PEOPLES DEMOCRATIC PARTY V. HON. BABANGIDA S. M. NGUROJE & ORS
(2012)LCN/5760(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of December, 2012
CA/YL/39/2011
Justice
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
1. HON. BABANGIDA S. M. NGUROJE
2. HON. IBRAHIM TUKUR EL-SUDI
3. INDEPENDENT NATIONAL ELECTORALRespondent(s)
IGNATIUS IGWE AGUBE J.C.A. (Delivering the Leading Judgment): This Appeal is a sister to Appeal No. CA/YL/30/2011 earlier decided both of which arose from the same facts and judgment of S. M. Shuaibu, J, delivered on the 1st day of April, 2011 at the Federal High Court, Yola Division. The facts of the case are clear and have been elaborately stated in the Judgment in Suit Number CA/YL/30/2011. Suffice is to say that by way of Originating Summons commenced in the Federal High Court, Yola; the 2nd Respondent herein and Plaintiff in the Court below challenged the cancellation of his victory at the primary Election held by the present Appellant (then 1st Defendant) for the nomination of the PDP candidate to contest the General Elections into the House of Representatives for the Gashaka/Kurmi/Sardauna Federal Constituency of Taraba State. At the said primary conducted on the 6th day of January, 2011, the 2nd Respondent herein was recorded in Exhibit E to the Affidavit in Support of the Originating Summons to have scored 315 votes as against the 1st Respondent’s 266 votes.
Avalanche of documents showing that he underwent all the necessary processes as stipulated in the Appellant’s Guidelines for the Party’s Primary Election and the Electoral Act, 2010 before being declared the winner of the Primary Election of 6th January 2011, have also been annexed to the Affidavit in support of the Originating Summons and his Further And Better Affidavits. Having won the Election, the Appellant herein was expected to mandatorily, submit the 2nd Respondent’s name to 3rd Respondent as the winner of the Primary and therefore the candidate of the Appellant for the General Elections, 2011 under Section 87(4)(c)(ii) of the Electoral Act, 2010 (as amended). Rather than submit the 2nd Respondent’s name as stipulated by the Electoral Act and Party Guidelines, the Appellant purporting to act on a Petition sent by the 1st Respondent to the Appellant’s Election Appeal Panel, proceeded to cancel the nomination of the 2nd Respondent and purported to conduct a rerun election without giving the 2nd Respondent the opportunity to be heard on the allegations trumped up by the 1st Respondent which the Appeal Panel purportedly investigated and found substantiated.
The grouse of the 2nd Respondent amongst others was the cancellation of his nomination and his being substituted with the 1st Respondent as the candidate of the 2nd Respondent without being heard. Accordingly, the 2nd Respondent sought for the interpretation of the Party Guidelines, the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic as they affected his divested right to contest the Election as the nominated candidate of the Appellant/PDP for the Federal Constituency in question. The Appellant and 1st Respondent filed their respective Counter-Affidavits and annexed documentary Exhibits which according to them justified the cancellation of the victory of the 2nd Respondent and the substitution of his name with that of the 1st Respondent claiming Party Supremacy in such Primary Election. After hearing the parties and considering the totality of the Affidavit evidence and the bundle of documents placed before the lower Court, the learned trial Judge found merit in the case of the Plaintiff/2nd Respondent and granted all the Reliefs sought.
Dissatisfied with the judgment of the lower Court, the Appellant filed her Notice of Appeal with two Grounds couched thus:-
GROUND 7
“The learned trial judge erred in law and came to a perverse decision in granting the reliefs based on an issue not formulated for determination in the originating summons.
PARTICULARS OF ERRORS:
i. None of the issues formulated for determination raised allegation of fair hearing,
ii. Evidence adduced which is at variance with the claim ought to be discountenanced,
iii. The Trial court is not entitled to make a case for any of the patties’
iv. Parties and the Court are bound by the claim.
v. The Trial Court granted the reliefs without resolving the issues
“GROUND 2
The Judgment is against the weight of evidence.”
“RELIEFS BEING SOUGHT FROM THE COURT
(i) AN ORDER of the Court of Appeal allowing the appeal and setting aside the judgment of the lower Court in its entirety.
(2) AND for such further order or Court may deem fit to make in the circumstance including an order upholding the nomination of the 2nd Respondent as Appellant’s candidate for Gashaka Kurmi and Sardauna Federal Constituency of Taraba State who in the eye of the law won the House of Representatives election.”
In line of the Rules of this Honourable Court the Appellant’s Brief dated 26th July, 2011 was filed the same date and upon being served, the 1st Respondent filed his Brief dated 27th July, 2011 on the same date while the 2nd Respondent gave Notice of Preliminary Objection dated 28th March, 2012 and filed on the 2nd of the April, 2012. As for his Brief of Argument dated 15th day of August, 2011, same was filed on 23rd August, 2011 and upon receipt thereof by the Appellant, the Appellant’s Reply Brief dated 8th September, 2011 was filed on the 9th Day of September, 2011.
In the determination of this Appeal, we shall proceed to consider first the Notice of Preliminary Objection of the 2nd Respondent which the learned Counsel for the 2nd Respondent O. E. B. Offiong Esq. SAN, had raised as follows:-
“1. That particular (v) of ground I in the notice of appeal does not flow from the said Ground of Appeal.
“2. That particular (V) is at variance with and does not support ground I of the Grounds of Appeal.”
The Ground for the Objection is given as:
“1. Particular (V) of Ground I of the Notice of Appeal dated 28 June, 2011 is a different issue all together from and is not in consonant with the tenor of the said Ground of Appeal.”
In the argument on the preliminary Objection as incorporated in page 3 paragraph 2.9 to page 4 of the 2nd Respondent’s Brief of Argument; the learned Senior Counsel for the 2nd Respondent submitted in line with the Grounds for the Objection that particular (V) to Ground I of the Grounds of Appeal is not in consonant with the tenor of the said Ground because whereas the complaint of Ground I is that the learned Trial Judge based his judgment on an issue not formulated for determination in the Originating Summons, particular (V) complains that the trial Court granted reliefs without resolving the issues formulated for determination.
Relying on the case of Balonwu V. Obi (2007) 5 NWLR (pt. 1028) 488 at 528 – 529 paras. F – H 543 Paras. E – F (CA), he submitted that particulars of errors must be based or flow from the Ground of Appeal and not raise an entirely new matter. The learned Senior Advocate further argued that it is trite that once one of the particulars of any Ground of Appeal is rendered bad the rest serve no useful purpose and the entire Ground should be struck out as the Court will not give effect to the Ground by excising the bad particulars. In the instant case we were urged on the authorities of Okumoti V. Sowunmi (2004) 2 NWLR (pt. 856) 1; Sosanya V. Onadeko (2005) 8 NWLR (pt.926) 185; Stirling Civil Eng. (Nig.) Ltd V. Yahaya (2002) 2 NWLR (pt. 750) 1; Kano Justiceile Printers Plc. V. Gloede & Hoff (Nig.) Ltd (2002) 2 NWLR (pt. 751) 420; Nwadike V. Ibekwe (1987) 4 NWLR (pt. 67) 718; Bereyin V. Gbogbo (1987) 1 NWLR (pt.97) 372; to urge us to strike out the Ground of Appeal.
Finally, he urged us to hold that whether the trial Judge resolved issues not formulated for determination or not before granting reliefs not sought, is a separate complaint which ought to form a separate Ground of Appeal as was made by the 2nd Respondent in his Appeal (CA/YL/30/2011) which has been answered accordingly by him (learned Senior Counsel for the 2nd Respondent herein). He urged us to uphold the preliminary objection.
Replying to the above submissions, the learned Counsel for the Appellant Chief Olusola Oke argued in the first place that the preliminary objection was raised in complete disregard for order 10 Rules 1-3 of the Court of Appeal Rules 2011 and therefore grossly incompetent and ought to be dismissed. Learned Counsel pointed out the connotation of the provisions of the preliminary objection as envisaged by the Rules particularly on the time frame within which to file same and the Grounds which the 2nd Respondent failed to fulfill. Placing reliance on C. B. C. Plc. V. A. G. Anambra State (1992) 10 SCNJ 31 at 163; and C. C. T. C. S. V. Ekpo (2008) 6 NWLR (pt. 1083) 362; per Onnoghen, JSC at 398, on the need to comply with mandatory provisions of a statute he reiterated that the 2nd Respondent’s preliminary objection is grossly incompetent and should be dismissed.
On the merit of the preliminary Objection assuming we hold that it is competent; he contended in the alternative that the argument of learned Senior Counsel for the 2nd Respondent is misconceived. He then referred us to the particular being questioned by the learned Senior Counsel for the 2nd Respondent, submitting that the said particular merely elucidates further the complaint in the Ground of Appeal. In any event, he maintained, where a Ground of Appeal is clear and unambiguous to the extent that the Respondent is not misled as to the complaint of the Appellant, on the authority of Ministry of Works V. Tomas (Nig.) Ltd. (2002) 2 NWLR (pt. 752) 740 C. S.; there is no need for further particulars. Further reference was made to Gomwalk V. Okwosa (1999) 11 NWLR (pt. 586) 225, still to support the above submission.
The learned Counsel maintained that appeals are argued based on the Grounds and not on its particulars. We were referred to paragraphs 4.5 – 4.13 of the Appellant’s Brief of Argument where the Grounds (1 and 2) of the Appeal are argued. He finally urged us to hold that the cases cited by the learned Senior Counsel for the 2nd Respondent to buttress the argument on the Preliminary Objection are inapplicable to the peculiar facts of the case at hand and insisted that the Preliminary Objection is misconceived and unsustainable in the eyes of the law.
We were then urged to dismiss the objection.
DETERMINATION OF THE PRELIMINARY OBJECTION
I have carefully considered the submissions of the respective learned Counsel for the Appellant and the 2nd Respondent on the preliminary objection. The provisions of Order 10 Rules 1 – 3 of the Court of Appeal Rules, 2011, are clear and unambiguous and are to the effect that, where a Respondent intends to rely upon a preliminary objection to the hearing of an Appeal, he shall furnish the Appellant with three clear days Notice thereof before the hearing setting out the grounds of Objection- Rule (1). Rule (2) is not relevant to the facts of this Appeal. As for Rule (3) which is the punishment provision for non-compliance, it is couched not in mandatory terms as it states that the Court has the discretion to refuse the entertainment of the objection or adjourn the hearing thereof subject to the award of costs against the Respondent or to make such other order as the Court may deem fit in the interest of Justice.
In other words, the Court has the discretion to hear the preliminary Objection even when Rule 1 is not complied with, in which case, it may adjourn to enable the Appellant be given adequate time to prepare for the Objection or still in the alternative costs may be awarded in favour of the Appellant to assuage him of the element of surprise that may have been sprung up by the Respondent’s Preliminary Objection which would delay the hearing of the Appeal. Going by the antecedents of the case at hand, the Notice of Preliminary Objection was given on the 2nd day of April, 2012? and apart from the learned Counsel for the Appellant not having furnished us with the date the Appeal was supposed to have been heard, the Appellant by the endorsement on his Reply Brief filed same on the 9th day of September, 2011 wherein her Counsel has responded fully to all the arguments in the preliminary Objection.
