted all over Kano and there was no complaint from any quarters.
14. That I know as a fact that the Governorship

primaries was conducted on the 1st and 2nd of October, 2018 to the knowledge of the plaintiff and all 1st defendants members in Kano.
15. That the National working committee of the party sent down representatives from the Head Quarters in Abuja to conduct the primaries.
21. That I am told by the Chairman of the 1st defendant in Kano on the 22nd day of January, 2019 at 2pm in his office having read the said affidavit in support of originating summons on behalf of the plaintiff and I believe him thus:
(a) There was no meeting held at the party headquarters with the National Chairman of the Party on the 1st of October, 2018 with the plaintiff or others as all meetings regarding Kano at the National level were held with him in attendance being the person that will implement most of the resolutions.
(b) That myself and the Chairman of the 1st defendant in Kano have made several enquiries at the National Headquarters of the Defendant and there is no single official record of the said meeting with the plaintiff.
(c) The National Chairman Uche Secondus stated this to the Kano State Chairman of the 1st Defendant to my hearing when

the affidavit of the plaintiff was brought to his attention on the 20th of January, 2019 at the National Headquarters of the 1st defendant.
(d) At a meeting held at the party headquarters after the Kano State Governorship primaries of the 1st defendant, which was on the 4th of October, 2018, the plaintiff was actually demanding for the cancellation of the primaries as he were not satisfied with the results which he claimed was patterned and designed for Abba K. Yusuf to win. I was in the said meeting with one of our party leaders Dr. Rabiu Kwankwaso and the state party chairman.
(e) That the plaintiff never complained of the 1st defendant not conducting primaries at anytime.
(f) The National Chairman of the 1st defendant never promised to organize the primaries after primaries have been conducted or re-organize same as the primaries had been conducted and a winner declared.
22. That I know as a fact that one of the contestant for the position of governorship candidate for the Peoples Democratic Party in Kano, Jafar Sani Bello sued the winner of the primaries Abba K. Yusuf and others before the High Court of Kano State immediately

after the primaries.
23. That I know as a fact having been physically present at the Governorship primaries of the 1st defendant on the 1st and 2nd of October, 2018 that it is untrue for the plaintiff to state that there was no primaries when he chose to walk away because he felt he was going to lose the said primaries.

Every affidavit contains only a statement of facts deposed to by the person having personal knowledge of those facts or facts derived from somebody else to which the deponent believe to be true, hence an affidavit is not admissible evidence if it contains extraneous matters, by way of objection, prayer or legal argument or conclusion. Refer to the decision in Edu v. Cawrrd (2001) FWLR (Pt. 55) 433 and Section 115 (1), (2), (3), (4) of the Evidence Act, 2011, Cap. 14.

It is for the person taking objection or seeking to have any offensive paragraph of an affidavit struck out to state in specific terms how any given paragraph of the affidavit was/is offensive by demonstrating same, mindful of the language used in the Act (Section 115). Thus an affidavit becomes offensive if it contains extraneous matter by way of

objection, prayer or legal argument or conclusion. The objector must bring his case within that provision of the Act in order to succeed.
Mere assertion that a paragraph of an affidavit is speculative is in itself an imprecise language which has no place within the meaning of Section 115(2) of the Evidence Act. Such allegation or assertion must be ignored or discountenanced. What is more, the person taking objection to any paragraph of an affidavit is obliged to demonstrate the inappropriateness of that paragraph of the affidavit if he must succeed. I am not persuaded neither I am convinced that the 1st respondent or his counsel has succeeded in doing that whereas the deponent to the affidavit in support of the Originating Summons deposed to facts only within his own personal knowledge or facts or information received from other sources which he believed to be true. Invariably, his Notice to affirm the decision of the Court below on grounds proposed in the Notice must fail and I discountenance same.

This now leads me to the next stage in this exercise, the resolution of issues 2, 3, and 4 canvassed by counsel on both sides.

RESOLUTION OF ISSUES NOS. 2, 3 AND 4
I will begin with Issue No. 2. Has the plaintiff/1st respondent done all that is required of him to maintain the action at the trial Court to succeed in his claim? That is the question. If indeed evidence supplied by him in support of the Summons as claimed is hearsay evidence and true to type, verifiably so, I think that ends the matter, in that no Court of law will rely and act on hearsay evidence. Hearsay evidence is a second hand information devoid of originality. See FRN v. Usman (2012) 3 SC (Pt. 1) 128, 135.
Hearsay is defined in the Evidence Act at Section 37 to mean:
37 Hearsay means a statement:-
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Expatiating further on the meaning of the Phraseology or term hearsay evidence the Apex Court in Ojo v. Gharoro (2006) ALL FWLR (Pt. 316) 197,

218-219, after citing with approval the locus clasicus case of Subramanian v. Public Prosecutor (1956) 1 WLR 965, 909 held that:
I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established.
See further, the decision in: JAMB v. Orji & Ors, (2007) LPELR-8107 (CA); Iweka v. FRN (2010) LPELR-4344 (CA); Obot v. State (2014) LPELR-23130 (CA); Mkpedem & Ors. v. UBA Plc & Anor (2016) LPELR-42039.

