PEOPLES DEMOCRATIC PARTY v. IKENNA WALTER POWER OKORO & ORS
(2019)LCN/13359(CA)
In The Court of Appeal of Nigeria
On Saturday, the 25th day of May, 2019
CA/A/409/2019
RATIO
PRE-ELECTION MATTERS: A PRE-ELECTION MATTER IS NOT EXTINGUISHED MERELY BECAUSE AN ELECTION HAS TAKEN PLACE
The law is now settled that a pre-election matter or an appeal arising from same is not extinguished by the mere fact that an election has taken place and a winner sworn in. see ELIGWE VS. OKPOKIRI & ORS (2014) 60 NSCQR 1. PER MOHAMMED BABA IDRIS, J.C.A.
NOTICE OF APPEAL: WHETHER AN AMENDED NOTICE OF APPEAL IS THE SAME AS A NEW NOTICE OF APPEAL
The law is settled that an amended Notice of Appeal is certainly not a new Notice of Appeal. This is because an amendment relates back to the date in which the document was originally filed. In other words, it is retrospective. See generally UNITY BANK VS. BOUARI (2008) 7 NWLR (PT. 1086) 372; AMANAMBU VS. OKAFOR (1966) 2 SCNLR 126; ROTIMI VS. MACGREGOR (1974) 11 SC 133; SALAMI VS. OKE (1987) 4 NWLR (PT. 63) 1; KATTO VS. CBN (1999) 6 NWLR (PT. 607) 370; AJAKAIYE VS. ADEDEJI (1990) 7 NWLR (PT. 161) 192. In the circumstances, it was unnecessary for the Appellant to seek and obtain an order of this Court regularizing its brief.PER MOHAMMED BABA IDRIS, J.C.A.
EVIDENCE LAW: HE WHO ASSERTS MUST PROVE
Since it is the plaintiff that asserts, the law enjoins him to prove the assertions. See Sections 131, 132 and 133 of the Evidence Act, 2011.
See also the case of OGAH VS. IKPEAZU (2017) 17 NWLR PART 1594, 299 at 348 paragraphs G – H, 350 paragraphs F – H. and since the Plaintiff further imputs the commission of certain crimes, he has to prove same beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011.PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITION: PRESUMPTION THAT THE RESULT OF A PRIMARY ELECTION IS CORRECT AND AUTHENTIC
There is clearly in law a presumption that the result of any primary election by a political party is correct and authentic. The burden lies on the party who disputes the correctness and authenticity of the result to lead credible evidence in rebuttal. In the instant case, I hold the view that the 1st Respondent did not lead credible evidence at the hearing to rebut the presumption in favour of the primary election result. See LAWAL VS. APC (2019) 3 NWLR (PT. 1658) 86.PER MOHAMMED BABA IDRIS, J.C.A.
ELECTION PETITION: A CANDIDATE MUST ALWAYS INFORM INEC THAT A PRIMARY ELECTION WILL TAKE PLACE
Relying on the case of ATAI VS. DANGANA (2012) INEC LAW REPORT (VOL. 1) 823, I find that the failure of the 1st Defendant to notify the 2nd Defendant Independent National Electoral Commission (INEC) of its intention to conduct the primary election in issue was in clear breach of the Electoral Act, 2010.”PER MOHAMMED BABA IDRIS, J.C.A.
WHETHER A COURT CAN TAKE UP AN ISSUE SUO MOTU WITHOUT ASKING PARTIES TO ADDRESS THE COURT ON THE SAID ISSUE
Furthermore, it appears that the learned trial judge took up the said issue suo motu without inviting the parties to address him on the issue. I am of the view that this was in clear breach of the right to fair hearing of the Appellant. See SANI VS. KOGI STATE HOUSE OF ASSEMBLY (2019) LPELR – 46404; OMOKUWAJO VS. FRN (2013) 9 NWLR (PT. 1359) 300; OMONIYI VS. ALABI (2015) 6 NWLR (PT. 1456) 572; OLUSANYA VS. OLUSANYA (1983) 14 NSCC 97. It is trite law that once a party’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution has been breached, the decision reached no matter how well conducted would be declared a nullity and bound to be set aside. See ODEDO VS. OGUEBEGO (2015) 13 NWLR (PT. 1476) 229.PER MOHAMMED BABA IDRIS, J.C.A.