Besides, even though Briefs were exchanged since August, 2011, it was not until 18th October, 2012 that this Appeal was heard. The Appellant was therefore given more than three clear days before the hearing of her Appeal. The preliminary objection is therefore competent. In the same vein, the authorities of C. B. C. Plc. V. A. G. Anambra State (supra) and C.C.T.C.S V. Ekpo (supra); on the need to follow procedure laid down or prescribed by statute without deviation and the fact of the use of the word “shall” being mandatory, may have been decided on their peculiar facts and circumstances but they definitely are not applicable to the facts of this Appeal. From all the surrounding circumstances of this Appeal, the Notice of Preliminary Objection is competent and we shall proceed to consider it on the merit.
Now on the substance of the Notice of Preliminary Objection, a careful perusal of Ground 1 of the Notice and Grounds of Appeal would reveal that it complains that the trial Court committed an error of law and thereby came to a perverse decision when it granted the Reliefs sought based on an issue not formulated for determination in the Originating Summons. Particulars (i), (iii) and (iv) of the Ground which complain that none of the issues for determination raised allegation of lack of fair hearing; that the Court is not entitled to make a case for any of the parties and that parties are bound by the case of the parties as fought in the Court of first instance, are quite germane to the Ground of Appeal and these particulars alone can sustain the Appeal if it is successfully argued. Just as a single valid Ground of Appeal is sufficient so can a single particular do if it has the legal capacity to sustain the Ground of the Appeal. See Abubakar V. Waziri (2008) 14 NWLR (pt. 1108) 507 at 533 para, D, Ojukwu V. Yar’Adua (2009) 12 NWLR (pt. 1154) 50 at 122 para. E and Abubakar V. Yar’Adua (2008) 19 NWLR (pt. 1120) 1 at 131 para. H
I agree with the learned Senior Counsel for the 2nd Respondent therefore that Particulars (ii) and (v) are definitely out of the mark as they are at variance with the Ground of Appeal in question and it is trite as he has ably submitted that particulars of a Ground of Appeal which do not flow from/or are extraneous to the Ground are bad and ought to be struck out. Balonwu V. Obi (2007) 5 NWLR (pt. 1028) 488 at 528 – 529 paras. F – H. 543 paras E – F; must have decided that once one or more of the particulars of any Ground of Appeal are rendered bad, the remaining particulars of the Ground of Appeal serve no useful purpose because the Court will not give effect to the ground of Appeal by excising the bad particulars and consequently the Ground shall be struck out.I am of the candid view that the Courts have since departed from this highly technical and mechanistic approach to the validity of the Grounds of Appeal. In Odinigi V. Oyeleke (2001) 2 S. C. 194; Kalgo, JSC sounded a note of warning to adherents of technical Justice when he held thus… “The days of sticking to technicalities as opposed to substantial Justice have gone by and this Court has shifted from undue reliance on technicalities to doing substantial Justice between the parties before it.”See further Ojelade V. Soroye (1998) 5 NWLR (pt.549) at 284; U.B.A V. Achonru (1990) 21 NSCC (pt. 3) 256; Beryin V. Gbogbo (1989) 1 NWLR (pt. 97) 372; Adeleke V. Asani (2002) 8 NWLR (pt, 768) 26 and Ministry of Works V. Tomas (Nig) Ltd (2002) 2 NWLR (pt. 752) 740; which all held the view that where a Ground of Appeal even performs the dual role of incorporating the particulars in the Ground without setting out the particulars separately as the Appellant has done in this case, the Court should be reluctant in striking out such a Ground of Appeal particularly where the Respondent has not complained of his being misled.I am of the considered view that unless after striking out the offensive particular(s) of a Ground of Appeal, such a Ground is completely bereft of any particulars to sustain it, it would tantamount to technical Justice to strike out such a Ground of Appeal. I reiterate in line with our current jurisprudential climate, that if the particulars which are extraneous to Ground 1 of the Grounds of Appeal herein are struck out, the remaining three which are germane can still sustain the Ground more particularly as neither the learned Senior Counsel nor his client (the 2nd Respondent), as well as this Honourable Court, has complained of being misled.
Finally on this Preliminary Objection, the learned Counsel for the Appellant has rightly asserted on the authority of Gomwalk V. Okwosa (1999) 11 NWLR (pt. 586) that Appeals are argued on issues formulated and not on particulars of such Grounds. Having gone through paragraphs 4.5 – 4.13 of the Appellant’s Brief, I am satisfied that the learned Counsel formulated the sole issue for determination from the two Grounds of Appeal.
I shall therefore strike out particulars (ii) and (v) of Ground (1) of the Grounds of Appeal as I hold that the incorporation of the unrelated particulars are mere inelegance which might have arisen from a mix-up of issue Number 3 of the Appellant (then 2nd Respondent in Appeal No. CA/YL/30/2011). See pages 9-18 of the 2nd Respondent’s Brief in the previous Appeal and pages 4 to 16 of the present Appeal. On the whole, the preliminary objection partly succeeds, but we shall sustain Ground I with the remaining three particulars.
Now on the substantive Appeal, the learned Counsel for the Appellant has formulated a single issue for determination thus:
“WHETHER HAVING REGARD TO THE CLAIM, AFFIDAVIT EVIDENCE AND THE EXHIBITS BEFORE THE TRIAL COURT; THE COURT WAS RIGHT IN GRANTING THE RELIEFS SOUGHT.”
On his part the learned Senior Counsel Dr. Tetengi, SAN, Mni; in the Brief of the 1st Respondent (Hon. Babangida S. M. Nguroje), formulated two issues inter alia:-
“1. WHETHER THE LOWER COURT RESOLVED ALL THE ISSUES RAISED BY THE PARTIES IN ITS JUDGMENT (GROUND 7)
2. WHETHER THE JUDGMENT OF THE LOWER COURT WAS SUFFICIENTLY JUSTIFIED HAVING REGARD TO THE AFFIDAVIT EVIDENCE BEFORE IT.
(GROUND 2)”
As for O. E. B. Offiong Esq, SAN, the learned Senior Counsel for the 2nd Respondent he also formulated for determination two issues couched in the following terms thus:-
“1. Whether the Judgment of the learned trial Judge holding that the nullification of Plaintiff’s candidature, the holding of a re-run primary election and forwarding of the name of 1st defendant to 3rd Defendant by the 1st Defendant/Appellant as its candidate without hearing the Plaintiff was not based on an issue formulated for determination in the Originating Summons? (Ground 1)
2. Whether the Judgment of the trial Judge is not justified having regard to the weight of evidence adduced by the parties before him? (Ground 2).
Arguing the sole issue, the learned Counsel to the Appellant alluded to the Originating Summons, the Issues sought to be determined at the lower Court and the Reliefs sought by the Plaintiff (now 2nd Respondent) in this Appeal in contending that a reading of the judgment of the lower would show that the lower Courts decision was based solely on the issue of fair hearing while questions 1, 2, 3, 4 and 5(i) and (ii) were not considered.
According to learned Counsel, the 2nd Respondent having not appealed against the failure of the lower Court so to consider those questions, they are deemed abandoned and the sole issue now which this Appeal calls for determination is that of fair hearing and whether the Court below rightly granted all the reliefs based on its erroneous finding. Citing Bello V. Eweka (1981) 1 SC. 101 and Onu V. Agu (1996) 5 NWLR (pt. 451) 652 at 662 – 669, he submitted that in declaratory Reliefs claim, the burden lies on the party who asserts and who would lose if no evidence is led to substantiate his allegation. Learned Counsel then alluded to the averment of the 2nd Respondent in paragraph 22 of his affidavit at page 12 of the Record of Appeal and the reactions of the Appellant there to at page 660 of the Records which according to the learned Counsel for the Appellant, the 2nd Respondent did not deny. Relying on the case of Ejikeme V. Ibekwe (1997) 7 NWLR (pt. 514) 592 at 598, it was submitted that the Appellant’s averments were deemed admitted but throughout the Judgment the Trial Court failed to take cognisance of the Appellant’s depositions either to believe or disbelieve and give reasons in so doing.
Placing reliance further on the principles laid down in Mogaji V. Odofin (1978) 4 S.C. 59 at 95 on evaluation of evidence and the finding of the Court at page 738 of the Records; he posited that none of the questions formulated for determination in the Originating Summons seriously raised the issue of fair hearing and none of the Reliefs prayed for the nullification of the Result of the rerun on grounds of lack of fair hearing. Citing again the case of Ogunleye V. Oni (1990) 2 NWLR (pt. 135) 740 at 747, Ige V. Ayoka (1994) 4 NWLR (pt.340) 535 at 545 – 546; per Olatawura, JSC; on evidence led on facts not pleaded and Agbaje V. Ajibola (2002) 2 NWLR (pt. 750) 127 at 144 per Iguh, JSC, he submitted that the Court based its decision on evidence which was at variance with the claim of the 2nd Respondent and therefore went to no issue and accordingly the claim of the 2nd Respondent was not established.
Further references were made to the cases of Ejikeme V. Ibekwe supra, JSC V. Omo (1990) 6 NWLR (pt. 157) 404 at 442; Olalehin V. Continental Justiceiles Mills (1978) 2 S.C 23, at 35 and Onuoha V. The State (1998) 5 NWLR (pt. 548) 118 at 141; to insist that there was sufficient un-denied evidence that the 2nd Respondent was heard before the decision to order a rerun and that the Court below was in grave error to have ignored such depositions and without giving reasons in so doing.
Still on fair hearing, the learned Counsel took the view while referring to paragraphs 17 to 19 of the 1st Respondent’s Counter-Affidavit as regards Exhibits C and D, that the said Exhibit D was tendered to show that there was a decision cancelling the primary election of 7/01/11 and not on the issue of fair hearing, for on the authorities of Ishola v. U. B. N. Ltd (2005) ALL FWLR (pt. 256) 1202 – 1213 S. C. and Nwankpa V. Ewulu (1995) 7 NWLR (pt. 407) at 269; it is trite that a document tendered for one purpose in a trial cannot be utilized for purposes other than for which it was tendered.
It was the further contention of the learned Counsel for the Appellant that the learned trial Judge wrongly used the Report in the resolution of an issue for which it was not tendered and therefore made a case of fair hearing for the 2nd Respondent as the 2nd Respondent did not make any case of fair hearing in the lower Court. He also accused the Court of failing to appreciate the fact that the Report was not a detailed proceeding of what transpired at the rerun but a summary and that the use of the Report for the resolution of the issue of fair hearing led to a perverse judgment which occasioned miscarriage of Justice against the Appellant.