By the submission made and as contained in the appellants brief of argument it is the entirety of the paragraphs contained in the supporting affidavit to the Originating Summons that are being attacked or are adjudged by the appellant as being hearsay evidence and by reason of which the 1st

respondent has not/did not prove his case, once the said supporting affidavit is expunged from the record. The learned appellants counsel to me, arrived at that conclusion viewed from the fact that the deponent to the supporting affidavit only related the story she had gathered from Alhaji Ibrahim Ali Amin, the 1st respondent herein, to build up the affidavit evidence in support of the Originating Summons and thus, according to them, hearsay. I want to state here with respect to the learned counsel for the appellant that evidence which are excluded from being admitted or acted upon as hearsay are those at Section 126 of the Evidence Act, which provides thus:
126. Subject to the provisions of Part III, oral evidence shall in all cases whatever, be direct if it refers to:-
(a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) To a fact which could be heard, it must be the evidence of a witness who say he heard that fact;
(c) To a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense

or in that manner;
(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the persons who holds that opinion on those grounds.
This requirement does not in my view hold in relation to facts deposed to in an affidavit provided that there is compliance with the rules for taking affidavits as in Sections 107-115 of the Act. Section 115(1) (2) (3) (4) in particular is on point, it provides thus:
115.(1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his information shall be

stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.
An affidavit evidence of a Statement or information received from a third Party by the deponent is admissible evidence if the deponent believed it to be true. That is the position. See Abiodun v. C. J. Kwara (2007) 18 NWLR (Pt. 1065) 109. I am satisfied with the quality of the affidavit evidence supplied in support of the Originating Summons. Facts contained in the affidavit in support of the Originating Summons do not constitute hearsay evidence hence the submission made to that effect is in discountenanced.

Therefore, in addressing issues raised in the Originating Summons, I cannot but countenance the fact that there is before the Court:
(1) The affidavit in support of the Originating Summons.
(2) The Counter-affidavit in opposition to the Originating Summons.
(3) Plaintiffs Reply to 1st defendants Counter-affidavit otherwise the further affidavit of the plaintiff/1st respondent.

Flowing from the above, a number of critical questions may be asked, as for instance, the question may be

asked whether the appellant ever convened a meeting to elect the Governorship candidate for the party through Primary election. Secondly, was it established that the election (Primary) did or did not take place?

The trial Court in the findings made by it at pages 346-347 of record of appeal was unequivocal in its holding that Primary election did not hold. The Court in its own words held that:
The point to note here it that if a well-organized congress were held contrary to the assertion of the plaintiffs there will be a result of the state ward congresses showing the three(3) delegate were appointed per ward- the 1st Defendant should have presented a result and particulars of the state ward congresses and failure to do so has the consequence that if such a result were available it be contrary to the 1st Defendants aversion Section 167(d) of the Evidence Act states;
Yes, the defendant has exhibited Exhibit D a purported result of gubernatorial primary election result that on its own is not capable of proving that there was primaries held in the local government in the absence of ward congresses elections, the point is that

if there are no ward congresses election where delegates are elected then invariably you cannot have a state primary election for the party.

This finding or holding of the Court is an affirmation of the 1st respondents contention that Primary election did not hold on the nomination of the Governorship candidate for the party.

The appellant has contended before us in their brief of argument that had the Court below considered all facts deposed to and contained in the counter-affidavit and the annexures, it would have arrived at the conclusion that indeed primary election took place and the 1st respondent was duly elected or nominated. One of the facts relied upon by the appellant on this point is the judgment of the High Court of Kano State delivered on the 14th January, 2019 in Suit No. K/458/2018 by which the Court struck out the said suit for being statute barred. It was not a Judgment on merits of the case. Certainly that judgment did not address the question whether or not Primaries were held to elect a candidate as the flag bearer for the PDP in the general elections, hence the said judgment does not support the claim of the

appellant that Primaries were held in Kano as alleged by it.

