PEOPLES DEMOCRATIC PARTY v. UDEKIGBO CHIBUZOR INNOCENT & ORS
(2019)LCN/13712(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of June, 2019
CA/E/275/2019
RATIO
EVIDENCE: THE EVALUATION AND PROBABTIVE VALUES ARE ASCRIBED BY TRIAL COURTS
The law is trite that evaluation of evidence and ascription of probative value to it is within the domain of the trial Court. Once the trial Court properly performs its duty, the appellate Court has no power to interfere or to embark on re-evaluation of the evidence. The trial Court creditably performed its duty by evaluating the affidavit evidence and the documentary evidence on record and ascribing probative value thereto. The trial Court made appropriate findings. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
Justice
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
Justice
PEOPLES DEMOCRATIC PARTYAppellant(s)
AND
1. UDEKIGBO CHIBUZOR INNOCENT
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
3. EZE LOUIS EMEKARespondent(s
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The 1st and 3rd respondents are members of the appellant (PDP). All the parties agreed that a primary election was conducted by the appellant on 4/10/2018 to elect its candidate for the Anambra State House of Assembly, Ihiala 1 Constituency 2019 general election. The 1st respondent was one of the aspirants that participated in the primary election. According to him, he won the majority of the votes cast at the election and was declared the winner. However his name was not forwarded to the 2nd respondent as mandated by Section 87 (4) (d) (ii) of the Electoral Act. Instead the 3rd respondents name was forwarded to the 2nd respondent. He commenced an action at the Anambra State High Court by originating summons wherein he presented the following questions for determination:
1. Whether having regard to Part ii Paragraph 11(ii) of Peoples Democratic Party Guidelines for Primary Elections, 2018 (As Amended) the 1st defendant is not obliged to submit the name of the plaintiff to the 2nd defendant as its lawfully nominated candidate for the State House of
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Assembly Ihiala I State Constituency?
2. Whether the 2nd defendant is not obliged to receive the name of the plaintiff as a candidate of the 1st defendant who pulled the highest number of valid and lawful votes cast at the State House of Assembly Ihiala I State Constituency primary election.
3. Whether having regards to the Part II Paragraph II (ii), part VI paragraph 49 of Peoples Democratic Party Electoral Guidelines for Primary Elections and Sections 33 and 87 (4) & (9) of the Electoral Act 2010 (As Amended) can the 1st defendant substitute the name of the plaintiff with that of the third defendant as his candidate for the State House of Assembly Ihaiala I State Constituency Anambra State having not resigned/withdrew or died.
4. Whether the 2nd defendant after having issued Form CF 001 and Form E.C.48 (iii) to the plaintiff and that form having being completed and returned to the 1st defendant, can the 1st defendant substitute the name of the plaintiff for the name of the 3rd defendant or any other name as the candidate of the 1st defendant in the State House of Assembly Ihiala I State Constituency Anambra State having not
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resigned/withdrew or died?
5. Is the 2nd defendant not under obligation to revert any substitution made or any other name that is not the name of the plaintiff?
RELIEFS SOUGHT FROM THE HONOURABLE COURT:
A. A declaration that the plaintiff is the only valid and lawful candidate of the 1st defendant for Ihiala I State House of Assembly Constituency Anambra State for the general election of 2019 having emerged as the winner of the primary election in line with Part II (ii) of Peoples Democratic Party Electoral Guidelines for primary elections, 2018 and Sections 33 and 87 (4) & (9) of the Electoral Act 2010 (As Amended).
B. A declaration that the plaintiff having not resigned, withdrawn or died still remains the only lawfully, recognized and valid candidate for Ihiala I State Constituency Anambra State for the general election of 2019.
C. A declaration that neither the 1st defendant nor the 2nd defendant possess the power to substitute, remove, revive, include or exclude the name of the plaintiff as a lawful winner of the primary election for Ihiala I State House of Assembly Constituency Anambra State for the general election of
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2019.
D. An order of Court restraining the 1st defendant from substituting or cause to substitute the name of the plaintiff with the name of the 3rd defendant or any other name.