Justice
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTY (PDP)Appellant(s)
AND
IKENNA WALTER POWER OKORO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. MR. KINGSLEY C. ECHENDURespondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja (hereinafter referred to as the “Trial Court”) Coram Honourable Justice A. R. Mohammed, delivered on the 26th day of March, 2019. The Appellant being dissatisfied with the judgment of the trial Court appealed against same vide a Notice of Appeal dated 27th March, 2019 and filed on the 28th March, 2019.
By an Originating Summons dated 16th day of October, 2018 and filed on the 17th day of October, 2018, the 1st Respondent commenced this suit before the trial Court requesting for the determination of 3 (three) questions and seeking for 5 (five) reliefs as contained in the originating summons. See pages 3 – 6 of the Record of Appeal.
The Originating Summons is founded on 8 (eight) grounds and supported by an affidavit of 40 (forty) paragraphs deposed to by the 1st Respondent himself. Annexed are 7 (Seven) exhibits and a Written Address. See pages 5 – 51 of the Record of Appeal.
The 1st Respondent equally filed a motion for an order of interlocutory injunction restraining the
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Appellant from submitting or forwarding the name of any person whatsoever as the winner of the National Assembly Indirect Primary election for Nkwere/Isu/Njaba/Nwangele Federal Constituency of Imo State. The application was abandoned by the 1st Respondent upon the joining of issues by the Defendants to the suit.
The Appellant entered a conditional appearance on the 9th of November, 2018 and filed a counter affidavit of 27 paragraphs in opposition to the Originating Summons deposed to by one Nanchang Ndam, a Litigation Officer in the employment of the Appellant. Attached to the affidavit are 7 (Seven) exhibits namely Exhibits PDP1 – PDP7. In accordance with the rules of the trial Court, a written address was filed wherein the Appellant urged the trial Court to dismiss the suit. See pages 188 – 422 of the Record of Appeal.
However, on 5th of November, 2018, Mr. Kingsley Echendu, 3rd Respondent herein brought a motion for joinder which was moved and granted by the trial Court. Thereafter the 1st Respondent filed an Amended Originating Summons on the 27th November, 2018, with an affidavit in support annexed with exhibits and a written
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address. Parties to the suit joined issues by filing Counter Affidavit annexed with exhibits and written addresses in opposition to the Amended Originating Summons. The 1st Respondent further filed a further affidavit. See pages 423 – 731 of the Record of Appeal.
All parties adopted their processes filed both for and against the suit and in a judgment delivered on the 26th of March, 2019, the trial Court delivered judgment in favour of the 1st Respondent and declared the primary election of the Appellant as “inconclusive” and ordered that the Appellant should re-organize and announce a new date for the holding of a fresh indirect primary election to select a candidate to represent the Appellant in the Nkwere/Isu/Njaba/Nwangele Federal Constituency of Imo State in the 2019 General Elections which has been held on 23rd February, 2019, 31 (Thirty-one) days before the judgment was delivered.
Aggrieved by the said judgment of the trial Court, the Appellant has appealed to this Court by a Notice of Appeal dated 27th March, 2019 and filed on the 28th March, 2019. See pages 796 – 800 of the Record of Appeal.
The Appellant’s application to
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amend her Notice of Appeal dated 28th March, 2019 by amending same to include the name of the 3rd Respondent whose name was inadvertently omitted was granted on the 21st of May, 2019, and the Amended Notice of Appeal filed on 21st May, 2019 was deemed properly filed on the same date.
The parties filed their briefs which were adopted by their counsel at the hearing of the appeal.
The Appellant’s brief was filed on the 17th day of May 2019 wherein 2 (Two) issues were formulated for the determination of the Court as follows:
1. Whether going by the materials placed before the trial Court, it was right for the trial Court to have declared the primary election of the Appellant and held on October 7, 2018 as “inconclusive” and ordered that a new one be conducted after the general election was held on 23 February, 2019. Distilled from Ground 1 and 3 of the Grounds of Appeal.