That Court below has held in any case, that there cannot be primaries, lawfully held or conducted in absence of the delegate conference being held, a condition said to be the precursor to the holding of primaries for the election of the Governorship candidate. This holding by the trial Court as borne out of the affidavit evidence before it including the further affidavit of the 1st respondent, styled as the Plaintiffs Reply to the 1st defendants counter-affidavit, not having been seriously challenged, the trial Court cannot be faulted in its findings that PDP in Kano State did not hold or conduct Primaries to elect/select Governorship candidate for the party and yet the party submitted, wrongly though, the name of Abba K. Yusuf as that candidate.

The 1st respondent in the circumstance was right to seek redress as he did except that in his quest to seek redress, Abba K. Yusuf was not made a party to the Originating Summons, a case instituted by the 1st respondent on the 15th January, 2019 by which he sought various reliefs, among which are reliefs 1, 2, 4, 5, 6, 7, 8, 9 and 10

in the main relief. The 1st respondent further sought in the alternative 2(two) other reliefs: Refer to pages 3-4 of the record of appeal.
Submissions have been made by counsel on both sides as to whether it is necessary to join Abba K. Yusuf as a party to the suit in the circumstance. I have before now given the highlight of the submissions of counsel on this point but put shortly, the appellant took a position and submitted that their Governorship candidate, Abba K. Yusuf being a person to be affected by the decision of Court, he is a necessary party without which the case is not properly before the Court.
For the 1st respondent it was argued that Abba K. Yusuf was not a necessary party or desirable party hence his non-joinder cannot deprive the Court of jurisdiction, so far as the 1st respondent has no claim against him.
The Apex Court in Green v. Green (1987) NWLR (Pt. 61) 481 drew the distinction between persons who are proper parties, desirable parties. The Court went on to hold that:
Proper parties are those who, though not interested in the plaintiffs claim, are made parties for some good reasons

e.g where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable those who have an interest or who may be affected by the result. Necessary parties are those who are not interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.
Words underlined for emphasis.
I want to believe that a resort to claim or reliefs sought by the plaintiff or claimant becomes inevitable if only to determine whether or not a person is necessary party to the suit. I have earlier alluded to some of the reliefs sought by the 1st respondent in the action. There is no question, looking at relief Nos 1, 2, 4, 5, 6, 7, 8, 10 including the 2 (two) reliefs sought in the alternative, all have bearing on the person whose name was submitted to the 2nd respondent as the candidate of the

PDP. That is to say if the reliefs or claim will affect him in one way or the other the candidature of Abba K. Yusuf, the person whose name was submitted to INEC as the candidate of the PDP in the Governorship election, he is a necessary party and I submit affirmatively, that given the reliefs aforementioned, which do not only have bearing on the person of Abba K. Yusuf but affect his candidature, as the nominee of the party, no decision can fairly and effectively be taken behind his back, who is affected by the result.
One of the reliefs the 1st respondent has sought (even though in the alternative) is the relief that he should be declared the Governorship candidate for the PDP in Kano State, a position or seat which the party had reserved for Abba K. Yusuf.
In Ikechukwu v. Nwonye (2015) 3 NWLR (Pt. 1466) 367, 400, the Apex Court per Galadima, JSC (now retired) held thus:
..The learned counsel for the 1st respondent is saying that the appellant is not a necessary party to that suit because he could have completely prosecuted the action against the 2nd respondent herein (INEC) as the sole respondent. For learned counsel

for the 1st respondent to take this stand is to lose sight of the fact that the main purpose of his (1st respondents) suit is for the Court to declare him the lawful candidate of the PDP for the election and for him to be accorded all the rights and privileges and entitlements due to the candidate of his party, PDP. Is the 1st respondent now saying that while approaching the Court to be declared as a lawful candidate, his interest is not competing with that of the appellant?……The foregoing argument boils down to the fact that the 1st respondents action instituted without joining the appellant was not properly constituted, Words underlined for emphasis).
Non-joinder of Abba K. Yusuf as party to this case on appeal meant that the suit was not properly constituted and the trial Court ought not to have assumed jurisdiction over the case. Accordingly, I resolve Issue No. 2 in part in favour of the appellant.

