SENATOR MOHAMMED MANA v. PEOPLES DEMOCRATIC PARTY (PDP) & ORS
(2011)LCN/4939(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of November, 2011
CA/A/248/2011
RATIO
AFFIDAVIT: POSITION OF THE LAW WHERE A PARTY DOES NOT FILE AN AFFIDAVIT IN OPPOSITION TO THE FACTS DEPOSED TO IN THE AFFIDAVIT IN SUPPORT OF AN APPLICATION
It is the law that a party who intends to oppose an application is required to file an affidavit in opposition challenging the truth of the facts contained in the affidavit in support of the application. And where a Respondent does not file an affidavit in opposition to the facts deposed to in the affidavit in support of the application, then the facts deposed to in the affidavit in support of the application is deemed to be true and unchallenged and the Court is entitled to act upon it. See:- – Akangbe vs. Abimbola (Supra). PER JIMI OLUKAYODE BADA, J.C.A.
DUTY OF COURT: DUTY OF COURT TO CONSIDER ANY FILED DEFENCE BEFORE DELIVERING ITS JUDGMENT
It is my view that once a defence has been filed, the Court must consider it before delivering its Judgment, it cannot turn a blind eye to it even if it was filed out of time. In Buhari vs. Obasanjo (Supra) Salami JCA (as he then was) held among others as follows:- “The Court could no longer dispense with the filing of reply, the Petitioners having admitted in the ground for seeking the reliefs that the two sets of Respondents had in fact, filed their respective replies. Assuming without so deciding that the Respondent filed their respective replies irregularly this Court cannot ignore them. A defence put in irregularly has to be taken into account in the trial. The Court cannot close its eyes to the existence of both replies. See UBA vs. Nworah (1978) 2 LRN Page 149, (1978) 11 – 12 S. C. Page 1. In the circumstance, the Petition has to be contended in the light of the defence already proffered in the two replies. It is too late in the day to dispense of an act which had already been accomplished. Also in the case of:- Oteju vs. Magma Maritime Services Ltd (Supra) it was held among others that:- “The law is settled that if before Judgment is entered, the Defendant serves a defence even though it is out of time, a Court of trial must never ignore it.” PER JIMI OLUKAYODE BADA, J.C.A.
AFFIDAVIT: WHETHER IT IS THE FACTS IN AN AFFIDAVIT THAT ARE REQUIRED TO BE CONTROVERTED
It is my view that it is the facts in an affidavit that are required to be controverted and not the numbering of paragraphs. A counter affidavit is to controvert the facts contained in affidavit in support of an application. See the case of:- – Odutola vs. NITEL (2006) All FWLR Part 335 Page 73 at 87. PER JIMI OLUKAYODE BADA, J.C.A.
CONTENTS OF AN AFFIDAVIT: POSITION OF THE LAW WHERE FACTS, DATES, TIMES AND NAMES ARE ALLUDED BUT NOT SPECIFICALLY STATED IN AN AFFIDAVIT
It is my view that when facts, dates, times and names are alluded to but not specifically stated in an affidavit, the Court is entitled to presume that no such facts actually exist. Such an affidavit is clearly bereft of requisite facts to support the application placed before the Court. PER JIMI OLUKAYODE BADA, J.C.A.
BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES; POSITION OF THE LAW ON THE SHIFTING PROCESS OF THE BURDEN OF PROOF IN CIVIL CASES
Furthermore the burden of proof in civil cases generally lies on the Plaintiff because he is the one making the burden of proving his case, where he fails to adduce relevant evidence to the relief he claims, his case must fail. See Sections 135, 136, 137 and 139 of the Evidence Act. In Buhari vs. INEC (2008) 19 NWLR Part 1120 Page 246 at 355 Paragraphs A to D the Supreme Court held among others that:- “By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the sub-section, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the sub-section, will be so on successively until all the issues in the pleadings have been dealt with. Section 139 of the Evidence Act provides for proof of a particular fact. By the Section, the burden of proof as to any particular fact lies on the person who wishes the Court to believe in ifs existence unless it is provided by any law that the proof of that fact shall be on any particular person, but the burden may in the course of a case be shifted from one side to the other.” A Plaintiff in an action of this nature must succeed on the strength of his own case and where as in this case, he has not made out a case by his affidavit evidence the case must fail. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
SENATOR MOHAMMED MANA Appellant(s)
AND
(1) PEOPLES DEMOCRATIC PARTY (PDP)
(2) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
(3) ALHAJI BINDOWO JIBRILLA Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Federal High Court Abuja in Suit No: FHC/ABJ/CS/148/11 – Senator Mohammed Mana vs. Alhaji Bindowo Jibrilla & 2 Others delivered on the 23rd day of March, 2011.