E. An order of Court mandating the 2nd defendant to substitute whatever name it published with the name of the plaintiff as the lawfully and validly elected candidate to fly the 1st defendants flag in the 2019 general election for the State House of Assembly for Ihiala I Constituency.
By a motion on notice and a notice of preliminary objection, the 2nd and 3rd respondents raised objection to the suit on the ground that it is statute barred not having been instituted within the 14 days stipulated by Section 285 (9) of the Constitution (as amended). In 2 separate rulings delivered on 3/4/2019, the Court over ruled the objection. The Court having heard the objections together with the substantive case also delivered its judgment on the same day and granted the reliefs sought by the 1st respondent.
The appellant is dissatisfied with the rulings and the judgment and has appealed to this Court by a notice of appeal dated 10/4/2019 and filed on 12/4/2019. The
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grounds of appeal are stated below without their particulars:
GROUND ONE
The high Court erred in law by holding as follows:
I state this because even in the case of the 2nd and 3rd defendants the issue of jurisdiction is raised again, I refer to paragraphs 11 and 12 of the counter affidavit of the 2nd defendant in this suit; that based on the relief sought this court has no jurisdiction to entertain this suit and; that this suit is caught up by the 14 days rule for instituting pre-election matters as presented by Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria as amended (4th Amendment) 2017. It is settled that when jurisdiction is challenged, a Court should look at the claim before it and be guided by it; see the case of ONUORAH V. K.R.P.C. (2005) 6 NWLR PART 921 PAGE 393 (sq). In answer to this, I hold that what is before this Court is a suit brought by way of Originating Summons. Originating Summons is one of the recognized ways of bringing a suit to Court, I refer to Order 3 Rule 5-8 of the Rules of this Court (2006), see also the case of BALONWU V. OBI (2007) 6 NWLR PART 1028 AT PAGE 488 (CA),
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the questions for the construction and reliefs sought by the plaintiff have been read out at the beginning of this judgment and I hold that this is proper. If the facts are in contention and should not be by a way of an Originating Summons, the option open to a Court is to order the parties to file pleadings and not to order a striking out based on lack of jurisdiction for bringing it under Originating Summons, I rely on the case of DAPLANLONG V. LALONG (2007) 5 NWLR PART 1026 PAGE 199. On this point I hold that this Court has jurisdiction to entertain this matter.
GROUND 2
The High Court erred in law by hearing and determing the suit by Originating Summons.
GROUND 3
The High Court erred in law by holding as follows:
On issue (3) as raised by this Honourable Court, I hold that it is the duty of a Court to evaluate evidence placed before it by the parties and to ascribe probative value to same, see the case of OLUFOSOYE V. OLUFEMI (1989) 1 SC Part 1 at Page 29 Per Oputa JSC as he then was. A look at the affidavit in support of the plaintiffs case in paragraphs 3-7 is to the effect that he scored the highest number of
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votes cast in the primary election of 1st defendant on 4/10/18. I refer especially to paragraph 5 where he maintains that he scored 63 votes to the 3rd defendants 12. He avers also that a party must obey its rules and not substitute his name. In opposition the 3rd defendant avers that he scored the highest number of votes and refers this Court to the results, see his paragraph 6 and that the total number of delegates was 78, see his paragraph 4 and refers the Court to his Exhibit B. A careful look at the said Exhibit B shows that the 3rd defendant won by 46 votes, the plaintiff scored 25 while one Maxwell Ude scored or polled 3 votes. Now by simple arithmetic an addition of these figures would give 74 votes while the 3rd defendant in his paragraph 4 states that there were 78 delegates. The figures do not tally. A look at the affidavit in support of the plaintiffs suit via his paragraph 5 shows the following figures- Udekigbo C.I-63 votes, Eze Louis Emeka 1 vote. Ude maxwell 3 votes. Again by simple addition the figure add up to 78! The facts of the 3rd defendant are further shown to be lies in his paragraph 10 of his counter
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affidavit filed on 1/2/19 where he maintains on oath that 78 delegates actually cast their votes on the day. The question I have for the 3rd defendant is what happened to 3 votes as he could only account for 74 votes against the 78 stated by both. This shows that the 3rd defendant lied to this Court and his Exhibit B appears contrived for this case, so also are the affidavits of facts made on 24/1/2019 during the pendency of this matter. This affidavits are made by the so called delegates that voted for the parties and appear to be made solely for the purpose of this suit and thus against Section 83 (3) of the Evidence Act 2011 as amended. I hold that the plaintiff appears to have made out a more probable case than defence of the 3rd defendant and that the omission of his name on the list published by the 2nd defendant is wrong. I believe the contents of his Exhibit J as attached to his affidavit in support as being more probable than 3rd defendants Exhibit B.
