SENATOR AYO ADESEUN v. PEOPLES DEMOCRATIC PARTY & ANOR
(2019)LCN/13323(CA)
(2019) LPELR-47739(CA)
RATIO
AFFIDAVIT: HOW TO RESOLVE CONFLICTS IN AFFIDAVIT EVIDENCE
The law is that, where there is conflict in the affidavit evidence of the parties which cannot be resolved by documentary evidence, oral evidence will be required to resolve the conflict. In other words, where there is a material issue raised in the affidavits of the parties which cannot be resolved by documentary evidence attached to the affidavits of the parties, oral evidence will be required to resolve the conflict. See Mabamije v. Hani Wolfgang Otto (2016) LPELR – 26058 (SC); Emeka v. Okoroafor & Ors (2017) LPELR ??? 41738 (SC) and Oyefeso v. Omogbehin(1991) 4 NWLR (pt.187) 596. Thus, in FBN Plc v. May Medical Clinics & Diagnostics (2001) LPELR ??? 1282 (SC) it was held that:
Where the only evidence before a Court are affidavits of the parties that is to say the applicants affidavit and respondents counter-affidavit, the Court can rule and arrive at a conclusion in so far as the affidavits do not contain totally divergent depositions of facts. In cases where the affidavits, or material facts to be adjudicated upon are diametrically at variance, the Court before which the proceeding is being conducted must not pick and chose or believe one and reject the other, it is only by resorting to viva voce evidence that the Court will resolve the conflict on the facts. However, where the conflicts in the affidavits do not touch the material substance of the matter before the Court, decision may be based on the evidence in those affidavits and there will be no need to resort to oral evidence to resolve such material facts.
It therefore means that it is not in all instances that oral evidence will be resorted to in order to resolve conflicts in affidavit evidence. To resort to oral evidence the contradiction must be on material issue to be adjudicated upon. Furthermore, where there is authentic documentary evidence which supports one of the affidavits and the document is one that is capable of resolving the conflict by tilting the balance in favour of the affidavit which agrees with it, there will be no need to call oral evidence.PER HARUNA SIMON TSAMMANI, J.C.A.
WHEN COURTS ARE NOT ALLOWED TO RAISE ISSUES SUO MOTU
The law, which is trite, is that, generally Courts are not permitted to raise issues suo motu which the parties have not raised for themselves. However, there may be instances where a Court can validly raise an issue suo motu, where the issue is substantial and material to the determination of the issues in controversy. Where a Court feels compelled to raise such issue, parties to the dispute must be invited to address the Court on that issue before the Court can validly decide on the issue so raised. See Katto v. CBN (1991) LPELR ??? 1678(SC); Victino Fixed Odds Ltd v. Ojo & Ors (2010) LPELR ??? 3462(SC); Akere & Ors v. Governor of Oyo State & Ors (2012) 12 NWLR (pt.1314) 240 and Effiom & Ors v. CROSIEC & Anor (2010) 14 NWLR (pt.1213) 106. See also Stirling Civil Engineering (Nig.) Ltd v. Yahaya (2005) 11 NWLR (pt.935) 181.PER HARUNA SIMON TSAMMANI, J.C.A.
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2019
CA/IB/133/2019
Before Their Lordships
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
NONYEREM OKORONKWOJustice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJOJustice of The Court of Appeal of Nigeria
Between
SENATOR AYO ADESEUN – Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court, Ibadan Judicial Division delivered by G. A. Sunmonu, J., on the 19th day of March, 2019 in Suit No: I/956/2018.
The Appellant and three other persons took out a writ of summons and statement of claim against the Respondents as Defendants before the Oyo State High Court sitting in Ibadan. The writ of summons and statement of claim were both filed on the 21/9/2018. The said Writ and Statement of claim were subsequently amended by leave of Court. The suit was subsequently heard and determined on the Amended Writ of Summons and Amended Statement of Claim both filed on the 17/10/2018. The reliefs sought by the Appellants as per paragraph 36 of the Amended Statement of Claim are as follows:
1. A DECLARATION that the purported list of Delegates contained in the Report of a 3 Ad-Hoc Ward Delegates Committee dated 10th September, 2018 and signed by Chief Okey Ezenwa and others is undemocratic, unconstitutional, null and void.