Briefly the facts of the case are that the Appellant who was the Plaintiff at the trial Court instituted the Suit which led to this Appeal by way of Originating Summons where he sought for the determination of three questions and prayed for three reliefs.
The said questions for determination and the reliefs sought are hereby set out as follows:-
Questions for Determination
(1) Whether the result of the Primary Election of the Peoples Democratic Party (PDP) held in Adamawa North Senatorial District on 9th January, 2011 was set aside by the PDP for inter alia gross irregularities?
(2) Whether the Plaintiff is the winner of the re-run Primary Election of the PDP to select the party’s candidate to contest the Adamawa North Senatorial District Election in April 2011?
(3) Whether the Plaintiff is the lawful candidate of the 1st Defendant for the Adamawa North Senatorial District Election in April 2011.
Reliefs Sought
If the answers to the above questions are in affirmative, then the Plaintiff seeks the following reliefs:-
(a) An Order of Mandatory Injunction restraining the Defendants by themselves, agents, servants/privies from presenting and/or recognizing the 3rd Defendant as the Senatorial Candidate for Adamawa North Senatorial District in the April 2011 General Elections.
(b) An Order of Mandamus compelling the 1st and 2nd Defendants to present and/or recognize the Plaintiff as lawful candidate of the 1st Defendant having won the re-run primary election for Adamawa North Senatorial District for the April 2011 General Election, or ALTERNATIVELY
An Order of Mandamus compelling the 1st and 2nd Defendants to present and or recognize the Plaintiff as the lawful Senatorial Candidate of the 1st Defendant having won the original primary election of the PDP on 9th January, 2011………….”
At the conclusion of hearing, the learned trial Judge in a considered Judgment dismissed the Plaintiff’s Claim in its entirety.
Dissatisfied with the Judgment of the trial Court, the Appellant now appealed to this Court.
The learned Counsel for the Appellant formulated three issues for determination from the three grounds of appeal.
The issues for determination are hereby set out as follows:-
(1) Whether the amended originating summons before the lower court was contested (Ground 1).
(2) Can a court make case for a party before it (Ground 2).
(3) Whether the learned trial Judge had discretion in this case in view of the contradictory averments in the affidavit in support of the originating summons (Ground 3).
The learned Senior Counsel for the 1st Respondent distilled two issues for determination in the appeal.
The issues are set out as follows:-
“(1) Whether there was a valid and competent counter-affidavit filed by the 1st Respondent to the Appellant’s affidavit in support of her amended originating summons.
(2) Whether the Respondent’s counter-affidavits effectively controverted the averments in the Appellant’s affidavit in support of her amended originating summons to warrant the trial court’s determination of the case as it did (Ground 3).
The learned Counsel for the 2nd Respondent in his own case adopted the 3 issues for determination distilled by the learned Counsel for the Appellant.
The learned Counsel for the 3rd Respondent formulated a sole issue for determination of this appeal. The said issue is hereby set out as follows:-
“Whether there was a competent counter affidavit by the 3rd Respondent at the trial Court which effectively controverted the Plaintiff’s affidavit in support of the originating summons to warrant the trial Court’s determination of the case in favour of the 3rd Respondent (Ground 1, 2 and 3).”
Preliminary Issue
Before dealing with the issues for determination, the learned Senior Counsel for the 1st Respondent pointed out that Issue No. 2 as framed by the Appellant was not distilled from any of the grounds of appeal and he applied for the same and all the arguments based thereon to be struck out as incompetent.
He referred to Ground 2 of the grounds of appeal along with its particulars and he stated that the ground deals with absence of valid counter-affidavit but that there is nothing in the ground that suggested that the Court made a case for a party before it.
He therefore urged this Court to strike out the said Issue No. 2 and argument accompanying same. He relied on the following cases:-
– Magit vs. University of Agric Makurdi (2005) 19 NWLR Part 959 Page 211 at 238 Paragraphs A – B:
– Adekunle vs. Aremu (1998) 1 NWLR Part 533 Page 203 at 216 Paragraphs G – H.