The appellants brief of argument was settled by P.A Afuba. It was filed on 30/4/2019. The 1st respondents brief was filed on 8/5/2019. It was settled by Clement Ezika.
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The 2nd and 3rd respondents did not file any brief of argument.
The appellants counsel formulated the following issues for determination:
(i) Was the High Court right to have assumed jurisdiction to determine the suit. (Ground 1)
(ii) Was the hearing and determination of the suit by Originating Summons procedure by the High Court proper? (Ground 2)
(iii) Whether the finding of the High Court that the 1st respondent won the primary election is not perverse. (Ground 3)
The 1st respondents counsel adopted the above three issues for the determination of this appeal.
On issue 1, the appellants counsel submitted that all the reliefs sought in the originating summons is anchored on the claim by the 1st respondent that he won the primary election conducted by the appellant on 4/10/2018 to elect its candidate for Ihiala I State Constituency of Anambra State House of Assembly. He argued that issues having been joined by parties by their various affidavits as to who won the primary election, the questions presented for determination and the reliefs sought in the originating summons could not be determined
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by the Court without delving into and resolving the issue of who won the primary election. He submitted that the issue of who won the primary election is a pre-election matter as defined in Section 285 (9) of the Constitution (as amended) and having not been instituted within 14 days from 4/10/2018 when the primary election was held, the Court below committed a grave error in entertaining the issue because its jurisdiction is ousted by the provisions of Section 285 (9) of the Constitution (as amended) which stipulated 14 days within which to institute an action on a pre-election matter from the date of the accrual of the cause of action.
In response to the above submissions, the 1st respondents counsel conceded the submission that this is a pre-election matter. He however, argued that the issue under consideration in the instant case is the substitution of a candidate that won the primary election and the appellant failed to show that the suit was not filed within 14 days stipulated by the Constitution.
RESOLUTION:
The law is trite that it is the relief sought by the plaintiff as endorsed on the originating process by which the
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action is commenced that determines whether or not the Court has jurisdiction to adjudicate on the matter placed before it. The relevant processes which the Court will look at are the facts stated in the statement of claim where one has been filed and the facts deposed to in the affidavits.
In the instant case, the questions presented for determination and the reliefs sought centers on the alleged substitution of the 1st respondent. The submission of the appellants counsel that the Court had to determine whether or not the 1st respondent won the primary election of 4/10/2018 is correct. However, the 1st respondent is not seeking a declaration that he is the winner of the primary election. His case is simple and straight forward and it is that as the winner of the primary election, the appellant has no power to forward the name of any other person to the 2nd respondent as its candidate. It is therefore clear that the cause of action in this case is the substitution of the 1st respondents name with the 3rd respondents name. A cause of action is the wrongful act of the defendant(s) that constitutes a breach of a persons right
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and which has caused him to suffer some damage. A cause of action is said to have accrued when all the events or actions or every fact which entitles a party to seek redress against the other party in Court have occurred or is complete. In IYEKE V. P.T.I. (2019) 2 NWLR (PT.1656) 217 AT 238-239 (F-A) the Supreme Court explained what constitutes a cause of action as follows:
From the authorities on the subject, cause of action means-
i. A cause of complaint;
ii. A civil right or obligation for determination by a court of law;
iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
iv. Consequent damage;
v. Every fact which would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the court. It does not comprise every piece of evidence that is necessary to be proved;
vi. All those things necessary to give a right of action whether they are to be done by the plaintiff or third person; and
vii. It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of
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injury. SEE A-G. FED V. ANPP (2003) 12 SCNJ 67, (2003) 18 NWLR (PT.851) 182. In COOKEY V. FOMBO (2005) 15 NWLR (PT.947) 182 SC at 202, paras. E-F the Supreme Court per Edozie, JSC, stated that:
A cause of action is the bundle or aggregate of facts which the law will recognize as giving to the plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement or being claimed against the defendant.