???2. A DECLARATION that any primary election held using the said list of delegates
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is NULL, Void AND Of No effect.
3. A DECLARATION that the doctored Oyo State List of National Delegates and the List of State Executive Committee used by the 1st Defendant to conduct the Governorship Primary Election on 30th September, 2018 is unconstitutional, null, void and of no effect.
4. A DECLARATION that the 1st Defendant has not validly sponsored any person for any elective position for the 2019 General Elections.
5. AN ORDER setting aside anything done or purported to be done or any primary election conducted by the 1st Defendant, using the said list of 3 Ad-Hoc Delegates submitted by the Oyo State 3 Ad-Hoc Ward Delegates Congress Election Committee dated 10th September, 2018, the doctored List of National Delegates and the List of the State Executive Committee of the party.
6. INJUNCTION restraining the 1st Respondent by itself, its officers or any person howsoever called from recognizing or using the said List of 3 Ad-Hoc Ward Delegates for any primary election in Oyo State.
???7. INJUNCTION restraining the 2nd Respondent from receiving, recognizing, processing or using any result of any primary election including
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the Gubernatorial Primary Election held on 30th September, 2018, 2nd, 3rd and 4th October, 2018, wherein the said Lists were used to elect the candidates for the 1st Defendant in Oyo State.
8. AN ORDER directing the 1st Defendant to conduct another set of Primary Elections using the authentic List of State Executive members, authentic List of National Delegates and authentic List of 3 Ad-Hoc Delegates.
???The 1st Defendant/Respondent filed a Memorandum of Conditional Appearance on the 12/10/2018 through Adeniyi Farinto of counsel. It should be noted that, in the course of the proceedings, the names of the 3rd and 4th Claimants; to wit: Alhaji Azeem Gbolarumi and Dr. Bayo Adepoju were withdrawn and struck out; leaving the duo of Sunday Moses Adeyanju and Senator Ayo Adeseun as the Plaintiffs as contained on the Amended Writ of Summons and Amended Statement of Claim. The 2nd Respondent never put up any appearance throughout the proceedings in the lower Court. However, having filed the Conditional Memorandum of Appearance, the 1st Defendant/Respondent filed a Notice of Preliminary Objection praying the Court below, to dismiss or strike out the suit
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for lack of jurisdiction on the following grounds:
(a) The Claimants originating process is incompetent having failed to be issued in full compliance with the statutory provisions of Section 97 of the Sheriffs and Civil Process Act which is mandatory and which failure is a fundamental defect which renders the writ of summons issued in this case incompetent.
(b) The conditions precedent to the Institution and commencement of this suit have not been compiled (sic: complied) with by the Claimants and this robs this Court of its jurisdiction to entertain this suit.
(c) The action purely borders on internal/domestic affairs of a registered political party.
(d) The action is not justiciable.
???The Notice of Preliminary Objection was supported by an Affidavit of 56 paragraphs with several documents annexed thereto as exhibits. The Preliminary Objection was accompanied by a Written Address in support as required by the Rules of the Court below. The Plaintiffs/Appellants filed a Counter-Affidavit of 10 paragraphs to which were annexed Exhibits ???A???, ???B??? and ???C???. A Written Address filed on the
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19/11/2018 accompanied the Counter-Affidavit. The 1st Defendant/Respondent then filed a 30 paragraphs Further Affidavit with some documents attached thereto and marked Exhibits ???A???, ???B???, ???C???, ???D??? ???E??? and ???F???. A Written Address filed on the 23/11/2018 was filed along with the Further Affidavit. The Preliminary Objection was argued on the 7/12/2018 but Ruling thereon was reserved to be taken along with judgment on the substantive suit in line with Section 285(8) of the 1999 Constitution (as amended).