It is on record that there is no reply brief of argument from the Appellant in answer to the Preliminary Issue raised by learned Senior Counsel for the 1st Respondent.
The contention of the 1st Respondent is that Issue 2 as framed by the Appellant was not distilled from any of the grounds of appeal.
It would therefore be necessary to critically examine Issue 2 and Ground 2 of the notice and grounds of appeal filed by the Appellant.
The said Issue 2 and Ground 2 are set out as follows:-
“Issue 2
Can a Court make case for a party before it (Ground 2).”
“Ground 2
Learned trial Judge misdirected himself in law by preferring evidence given by the Defendants/Respondents when in law there was no evidence adduced by them.
“Particulars of Error
(a) There was no valid counter-affidavit by the Defendants/Respondents.
(b) The only process legally before the Court was the amended Originating Summons.
(c) The Judge looked at documents that were not validly before him.”
There is no controversy on the fact that an issue for determination must derive from the ground of appeal and where an issue formulated for determination does not derive from a filed ground of appeal it goes to no issue.
The above view is supported by the case of:-
– Magit vs. University of Agric. Makurdi (Supra) Page 238 Paragraphs A – B: where the Supreme Court held as follows:-
“In other words an issue for determination is incompetent, when it does not arise from any of the grounds of appeal. Thus, the issues must encompass the grounds of appeal, otherwise, any argument in support of an issue not adequately backed by a ground or grounds of appeal, will be discountenanced and struck out.”
Also in Adekunle vs. Aremu (Supra) page 216 at paragraphs G – H this Court held as follows:-
“An issue for determination that is not clothed by a ground of appeal is worthless, as it cannot stand on its own, in which case it cannot be treated for the purpose of determining an appeal. It is settled law that an issue for determination must derive its source from a ground of appeal. Where it is not so derived, then it becomes redundant and non-issue which must be struck out and discountenanced.”
A critical examination of Issue 2 and Ground 2 set out above earlier in this Judgment would reveal that the said issue has no relationship with the Ground 2 from which it was said to have been distilled.
The said issue 2 is therefore incompetent and the argument in support of the issue is hereby discountenanced. The said Issue 2 and the argument in support of it are hereby struck out.
APPEAL
At the hearing the learned Counsel for the Appellant referred to the Appellant’s brief of argument deemed filed on 19/10/2011. He adopted the said brief in urging the Court to allow the appeal. He urged this Court to be bound by the decision in Appeal No: CA/A/216/2011 – Senator Grace F. J. Bent vs. PDP & Others delivered by this Court on 5/7/2011.
The learned Counsel for the 1st Respondent referred to the 1st Respondent’s brief of argument deemed filed on 19/10/2011. He applied to adopt the said brief as his argument in urging the Court to dismiss the appeal. He urged this Court to follow its decision in Appeal No: Appeal No: CA/A/216/2011 – Senator Grace F. J. Bent vs. PDP & Others delivered by this Court on 5/7/2011.
The learned Counsel for the 2nd Respondent referred to the 2nd Respondent’s brief of argument deemed filed on 19/10/2011. He applied to adopt the brief as his argument in urging this Court to dismiss the appeal. He also urged this Court to follow the decision in Appeal No: CA/A/216/2011 – Senator Grace F. J. Bent vs. PDP & Others delivered by this Court on 5/7/2011.
On his own part the learned Counsel for the 3rd Respondent referred to the 3rd Respondent’s brief of argument filed on 13/6/2011 but deemed filed on 19/10/11. He applied to adopt the brief as his argument in urging the Court to dismiss the appeal. He also relied on the decision in Appeal No: CA/A/216/2011 – Senator Grace F. J. Bent vs. PDP & Others delivered by this Court on 5/7/2011.
I have carefully examined the issues formulated for determination by Counsel for the parties in this appeal and it is my view that the remaining issues formulated by Counsel for the Appellant would settle the issues in controversy between the parties. I will therefore rely on the said issues 1 and 3 formulated on behalf of the Appellant.
Issues 1 and 3 (Taken Together)
– Whether the amended originating summons before the lower court was contested (Ground 1).
– Whether the learned trial Judge has a discretion in this case in view of uncontradictory depositions in the affidavit in support of the originating summons.”