In the instant case, the 2nd respondent in paragraphs 7-11 of the affidavit in support of its own motion on notice on pages 266-267 of the record of appeal stated that:
6. That the date the purported substitution of the plaintiffs name occurred is more than fourteen days before the plaintiff instituted this action.
8. That Exhibit I attached to the plaintiffs further affidavit shows that the purported substitution of the plaintiffs name was done before or on the 1st of November 2018 while this action was commenced by
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the plaintiff on 21st November 2018 over fourteen days after the cause of action arose.
9. That Peoples Democratic Party submitted the names of its flag bearers who won the PDP primaries for the Anambra State House of Assembly to Independent National Electoral Commission on 1/11/2018. A copy of the documented dated 1/11/2018 when the process was received by INEC is verified and marked Exhibit A.
10. That this suit is incompetent and this Honourable Court lacks the jurisdiction to entertain the suit.
11. That the action was brought outside the statutory fourteen (14) days required by law.
The 3rd respondent in paragraphs 11- 14 of his further affidavit on pages 147-148 of the record stated that:
11. That the 1st defendant to the knowledge of the plaintiff has forwarded to the 2nd defendant a list of the names of her candidates for the House of Assembly Election in Anambra State, with my name as no. 12 as the candidate of the 1st defendant for Ihiala I Constituency, Anambra State.
12. That the said list was received by the 2nd defendant on 1st of November, 2018 as shown in the certified true copy of the list hereto
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annexed and marked exhibit A.
13. That the plaintiff knew before the 2nd of November, 2018 that my name was submitted to the 2nd defendant as the candidate of the 1st defendant for Ihiala I Constituency, Anambra State for the House of Assembly Election in Anambra State.
14. That this suit was filed by the plaintiff on the 21st of November, 2018 long after the expiration of the period of 14 days prescribed by the Constitution of the Federal Republic of Nigeria, 1999 (FOURTH ALTERATION, NO. 21) Act, 2017 for filing a pre-election matter.
In paragraphs 8 and 9 of his counter affidavit in opposition to the 2nd and 3rd defendants preliminary objection on page 288 of the record of appeal, the 1st respondent stated that:
8. That I deny paragraphs 11, 12 & 13 and state that I noticed that my name has being substituted with the name of the 3rd defendant upon publication of names of candidates by the 2nd defendant on the 9th of November when the said publication was made and at no other date.
9. That I deny paragraphs 7, 8, 10, 11, 12 of the 2nd defendants affidavit and 14 & 15 of the 3rd defendants and state
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that publication was made on the 9th November 2018 and the suit was filed 21st November 2018, 12 days after.
The 3rd respondent in paragraphs 4- 7 of his further affidavit in support of notice of preliminary objection on pages 304- 305 of the record of appeal stated that:
4. That this suit cannot be determined by the Court without the Court first considering and deciding who between the plaintiff and I won the said primary election of the 1st defendant held on the 4th of October, 2018 for the selection of the candidate of the 1st defendant in the House of Assembly Election for the State House of Assembly Election for Ihiala I Constituency, Anambra State,
5. That unfortunately the plaintiff did not institute the suit within 14 days from the 4th October, 2018, the primary election so that Court will have jurisdiction to determine who won the primary election.
6. That by the time table published by the 2nd defendant (INEC) for the State House of Assembly Election, the deadline for political parties to submit their candidates for the House of Assembly Election was 1st November, 2018.