Was the learned trial judge right when he granted all the reliefs of the 1st respondent? This is Issue No. 3. The case presented by the 1st respondent is that Gubernatorial primaries did not hold. Section 87(9) of the Electoral Act, 2010 (as amended) provides as follows:

(9). Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been compiled with in the selection or nomination of a candidate of a political party for election, may apply to the federal High Court or the High Court of a State or FCT, for redress.
In Wushishi v. Imam (2017) 18 NWLR (Pt. 1597) 175, 208-209 it was held that an aspirant has the vires to complain as an aggrieved contestant if only the partys primary election took place or were held and he lost. It is at this point a complaint can be lodged as regards the conduct of that election. In this case, since the election did not take place, the respondent could not have been a participant in the election that was not held. The Supreme Court maintained the same position in Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591, 634 where the Court held thus:
Now coming to the definition of aspirant as laid down in Section 156 of the Evidence Act vis-a-vis Section 87(9) of the Electoral Act,

I wish to state that for a person to have locus to sue in a Court of law to challenge the nomination of a candidate of a political party, the party must have conducted a primary election in the first place and the complaint must have participated in the nomination exercise and lost. It is only then that he can have the locus to challenge the Court of the primary election. It is also then that the Court by Section 87(9) of the Electoral act can have jurisdiction to entertain the matter. Where a party did not conduct a primary election in its nomination process, no Court will have jurisdiction to entertain a complain on nomination of candidate. See Peoples Democratic Party v. Timipre Sylva(2012) 13 NWLR (Pt. 1316P). That is the purport of Section 87(9) of the Electoral Act. It is a jurisdictional issue.
The 1st respondent herein clearly lack the locus standi to complain over a primary election which did not take place, and it follows logically that he could not have been a participant in a non-existent primary election. Consequentially no Court including the Court below, has jurisdiction to entertain such complaint let alone

grant any relief. It is in that premise, I submit that the reliefs granted at the Court below were so ordered or granted without jurisdiction. I so hold. Having so held, it follows that Issue No. 4 is Otiose and/or academic questions only.

However, for the record, I should say that the reliefs claimed are not only inconsistent with the other but unenforceable. Take for instance relief No. 2, in the alternative relief, is unenforceable. It is also contradictory of relief no. 1 in the alternative relief and other reliefs.

The trial Court granted all the reliefs sought. The alternative reliefs cannot stand side by side with the main relief. The argument advanced in the 1st respondents brief of argument under Issues 3 and 4 do not make any meaning to me, the trial Court having assumed jurisdiction wrongly though, whereas the RES was never in existence. The trial Court proceeded in the error to grant the reliefs, as it did without jurisdiction hence issues Nos. 3 and 4 are resolved in favour of the appellant.

This appeal on the whole, succeeds and same is allowed but in part and the judgment delivered at the Trial Federal High Court, Kano on

the 4th March, 2019 in suit No. FHC/KN/CS/33/2019 is set aside.
Ordered accordingly.

HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing of the judgement just rendered by my learned brother, Saidu Tanko Hussaini, JCA. I agree that the appeal succeeds partly. It is hereby allowed for its merit.
I abide by the consequential orders made in the judgement.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading in draft the lead judgment delivered by my learned brother, SAIDU TANKO HUSSAINI, JCA.

I adopt all the reasoning and conclusion reached by His Lordship on all the vital Issues for determination of this appeal. Let me lend my voice on some of those issues.

On the authority of Ikechukwu v. Nwonye (2015) 3 NWLR (Pt. 1466) 367, @ 400, the 1st respondents suit before the lower Court was not properly constituted without Abba K. Yusuf who was allegedly given the partys ticket for the Governorship Election of Kano State for the election scheduled initially for 9th March, 2019. Therefore, the lower Court wrongly assumed jurisdiction over the suit

without Abba K. Yusuf joined as a party.

The major complaint of the 1st respondent in his Originating Summons is that no primary election was held for the selection of the partys (Appellants) flag bearer for the Governorship election of Kano State for the election. By virtue of S. 87(9) of the Electoral Act 2010 (as amended) and the decision in the case of Wushishi v. Imam (2017) 18 NWLR (Pt. 1597) 175, at 208-209, it is only an aspirant at a primary election that has the vires to complain that the provisions of the Electoral Act and the partys guidelines were not complied with in the selection or nomination of a candidate for election. Since, as alleged by the 1st respondent no primary election took place he could not have taken part in the election to be clothed with the vires to complain as he did in his Originating Summons. The Court therefore wrongly assumed jurisdiction in the Suit.

With this few remarks to further demonstrate my adoption of the decision reached by my learned brother in the appeal, I hold that the appeal succeeds and is allowed in part. The judgment of the lower Court is hereby set aside.

Appearances:

Asiwaju Adegboyega Awomolo, SAN with him, Olajide Olaleye-Kumuyi, Esq.For Appellant(s)

Mohammed Kabiru Usman, Esq. for the 1st RespondentsFor Respondent(s)

Appearances

Asiwaju Adegboyega Awomolo, SAN with him, Olajide Olaleye-Kumuyi, Esq.For Appellant

AND

Mohammed Kabiru Usman, Esq. for the 1st RespondentsFor Respondent