The learned Counsel for the Appellant referred to the originating summons earlier filed and the counter affidavits filed on behalf of the 1st and 2nd Respondents on 9/3/2011, whilst the 3rd Respondent filed his own counter affidavit on 8/3/2011.
On 9/3/2011, the trial Court granted an order to the Appellant to amend the originating summons.
To the amended originating summons the 1st and 3rd Respondents did not file a new counter affidavit but they applied that the counter affidavit earlier filed and served be deemed as having been properly filed and served in opposition to the amended originating summons.
It was submitted on behalf of the Appellant that once an amendment is granted, the effect is that what stood before the amendment is no longer material before the Court. He relied on the following cases:-
– Agbabiaka vs. Saibu (1998) 10 NWLR Part 571 Page 534 at 548 Paragraph F:
– Adesanoye vs. Adewole (2004) 11 NWLR Part 884 Page 414 at 425 Paragraph D – E:
– GEB Plc vs. Odukwu (2009) 14 NWLR Part 1160 Page 43 and 2009:
– Bedding Holdings Ltd vs. NEC (1992) 6 NWLR Part 260 Page 428 at 436 Paragraphs A to C.
It was further submitted on behalf of the Appellant that the counter affidavits filed on behalf of 1st and 3rd Respondents cannot be deemed to be in response to the affidavit in support of the Amended Originating Summons.
Learned Counsel for the Appellant relied on the case of:-
– Umeh vs. Nigeria Renowed Trading Co. Ltd (1997) 8 NWLR Part 516 Page 344 at 351 Paragraph H.
He stated further that from the processes filed before the trial Court, there was no valid counter-affidavit filed in opposition to the Amended Originating Summons. He then submitted that where the Respondent does not file a counter affidavit, the facts deposed to in support of the application are deemed to be true and unchallenged and the Court is bound to act upon them unless such facts are obviously false. He referred to the case of:-
– Akangbe vs. Abimbola (1978) S. C. Page 39.
He also referred to the counter affidavits filed by 1st and 3rd Respondents at the trial Court and submitted that the said counter affidavits and Exhibits have no bearing with the amended originating summons and cannot therefore be a response to it.
Concerning the 2nd Respondent’s counter Affidavit, learned Counsel for the Appellant submitted that the 2nd Defendant/Respondent did not deny the deposition of the Plaintiff/Appellant’s affidavit in support of the Amended Originating Summons.
He finally urged that this issue be resolved in favour of the Appellant and that the Amended Originating Summons was not contested.
As for Issue 3, learned Counsel for the Appellant submitted that the affidavit in support of amended originating summons remains unchallenged. He relied on his argument on Issue 1 above and the case of:-
– Bedding Holdings Ltd vs. NEC (Supra). It was submitted further that a trial Judge has no option in a situation where there is unchallenged and uncontroverted evidence than to act on such unchallenged evidence. He referred to the case of:-
– Mogaji vs. Nig. Army (2008) NWLR Part 1089 Page 338 at 351.
The learned Counsel for the 1st Respondent in his response submitted that there was a valid and competent counter-affidavit to the amended originating summons before the trial Court. He stated that the counter affidavit effectively traversed and controverted all the statements of fact in the Appellant’s affidavit.
Learned Counsel for the 1st Respondent stated that recognising that there is no difference in the facts deposed to in both the affidavit in support of the originating summons and the amended originating summons he applied that the counter affidavit filed and titled “counter affidavit to originating summons” be deemed as duly filed in response to the amended originating summons.
On the effect of the deeming order he referred to:-
– The Black’s Law Dictionary 8th Edition Page 446;
– Ubom vs. Anaka (1999) 6 NWLR Part 605 Page 99 at 112 Paragraph A;
– Williams vs. Mokwe (2005) 14 NWLR Part 945 at Page 249 at 267 Paragraph C.
It was also submitted on behalf of the 1st Respondent that a Court cannot ignore a defence and proceed as if none was filed, even in the absence of a deeming order.
He referred to the following cases:-
– Buhari vs Obasanjo (2003) 15 NWLR Part 843 Page 236 at 257 Paragraphs A – B;
– Otegu vs. Magma Maritime Services Ltd (2000) 1 NWLR Part 640 Page 331 at 344 Paragraph G;
– Gever vs. Chima (1993) 9 NWLR Part 315 Page 97.