7. That the 1st defendant (PDP)
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submitted the list of her candidates for the House of Assembly Election to the 2nd defendant (INEC) on 1st November, 2018.
Exhibit I shows that the appellant submitted the name of its candidates to the 2nd respondent on 1/11/2018. The same document is on page 135 of the original case file. On that form, the name of the candidate for Ihiala is IDUU LOUIS EZE, 3rd respondent. The 1st respondent stated that he discovered that his name has been substituted with the name of the 3rd defendant on 9th November, 2018 upon publication of the names of the candidates by the 2nd respondent. In his rulings on pages 320 and 325 of the record, the learned trial judge held that:
By paragraphs 8 and 9 of the counter affidavit to the plaintiff, the cause of action arose on 9/11/18 while he filed his suit on 21/11/18. This is within time stipulated by Section 285(9) of the Constitution of Nigeria 1999 (Fourth Alteration) Act 21 of 2017. The plaintiff has therefore rebutted the averments in the supporting affidavit of this objection.
The cause of action is the substitution of the 1st respondents name which substitution was completed with
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the publication of the names of the candidates. Therefore, the cause of action occurred on 9/11/2018. There is nothing to show that the 1st respondent became aware of the substitution before the publication. In A.G LAGOS STATE V. EKO HOTELS LTD. (2006) LPELR-3161 (SC) AT 55 (C-E) where the Supreme Court per ONNOGHEN JSC held that:
“The question as to what a cause of action is and when it is said to have accrued have long been settled by the Court and it has been held that a cause of action consists of every fact which it would be necessary to prove, if traversed in his claim for judgment and that the accrual of the cause of action is the event where a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. It is very clear from a community reading of decisions of the Courts on the issue that cause of action always deals with events in the immediate past, not in the future.”
The learned trial judge was right when he held that the cause of action accrued on 9/11/2018. Going by the definition of the cause of action, the wrongful act of the appellant which the 1st respondent is alleging
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constitutes an infringement or breach of his right became complete on that day.
Both parties are ad idem that the 1st respondents action is a pre-election matter and that by the provisions of Section 285 (9) of the Constitution as amended by the Constitution of the Federal Republic of Nigeria 1999 (FOURTH ALTERATION, NO. 21) ACT 2017, any pre-election matter must be instituted within 14 days of the occurrence of the cause of action. In the instant case, the suit was instituted within 12 days from the date of the accrual of the cause of action. It is not statute barred and the trial Court rightly held that it had the jurisdiction to entertain the suit. Issue 1 is resolved against the appellant.
On issue 2, the appellants counsel submitted the trial Court was wrong to have determined the suit by originating summons because the suit is a hostile action being a dispute over the primary election of a political party which by its nature is inherently hostile. He further submitted that originating summons is not an appropriate mode for commencing a hostile suit where there is substantial dispute on facts or documents necessary for the
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determination of the suits. He referred to OLLEY V. TUNJI (2013) 10 NWLR (PT.1362) 275 AT 322. ATAGO V. NWUCHE (2013) 3 NWLR (PT.1341) 337 AT 359. PHILIP V. AKINOLA (2018) LPELR-43966 (CA). EDEH & ORS V. OKORIE (2018) LPELR-43769 AT 33 (B-A).
In response, the 1st respondents counsel submitted that the claim of the 1st respondent is declaratory and the questions for determination, the reliefs sought and the exhibits are not hostile. He further submitted that it is not the filing of counter affidavit to oppose an originating summons that determines whether the proceedings is hostile in nature. He referred to F.G.N V. ZEBRA ENERGY LTD. (2002) 18 NWLR (PT.798) 162 AT 302 (H-B).
