PRINCE HEZ OKONKWO v. PEOPLES DEMOCRATIC PARTY & ORS
(2013)LCN/6457(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of September, 2013
CA/A/94/2013
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
PRINCE HEZ OKONKWO Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. CHIEF GILBERT OKOYE
(State Secretary, PDP Anambra State)
3. MR. ANYAKORA SAMUEL C.
4. CHIEF BENJI UDEOZOR
(Former Anambra State PDP Chairman)
5. MR. FORT DIKE
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
RATIO
PRESUMPTION OF GENUINENESS OF CERTIFIED COPIES OF DOCUMENT
Under SECTION 102 of the EVIDENCE ACT 2011, the following documents are public documents: –
(a) Documents forming the Official Acts or records of the Official Acts of –
(i) The sovereign authority
(ii) Official bodies and tribunals or
(iii) Public Officers, legislative judicial and executive, whether of Nigeria or elsewhere and
(b) Public records kept in Nigeria of private document
Also SECTION 146(1) of the same EVIDENCE ACT 2011 (as amended) Provides thus: –
– Presumption as to genuineness of certified copies.
(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.”
There are two types of presumptions of law, they are: –
(1) Irrebutable Presumptions
(2) Rebutable Presumptions.
While the former cannot be rebutted, the latter can be rebutted by credible evidence.
The presumption envisaged by SECTION 146(1) of the EVIDENCE ACT 2011 (as amended), is a rebuttable one in that a document is genuine and the burden is on the party challenging its genuineness to adduce sufficient and probable evidence that such a document is not genuine.
See – JALINGO VS NYAME (1992) 3 NWLR (PART 231) PAGE 538. PER BADA, J.C.A.
WHETHER OR NOT EVIDENCE NOT CHALLENGED IS DEEMED AS ADMITTED
This is a case of evidence not challenged which is deemed as admitted. Where evidence by a party to any proceedings as in this case was not challenged or controverted by the opposite party who had the opportunity to do so, it is always open to the Court seised of the case, to act on such unchallenged or uncontroverted evidence before it.
See:-. OBINECHE VS AKUSOBI (2010) 12 NWLR (PART 1208) PAGE 383. PER BADA, J.C.A.
CONDITIONS UNDER WHICH AN APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF A LOWER COURT
In STATE vs AJIE (2000) SCQR PAGE 53, the Supreme Court laid down the conditions under which an Appeal Court can interfere with the findings of fact of a lower court to include a situation where the finding is perverse.
A decision is said to be Perverse: –
(i) When it runs counter to evidence,
(ii) Where it has been shown that the trial court took into account matters which it ought not to have taken into account and
(iii) When it has occasioned a miscarriage of justice. PER BADA, J.C.A.
WHETHER OR NOT THE COURT OF APPEAL CAN MAKE AN ORDER TO DETERMINE THE REAL QUESTION IN CONTROVERSY IN AN APPEAL
Section 15 of the Court of Appeal Act states as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part and may remit it to the Court below for the purpose of such re-hearing or may given such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the Court below in that court’s appellate jurisdiction order the case to be re-heard by a court of competent jurisdiction.”
For Section 15 of the Court of Appeal Act to apply, the following conditions must exist:
(1) The Lower Court or High Court must have Legal power to adjudicate in the matter before the Appellate Court.
(2) The real issue raised by the claim of the Appellant at the lower court must be capable of being distilled from the ground of Appeal.
(3) That all necessary materials must be available to the court for consideration.
(4) That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented.
(5) That the hardship or injustice that will follow if the case is remitted to the court below must be clearly manifest.
See: – EZEIGWE VS NWAWULU (SUPRA). PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Ruling of the Federal High Court sitting in Abuja in Suit No.: FHC/ABJ/CS/188/2013 – PEOPLES DEMOCRATIC PARTY & 4 OTHERS VS MR. FORT DIKE & ANOTHER; delivered on the 23rd day of January, 2013, wherein the Appellant’s application for joinder as an interested party was dismissed.
The Appellant dissatisfied with the Ruling of the lower court appealed to this Court.
The Learned Senior Counsel for the Appellant formulated four (4) issues for the determination of the Appeal. The issues are reproduced as follows: –
“(1) Whether having regard to the materials placed before the trial court and the courts own finding that the appellant was the nominated candidate of PDP, the Court was right in refusing to join him as a party interested in the subject matter of the suit. (Ground 1).
(2) Whether having regard to the evidence before the Court, the appellant abandoned his nomination by PDP and contested under the Labour Party. (Ground 2).
(3) Whether the trial Judge evaluated or properly evaluated all the evidence and materials placed before her in arriving at her decision that the appellant contested under the Labour Party. (Ground 4).