2. Whether the trial Court was right when it held that the Appellant did not give Notice of her primary election to the 2nd Respondent when this was not part of the 1st Respondent case before the Court, (Distilled from Ground 2 of the Grounds of Appeal).
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It was argued that the primary election of the Appellant held on October 7, 2018 was validly conducted by the 5-man Electoral Committee set up in line with the Appellant’s Constitution 2017, the Guidelines for the 2018 primaries and the Electoral Act 2010 (as amended). That the Appellant also set up a 3-man Electoral Appeal Committee in line with extant laws and Guidelines to receive complaints arising therefrom.
It was also argued that the primary election was conducted conclusively when Exhibit PDP1 was issued by the Electoral Committee. That the name of the 3rd Respondent was also submitted to the 2nd Respondent through Exhibit PDP4, and that the 1st Respondent only acted like a bad party man and a bad loser when he made spurious and unsubstantiated allegations against the primary election especially when he duly participated/contested the election and lost.
It was submitted that the learned trial Judge was wrong to have declared the primary election inconclusive and ordered for a fresh primary election when the general elections had been completely held and done with.
It is on the strength of the above that the Court was urged to allow this appeal and set
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aside the judgment of the lower Court which is grossly impracticable and unenforceable and vitiated by the absence of fair hearing on the points raised.
The 1st Respondent joined issues with the substantive issue one distilled by the Appellant in its brief of argument, and it was argued that the findings of facts and conclusion of the Court below as contained in its decision of 26th March, 2019 did not in any way violate any law either subjective or procedural, and that the gravamen of the protest of the Appellant is more of semantic, grammatical style of writing of the learned trial Judge, and that the lower Court did not in any way grant reliefs not sought by the 1st Respondent in his Originating Summons. This Court was urged to dismiss the appeal.
The 1st Respondent has filed a preliminary objection on the 23rd of May, 2019 for the following reliefs:
1. An Order dismissing the Appellant’s appeal for being incompetent and thereby failing to confer the requisite jurisdiction on this Court to adjudicate on the appeal.
2. Any for such further or other orders that the Court may deem fit to make in the circumstance.
The 1st Respondent has
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argued that in the light of the general election that took place on 23rd February, 2019 and a winner other than the Appellant and/or the 1st and 3rd Respondents returned as the winner for the Seat of Nkwere/Isu/Njaba/Nwangele Federal Constituency of Imo State in the National Assembly, this appeal being one that dwells in a completed action is unsustainable in law.
It was also argued that the record compiled and transmitted by the Appellant is incompetent as it contains 2 (Two) unrelated Notices of Appeal over the judgment of the Court below delivered on 26th March, 2019 and therefore ought to be non-suited.
It was further contended that the Appellant’s appeal is unsupported by competent brief of argument as required by the Rules of this Court as the purported Appellant’s brief of argument dated 16th May, 2019 and filed on the 17th May, 2019 before the filing/deeming of the Appellant’s Amended Notice of Appeal on the 21st May, 2019 was not howsoever regularized by Order of this Court as the Appellant failed either by formal or oral application moved the Court to regularize the Appellant’s brief of argument.
The Court was urged to dismiss the
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appeal in favour of the 1st Respondent. These authorities were relied on:
1. G. S. & D INDUSTRIES LTD VS. NAFDAC (2012) 5 NWLR (PT. 1294) 511
2. EFET VS. I.N.E.C. (2011) 7 NWLR (PT. 1247) 423
3. SHETTIMA VS. GONI (2012) ALL FWLR (PT. 609) 1007
4. OLAFISOYE VS. F. R. N. (2004) 4 NWLR (PT. 864) 580 654 – 655
5. ARDO VS. INEC (2017) 13 NWLR (PT. 1583) 450
6. MEGAWEALTH LTD VS. SEC (2017) 13 NWLR (PT. 1583) 345
7. DICK VS. OUR AND OIL CO. LTD (2018) 14 NWLR (PT. 1638)
8. UKIRI VS. EFCC (2018) 14 NWLR (PT. 1639) 195
9. DANA IMPEX LTD VS. AWUKAM (2006) 3 NWLR (PT. 968) 544
10. CD