The learned Counsel also alluded to their contention in the lower Court that the decision to cancel the Election of the 1st Respondent and carry out the rerun was that of the NWC a superior Organ of the Appellant which is binding on all the parties on which the Court below did not say anything. On this score he anchored his submissions on the need for a trial Court to consider any defence raised by a Defendant by citing Uzuda v. Ebigeh (2o09) 15 NWLR (pt. 163) 1 at 21 -22 S.C. and Ojogbue V. Nnubia (1972) 1 ALL NLR (pt. 1) 226 per Coker, JSC (of blessed memory). Submitting that the failure of the Court to pronounce on all issues raised but rather granted the Reliefs of the Plaintiff/2nd Respondent, occasioned a miscarriage of Justice warranting the judgment to be set aside as he so urged. In the final analysis we were urged to allow the Appeal and set aside the decision of the lower Court after resolving the sole issue in the Appellant’s favour.
1st RESPONDENT’S ARGUMENT ON ISSUE NUMBER 1: “WHETHER THE LOWER COURT RESOLVED ALL THE ISSUES RAISED BY THE PARTIES IN ITS JUDGMENT? (GROUND 7)”
Let it be quickly pointed out herein that the 1st Respondent, in his issue Number 1 adopts all the arguments of the learned Counsel for the Appellant on the sole issue raised and further adopts and repeats his Argument on Issue Number 3 in Appeal Number CA/YL/30/2011 on the refusal of the Court to answer their question as to Supremacy of the Appellant over its members. Learned Senior Counsel for the 1st Respondent however, in line with his earlier position in Appeal No. CA/YL/30/2011, has called on us to put ourselves in the position of the Court of first instance and resolve that Issue adding that by a long line of judicial authorities on party Supremacy, Section 33 of the Electoral Act, 2010, Nwokedi V. Egbe (2005) 9 NWLR (pt. 930) 293 at 307 para. A – B; Okonji V. Njokonma (1991) 7 NWLR (pt. 202) 131. Ogbeide V. Osula (2003) 1 LRECN 453; Action Congress V. INEC (2001) LRECN 224 at 282 and Ehinlawo V. Oke (2008) 4 LRECN 769 at 808 para. B; the 1st Respondent was the rightful candidate of the Appellant in the primary in question and having had his name submitted to the 3rd Respondent, he cannot be substituted except in the event of death, withdrawal or incapacitation. We were then urged to resolve the issue in favour of the Appellant.
ISSUE NUMBER 2: WHETHER THE JUDGMENT OF THE LOWER COURT WAS SUFFICIENTLY JUSTIFIED HAVING REGARD TO THE AFFIDAVIT EVIDENCE BEFORE IT?
(GROUND 2)”
Here on this issue, the learned Senior Counsel alluded to the ground upon which the lower Court granted the 2nd Respondent’s Reliefs, submitting that there was no oral evidence but that the Court relied only on affidavit evidence to hold that the 2nd Respondent was not given a hearing before his election was cancelled and a rerun ordered that produced the 1st Respondent. The learned senior Advocate further argued on the authorities of Obayan v. UNILORIN (2005) 15 NWLR (pt. 947) 123 at 140; Adeleke V. Balogun (2000) 4 NWLR (pt. 651) 113 at 124 and Section 135 of the Evidence Act, and took the view that the Court fell into a mistake to have shifted the burden of proof to the Appellant and 1st Respondent to show that the 2nd Respondent was given a hearing instead of the reverse. According to the learned Counsel, the affidavit evidence showed that the preponderance of credible evidence weighed in favour of Appellant and 1st Respondent that the 2nd Respondent was given all the opportunity to participate in the rerun but he chose to ignore the Party upon whose platform he is now claiming victory. Learned Senior Counsel has also adopted his argument on Issue Number 2 in Appeal Number. CA/YL/30/2011 to contend on the authority of Adeleke V. Balogun (supra) at 122 on the evaluation of evidence that the lower Court failed to evaluate the evidence and placed the burden of proof on the 1st Respondent and Appellant thereby occasioning a miscarriage of Justice.
Relying finally on Williams v. The State (1992) 8 NWLR (pt. 261) 515 Akpagbue V. Ogu (1976) 6 S.C. 63 and Odofin V. Ayoola (1984) 11 S.C. 7; he pointed out the reluctance of Appellate Courts in interfering with the final decisions of trial Courts but contended that where the decision as in this case is perverse, an Appellate Court will interfere to avoid miscarriage of Justice. We were then urged to allow the Appeal and restore the 1st Respondent as the duly elected candidate of the Appellant for the Federal Constituency in question for the April, 2011 Elections.
ARGUMENT OF THE LEARNED SENIOR COUNSEL FOR THE 2ND RESPONDENT:-
ISSUE NUMBER I: “WHETHER THE JUDGEMENT OF THE LEARNED TRIAL JUDGE WAS NOT BASED ON AN ISSUE FORMULATED FOR DETERMINATION IN THE ORIGINATING SUMMONS?
On this issue, the learned Senior Counsel led us down the lane as to the definition and types of issues as can be gleaned from pages 835 to 836 of Black’s Law Dictionary 7th Edition, submitting that whether viewed narrowly or broadly from the questions posed by the Originating Summons or formulated by the Plaintiff and joinder of issues by the Defendant’s reaction thereto, the judgment of the learned trial Judge was based on the issues in the case particularly on fair hearing. Our attention was then drawn to the five issues raised in the Originating Summons and the Reliefs sought by the Plaintiff/2nd Respondent the analysis of which he summarised in paragraph 4.2 at page 9 of the 2nd Respondent’s Brief, the basis upon which the lower court decided the case.
The learned counsel argued that the challenge of the Judgment by the Appellant is in bad faith in that in one breath the Appellant contends that the judgment was not based on any of the Issues raised by the parties but in another breath argued that the learned trial Judge based his judgment solely on Issue 5 of the Originating Summons, in which case the Appellant has admitted that the judgment was based on an issue before the Court such that Ground 1 of the Grounds of Appeal lacks any legal basis. It was submitted further that the submissions of the Appellant that the trial Court failed to consider the questions submitted for determination, is a complete departure from the Ground of Appeal for it is one thing not to consider questions submitted for determination and another to base the judgment on an issue not raised before her. On this score, we were urged to discountenance all the arguments contained in paragraph 4.5 and 4.6 of the Appellant’s Brief of Argument as they fall outside the issues raised in this Appeal and further that it is not the Appellant’s but the Plaintiff’s position to complain of the non-consideration of the issues submitted to the Court for determination in the Originating Summons.
Learned Senior Counsel for the 2nd Respondent has also contended that in the same vein the arguments of the Appellant in paragraphs 4.13 to 4.34 of the Appellants Brief of Argument are not related to any of the Grounds of Appeal: Ground one which complains of the Court below committing an error in law in granting Reliefs sought based on an issue not formulated in the Originating Summons and Ground 2 which complains of the Judgment being against the weight of evidence. Placing reliance on Bamigboye V. Saraki (2009) ALL FWLR (pt. 484) 1573 at 1602 paras E-F on the nature of Omnibus Grounds of Appeal, he further submitted that it is not permissible for the Appellant to argue a point of law which should have been made a separate Ground of Appeal such as that the trial court did not consider the defence of the Appellant.
He then endorsed the holding of the learned trial Judge that the issue of breach of the 2nd Respondent’s right to fair hearing guaranteed him under Section 36 of the Constitution of the FRN (1999) as well as the Constitution and Guidelines of the Appellant to primary Elections was the ultimate issue decided in the case. Our attention was then drawn to paragraphs 2 – 40 of the Further And Better Affidavit and 5 9 of the 2nd Further And Better Affidavit of the Plaintiff/2nd Respondent as well as paragraphs 7(i) – (xviii) of the Further And Better Counter Affidavit of Appellant and 1st Respondents where the parties joined issues on whether the 2nd Respondent was given fair hearing before the purported nullifying of his election.
The above apart, the learned Senior Counsel also urged us to consider the issues submitted for determination by the 1st Defendant/Appellant and the Plaintiff/2nd Respondent in the final Addresses before the learned Trial Judge (paragraphs 6.71 to 6.16 of the 2nd Respondent’s Address and 4.2.1. of the 2nd Defendant/1st Respondent herein) where the issue of fair hearing was vigorously and elaborately argued it page 638 of the Records.
In the light of the above submissions, we were urged to resolve the issue against the Appellant and hold that there is no substance in the complaint of the Appellant’s Ground I of her Grounds of Appeal.
ISSUE NUMBER 2: “WHETHER THE JUDGMENT OF THE TRIAL JUDGE IS NOT JUSTIFIED HAVING REGARD TO THE WEIGHT OF EVIDENCE ADDUCED BY THE PARTIES?”
On this Issue the learned Senior Advocate urged us to answer the question in the negative submitting on the authorities of Nta V. Anigbo (1972) 5 S.C. 196; Lagga V. Sharhun (2008) 16 NWLR (pt. 1114) 443 at 453 paras D-E (S.C.); on the connotation of an Omnibus Ground of Appeal; that it is the duty of the Appellant who raised the Ground to show that the Court below wrongfully accepted evidence which he should not legally have accepted or that the conclusions or inferences which he drew from the evidence accepted are unjustified. Ogboda V. Adulugba (1971) 1 ALL NLR 58 refers. Furthermore, on the authority of Mogaji V. Odofin (1978) 4 S.C 59; he maintained that the resolution of the issue raised in the Omnibus Ground would normally turn on the evaluation of admissible evidence given by each of the parties in the case.
Pointing to the main issue at stake which according to him was whether the 2nd Respondent was granted fair hearing before the purported nullification of his election and the conduct of the rerun by the Appellant herein, the learned Senior Counsel for the 2nd Respondent reviewed the contentions of the parties as contained in their respective Affidavits and Counter-Affidavits and what eventually transpired during the proceedings in the lower Court and argued that the Further And Better Counter-Affidavit of the Appellant dated 28/3/2011 and 1st Respondent’s Supplementary Counter-Affidavit were filed after the close of pleadings without the leave of Court thus rendering them incompetent even though the Court considered them before its Judgment of 1st April, 2011.
It was therefore his contention that the learned trial Judge carefully evaluated all the evidence and reviewed all the legal submissions before him as can be gleaned from his very lucid Judgment at page 726 to 746 of the Record of Appeal (particularly at pages 735 – 743) where he identified the crucial issue of fair hearing. He went on the emphasize on the implication of an Omnibus Ground of Appeal and where the evidence of the Appellant is inadmissible, where the evidence presented by one of the parties is expressly admitted by the other; the consequences of non-denial of the averment in a party’s affidavit and where such averment is incredible or is deposed to be a person who never witnessed or participated in an event. For the above submission he cited Patrick Akwa & 5 Ors V. C.O.P. (2003) 4 NWLR 461 at P. 493 pans, E – H; Per Edozie, JCA (as he then was) relying on REAN V. ASWANI Tertile Ltd. (1992) 2 NWLR (pt 227) 1 at 13; National Bank V. Are Brothers Ltd. (1977) 6 S.C, 97 at 108 and Okeke V. A. G, Anambra State (1992) 1 NWLR (pt 215) 60; in support.