(4) Whether the Learned trial Judge did not prejudge the issues as it related to the appellant when, in an application for joinder, she delved into the issues of whether or not the Appellant contested under another political party, an issue which ought to be dealt with in the substantive suit. (Ground 5)”
The learned Counsel for the 5th Respondent adopted the issues formulated for the determination of the appeal by Counsel for the Appellant.
Counsel for the 6th Respondent did not file any brief of argument. He said that he would be bound by whatever decision arrived at by the Court.
It would be recalled that 1st to 4th Respondents were duly served with all the processes of Court and the Counsel for the Appellant obtained the leave of this Court to hear and determine this appeal based upon the Appellant’s brief of argument and the 5th Respondent’s brief of argument for failure of the other Respondents to file their briefs.
At the hearing, Learned Senior Counsel for the Appellant referred to the Appellant’s brief of argument filed on 13th March, 2013 and the Appellant’s reply brief filed on 17th May, 2013.
He adopted the two briefs and relied on it as his argument in urging that the appeal be allowed.
The Learned Counsel for the 5th Respondent in his own case also referred to the 5th Respondent’s brief of argument filed on 17th April, 2013 and the additional list of authorities filed on 1st July, 2013. He adopted the said brief and the list of authorities as his argument in urging that the appeal be dismissed.
ISSUES 1, 2 AND 3 (ARGUED TOGETHER)
1. Whether, having regard to all the materials placed before the trial court and the courts own finding that the appellant was the nominated candidate of PDP, the court was right in refusing to join him as a party interested in the subject matter of the suit. (Ground 1).
2. Whether, having regard to the evidence before the Court, the appellant abandoned his nomination by PDP and contested under the Labour Party. (Ground 2).
3. Whether, the trial judge evaluated or properly evaluated all the evidence and materials placed before her in arriving at her decision that the appellant contested under the Labour Party. (Ground 4).
The Learned Senior Counsel for the Appellant submitted that the Learned trial Judge was in error when she held that the Appellant abandoned his nomination and decamped to the Labour Party where he contested merely on the basis of Exhibits ‘A4’, ‘FB2’ and ‘A5’, that is,
1. The notification of polls published by INEC FB2 (Pages 744-748) containing the name of the Appellant as a candidate of Labour Party.
2. INEC Form EC8E (iv) (which is the polls result sheet) reflecting the name of the Appellant as candidate of the Labour Party, and
3. The petition of APGA Candidate at the Election Tribunal where, in compliance with the Electoral Act, Appellant was listed as a Candidate of Labour Party.
in reaching that decision.
He went further in his submission that the Learned trial Judge completely did not take into account the evidence of the Appellant and that of the Labour Party’s candidate.
It was also submitted on behalf of the Appellant that by demanding that the Appellant produce a letter from INEC showing that the publication of his name was in error appeared to be placing the burden of proof on the Appellant.
Learned Senior Counsel also submitted that this matter was decided on affidavit evidence and all materials placed before the Court are documentary. He argued that this Court is in a good position as the trial Court to have a second look at the materials placed before the lower court.
It was argued further that the trial Court has no reason not to believe the evidence of the Labour Party. He relied on the case of – STATE vs. AJIE (2000) SCQR PAGE 53 at 55.
He submitted further that this is a proper case where this Court ought to intervene.
The Learned Counsel for the 5th Respondent on the other hand submitted that the Learned trial Judge was right when she held that the Appellant has no legal interest or locus standi in the subject matter of the suit, having decamped to the Labour Party and abandoned his membership of the PDP and candidature of the PDP for election into Ihiala Federal Constituency and contested the election as a candidate of Labour Party.
Learned Counsel relied on the following Exhibits: –
(a) Exhibit A3: – Notice of Polls for 2011 general election issued by the 6th Respondent (INEC) on 18th March, 2011, showing the list of candidates for all the Political Parties for the House of Representatives Election in Anambra State, which has the name of the Appellant as the candidate of the Labour Party and the name of the 5th Respondent for the PDP.
(b) Exhibit FB2: – Final List for all the parties for the House of Representatives election in Anambra State published by the 6th Respondent (INEC).
(c) Exhibit A4: – The declaration of result of election of Ihiala Federal Constituency showing and confirming the Appellant as the candidate of the Labour Party and 5th Respondent as the candidate of PDP.
(d) Exhibit A5:- The Election Petition No:EPT/AN/NAE/HR/01/2011, instituted by (APGA) All Progressive Grand Alliance and its candidate at the said election.
Learned Counsel for the 5th Respondent submitted that the documents referred to above clearly showed that the Appellant participated at the election as the candidate of the Labour Party.
He argued further that by virtue of Section 37 of the Electoral Act, 2010 (as amended); it is unlawful for the Appellant to be nominated by both the Labour Party and the (PDP) Peoples Democratic Party. He also referred again to Exhibits ‘FB2’, ‘A4’ and ‘A5’ which he stated raised a presumption of correctness, authenticity and genuineness by virtue of Section 104 of the Evidence Act.