Let me pause here to state that, the 1st Defendant/Respondent filed a Statement of Defence on the 27/11/2018 in accordance with the Rules of the trial Court. The Plaintiffs/Respondents then filed a Reply to the 1st Defendant/Respondent???s Statement of Defence on the 06/12/2018. Issues having been joined, the suit went to trial with the Appellant calling 14 witnesses, while the 1st Respondent called 8 witnesses. Several documents were tendered from either side, admitted and marked as Exhibits. At the close of evidence, learned counsel filed and exchanged Written Addresses. Thus, in a
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well-considered judgment delivered on the 19th day of March, 2019, the learned trial Judge upheld the Preliminary Objection and consequently ordered that the suit be struck out. However, ex abundanti cautela, the learned trial Judge proceeded to consider and dismiss the substantive suit. Being dissatisfied with the decision the Appellant has filed this appeal.
The Original Notice of Appeal filed by Sunday Moses Adeyemo and Senator Ayo Adeseun was dated and filed on the 27/3/2019. It consists of 22 Grounds of Appeal. However, before the hearing of this appeal, Sunday Moses Adeyemo who was the 1st Appellant sought the leave of this Court to withdraw from the appeal and his name was consequently struck out. This necessitated amendment of the processes. This Appeal has therefore been argued on the Consequential Amended Notice of Appeal dated and filed on the 30/4/2018, which also consists of 22 Grounds of Appeal.
The extant Appellant???s Brief is the Consequential Amended Appellant???s Brief of Arguments dated the 29/4/2019 but filed on the 30/4/2019. Therein 14 issues were formulated for determination as follows:
1. Whether the trial Court
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can in law blow hot and cold at the same time and also rise an issue suo motu without affording the Appellant the opportunity to be heard. [Grounds 1 and 2].
2. Whether the learned Trial Judge was right in holding that there was no service of the originating processes without considering the issue of waiver raised by the Appellant and which was not opposed or replied to by the 1st Respondent.
[Grounds 3 and 4].
3. Whether the learned Trial Judge was not in error when he failed to consider the effect of the Amended Writ of Summons and Amended Statement of Claim before dismissing the Appellant???s case on the ground of non-service. [Ground 5].
4. Whether the learned Trial Judge was not in error, which error is a breach of the Appellant???s right to fair hearing, when he refused to evaluate the evidence placed before him especially the evidence of CW3, CW4, CW7 and CW8 and CW10, CW11, and CW12.
[Grounds 6, 7, 8, 9, 14 and 16].
???5. Whether the learned Trial Judge was not in error when he held that Exhibits ???E??? ??? ???E9???, ???F??? ??? ???F9??? and ???V???
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??? ???V9??? were dumped on the Court and refused to evaluate same.
[Ground 10].
6. Whether the learned Trial Judge was not in error when he held that the Claimant???s witnesses failed to tender authentic list so as to determine whether the one tendered by the Respondent was doctored or substituted. [Ground 11].
7. Whether the evidence proffered by the Respondent itself as Exhibit OD coupled with the evidence adduced by the Appellant did not prove that the List of delegates was doctored or substituted.
[Ground 12].
8. Whether the learned Trial Judge was not in error when he limited the Claimant???s claims to 14 Local Governments when the evidence led covered the whole List of Delegates.
[Ground 13].
9. Whether the learned Trial Judge was right in refusing to grant the Appellant???s prayers when he was even confused as to the documents tendered by the Appellant. [Ground 15].
10. Whether the learned Trial Judge was right in giving credibility to Exhibit KD which was made pendente lite and inspite of the Order of Injunction against it.
[Ground 17].
???11. Whether the
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learned Trial Judge was not in error when he held that those whose names were removed did not seek redress under the Party???s Constitution and therefore refused the Appellant???s claims.
[Ground 18].
12. Whether the learned Trial Judge was right in refusing the App