On the contention by the Appellant that all the averments contained in paragraph 7 of its Counter-Affidavit at page 660 of the Records were not denied and therefore deemed admitted, on the authority of Ejikeme V. Ibekwe (supra), the learned Senior Counsel for the Plaintiff/2nd Respondent argued per contra and referred us to the provision of Order 13 Rule 10(1) of the Federal High Court (Civil Procedure) Rules, 2009 to further submit as follows that:-
1. Even if the averments in the Further And Better Counter-Affidavit are deemed admitted (which is not conceded), this Honourable Court must decide whether the averments are admissible or credible before such conclusion. However, he contended that the averments of the Appellant were inadmissible and incredible.
2. The averments are based on hearsay apart from the contention of the Appellants being rendered untenable by the Rules of court and Sections 77 and 89 of the Evidence Act, as Mr. Itodo who deposed to the facts claimed that he derived the information from Chief Olusola Oke who was not a member of the Appeal Panel that nullified the 2nd Respondent’s nomination, moreso, when the said Itodo Esq. had earlier deposed to the same facts which he claimed were to his personal knowledge in the Affidavit of facts dated 3/3/2011 against the 2nd Respondent’s motion for interlocutory injunction. The Learned Counsel then posed the question whether the said Paul Itodo Esq. is a credible witness which he answered in the negative.
Again the learned Senior Advocate called on us to re-evaluate the evidence since it is documentary in order to see whether the Appellant had produced credible evidence in support of its defence that it accorded the plaintiff/2nd Respondent fair hearing. On the authorities of Woluchem v. Gudi (1981) 5 S.C.291; Mini Lodge Ltd. & Anor V. Ngel & Anor (2009) 12 S.C. (pt. 1) 94 at 108 – 109, he asserted that the evidence of the Plaintiff/2nd Respondent on the other hand is direct, cogent and supported by relevant documents which reveal that the 1st Defendant/Appellant and 2nd Defendant/Respondent did not seriously deny the Appellant’s allegation that he was not given a hearing. Furthermore, they did not deny the fact that if he/2nd Respondent were summoned to the Appeal Panel, he would have presented a robust defence in answer to the petition of the 1st Respondent against the 2nd Respondent’s victory at the primary election of 6/1/11 whereby he was nominated as the candidate of the Appellant.
He maintained that the Affidavit evidence of the Litigation Officer in the Office of the National Legal Adviser to the Appellant, Chief Olusola Oke, lacks evidential value as the said Chief never informed him that he (the Chief) was a member of the Panel or had something to do with the Panel or played any role in making the 2nd Respondent aware of the Petition made against 2nd Respondent. The evidence, he therefore contended, was hearsay as paragraph 7 thereof left holes on the important issue as to who gave Exhibit C to the Plaintiff/2nd Respondent, when, where and how and so on the said Exhibit C and even Exhibit D were served on the 2nd Respondent so as to come to the groundless conclusion by the Appellant and 1st Respondent that 2nd Respondent was given ample opportunity to present his case in the face of the 2nd Respondent’s Further And Better Affidavit: Abana V. Obi (2004) 9 NWLR (pt.877) 1 at 19 Per Dongban-Mensem, JCA at paras. C – D; on depositions in an affidavit which leave yawning gaps on the facts referred.
Furthermore, the cases of Nyuma & AOR (2008) ALL FWLR (pt. 439) at 592 paras. A-F; Ugbane V. Hussain (2009) 5 NWLR (pt. 1135) at 544 paras. E-G, Balogun V. Shonibare (1997) 3 NWLR 311 at 331 paras B-C and Okereaffia V. Agwu (2008) 12 NWLR (pt. 1100) 165 at 191; were relied upon in submitting that there is nothing on Exhibits D & C indicating that they were endorsed by the Panel to or served on the Plaintiff/2nd Respondent and he refused to sign; also no Attendance list is reflected in Exhibit D nor was the time and place(s) of the meeting(s) indicated nor any further particulars as claimed by the said Exhibit that several meetings were held, are contained in the said Exhibit D (the Report of the Appeal panel).
He also insisted that there are conflicts in Itodo Esq’s Counter-Affidavit against the 2nd Respondent’s Motion for interlocutory injunction sworn on 3/3/11 and his Further And Better Affidavit as to the source of his information and also that Exhibit PDP1 attached to the said Mr. Itodo’s Affidavit is also in conflict with the averments of the 1st Respondent’s Counter-Affidavit as to which Organ heard the Appeal of the 1st Respondent and decided to annul the nomination of the 2nd Respondent herein. In the circumstances, he contended that there is a question mark as to which version of Mr. Itodo’s averments is to be believed.
As for the Counter-Affidavit of the 1st Respondent the Senior Counsel for the Appellant also picked holes on his averments as not having stated when the Appeal panel received the 1st Respondent’s complaint in view of the provisions of paragraph (Article) 27 (ix) of Appellant’s Guidelines for Primary Elections which stipulated the time frame for the reception of such complaint, as against the deposition in the 2nd Respondent’s Further And Better Affidavit that the National Appeal Panel received only one complaint and sat only for that complaint and departed Taraba State on 11/1/2011 having heard the only complaint of Dr. Anthony Manzo.
Secondly, the Respondent did not show that his petition was copied by him or anybody else to the 2nd Respondent to apprise him of the pendency of same nor was/is there averment that the National Electoral Appeal Panel invited and gave notice of its alleged sitting to the Plaintiff, he observed. Again, there is no indication as to how the Plaintiff/2nd Respondent was heard and the soft of questions put to him and his answers, maintaining also that the contradiction in the content of the Panel’s Report as to why other candidates did not perform well as against the contention of the 1st Respondent that the 2nd Respondent participated in the rerun election and lost which conflicts go to show that the Appellant/1st Respondent would stop at nothing to hoodwink the court but happily they failed.
Finally, Learned Counsel submitted that the Appellant and 1st Respondent have not denied that the State Chairman wrote to the Commissioner of Police Taraba State on the smooth conduct of the primary of 6/1/11 and that the name of the 2nd Respondent was displayed at the state office of the 1st Defendant/Appellant as its candidate at the General Election. He also pointed out that the rerun was contrary to the Guidelines and Electoral Act, 2010, same having not been monitored by INEC because the 3rd Respondent was not served with the Statutory Notice as was done in the Primary Election of 6th June, 2011.
On the submission by the Appellant and 1st Respondent that the Report is different from the proceedings of the Panel, Learned Counsel for the 2nd Respondent relying on Section 149 of the Evidence Act; countered that if such proceedings had existed the Appellant or 1st Respondent ought to have tendered same. We were finally urged to dismiss the Appeal and affirm the Judgment of the lower Court.
RESOLUTION OF ISSUES
Having taken the time to reproduce the arguments of learned Counsel on the Issues formulated by them, I am of the candid view that the two Issues raised by the Learned Counsel O. E. B. Offiong, Esq, SAN; in the 2nd Respondent’s Brief are most appropriate and flow from the Grounds of Appeal as filed by the Appellant and I shall determine this Appeal upon those ISSUES.
ISSUE NUMBER ONE (1)
“WHETHER THE JUDGMENT OF THE COURT BELOW GRANTING ALL THE RELIEFS SOUGHT BY THE PLAINTIFF/2ND RESPONDENT IN HIS ORIGINATING SUMMONS WAS PREDICATED ON AN ISSUE NOT RAISED FOR DETERMINATION IN THE ORIGINATING SUMMONS?
In attempting to answer this question, it is only necessary to resort to the Questions submitted for determination in the Originating Summons as contained in pages 4 and 5, and the Reliefs sought at pages 6 and 7 of the Record of Proceedings and for the purpose of this particular Appeal and Issue, Question 5 is very relevant. It states unequivocally:
“5. Can the 1st defendant validly ignore, disregard, cancel or annul the result of the said Special Congress Primary Election of the 1st Defendant held on the 6th January, 2011 wherein the plaintiff scored the highest number of votes cast when the Plaintiff
i. is not dead; and,
ii. has not withdrawn his candidature; and
iii. was not given any hearing on the decision (if any) to ignore cancel disregard or annul the result of the Primary Election aforesaid,
Contrary to Article 31, 32, 33 and 50 of the Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party and section 87 of the Electoral Act 2010 (as amended) and section 36 of the Constitution of the Federal Republic of Nigeria 1999?
As for the Reliefs sought, I make bold to reproduce them hereunder as follows:
RELIEFS FROM THE HONOURABLE COURT:
“1. A declaration that the plaintiff is entitled to have his name submitted and he deemed to have been presented by the 1st Defendant to the 3rd Defendant as the candidate of the 1st Defendant to represent Gashaka, Kurmi and Sardauna Federal Constituency of the National Assembly of the Federal Republic of Nigeria at the general elections to be held in April, 2011.
“2. A declaration that the submission of the name of the 2nd defendant by the 1st defendant to the 3rd defendant as the candidate of the 1st defendant to represent Gashaka Kurmi and Sardauna Federal Constituency of the National Assembly of the Federal Republic of Nigeria at the general elections to be held in April, 2011 is a violation of the Electoral Act 2010 as amended and the rules made by the 1st Defendant for primaries and Electoral Guidelines for Primary Elections 2010 of the Peoples Democratic Party and therefore illegal, null and void and of no effect.
“3. A declaration that 1st defendant cannot ignore or refuse to recognise the result of the Special Congress Primary Election of the 1st defendant held on the 6th of January, 2011 to select or nominate candidates contained in Form PD004/NA/2010.
“4. An Order of this Honourable Court directing the 3rd defendant to recognise the Plaintiff as the candidate of the 1st defendant for election into Gashaka, Kurmi and Sardauna Federal Constituency of the National Assembly of the Federal Republic of Nigeria to represent Gashaka, Kurmi and Sarduana Federal Constituency in the election to be held in April 2011.
“5. An Order restraining the 2nd defendant from parading himself as the candidate of the defendant for the election into Gashaka Kurmi and Sardauna Federal Republic of Nigeria to represent the Constituency in the election to be held in April, 2011.
“6. An Order restraining 1st and 3rd defendants from recognising or treating the 2nd defendant as the candidate of the 1st defendant for election into the Gashaka Kurmi and Sardauna Federal Constituency of the National Assembly of the Federal Republic of Nigeria to represent the Constituency in the election to be held in April, 2011.
“7. And for such further Order(s) as the Honourable Court may deem fit to make in the circumstances of this case.