He relied on the following cases:
– AREGBESOLA VS OYINLOLA (2009) 14 NWLR (PART 1162) PAGE 429 at 472 PARAGRAPHS E -H.
– C.P.C. VS INEC (2011) 18 NWLR (PART 1279) PAGE 493 at 573-574.
It was also contended on behalf of the 5th Respondent that there are no allegations of fraud in the several affidavits filed by the Appellant.
He relied on the case of: –
– OGUNDEPO VS OLUWESAN (2011) 18 NWLR (PART 1278) PAGE 54 at 69 PARAGRAPH (E – G)- PAGE 72 PARAGRAPHS D- F.
It was also stated that the Appellant never challenged the publication of his name in any Court or at the Tribunal, but rather went ahead to contest the election on the platform of the Labour Party.
The Learned Counsel for the 5th Respondent also submitted that Exhibits ‘FB2’, ‘A3’ and ‘A4’ which emanated from the 6th Respondent are sufficient contradiction of the averment by the Appellant that he never contested election as a candidate of Labour Party. He argued that the documents speak for themselves.
He relied on the following cases: –
– NBC PLC VS ORESANYA (2009) 16 NWLR PART 1168 PAGE 564.
– OGUNSANWO VS OLUWOLE (2009) 16 NWLR (PART 1167) PAGE 391 At 409 PARAGRAPH H.
– C.G.E VS NAMATIV (2002) 21 WRN PAGE 31.
– OBINECHE VS AKUSOBI (2010) 38 WRN PAGE 117.
The Learned Counsel for the 5th Respondent referred to the Appellant’s claim that upon finding his name published by the 6th Respondent (INEC) as the candidate of the Labour Party, he complained to the Resident Electoral Commissioner at Awka, who told him that it was an error from the Computer at the 6th Respondent’s office. He submitted that the claim cannot be believed because the Appellant never exhibited any document showing his complaint to the 6th Respondent (INEC) nor any reply from the 6th Respondent that the publication of his name as the candidate of Labour Party was in error and will be rectified. He also argued that it is hearsay evidence which is contrary to Section 38 of the Evidence Act 2011 and therefore inadmissible.
He relied on the case of: –
– OSUOHA VS STATE (2010) 16 NWLR (PART 1219) PAGE 364.
It was also contended on behalf of the 5th Respondent that there was no oral or documentary evidence from the 6th Respondent affirming the contention of the Appellant. And he submitted that where a person makes false averments in an affidavit, the Court is enjoined to disregard and discountenance same. He relied on the case of – MOKWE vs EZEUKO (2000) 14 NWLR (PART 686) PAGE 143 At 155 PARAGRAPH A.
It was submitted that on the face of Exhibits ‘FB2’, ‘A3’, ‘A4’ and ‘A5’, the evidence of the Appellant that he never contested the election on the platform of the Labour Party and that he is the rightful candidate of the PDP is unbelievable.
It was also argued concerning Exhibit ‘FB1’, that is, the purported letter of resignation, that it was not decided upon by the lower court, and as such it is not relevant since there was no decision on it. He submitted that the ground of appeal and issues formulated thereon must emanate from the decision of the Lower Court. He relied on the following cases: –
– CHAMI VS. UBA PLC (2010) 6 NWLR PART 1191 PAGE 474.
– LAWRENCE VS. A.G. FEDERATION (2008) 6 NWLR (PART 1084) PAGE 453 at 467 PARAGRAPHS E – F.
It was finally submitted on behalf of the 5th Respondent that the lower court evaluated all the evidence placed before it before arriving at its decision.
In the Appellant’s reply brief of argument, Learned Senior Counsel referred to the legal issues raised in the 5th Respondent’s brief that Exhibits ‘FB2’, ‘A4′ and A5’ are public documents which by virtue of Sections 102 and 146(1) of the Evidence Act, 2011 (as amended) are presumed correct, genuine and authentic.
It was submitted on behalf of the Appellant that since the presumption of correctness created by Section 146 of the Evidence Act is a rebuttable presumption, the Appellant through the materials placed before the Court and the affidavit evidence before the Court has provided credible evidence to rebut the correctness of the said Exhibits ‘FB2’, ‘A4’ and ‘A5’.
Learned Senior Counsel for the Appellant urged that the Appeal be allowed.
Ruling of the Lower Court is on Pages 774 to 794 of the Record of Appeal. The contention of the Learned Senior Counsel for the Appellant is that the Learned trial Judge was in error when she held that the Appellant abandoned his nomination and decamped to the Labour Party where he contested relying mainly on Exhibits ‘A4’, ‘FB2’ and ‘A5’ in reaching her decision.