RESOLUTION:
Order 3 Rules 5, 6 and 7 of the High Court (Civil Procedure) Rules, 2006 of Anambra State provides that:
5. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
Construction of Enactment
6. Any person claiming any
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legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
Discretion of the Judge
7. A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit.
It is settled by a plethora of authorities that originating summons should be used in commencing a suit only when facts are not seriously or likely to be in dispute. Where facts are in dispute and the dispute cannot be resolved by any document before the Court, originating summons is not a proper mode for commencing such action. The facts in dispute must be substantial or material to the proper and just determination of the issue in dispute and not just an imaginary or fabricated dispute on facts which have no bearing with the issue in dispute. The law is settled that even where facts in dispute are substantial and material
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to the issue in dispute, if the dispute can be resolved by a consideration of the documents before the Court, an originating summons will be appropriate for the commencement of such action. See ECOBANK V. BUKAS KASMAL INTL LTD & ORS (2017) LPELR- 43544 (CA) AT 76-85 (E-C). AKANMODE V. F.B.N (2018) LPELR-44456 (CA) AT 8-11 (E-D). INAKOJU & ORS V. ADELEKE & ORS (2007) LPELR-1510 (SC) AT 28-30 (D-C). OSSAI V. WAKWAH & ORS (2006) LPELR-2813 (SC) AT 16-18 (F-C). In the instant case, the main dispute is whether or not the 1st respondent won the primary election. The 1st and 3rd respondents presented two different results. The dispute about the result of the primary election was rightly resolved by the trial judge by using documentary evidence exhibited by the parties. The decision of the trial Court to resolve the issue on the affidavit evidence and documents on record is further reinforced by the established principle of law that oral evidence is not admissible to contradict or vary the contents of a document except where fraud is alleged. In the instant case, the allegation of the 3rd respondent that the result exhibited by the 1st respondent was
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forged and that the 3rd respondent was the one that won the election can easily be resolved by the exhibits 6 and 7 attached to the affidavit in support of the motion for interlocutory injunction which the trial Court was entitled to look at being part of the record of the Court. The same documents are attached to the 1st respondents further affidavit on pages 104 to 143 of the record as exhibits L and N. The Court must be vigilant and ensure that a party is not allowed to manipulate the law to frustrate the aim of the constitution which is that pre election matters must be brought to Court and speedily determined by raking up or inventing disputes as to facts. Issue 2 is resolved against the appellant.
On issue 3, the appellants counsel submitted that the finding of the trial judge that there was no explanation for the discrepancy between the total score of the candidates and the number of delegates that voted at the election as stated in the 3rd respondents result is perverse because the Court omitted to consider the depositions in paragraphs 2-6 of the 3rd respondents affidavit and the omission resulted in a serious
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miscarriage of Justice as it led to the rejection of the result produced by the 3rd respondent. Counsel further submitted that the trial Court wrongly applied the provisions of Section 83 of the Evidence Act and wrongly rejected the affidavit sworn to by the delegates that voted at the election which affidavits debunked the 1st respondents version of the result of the primary election.
In response, the 1st respondents counsel submitted that the judgment of the trial Court is not perverse as the affidavit deposed to by some of the purported delegates were made for the purpose of the 3rd respondents defence and therefore caught by the doctrine of Lis Pendens. He further submitted that the affidavit of the 3rd respondent is shallow and hollow and the 3rd respondent could not even do a simple arithmetical calculation. He finally submitted that the Court did not wrongly apply the provisions of Section 83 of the Evidence Act and the Court was meticulous in the consideration of all the issues including the affidavits of facts.
RESOLUTION:
The law is trite that evaluation of evidence and ascription of probative value to it is within
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the domain of the trial Court. Once the trial Court properly performs its duty, the appellate Court has no power to interfere or to embark on re-evaluation of the evidence. The trial Court creditably performed its duty by evaluating the affidavit evidence and the documentary evidence on record and ascribing probative value thereto. The trial Court made appropriate findings. As stated earlier in this judgment, oral evidence is not admissible to contradict or vary the contents of a document. Though, this case was tried on affidavit evidence, the depositions attached to the 3rd respondents counter affidavit stands in the place of oral evidence in a case tried on pleadings. The law is settled that where there are oral as well as documentary evidence before the Court, documentary evidence should be used as the hanger with which to assess oral evidence. In the face of the documentary evidence on record, there is no way the trial Court could have attached any probative value to the depositions of those alleged to be delegates that voted at primary election. Though the 3rd respondent offered some explanations for the difference between the total votes recorded
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on his result sheet and the number of delegates accredited to vote, the explanation is an attempt to vary or add to the content of a document which the law does not permit. Secondly, the explanations are glaringly inconsistent. He was not even sure of what happened. Below are the facts deposed to by him in his counter affidavit on page 302 of the record:
2. That it is not correct that the result of the primary election annexed as Exhibit B to the 3rd Defendants counter affidavit is forged because the total votes of 74 cast at the election is less than the 78 accredited delegates that were to vote at the election.