From the above quoted Question for determination, the Reliefs sought and even upon the submissions of learned Counsel for the Appellant in paragraphs 4.6 and 4.7 of the Appellant’s Brief, where it was conceded that the 2nd Respondent did not appeal against the non-consideration of the other issues posed for determination in the Originating Summons; that this Appeal should be determined solely on the question whether from the state of the evidence the learned trial Judge was justified to hold that the 2nd Respondent was not given fair hearing; and whether the Court below rightly granted all the reliefs on the erroneous finding, the learned Counsel for the Appellant was merely begging the answer that fair hearing was the most fundamental, crucial and ultimate issue to the determination of the Originating Summons and the Reliefs sought therein by the 2nd Respondent in the lower Court. The learned Counsel for the Appellant cannot therefore be heard to contend as he has done that none of the five questions formulated for determination seriously raised for consideration of the Court the question of fair hearing upon which the trial Court granted the six reliefs sought in the Originating Summons or that none of the Reliefs prayed the Court to nullify the result of the rerun primary on lack of fair hearing.
To debunk the erroneous if not mischievous contention of the learned Counsel for the Appellant, a look at page 584 of the Records would reveal that the learned Senior Counsel for the 2nd Respondent in formulating the issues for determination adopted Question 5 to the Originating Summons as the crucial and first Issue. In paragraph 3.00 of that page, the learned Senior Counsel for the 2nd Respondent submitted that by reason of the questions raised by the 1st and 2nd Defendants (now Appellant and 1st Respondent) in their respective Counter-Affidavits an answer to Question 5 of the Originating Summons was sine qua non to answering Questions 1 and 2 posed in the Originating Summons. The rationale in so doing was according to him, the assertion by the 1st & 2nd Defendants then, that they cancelled the result of the Special Congress Primary Election which returned the Plaintiff as the person with the highest votes cast at that Primary Election. The learned Senior Counsel then craved the indulgence of the Court for the said Question 5 to be first addressed following which other Questions (1, 2, 3 and 4) were to be answered together and to thereafter address on the Reliefs sought.
In paragraph 4.02 of the Plaintiff/2nd Respondent’s Written Address, still on page 584 of the Records, the learned Senior Counsel after reproducing the said Question 5 in paragraph 4.01 posited inter alia:
“It is respectively submitted that by reason of the Counter-Affidavits of the 1st and 2nd Defendants in opposition to the Originating Summons the issues between the parties on Question 5 has been narrowed down to whether there was a ‘hearing known to Law’ upon which the 1st Defendant could validly cancel the Special Primary Election it conducted on the 6th January, 2011 which returned the Plaintiff as the candidate that Scored the highest vote”.
At page 670 of the Records paragraphs 5.0, 5.1, 5.2, and 6.0 of the 1st Defendant/Appellant’s composite Written Address the following appear:
“We agree with the submission of the Plaintiff that the questions posed for determination in the Originating Summons correspond to the issue for determination.
“We shall also treat the issues in the Order they have been treated by the Plaintiff, Thus while question 5 would be treated first, question 1 would follow and then question 2, 3 and 4 would be taken together.”
The learned Counsel for the 1st Defendant (now Appellant), then went on to reproduce Question 5 of the Originating Summons as couched in the originating process and by the learned Senior Counsel for the Plaintiff/2nd Respondent. In addition to adopting the issue of fair hearing as formulated by the learned Senior Counsel for the Plaintiff/2nd Respondent, the learned Counsel for the Appellant apart from reproducing the paragraphs of the Counter-Affidavit of the Appellant and 1st Respondent where they purported that the Plaintiff/2nd Respondent was afforded ample opportunity to be heard, copiously argued in paragraphs 6.11-6.16 of the 1st Defendant/Appellant’s Composite Written Address at page 677 of the Records that:
1. The Plaintiff/2nd Respondent was given all reasonable opportunities to be heard.
2. It is trite law that hearing a party in a dispute by a Panel of the type in this case could be oral or written and the hearing and decision need not be formal.
3. The Affidavit evidence of the 1st Defendant in the case is to the effect that the Plaintiff was afforded the opportunity to be heard and Plaintiff met the Appeal Panel but instead of proffering a defence threatened to institute legal action if they tampered with his victory.
4. Even paragraph 50(e) of the Appellant’s Guidelines for Primary Elections which specifies that aspirants shall be informed in writing within 48 hours of the determination of a dispute also gives allowance as to circumstances of each case.
5. In this case 1st Defendant/Appellant deposed in the Further And Better Counter-Affidavit that though the Plaintiff/2nd Respondent was given a copy of the Appeal Report, he refused to sign for it.
6. Even if the Plaintiff/2nd Respondent was not served a copy of the Report, this has not occasioned any in Justice on the 2nd Respondent/plaintiff. The Court below was then urged to hold that in the circumstances of this case the 1st Defendant/Appellant was entitled to cancel the result of the primary election held on 6th January, 2011.
From the above contentions of the Appellant, he or Learned Counsel on his behalf cannot be heard to complain and chastise the Court below that none of the five questions formulated for determination seriously raised the issue of fair hearing upon which the trial Court granted the six Reliefs sought. I think with due respect that, it is not only mischievous but dishonest for the Appellant or his Counsel to so contend in the face of all that is contained in the Record of proceedings. The Appellant cannot approbate and reprobate at the same time. The trial Court in my considered view rightly held at page 738 of the Records and parties had joined issues that the crucial issue or question for determination is whether the plaintiff was heard by the Electoral Appeal Panel before his election/nomination as candidate of the Appellant was cancelled and a rerun election conducted by the Appellant which threw up the 1st Respondent in the stead of the 2nd Respondent.
As for the Reliefs sought which are very clear, Section 87(4)(c)(ii) of the Electoral Act 2010 (as amended) mandatorily provides that a winner of the party’s primary with the highest votes cast shall have his name sent to the 3rd Respondent as the candidate of the party. No reasonable excuse was given why the 2nd Respondent’s name was not sent to INEC as mandated by the Electoral Act, Again assuming that there was a petition from the 1st Respondent, by the inimitable natural Law doctrine of Audi alteram partem as encapsulated and consecrated in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 nay Article 50(e) of the Guidelines of the Appellant for Primary Elections; in order to deprive the 2nd Respondent of his vested right to contest the General Election into the House of Representatives for the Gashaka/Kurmi/Sardauna Federal Constituency, the Appeal Panel ought to have given the 2nd Respondent a hearing before cancelling his nomination and going ahead to conduct a rerun which threw up the 1st Respondent. Inakoju V. Adeleke (Ladoja’s case) (2007) 1 CCLR (S. C.)
240 at 361 – 362; Magaji V. Nigerian Army (2008) 8 NWLR (pt. 1089) 338 at 371 paras. E- H and Newswatch Communications Ltd. V. Atta (2006) 11 ALL NLR (pt. 1) 211 at 224; all refer. See further Per Oputa, J.S.C in Ejike V. Nwankwoala & ors (1984) 12 S.C. 301 at 341-342; who, in answering the question as to what the right to fair hearing entails, explained inter alia thus:-
“First and foremost, it implies (at least in civil cases) that both sides be given an opportunity to present their respective cases. It implies that each side is entitled to know what case is being made against it and be given the opportunity to reply thereto….
Fair hearing also imposes some obligations on the tribunal itself that the Judge should not have any personal interest in the case before him. He should be impartial and act without bias. “He should not hear evidence or receive representation from one side behind the back of the other.”
See also Paul Unongo V. Aper Aku & Ors (1983) 11 S.C. 129 at 179; Adigun V. A. G. Oyo State (1987) 1 NWLR (pt. 53) 678 at 721 and Garba V. University of Maiduguri (1986) 1 NWLR (pt. 18) 550 at 577-598; Per Eso, JSC (now of blessed memory).Where upon consideration of the totality of the evidence which was predominantly documentary, the learned trial Judge discovered and came to the inevitable conclusion that there was nothing in Exhibits C and D which are the fulcrum of the Appellant/1st Respondent’s case herein and in the Court below, that
the 2nd Respondent was never apprised of the 1st Respondent’s Petition, the sittings of the Appeal Panel and the Report thereof, and where the so-called rerun was conducted without the supervision of the 3rd Respondent, the learned trial Judge was right in declaring the entire conduct of the Appeal Panel and the rerun election as illegal, even unconstitutional, null and void.
On the complaint of the Appellant that the Plaintiff/Respondent did not seek for cancellation or nullification of the Re-run Election as granted him by the Lower Court; I am of the firm view that, where the learned trial Judge rightly found out that the right of the Plaintiff/2nd Respondent to fair hearing was violated before the cancellation of his victory at the Party Primary; every Relief sought by the 2nd Respondent in the Originating Summons succeeded and the consequence of the illegal and unconstitutional acts of the Appeal Panel and the Appellant’s Rerun Election Panel was that the 2nd Respondent’s victory at the 6th January 2011 Primary conducted by the Appellant and his eventual nomination thereat, was still subsisting as if the intervening events had never occurred.
I derive considerable inspiration from the Supreme Court decisions in Iderima V. Rivers State Civil Service Commission (2005) ALL FWLR (pt. 285) 431 which followed Hart V. Military Governor of Rivers State (1976) NSCC (vol.10) 22, Shita-Bey V. The Federal Public Service Commission (1981) 1 S. C. 26 at 35 – 36 and Nnoli V. UNTH Management Board (1994) 13 KLR (pt. 25) 1613 paras. 13 – 35 Per Onu, JSC; who held that the effect of premature retirement of a Public Servant from service in breach of the statutory provisions governing her employment and the declaration by the Court that her termination was a nullity consequently meant that the employee was still entitled to return to his duty post. In the above cited case, where the Reliefs sought were in pari materia with those in the present Appeal, Uwaifo, JCA (as he then was); who delivered the lead Judgment at the Court of Appeal from where the Appeal proceeded to the Supreme Court; received rousing accolades from his Senior colleagues of the Apex Court for having admirably and succinctly put the position of the law beyond peradventure inter alia:-
“A look at the reliefs sought by the plaintiff reveals that they are for declarations that the retirement was invalid, that she was entitled to continue in her employment and also for an order setting aside the letter of retirement and restoring her rights and benefits in the course of continuing in her employment. Once the retirement was declared null and void, that is to say that the decision retiring her from the services of UNTH was declared to be no decision.
It is as if she was never retired from her services. The Plaintiff’s contract of employment was in these circumstances of this case unilaterally repudiated by Defendants. She refused to accept repudiation in the prompt manner she wrote to the Defendants to this effect. There is nothing standing on her way to have her job or office back with all the attendant right privileges and benefits. In other words, she is entitled to be restored to her status quo ante.”
Borrowing from the dicta of their Lordships above quoted, I hold that the learned trial Judge did not commit any error in law when he granted all the Reliefs sought by the Plaintiff/2nd Respondent and was right to have based the grant on the issue of fair hearing which was adopted by the learned Counsel for the Appellant and 2nd Respondent from Question Number 5 of the Originating Summons. Issue Number one (1) is there for resolved against the Appellant.