On the other hand, the Learned Counsel for the 5th Respondent submitted that the Learned trial Judge was right when she held that the Appellant has no legal interest or locus standi in the subject matter of the suit, having decamped to the Labour Party and abandoned his membership of the PDP for election into Ihiala Federal Constituency on the platform of Labour Party, with the 5th Respondent who contested as the candidate of the PDP.
In order to understand the issues in controversy between the parties, it would be necessary to critically evaluate the materials placed before the lower court before the court arrived at its decision.
On Page 698 of the record of appeal, it was shown that immediately INEC published Exhibit A3, the Appellant protested to Labour Party as to why his name was submitted as their candidate without his consent when he had won his party’s primaries, that is, PDP Primaries vide a letter dated 20th March, 2011 and copied to the Resident Electoral Commissioner at Awka. The said letter is Exhibit ‘IKC’ in Paragraph 7xi, further counter affidavit of the Appellant. There was a reply to the said letter marked as Exhibit ‘IKD’ in Paragraph 7xii of the Appellant’s further counter affidavit.
In Exhibit ‘IKD’, the Labour Party denied ever submitting the Appellant’s name as its nominated candidate to INEC and reiterated that the Party had already submitted the name of Ephraim Okwuchukwu Okoli (who won their primary election) as its nominated candidate. In Paragraph 7xiii of the further counter affidavit of the Appellant on Page 698 of the record of appeal, it was stated that on receipt of Exhibit ‘IKD’, the Appellant went straight to the Resident Electoral Commissioner to demand rectification of the error. And the Resident Electoral Commissioner at Awka informed the Appellant that the Labour Party had already complained and that the problem was as a result of mix-up in computer operations at the INEC Headquarters in Abuja where the Computer Operators wrongfully entered the name of the Appellant as Labour Party candidate but that the error would be rectified.
There was also evidence from Labour Party candidate Ephraim Okwuchukwu Okoli who confirmed all that was stated by the Appellant. See: PARAGRAPHS 11 and 12 of the affidavit on PAGE 680 of the RECORD OF APPEAL.
The Learned Counsel for the 5th Respondent in his submission argued that Exhibits ‘FB2’, ‘A4’ and ‘A5’ are public documents which by virtue of SECTION 102 and 146(1) of the EVIDENCE ACT, 2011 (as amended) are presumed correct, genuine and authentic.
Under SECTION 102 of the EVIDENCE ACT 2011, the following documents are public documents: –
(a) Documents forming the Official Acts or records of the Official Acts of –
(i) The sovereign authority
(ii) Official bodies and tribunals or
(iii) Public Officers, legislative judicial and executive, whether of Nigeria or elsewhere and
(b) Public records kept in Nigeria of private document
Also SECTION 146(1) of the same EVIDENCE ACT 2011 (as amended) Provides thus: –
– Presumption as to genuineness of certified copies.
(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.”
There are two types of presumptions of law, they are: –
(1) Irrebutable Presumptions
(2) Rebutable Presumptions.
While the former cannot be rebutted, the latter can be rebutted by credible evidence.
The presumption envisaged by SECTION 146(1) of the EVIDENCE ACT 2011 (as amended), is a rebuttable one in that a document is genuine and the burden is on the party challenging its genuineness to adduce sufficient and probable evidence that such a document is not genuine.
See – JALINGO VS NYAME (1992) 3 NWLR (PART 231) PAGE 538.
In the instant case under consideration, the Appellant through the materials placed before the Court and the affidavit evidence has provided credible evidence to rebut the correctness of the said Exhibits ‘FB2’ ‘A4’ and ‘A5’.
The Labour Party by its letter of 28th March, 2011 denied ever nominating the Appellant as its candidate. In the said letter, the Labour Party affirmed that Ephraim Okwuchukwu Okoli who won its primary election was nominated by it as its candidate.
SEE: PAGE 707 of the RECORD OF APPEAL,
It must be noted that the 6th Respondent was also a party to this case at the lower court, the account of all that happened was not contradicted by the 6th Respondent who was 2nd Respondent at the lower court.
This is a case of evidence not challenged which is deemed as admitted. Where evidence by a party to any proceedings as in this case was not challenged or controverted by the opposite party who had the opportunity to do so, it is always open to the Court seised of the case, to act on such unchallenged or uncontroverted evidence before it.
See:-. OBINECHE VS AKUSOBI (2010) 12 NWLR (PART 1208) PAGE 383.
In Law of Evidence, he who asserts must prove. See: SECTION 136 (1) of the EVIDENCE ACT 2011.
In this case under consideration, the onus on the 5th Respondent to prove that the Appellant decamped from PDP to Labour Party was initially discharged on production of Exhibit ‘A3’, ‘A4’ and ‘A5’. At this point, the onus shifted to the Appellant to explain why his name was published by INEC and why the result published by INEC bore his name as Labour Party candidate.