3. That obviously 4 delegates either did not vote at the primary election or their votes were invalid.
4. That the result sheet used for the primary election did not contain any column where number of invalid votes cast at the election will be recorded.
5. That the invalid votes cast at the election was not recorded in the result because there was no column in the result sheet for it.
Which of the reasons should the trial Court have believed?
Is it that 4 delegates did not vote or that the votes cast
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by 4 delegates were invalid? The law is settled that where a witness offered two inconsistent evidence in respect of a material fact in issue, such a witness is not worthy of any credibility. The two inconsistent evidence will be ignored or rejected by the Court as the Court is not in a position to choose which of two versions of a story to believe. The learned trial judge was on a firm ground when he rejected the affidavits attached to 3rd respondents counter-affidavit. The decision of the Court that the 3rd respondent lied to the Court is amply supported by the report of the 2nd respondent which is an independent body statutorily empowered to observe a political partys primary election and did observe the 3rd respondents primary election. The report which is on pages 96 to 98 and 137-139 of the record and attached as exhibit 6 to the motion for interlocutory injunction and as exhibit L to the further affidavit of the 1st respondent clearly stated that Eze Louis Emeka scored 12 votes, Udekaigbo Chibuzor scored 63 votes and Ude Maxwell scored 3 votes. The report further stated that There was no disagreement over the announcement of
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the result nor the conduct of the primary. The document is a certified true copy of the original. No contrary report was produced by the appellant and the 2nd respondent did not disown or challenge the authenticity of the report or state that it is not its report of what transpired at the primary election. It was certified by Rakiya Nauzo, Assistant Director of Legal Service of the 2nd respondent. Section 146 of the Evidence Act, 2011 provides that:
146. (1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document.”
The presumption of genuineness which inures in
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favour of the 2nd respondents report was not rebutted. The decision of the trial Court to grant the reliefs sought by the 3rd respondent has not been shown to be wrong. Issue 3 is resolved against the appellant.
In conclusion, this appeal has no merit. It is hereby dismissed. The judgment of the High Court of Anambra State delivered in suit no. A/438/2018 by D.A. Onyefulu J. on 3/4/2018 is hereby affirmed. There shall be 250,000.00 (Two Hundred and Fifty Thousand Naira) costs in favour of the 1st respondent and against the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the Draft Judgment just delivered by my Learned Brother M. O. Bolaji-Yusuff, JCA. and I am in total agreement with his reasoning that this Appeal is unmeritorious and same is accordingly dismissed. I abide by the consequential orders affirming the Judgment of the Lower Court and as to costs of N250,000.00 (Two Hundred and Fifty Thousand Naira) in favour of the 1st Respondent against the Appellant
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the Judgment just delivered by my learned brother, MISITURA OMODERE
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BOLAJI-YUSUFF JCA. I agree with his conclusions. I abide by the consequential orders of my learned brother in the judgment.
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Appearances:
P. A Afuba with S. C. AfubaFor Appellant(s)
Clement Ezika with C. Onyinye-Iheazor for the 1st Respondent
C. C. Okwukalazu for the 2nd Respondent.
G. B. Obi with C. C. Anyachelebu for the 3rd Respondent.
For Respondent(s)
>
Appearances
P. A Afuba with S. C. AfubaFor Appellant
AND
Clement Ezika with C. Onyinye-Iheazor for the 1st Respondent
C. C. Okwukalazu for the 2nd Respondent.
G. B. Obi with C. C. Anyachelebu for the 3rd Respondent.For Respondent