ISSUE NUMBER TWO (2)
“WHETHER THE JUDGMENT OF THE TRIAL JUDGE IS NOT JUSTIFIED HAVING REGARDS TO THE WEIGHT OF EVIDENCE?”
In the resolution of this Issue I must agree with the learned Counsel for the Appellant’s submission that when a party asserts and the other denies the assertion, the burden is on the party who will lose the case if no evidence is adduced to substantiate his assertion especially so when declaratory Reliefs are sought for, as in this case. See Bello V. Eweka (1931) 1 S.C. 101 and Onu V. Agu (1996) 5 NWLR (pt. 451) 652 at 662 – 663. The provisions of Section 131(1) (2), 132, 133(1) (2), 134 and 136(1) and (2) of the Evidence Act, 2011, are very clear. First of all Section 131(1) provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, shall prove that those facts exist. By Subsection (2) thereof, when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Under section 132, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 133 (1) further provides that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
As for section 133 (2), if the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
Section 134 which provides for the standard of proof stipulates that the burden of proof shall be discharged on the balance of probabilities in all civil proceedings. Finally, and considering the fact that the learned Counsel for the Appellant and 1st Respondent have contended on the authorities of Obayan v. UNILORIN (2005) 15 NWLR (pt. 947) 123 at 140; Adeleke V. Balogun (2000) 4 NWLR (pt. 651) 113 at 124 and Section 135 of the Evidence Act; that the Court below erred in law by shifting the burden of proof to the Appellant and 1st Respondent rather than the 2nd Respondent, Section 136 (1) and (2) of the Evidence Act 2011 are unequivocal that:
“(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other”; and that:
(2) “In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which maybe possessed by the parties respectively”.
In Archibong v. Ita (2004) H – B; Orji v. D. T. M. (Nig) Ltd (2009) 18 NWLR (pt. 1173) 467 at 490 paras B-E; Nwavu V. Okoye (2008) 18 NWLR (pt. 1118) 30 at 56 paras. C-D; Buhari V. INEC (2008) 19 NWLR (pt. 1120) 246 at 369 paras B-F; the Learned Judicial Oracle Niki Tobi, JSC; had cause to pronounce on these Sections of the old Evidence Act which were in pari materia with the current Sections of the Act as reproduced above. For instance in Ita’s case, while commenting on Section 137(1) which is equivalent to Section 133(1) of the current Evidence Ad, the erudite Law Lord held thus: – “In most cases, the burden of proof lies with or rests with Plaintiff because he is the person who is making the claim. As a matter of law, the Plaintiff has the onus of proving the case and where he fails to get the appropriate findings relevant to the reliefs he had sought, he must fail”.
The emeritus Law Lord in so holding drew inspiration from the dictum of Lord Maugham in the English case of Constantine Line V. Imperial Smelting Corporation (1942) A. C. 154; and further explained that section 137(1) appears to be an enactment of the common law Rule of qui affirmat non ei gui negat probatio which is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. He also quoted from the view expressed by the learned Justice writer Phipson, who justified this rationale of the law of evidence by positing that the rule is adopted because it is only just that he who invokes the hand of the law should be the first to prove his case on the ground partly that in the nature of things a negative is more difficult to establish than an affirmative.
It should be noted that by the provision of Section 133(2) and 136 (2) of the Evidence Act, 2011, the burden of proof is not static but oscillates or preponderates forth and back until all the issues in the pleadings have been settled or dealt with. See further Onwuka v. Ediala (1989) 1 NWLR (pt. 96) 182; Olaiya V. Olaiya (2002) 12 NWLR (pt. 782) 652; Agu V. Nnadi (2002) 12 NWLR (114) 172 Orji V. D. T. M. (Nig) Ltd (supra) and Nwavu V. Okoye (supra).
Going by the authorities and the provisions of the Evidence Act above cited in the case at hand, the burden of first proving the assertion that he was not given a hearing by the Appeal Panel of the Appellant before his nomination was cancelled and rerun election which substituted him with the 1st Respondent as the candidate of the Appellant, lay on the Plaintiff/2nd Respondent since he was the one who sought for the judgment of the Court for the restoration of his legal right which was allegedly violated by the Appellant and the 1st Respondent. In so doing, and more especially as he sought for declaratory Reliefs; such Reliefs could only inure in his favour on the strength of his case and not on the weakness of the 1st Respondent and Appellant’s cases. (See Section 131 of the Evidence Act and the recent cases of Womiloju V. Anibire (2010) ALL FWLR (pt. 529) 1002; Sunday Ezejesi V. Nkechukwu Ezejesi (2010) ALL FWLR (pt. 517 647 at 673 and Odikanwa V. Iheanacho (2010) ALL FWLR (pt. 549) 1179.
The learned Counsel for the Appellant erected his platform of displeasure with the judgment of the lower Court on his contention that whereas the 2nd Respondent deposed in paragraph 22 of his Affidavit in support of the Originating Summons that he was not heard, the Appellant reacted to the above assertion in her Counter-Affidavit particularly paragraphs 7(i) – (vi) that the Plaintiff/2nd Respondent was given every opportunity to be so heard and was furnished with a copy of Exhibit C (the 1st Respondent’s Petition) but 2nd Respondent refused to sign same; that his reaction was that of outright dismissal of the allegations therein; that he threatened to institute a legal action against the 1st Defendant if the Petition (Exhibit C) was considered by the Appeal Panel and Appellant; that he (2nd Respondent) had ample opportunity to present his case; that a copy of the Panel Report (Exhibit D) was served on the 2nd Respondent but he in deep anger refused to acknowledge receipt and that at all material times the 2nd Respondent was aware of the existence of Exhibits C and D.
It is the further grouse of the Appellant that the Plaintiff/2nd Respondent did not deny the averments in the Appellant’s Counter-Affidavit and those facts were therefore deemed admitted on the authority of Ejikeme V. Ibekwe (1997) 7 NWLR (pt.514) 592 at 598; but that contrary to settled principles, the learned trial Judge failed to take cognizance of the Appellant’s deposition nor did he evaluate or weigh the evidence of the Appellant on the imaginary scale of Justice as laid down in Mogaji v. Odofin (1978) 4 S. C. 59 at 95.
There is no gain saying that in the celebrated case of Mogaji V. Odofin & Anor (1978) 4 S.C. 91 at 94 Per Fatayi -Williams JSC; had stated the position of the law on the duty of trial Courts in the excerpts of his dictum that was quoted at page 10 paragraph 4.15 of the Appellant’s Brief. But it suffices to say that in the case above cited His Lordship of blessed memory had in explaining this principle of Law as laid down earlier in the Supreme Court case of Aromire V. Awoyemi (1972) 1 ALL NLR lot stated thus:-
“…before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties in the imaginary scale he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them.”
Eso JSC (now of blessed memory) had re-echoed the above dictum of his learned brother also of blessed memory when he intoned in the case of Bello v. Eweka (1981) 1 SC 101 at 118 – 120 thus: “In short a trial Judge in a civil case before him sets out the issues joined by the parties in the pleadings, assembles the evidence adduced by weighing that evidence in the imaginary scale and finds out which evidence outweighs the Order, by the quality of the probative value of the testimony of the witnesses and the documents.”In line with the dicta of their Lordships in the authorities above cited and considering the fact that the contention of the Appellant in Ground 2 of her Grounds of Appeal is that the Judgment of the lower Court is against the weight of evidence, the Appellant postulates that there is no evidence upon which even if believed or accepted, the findings of the trial Judge can be supported. Secondly, by that Ground of Appeal the Appellant is also contending that the Court below erred factually in the evaluation process by giving more weight to the evidence of the 2nd Respondent against that of the Appellant and 1st Respondent when placed side by side on the imaginary scale of Justice; and thirdly that the Court below did not draw the proper inferences from proved facts. See Lion Buildings Ltd. V. M. M. Shadipe (1976) 12 S. C. 135 at 152 – 153, Irmuya Ijahenda V. Ijigil Iyau (1999) 10 NWLR (pt. 628) 686 at 689 paras. D – E; Sparkling Breweries Ltd. V. UBN Ltd (2001) 15 NWLR (pt 737) 539 at 562; Nta V. Anigbo (1972) 5 S.C. 156; Nta V. The State (1938) 1 NWLR (pt. 68) 1 and Ogboda V. Adelugba (1971) 1 ALL NLR 68, cited by learned senior counsel for 2nd Respondent.
Against the above background, it is trite law as settled in Woluchem V. Gudi (1981) 5 S. C. 291 and other judicial authorities too numerous to mention that it is the prerogative of the trial Judge who had the singular opportunity of watching the demeanour and hearing the evidence from witnesses that is in a proper position to evaluate the evidence and make proper findings of facts. Thus, a Court of Appeal must be wary in interfering with the findings of facts properly made by a Court of trial as such issues of facts and evaluation of evidence particularly on credibility of witnesses is within its exclusive preserve. See Odofin V. Ayoola (1984) 11 S.C. 72 at 86 – 87 per Obaseki, JSC; Udofia V. State (1984) 12 S.C. 139 at 176 -177; Ebba V. Ogodo (1984) 4 SC 84 at 98 – 99 Per Eso JSC and Ojukwu V. Onwudiwe (1984) 2 SC 15 at 83; Omoregie V. Idugiemwanye (1985) 2 NWLR (pt. 5) at 56 and Ogbechie V. Onochie (1986) 2 NWLR (pt. 23) 484 at 493. It is only where he has erred in the evaluation process or arrived at perverse findings that an Appellate Court like ours can intervene.In this case, both learned Counsel for the respective parties have called on us to re-evaluate the evidence in order to find out whether the learned trial Judge arrived at the proper decision as to whether the 2nd Respondent’s election and nomination was cancelled without giving him a fair hearing since the case was fought purely or affidavit and documentary evidence. However, I hasten to state without mincing words that I have taken a cursory look at the entire judgment of the learned trial Judge and am of the considered view that the learned trial Judge apart from stating the salient facts of this case as contested by the respective parties, carried out a discreet and dispassionate evaluation of the evidence and documentary Exhibits satisfactorily at pages 10, 11, 12, 13, 14, 15 of the Judgment and rightly found at page 15 after reproducing the findings of the Appeal Panel in Exhibit D; that there is nothing on the face of the said Exhibit D to show that he was given a hearing before the cancellation of his victory at the 6th January, 2011 Primary Election of the Appellant. See page 740 lines 17 – 23 and page 741 lines 1 – 3 and 4 – 25 of the Record of Appeal.
Furthermore, I had copiously done the re-evaluation of the evidence of the parties as deposed to in their respective Affidavits and Counter-Affidavits in Appeal Number CA/YL/30/2011 including the avalanche of documentary Exhibits annexed thereto and adopt my position on Issues 3 and 4 in the above judgment to hold once again that the learned trial Judge was right in coming to the unassailable, inevitable and irresistible conclusion that there is nothing in Exhibit D, the proceedings, findings and Ruling of the Electoral Appeal Panel to show that the Plaintiff/2nd Respondent was heard before the Panel cancelled the 2nd Respondent’s primary Election Victory and proceeded to hold a rerun which was fraught with illegality as the 3rd Respondent was not given the mandatory 21 days in accordance with sections 85 and 86 of the Electoral Act, 2010, to enable it monitor the rerun Election be it a continuation of the first election of 6th January, 2011 or any other election.