The unchallenged explanation of the Appellant backed by Exhibits ‘IKC’ and ‘IKD’ discharged the onus. In addition, the Appellant also called Labour Party candidate who tendered Exhibits ‘A’ and ‘B’, that is, the nomination form of the Labour Party candidate, Form EC84B (iv) and Form CF001 together with the application and receipt of payment for certification of the forms by the Labour Party candidate.
It is also important to note that the above evidence was not controverted by INEC.
Although the Learned Counsel for the 5th Respondent submitted that the deposition of the Appellant and the Labour Party through Ephraim Okwuchukwu Okoli are hearsay, it is my view that evidence given by a witness concerning a statement made to him by a person who is not himself called as a witness may or may not be hearsay. It would be hearsay if the witness reporting it intends thereby to establish that such statement is true. But it will not be hearsay and admissible if the witness proposes not to establish the truth but to show merely that the statement was made. See the following cases: –
– ONYA VS OGBUYI (2011) ALL FWLR (PART 550) PAGE 493.
– UTIE VS THE STATE (1992) 2 SCNJ (PART 1) PAGE 183.
In the case under consideration, the Appellant and Ephraim Okoli deposed to information which they were given by INEC at Awka.
Whether the information given to them by INEC is true or false is a matter of what inference the Court will draw from other pieces of evidence placed before the court.
In the circumstance, it is my view that the deposition of the Appellant and Ephraim Okoli are not hearsay as it was to confirm the fact that they complained to INEC, that is, the 6th Respondent and the answer credited to the 6th Respondent. The truth of the fact that INEC told them that the publication of the Appellant’s name was in error is enhanced by the fact that INEC which is a party to the suit had the opportunity to deny what the Appellant and Ephraim said that the Resident Electoral Commissioner said but INEC did not deny it.
In AROGUNDADE VS THE STATE (2009) ALL FWLR (PART 469) PAGE 409 the Supreme Court held among others that “where a witness said that the accused had confessed the crime to him, it would not be hearsay.”
In this case, Ephraim Okoli the Appellant’s witness only stated that INEC confessed to him that the publication of the Appellant’s name as Labour Party candidate was in error.
INEC had the opportunity to confirm or deny what the Appellant and the witness said but did not testify.
This case was decided on affidavit evidence placed before the Court but I am of the firm view that in view of the uncontroverted materials placed before the lower court, it had no reason not to believe the evidence of the Appellant and the Labour Party candidate called as witness. The evidence before the Court corroborated by Exhibits ‘A’, ‘B’, ‘IKC’ and ‘IKD’ were not impugned by any of the parties. In fact INEC who also participated in the case at the lower Court kept quiet and as a result the evidence of the Appellant and his witness were unchallenged.
It is my view that the lower court failed and refused to consider the unchallenged evidence provided by the Appellant before arriving at its decision. And this has resulted in injustice to the Appellant.
In STATE vs AJIE (2000) SCQR PAGE 53, the Supreme Court laid down the conditions under which an Appeal Court can interfere with the findings of fact of a lower court to include a situation where the finding is perverse.
A decision is said to be Perverse: –
(i) When it runs counter to evidence,
(ii) Where it has been shown that the trial court took into account matters which it ought not to have taken into account and
(iii) When it has occasioned a miscarriage of justice.
In view of the foregoing, it is my conclusion that this is an appropriate situation where this court ought to intervene.
Consequent upon the foregoing, Issues 1, 2 and 3 are resolved in favour of the Appellant and against the Respondents.
ISSUE 4
Whether the Learned trial Judge did not prejudge the issues as it related to the Appellant when in an application for joinder, she delved into the issue of whether or not the appellant contested under another political party, an issue which ought to be dealt with in the substantive suit. (Ground 5)
The Learned Senior Counsel for the Appellant submitted that the lower court in determining the issue of joinder delved into the issues that would have been left for the main suit.
He went further in his argument that once the trial court found as a fact, that the appellant was nominated by PDP, the Appellant ought to be joined as a party in the suit and the issue as to whether the Appellant abandoned his nomination and contested elsewhere would have been an issue for the substantive suit.
He relied on the case of:-
– IFEX VS FIRST INLAND BANK PLC (2007) 14 WRN PAGE 135 at 152 LINES 10-15.
ARGUMENT RELATING TO RELIEF SOUGHT:
Learned Senior Counsel for the Appellant submitted that this is a proper case where this court can invoke its powers under Section 15 of the Court of Appeal Act to hear and determine the substantive suit.
He argued further that this suit has its root in pre-election dispute where the 5th Respondent was wrongfully accepted by INEC as validly nominated candidate of the PDP for election into the National Assembly representing Ihiala Federal Constituency.
He relied on the case of:-
– EMEKA VS OKADIGBO (2012) 17 S.C. PART 1 at PAGE 1.
He urged the Court to take judicial notice of the fact that the tenure of a Legislator in Nigeria is 4 years, and the 5th Respondent has spent two years out of the 4 years tenure. He said the only way to avoid further waste of time is to give the suit accelerated hearing. He said this can only be done by invoking section 15 of the Court of Appeal Act.
He relied on the case of: –
– INAKOJU VS ADELEKE (2007) 4 NWLR PART 1025 PAGE 423.
It was also argued on behalf of the Appellant that all the materials required for the determination of the substantive suit have been placed before the Court.
He finally submitted that this is an appropriate case for the invocation of the general powers of the court conferred by Section 15 of the Court of Appeal Act.
The Learned Counsel for the 5th Respondent in his own submission stated, that the Learned trial Judge was right in determining the issue of the Appellant’s abandonment of his nomination by PDP to decamp and contest the same election on the platform of the Labour Party. He went further in his submission that the only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled in the action which cannot be effectively and completely settled unless he is a party.
He relied on the following cases:
– GREEN VS GREEEN (1987) 3 NWLR (PART 61) PAGE 40.
– BELLO VS INEC (2010) 8 NWLR (PART 1196) PAGE 342 at PAGE 403 – 404 PARAGRAPHS F-B PAGE 404, PAGE 418 PARAGRAPHS A-B.
– P.W.T. NIG. LTD. VS J. B. OLANDEEN INT. & OTHERS (2010) 19 NWLR (PART 1226) PAGE 23 PARAGRAPHS A-C.
It was submitted on behalf of the 5th Respondent that the exhibits, that is, exhibits ‘A3’, ‘A4′,’ A5′ and ‘FB2’ clearly and conclusively show that the Appellant participated at the main election as the candidate of the Labour Party and this shows the legal interest of the Appellant in the suit is nil.
He relied on the case of:
– OJUKWU VS OJUKWU (2008) 11 NWLR (PART 1119) PAGE 439 at 457 PARAGRAPHS D-F PAGES 452 – 453 PARAGRAPHS C-A.
He also argued that the issue of locus standi is important in determining whether a person is a party to an action.
He relied on the case of:
– B. M. LTD VS WOERMANN LINE (2009) 13 NWLR (PART 1157) PAGE 149 at 179 PARAGRAPHS F-H, PAGE 183 PARAGRAPHS E-F.
The learned Counsel for the 5th Respondent submitted that the Appellant cannot approbate and reprobate. He also argued that the Appellant is estopped from turning round to claim the candidature of PDP which he abandoned to contest the same election on the platform of Labour Party.
He relied on the case of:
– A.G. OF RIVERS STATE VS A.G. AKWA IBOM & ANOTHER (2011) 8 NWLR PART 1248 PAGE 31 at PAGE 82 PARAGRAPHS B-F. 185-186 PARAGRAPHS G-A.
He submitted that for this court to invoke the provisions of SECTION 15 of the COURT OF APPEAL ACT, the High Court or trial Court must have legal power and jurisdiction to adjudicate on the matter before it.
He relied on the case of: –
– EZEIGWE VS NWAWULU (2010) 4 NWLR PART 1183 PAGE 159 PAGE 203 – 204 PARAGRAPHS F-A.
It was argued on behalf of the 5th Respondent that this is not an appropriate case for the invocation of SECTION 15 of the COURT OF APPEAL ACT because: (1) The lower court lacks jurisdiction and does not have Legal Power to determine the suit which is a pre-election matter instituted almost 11 months after the election and (2) Statute barred by the provisions of SECTION 2(a) of the PUBLIC OFFICERS PROTECTION ACT.
He relied on the following cases:
– HASSAN VS ALIYU (2010) 17 NWLR (PART 1223) PAGE 547 AT 600 PARAGRAPHS A-B
– FAROUK SALIM VS CPC & 2 OTHERS (2013) 6 NWLR (PART 1351) PAGE 501.
– DR. ANDY UBA VS PRINCE N. UKACHUKWU (Unreported) CA/OW/180/A/2013; Delivered on 31st May, 2013.
He referred to Section 2(a) of the Public Officer’s Protection Act and submitted that this Court lacks jurisdiction to entertain the case.
He relied on the following cases:
– EGBE VS BELGORE (2004) 8 NWLR (PART 875) PAGE 33.
– NEPA VS OLAGUNJU (2009) 3 NWLR (PART 913) PAGE 602.
– IBETO CEMENT CO. LTD. VS A.G. FEDERATION (2008) 1 NWLR (PART 1069) at 470.
– AFRICAN RE-INSURANCE CORP. VS GUAR COSMETIC STORE (2010) ALL FWLR (PART 549) PAGE 1094.
– AGBOOLA VS AGBODEMI (2010) ALL FWLR PART 529 PAGE 1111 at 1154 PARAGRAPHS F-H.
– AMADI VS INEC (2013) 4 NWLR (PART 1345) PAGE 595 AT 631 PARAGRAPHS F-H.