I reiterate once again in tandem with the findings of the learned trial Judge that there is no amount of deposition in an affidavit whether denied or not that can take the place of documentary Exhibits like Exhibit C and D which in any case have no indication whatsoever that the 2nd Respondent was apprised of the petition, the sitting of the Panel and the Report of the said Appeal Panel which contain no evidence of service or hearing of the Respondent.
I have already pronounced in Appeal No. CA/YL/30/2011 on the contention by the Appellant and 1st Respondent that the Court misinterpreted Exhibit D for the Record of proceedings of the Panel and held that the Appellant and 1st Respondent had all the time in the world to tender the said proceedings if it ever existed. I agree with Offiong, Esq. (SAN), that such Record of Proceedings is presumed not to have existed and is indeed a figment of the imaginations of the Appellant and 1st Respondent by virtue of section 167 of Evidence Act 2011. Before rounding up, there is this laughable submission by the learned Counsel for the Appellant that Exhibits C and D were tendered to show that there was a decision cancelling the Election of 7th January, 2011 and not on the issue of fair hearing. A look at the paragraphs 17 to 19 of the 1st Respondent’s Counter- Affidavit which were relied upon in so submitting, would reveal the following averments:
17. That I protested against the conduct of the election to the National Assembly Electoral Appeal Panel established by the 1st Defendant vides my letter dated 7th January 2011, same is attached as Exhibit “C”.
18. That the National Assembly Electoral Appeal Panel agreed with my petition and nullified the election and ordered a re-run. The finding is attached as Exhibit “D”.
19. That the National Working Committee of the 1st Defendant accepted the decision above and ordered a re-run which was published to the whole world both in the electronic and print media, including the notice board of 1st Defendant. One of the newspaper cuttings evidencing same is attached as Exhibit “E” and the extract of the meeting of the NWC also evidencing same is attached as Exhibit “F”.
We had already decided in Appeal No. CA/YL/30/2011 and reiterate herein as rightly found by the learned trial Judge that there is no indication either on Exhibit C or D that the 2nd Respondent was ever furnished with a copy of the petition or was seised of the proceedings of the Report in Exhibit D. If anything, on the face of Exhibit C there is an endorsement by the committee that the petition was received by them on the 8th January, 2011 but there is no endorsement of receipt of that petition by the 2nd Respondent so is Exhibit D which was endorsed by Gabriel Fadeware but not the 2nd Respondent, as having been received on the 17th January, 2011. Furthermore, even from the content of Exhibit D, it is clear at page 350 of the Record that the committee merely made inquires (if at all) and did not conduct any hearing as provided by Article 50(e) of the Appellant’s Guidelines for the Primary Elections 2010 and section 36 of the Constitution of the Federal Republic of Nigeria.
As for Exhibit E the publication in the ‘Tribune Newspaper’ of 28th January, 2011 (just a day before the rerun), we had also earlier held that it is fatal to the case of the Appellant since the rerun was conducted in breach of Sections 85 and 86 of the Electoral Act as INEC was not given the statutory 21 days’ notice to enable it monitor the said rerun election. Again, by INEC Guidelines/Time Table for the General Elections, all primary elections were supposed to have been concluded by the 15th of January, 2011. Therefore, the so called rerun election conducted on the 29th of January, 2011 in patent violation of the Electoral Act was not only orphaned on grounds of illegality but was unconstitutional, null and void and of no utilitarian value whatsoever. As for Exhibit F, we have searched through the entire gamut of the Record of Appeal and there is no where that the said Exhibit is annexed to the 1st Respondent’s Counter Affidavit or Further And Better and Supplementary Counter-Affidavit of the Appellant and 1st Respondent.
However, upon a careful search further, we found at page 302 of the Record of Appeal, Exhibit PDP1 annexed to the 1st Defendant/Appellant’s Counter Affidavit to the Plaintiff’s 2nd Respondent’s motion for interlocutory injunction sworn to by Paul Itodo, Esq. the Litigation Officer in the office of the National Legal Adviser of the Peoples Democratic Party. That Exhibit dated 31st January, 2011 is the Extract of the Minutes of the National Working Committee Meeting of 30th January, 2011 which ratified the rerun election in Gashaka/Kurmi/Sardauna Federal Constituency with Hon. Babangida Nguroje declared winner. One interesting aspect of that Extract is the remark in page one (1) paragraph two (2) thereof that: “The National Secretary Reported that while rerun election actually held in some of the Constituencies, the same would not be said of others where the exercise could not hold due largely to insecurity, disappearance of the panels or desertion of the venue by the delegates in protests that they stood by the results of the earlier primaries.”
That the above scenario characterised even the so called rerun conducted in Taraba State is buttressed by Exhibit A1 attached to the 2nd Defendant/1st Respondent’s Counter Affidavit to the motion on notice filed by the 2nd Respondent in the lower Court as well as Exhibit G to his Counter affidavit to the Originating Summons. Whereas in Exhibit E the Result Sheet of the primaries conducted on 6th January 2011 issued in favour of the 2nd Respondent (see page 155 of the Records), 708 delegates were accredited and 688 voted with the 2nd Respondent scoring the majority votes of 315 as against the 1st Respondent’s 266 votes; in the so called rerun only 236 delegates were accredited with 234 delegates all voting in favour of the 1st Respondent, while the 2nd Respondent who purportedly partook in the said rerun and his other co-aspirants scored 0 (zero) votes each.
In paragraph 28 of the 1st Respondent’s counter affidavit against the originating summons the 1st Respondent however deposed to the facts that the 2nd Respondent is not entitled to the reliefs sought in the originating summons because he was aware of the rerun but refused to participate insisting that his name and/or documents for the candidature of the Constituency be given him and his name submitted to the 3rd Defendant without meeting the condition for sponsorship by the Appellant for the General Election. To buttress the fact that there was no such rerun or that the entire process of depriving the second Respondent of his mandate was mired in confusion and chicanery, Exhibit A1 (The Report of the Electoral Panel on Kurmi/Gashaka and Sarduana Federal Constituency of Taraba State dated 30th January, 2011) annexed to the 1st Respondent’s Counter Affidavit catalogued the massive protests by the people against the rerun (see page 384 paragraphs 3 and 4 of the Records) where the following appear:
“On Sunday we left our Hotel rooms to the Stadium where the election was scheduled to hold. However, a few metres to the stadium, we saw protesters and people burning tyres and we were again advised to return back by the party leaders to the government guesthouse very close to the stadium. After consulting with leaders, an open place was agreed upon where the delegates were moved to and the election was held with the following result after due accreditation for delegates. In all 236 delegates showed up and they voted as tabulated below….” At page 385 paragraphs 2 and 3 the Report continued: “In all 236 delegates were accredited with 234 votes in favour of Hon. Babangida Nguroje who is a serving member of the House of Representatives. Nonetheless, our inquiry into why other candidates could not pull any votes we were informed by the State Chairman that the candidate who won the cancelled election had officially written to him of his withdrawal from the race and the others have decided to work with Hon. Babagida S. M. Nguroje.”
It would be recalled that the letter said to have been written by the 2nd Respondent withdrawing his candidature has not been tendered and in none of all these documents tendered by the Appellant and 1st Respondent has it been stated that the 2nd Respondent was given a hearing before the cancellation of his nomination. Again the same Chairman of the Party who had earlier written to the Commissioner of the Police Taraba State confirming the peaceful nature of the Primary of 6th January, 2011 and who the Appellant and 1st Respondent claimed and dismissed as having no role to play in primary election, is now being relied upon to deprive the 2nd Respondent of his vested right to contest the election into the Constituency in question. What a grand hypocritical and conspiratorial design against the 2nd Respondent!!
On the contention by the Appellant that the documents (Exhibits C and D) were tendered not on the issue of fair hearing but in proof of the fact that the Election of 7th? (6th January, 2011) was cancelled, nothing can be further from the truth as the Appellant and 1st Respondent cannot run away from the fact that the cancellation of the 2nd Respondent’s election and nomination of 6th January, 2011, as well as the purported rerun were anchored on those two (2) documents and the submission of the Appellant and 1st Respondent are very clear in this respect. However, it is trite law that where documentary evidence is properly admitted and supports the decision of a lower Court upon the inference drawn from such a document, as in this case, an Appellate Court will seldom tamper with such a decision since evaluation of evidence by a trial Court is a matter of style and the Court below is not bound to leave up to the expectation of any of the parties but perhaps to the expectation of the Appellate Court or the Supreme Court or the law, see Hon. (Dr.) Yusuf Datti at Baba – Ahmed & Anor v. Jubril Adamu & Anor (2009) ALL FWLR (pt 479) 1257 at 1270.I therefore hold the considered view that the findings of the Court below are not perverse but are borne out of a discreet evaluation of the totality of the affidavits and documentary evidence of the parties as tendered before it.
Still on the burden of proof, I had said earlier in suit No. CA/YL/30/2011; that a comparative analysis of Exhibit E the Result Sheet issued in favour of the 2nd Respondent (see page 155 of the Records) and Exhibit A3 the result sheet issued in favour the 1st Respondent at page 387 thereof, would reveal that the said Exhibit A3 (the 1st Respondent’s Result Sheet) is bereft of any particulars like names of Returning Officer, Electoral Officer, Number of Accredited Delegates and even the Signatures of the Returning Officer and Electoral Officer. More particularly the name of the 1st Respondent and other aspirants and his scores are not even reflected in that so called result sheet which in any case is undated. Again, rather than enter his name in the ‘INDEPENDENT ELECTORAL COMMISSION SUBMISSION OF NAMES OF CANDIDATES BY POLITICAL PARTY’ Form for House of Representatives candidates; the Appellant and 1st Respondent in a hurry to cook up documents to support their illegal acts rather filled the name of the 1st Respondent in the Senatorial Election candidates’ Form. See also, pages 357 and 358 of the Record of Proceedings in Appeal No CA/YL/39/2011 and Exhibits G2 and G3 to the 1st Respondent’s Counter-Affidavit dated 3/3/2011 against the 2nd Respondent’s Originating Summons.
In short, the document being paraded about by the 1st Respondent as conferring on him the right to the House of Representatives candidacy of the Appellant at the Election of April, 2011 for the Gashaka/Kurmi/Sardauna Federal Constituency is a blank sheet of paper with only the signatures of the then National Chairman, National Secretary and National Organising Secretary of the Party which may have been hurriedly concocted to hoodwink the Court. From the foregoing, I am therefore of the considered view that from the averments in the Affidavits and documents tendered by the 2nd Respondent, he had elicited cogent, credible and compelling evidence which when placed side by side with the averments of the Appellant and the 1st Respondent which averments contradicted most of the documents tendered (which documents on the face of them told lies); no Court of law worth its salt can rely on such incredible and make- belief evidence to dismiss the case of the 2nd Respondent.