He finally urged that the appeal be dismissed for lacking in merit.
In his reply brief of argument, the Learned Senior Counsel for the Appellant submitted that Public Officers Protection Act will not avail INEC, that is, the 6th Respondent having acted in breach of existing Court orders. He relied on the case of: HASSAN VS. ALIYU (SUPRA).
He submitted that this Court can invoke its general powers under Section 15 of the Court of Appeal Act to determine the substantive suit.
In this case, the lower court at the Interlocutory Stage in its Ruling found as a fact that the Appellant was nominated by PDP and went further to determine that the Appellant abandoned his nomination and contested under the platform of the Labour Party.
This court in: IFEX VS. FIRST INLAND BANK PLC (SUPRA) PAGE 135 at 152 LINES 10 – 15 stated that:
“It is not proper for a trial court to prejudge issues in the substantive case in the process of deciding an interlocutory application…………………………”
After a careful consideration of the facts of this case, it is my view that the lower court in dealing with the issue of joinder should not have delved into the issue that the Appellant abandoned his nomination under PDP and contested the same election under Labour Party at the interlocutory stage.
This issue is therefore resolved in favour of the Appellant and against the Respondents.
My views above will now lead to the examination of the reliefs sought. The Learned Counsel for the Appellant urged that this court should invoke its powers under Section 15 of the Court of Appeal Act and determine this case on its merit. But the Learned Counsel for the 5th Respondent submitted that this is not an appropriate case for the invocation of Section 15 of the Court of Appeal Act.
He argued further that the lower court does not have the jurisdiction and the legal power to determine the suit, which is a pre-election matter instituted almost 11 months after the election and that it is statute barred by the provisions of Section 2 (a) of the Public Officers Protection Act.
Section 15 of the Court of Appeal Act states as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part and may remit it to the Court below for the purpose of such re-hearing or may given such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the Court below in that court’s appellate jurisdiction order the case to be re-heard by a court of competent jurisdiction.”
For Section 15 of the Court of Appeal Act to apply, the following conditions must exist:
(1) The Lower Court or High Court must have Legal power to adjudicate in the matter before the Appellate Court.
(2) The real issue raised by the claim of the Appellant at the lower court must be capable of being distilled from the ground of Appeal.
(3) That all necessary materials must be available to the court for consideration.
(4) That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented.
(5) That the hardship or injustice that will follow if the case is remitted to the court below must be clearly manifest.
See: – EZEIGWE VS NWAWULU (SUPRA)
This suit which the Appellant asked this court to invoke Section 15 of the Court of Appeal Act to determine was instituted on 27th March, 2012, almost 11 months after release and issuance of Certificate of Return to 5th Respondent by the 6th Respondent.
It must not be forgotten that this is a pre-election matter. The Learned Counsel for the 5th Respondent argued extensively that the Appellants’ suit is statute barred by virtue of Section 2(a) of the Public Officers Protection Act as it concerns the steps to be taken by the 6th Respondent who is regarded as a Public Officer.
A careful examination of the facts of this case vis-a-vis the Electoral Act 2010 (as amended) would reveal that there is no limitation of action from which a computation can be made under the Electoral Act as far as pre-election matters are concerned. But a critical review would show that time is of essence in cases of this nature.
It would be recalled that this Appeal was as a result of the Ruling of the lower court which dismissed the Application by the Appellant to be joined as an interested party in Suit No:FHC/ABJ/CS/188/2012 between:- PDP & 4 OTHERS VS FORT DIKE & 1 OTHER. The reliefs sought in the suit are contained on PAGES 4 and 5 of the RECORD OF APPEAL.
The reliefs sought by the Appellant in his Notice of Appeal on PAGES 795 to 800 of the RECORD OF APPEAL are reproduced as follows:-
(1) To set aside part of the decision of the Court that the Appellant resigned his membership of PDP.
(2) To set aside part of the decision of the court that the appellant contested as candidate of Labour Party.
(3) To set aside that part of the decision of the court that the appellant abandoned his right as the candidate of PDP.
(4) To make consequential orders that justice of this case demands i.e. that the INEC shall issue Certificate of Return to the Appellant, the lower trial court having determined that the appellant was the candidate of PDP who won the election but erroneously held that he abandoned his nomination,
OR ALTERNATIVELY
To invoke Section 15 of the Court of Appeal Act, assume the power of the Federal High Court and determine the matter on the merit.
As I said earlier in this judgment time is of essence in cases of this nature. If a case is dead at the time it was instituted, there is nothing that could be done to resuscitate it.