I therefore hold that the 2nd Respondent had discharged the burden placed on him by sections 131(1) (2), 132, 133(1) (2), 134 and 136(1) of the Evidence Act, 2011 and shifted the burden to prove the contrary to the Appellant and 1st Respondent under Section 133(2) thereof, and in particular, the Appellant and 1st Respondent were under the burden to prove the fact that the 2nd Respondent was afforded fair hearing before his election and nomination of 6th January, 2011 was cancelled and a rerun ordered by the Appeal Panel of the Appellant which supplanted the 2nd Respondent with the 1st Respondent; but they failed to discharge that burden.
On a final note it is necessary to comment once more on the contention by the Appellant and 1st Respondent that the cancellation of election of the 2nd Respondent and conduct of the rerun was done by the National Working Committee (NWC) a superior organ of the Appellant which binds the 2nd Respondent absolutely since he is contesting election under the platform of the Appellant and by the doctrine of party supremacy, he ought to have submitted himself to the Appeal Panel instead of running to Court. I hasten to state that the cases of Uzuda v. Ebigeh (2009) 15 NWLR (pt. 163) 1 at 21 – 22 SC; Ehinlawo v. Oke (2008) 16 NWLR (pt. 1113) 357 at 410 paras. E – F being bandied by the Appellant and 1st Respondent and the unfortunate decision in Ozigbo v. PDP (2010) 9 NWLR (pt. 1200) 601 at 650 paras. E – F which is to the effect that: “since a person has freely given his consent to be bound by the rules and regulations of a political party’ he should be left alone to be governed by such rules and regulations. Once a person freely mortgaged his conscience to a situation, Courts of law should not interfere”; are not applicable to primary elections of political parties generally.
With the greatest respect to my learned brothers who decided the last case, their position is no longer tenable as even in the Ehinlawo’s case, the Supreme Court had decided that the Courts will only come in when the provisions of specific statutes are to be interpreted. By the provisions of sections 85, 86 and 87(a)(c)(ii), of the Electoral Act, the question of Parties Supremacy and their absolute powers to act arbitrarily in primary elections are now regulated by the statute above cited. Accordingly, the 2nd Respondent had locus standi to challenge the cancellation of his nomination and the conduct of a rerun election which were in violation of the Party Constitution and Guidelines for Primary Elections of the Appellant, the Electoral Act and even the Constitution of the Federal Republic of Nigeria 1999 (as amended), in a Court of law; without necessarily exhausting the domestic forum for the resolution of any dispute arising from Party Primary Election. Section 87(10) of the Electoral Act again, is very clear and unambiguous and it gives aspirants like the 2nd Respondent the option either to succumb to the machinations of antidemocratic party leaders or run to Court to seek redress against infringement of his vested right to contest the election, the irregularities or non compliance with the Guidelines and Constitution of the Appellant; the Electoral Act and the Constitution which regulate par1ry primaries. These statutory provisions had been made in order to stabilize and ensure internal democracy within the Appellant.
Finally, on this sub-issue, it is necessary to recall the dicta of Fabiyi, JSC; in Emenike V. PDP & Ors (2012) 12 NWLR (pt. 1315) at 556; Tobi, Oguntade and Muhammad, JJSC; in Ugwu V. Ararume (2007) 12 NWLR (pt. 1048) at pages 447 paras. C – E; 461 paras. C – D; 510 – 511 paras. H – F, and at the risk of repetition the enamouring words of Muhammad, JSC; in lending his voice to those of his colleagues in the above cited case inter alia that: “Where a member of a political party feels aggrieved because both the political party to which he belonged and INEC side-lined him, after having been initially and properly screened and nominated to contest for an election but at the nick of time had been substituted by another member of the party, I think, he has every right to ask the Court of law to intervene and protect his right to be allowed to contest the election”.
On the vexed issue of party supremacy and its Constitution which a member is bound to adhere to whether it violates statutory provisions regulating the conduct of primary elections or not, as erroneously contended by the learned Counsel for the Appellant and indeed 1st Respondent; His Lordship made it explicitly clear that: “Where any of such enactment rules or policies comes in conflict with any section of the Constitution, that enactment, rule or policy must surrender to the Constitution. Except where it is meant to say that a member of a political has no right at all, in election matters, I cannot see why a political party should be permitted, once it has given its commitment or mandate to a candidate whom it has already nominated whether wrongly or rightly to bulldoze its way to rescind that mandate for no justifiable cause. Politics is not anarchy; it is not disorderliness. It must be punctuated by Justice, fairness and orderliness.”
Also in conclusion it is necessary to commend the dictum of Rhodes-Vivour in Uzodinma V. Izunaso (No 2) (2011) 17 NWLR (pt. 1275) 30 at 59 para. H to page 60 paras A E, JSC; who held inter alia on this subject matter: “The nomination of a candidate to contest an election is the sole responsibility of the political party concerned. The Court do not have jurisdiction to decide who should be sponsored by any political party as its candidate in an election. See: Ugwu V. Ararume (2007) 12 NWLR (pt. 1048) para 367; Dalhatu V. Turaki (2003) 15 NWLR (pt. 843) para. 310, Onuoha V. Okafor (1983) 2 SCNLR P. 244, But where the political party nominates a candidate for an election contrary to its own Constitution and Guidelines a dissatisfied candidate has every right to approach the Court for redress. In such a situation, the Courts have jurisdiction to examine and interpret relevant legislations to see if the political party complied fully with legislation on the issue of nomination. The Court will never allow a political party to act arbitrarily or as it likes. Political parties must obey their own constitution, and once this is done there would be orderliness, and this would be good for politics and the country”.
In the Appeal at hand, the Appellants went further than violating their Party Constitution and Guidelines but also the Electoral Act and the Constitution of the Federal Republic of Nigeria, 1999. Party Supremacy can therefore not override the Ground- norm of this nation nor can it oust the right of the 2nd Respondent as an aspirant to seek redress in a Court of law as statutorily guaranteed him under Section 87(10) of the Electoral Act apart from other sections of the Act which have been so violated by the Appellant. The Appellant and 1st Respondent cannot now hide under the canopy of Party Supremacy to perpetrate illegalities and arbitrariness in the conduct of Party Primaries. Those days are gone for good!!
The provisions of the PDP Constitution are subordinated to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended) by section 87(10) thereof which begins w1h the word “Notwithstanding” (see NDIC V. Okem Enterprises (2004) 10 NWLR (pt. 880) 107 at 454 and Oloruntoba – Oju V. Abdulraham (2009) ALL FWLR (479) 1 at A), and gives the 2nd Respondent the locus standi to challenge the deprivation of his right to contest election which he was qualified to do by virtue of Exhibit E to his Originating Summons. See Sections 6(6) (a) and (b) 36(1) and (2)(a) and in particular (b) of the Constitution, which provide for the inherent powers of Courts and fair hearing and for laws not to be invalidated by reason only that they confer an authority like PDP and its National Working Committee or Appeal Panel powers to determine questions arising in the administration of their Constitution and Guidelines as they affect the civil rights and obligations of aspirants at Primary Elections of the Party.
For the avoidance of doubt, section 36(2)(b) of the Constitution entrenches a proviso that such law or subsidiary legislation like the party Constitution and Guidelines can only not be invalidated if it “(b) contains no provision making the determination of the administering authority final and conclusive.”
With the above provision of the Constitution, Articles 27(xii), 50(f) and other like provisions of the Appellant’s Constitution and Guidelines are inconsistent with the Constitution of the Federal Republic of Nigeria and are to the extent of their inconsistencies null and void and of no effect whatsoever on aspirants in so far as those Articles purport to oust the jurisdiction of the Courts by arrogating to themselves the airs and graces of finality on Primary Election matters. See A. G. Ondo V. A. G. Federation (2002) 9 NWLR (pt 722) 222; A. G, Bendel State V. A. G. Federation (1983) 1 SCNLR 239i A. G. Abia State V, A, G. Federation (2006) t6 NWLR (pt. 1005) at 382 paras. F – H; 671 para. E.
From the foregoing decisions of the apex Court and this Court, not even the legislature with its awesome powers as the organ charged with law making in this Country can make laws tending to oust the jurisdiction of the Courts. See section 4(8) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Appellant and 1st Respondent therefore cannot seriously contend as they have done that the 2nd Respondent is precluded from challenging the cancellation of his election and nomination as the candidate to contest the House of Representatives Election for the Gashaka/Kurmi/Sarduana Federal Constituency of Taraba State, having won at the Appellant’s Primary held for the said election on the 6th of January, 2011.
On the whole I find it not necessary to interfere with the Judgment of lower Court. Issue Number Two (2) is also resolved against the Appellant. This Appeal like its sister case lacks merit and is accordingly dismissed. I affirm the Judgment of the Federal High Court in Suit No. FHC/YL/CS/16/2011 delivered by S. M. Shuaibu, J. on the 1st Day of April, 2011, in its entirety. No order as to costs.
SOTONYE DENTON WEST J.C.A.: Again this Judgment just delivered was in my humble opinion well researched and deftly presented in all its ramifications, as the sister case in APPEAL NO: CA/YL/30/2011.
In order to avoid repetition, it would serve no useful purpose for me to orchestrate further on the issues that have been presented and ably dealt with in this Judgment, to my own satisfaction.
I agree with his reasoning and conclusions therein.
Consequently, lam also obliged to dismiss this sister appeal as lacking in merit. Thus the Judgment of the Federal High Court Delivered by S. M. Shuaibu J. on the 1st Day of April, 2011 in suit NO: FHC/YL/CS/16/2011 is hereby affirmed.
I abide by all the orders made therein.
ABUBAKAR ALKALI ABBA J.C.A.: I read the lead Judgment of my learned brother and;
1. There is no need interfere with the Judgment of the trial court Judge.
2. I also resolve the (2) two issues against Appellant.
3. I agree that the appeal has no merit and it is dismissed.
4. I also affirm the Judgment by the Federal High Court in Suit No:
FHC/YL/CS/16/2011 delivered by S. M. Shuaibu Judge on the 1/4/2011. No order as to cost.
This appeal is like its sister case Appeal No: CA/YL/30/2011 also just delivered.
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Appearances
Francis Oronsaye Esq.For Appellant
AND
Dr. Garba Tetengi Esq. SAN with Adenike (Miss)
O. E. B. Offiong Esq., SAN for the 2nd Respondent with him A. J. Akamode
Esq., Ahmed Umar Esq. and I. P. Ndumnego Esq.
Bello Bakari Esq. with A. Z. Kolone Esq. hold the Brief of H. M. Liman Esq.For Respondent