The Supreme Court while nailing the coffin of such cases held among others in the case of:-
– BALA HASSAN VS BABANGIDA ALIYU & OTHERS (SUPRA) PAGE 532 at 1015 as follows: –
“I hold the view that at the time the Appellant decided to go to court in the circumstances of this case, the question of nomination by way of substitution which is a pre-election matter had ceased to exist leaving only the election proper to be questioned and the proper place to do so is the Election Tribunal. If the situation in this case is encouraged, it will breed uncertainty to the point where a person may take up to a year or more after an election and swearing-in of a President or Governor to challenge his nomination by way of substitution for election that brought him to power. The above clearly demonstrates the fact that in election matters whether pre-election, election proper or election related matter time is of essence…….”
Also in the case of:-
– FAROUK SALIM VS CPC & 2 OTHERS (SUPRA) PAGE 501.
The Supreme Court per Odili, JSC, confirmed the above position when my Lord stated as follows:
“In conclusion it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precede election and therefore pre-election matters. The instant situation where the Appellant as plaintiff did not complain to court before election and even then 38 days after the election to talk of a pre-election matter for the first time is a pill too difficult to swallow. He by his lack of consciousness took his matter out of the domain of pre-election can only go before the Election Tribunal to try his luck. Since the status of the matter was post election clearly outside the ambit of either the Federal High Court or High Court of the FCT. The other way to say it is that the matter had become spent or no longer alive to be adjudicated upon by any of those courts above mentioned in this instance. See:- TANIMOLA VS MAPPINE GODATTA LIMITED (1995) 6 NWLR (PART 403) PAGE 617.
– OGBONNA VS. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1997) 5 NWLR (PART 504) PAGE 281.
– NDULUE VS. IBEZIM (2002) 12 NWLR (PART 180) PAGE 139………….”
Consequent upon the foregoing, it is my view that the suit which the Appellant sought to be joined as a defendant is stillborn and incompetent.
Although the issues for determination in this appeal were resolved in favour of the Appellant but since the substantive suit upon which the appeal emanated is a pre-election action which was instituted on 27th March, 2012, that is, about 11 months after the April, 2011 general election; therefore the action is no longer alive. Apart from that, this Court cannot invoke the provisions of Section 15 of the Court of Appeal Act, because as it were the lower court lack the jurisdiction to grant the reliefs sought.
In the result, this Appeal is hereby struck out.
There shall be no order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother JIMI OLUKAYODE BADA, JCA.
I agree with his reasoning and conclusions arrived at in holding that the suit which the Appellant sought to be joined as a defendant is incompetent and the order striking out same.
By way of emphasis, there is no doubt and it is not contested that the originating summons taken out in the lower court in suit No: FHC/ABJ/CS/188/2012 which gave rise to this appeal was dated 27th March, 2012 and filed the same day, pages 3-6 of the records of appeal.
It has been stated in a plethora of legal authorities of the Apex court and this court that time is of the essence in pre-election and election related matters as a whole. Where a party folds his hands and sleeps over a perceived right, and suddenly wakes up almost a year later, to claim such right this Court or any court for that matter cannot be of any assistance.
From the reliefs sought, the action is a pre-election matter and as at the time the Appellant decided to take out his action the issue of substitution of candidates for the election complained about had ceased to exist, election having long been held, leaving only the election proper to be questioned before an election tribunal. See: Bala Hassan vs Babangida Aliyu & Ors (2010) 17 NWLR (Pt.1223) page 547. Similarly, in the Apex Court’s decision in Farouk Salim v. CPC & 2 Ors (2013) 6 NWLR (Pt.1351) Page 501, the Apex Court held that an action taken out 38 days after the election in a pre-election matter was outside the domain of a pre-election matter but that, that would be tried by an Election Tribunal talk less of the present action in a similar situation, that was taken out almost a year after the acts complained of. The Federal High Court had no jurisdiction to have entertained the matter as at the time the action was instituted. The suit is incompetent, as there was no live issue to be tried.
For the fuller reasons in the leading judgment, I also strike out the appeal. I abide by the order made as to costs.
MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA. I agree with the reasoning and conclusion in the leading judgment striking out this appeal, as it would be unreasonable to join the appellant to a suit over which the lower court is deprived of its jurisdictional competence to entertain. It will also serve no useful end or purpose for the court to invoke the provisions of section 15 of the Court of Appeal Act, 2011 having regard to the totality of the facts and circumstances of this appeal.
For the comprehensive reasons given in the judgment of my learned brother, I also strike out this appeal, notwithstanding that the issues formulated by the appellant, as arising for determination, were resolved in his favour.
I make no order for costs.
Appearances
Mr. Ikechukwu Ezechukwu, SAN; with him are: Ogechi Ogbonna, Emezie Ndeokwelu, Ikechukwu Obianyor, Emeka Chukwudi, and Udoka OguekweFor Appellant
AND
Mr. J. O. Asoluka for the 5th Respondent.
Mr. Ibrahim K. Bawa for the 6th Respondent; with him are: Rahima Aminu (Mrs) and Abdulazeez SanniFor Respondent