The learned Counsel for the 1st Respondent referred to the Affidavit in Support of the Amended Originating Summons and the counter affidavit by the 1st Respondent and submitted that fact in 1st Respondent’s Counter affidavit clearly rebutted the averments in the affidavit in support of the Originating Summons.
He finally urged that issues 1 and 3 be resolved in favour of the 1st Respondent.
The learned Counsel for the 2nd Respondent stated that a 5 paragraph counter affidavit was filed on behalf of the 2nd Respondent on 9/3/2011 at the trial Court.
He submitted that the main function of a counter affidavit is to oppose the affidavit in support of the originating summons as far as the main issues are concerned. He referred to the case of:-
– Bedding Holdings Ltd vs. NEC(Supra).
He therefore submitted that the amended originating summons was contested by the 2nd Respondent at the trial Court.
On his own part the learned Counsel for the 3rd Respondent stated that an 18 paragraph counter affidavit was filed by the 3rd Respondent on 8/3/2011.
He submitted further that that for a Court to determine an issue, the Court has to look at the whole case presented by the parties in order to arrive at a conclusion.
Paragraph 4 of the affidavit in support of the originating summons was referred to and it was submitted on behalf of the 3rd Respondent that the summary of the Appellant’s case is that the primary election was set aside and a re-run primary election conducted and that he won the said re-run primary election.
It was submitted that the Appellant’s affidavit evidence in support of the amended originating summons did not establish the claim put forward by the Appellant. The learned Counsel for the 3rd Respondent stated that the Appellant’s affidavit did not disclose the date of the alleged re-run election, the scores of candidates and that none of the exhibits showed that there was a re-run election.
He went further in his argument that the Appellant did not adduce sufficient facts upon which the lower Court would have found in his favour.
He finally urged this Court to affirm the Judgment of the trial Court.
In order to get to the root of the controversy between the parties in this appeal, it would be necessary to reproduce and examine the contents of the following documents filed before the trial Court.
(1) Affidavit in Support of the Originating Summons deposed to by the Appellant. See Pages 6 – 8 of the Record of Appeal.
(2) The Affidavit in Support of the Amended Originating Summons. See Pages 149 to 151 of the Record of Appeal.
(3) The Counter Affidavit filed on behalf of the 1st Respondent. (See Pages 176 to 180 of the Record of Appeal).
(4) Counter Affidavit filed on behalf of the 2nd Defendant in opposition to the Amended Originating Summons. (See Pages 210 to 212 of the Record).
(5) The Counter Affidavit filed on behalf of 3rd Defendant to the Originating Summons (See Pages 132 to 134 of the Record of Appeal).
“(1) Affidavit in Support of the Originating Summons deposed to by the Appellant See Pages 6-8 of the Record of Appeal
“I, SENATOR MOHAMMED MANA, Deputy Senate Whip of the Federal Republic of Nigeria, The National Assembly, Three Arms Zone, P. M. B. 141, Garki, Abuja make oath and state as follows:-
1. That I am the Senator representing Adamawa North Senatorial District of Adamawa State in the Senate of the Federal Republic of Nigeria.
2. That the Independent National Electoral Commission (INEC) in the performance of its statutory duties fixed another Election for election of Senators to the National Assembly in April, 2011.
3. That the registered political parties are required to sponsor candidates for the said election.
4. That I am a member of one of the registered political parties which is the Peoples Democratic Party (hereinafter referred to simply as the PDP).
5. That the PDP acting in accordance with the law and the constitution fixed January 9, 2011 for the conduct of Senatorial Primaries throughout the country for the purpose of electing candidates to be submitted to the INEC to contest the Senatorial Election in April, 2011.
6. That I contested the primary election for the election of the candidate to contest the Senatorial Election in April, 2011 on the platform of the PDP for Adamawa North Senatorial District.
7. That by virtue of my aforestated status I am conversant with the facts of this case and I have the authority of my Lead Counsel to make this oath.
8. That the 1st Defendant herein, the ALHAJI BINDOWO JIBRILLA was also a candidate at the said primary election.
9. That upon the conclusion of the said primary election the said ALHAJI BINDOWO JIBRILLA was declared the purported winner.
10. That I quickly lodged a complaint against the said purported declaration of the 1st Defendant to my party, the PDP that organized the primary election through the Appeal Panel it set up. A copy of my PETITION dated 11th January, 2011 is annexed hereto and marked as Exhibit “A”.
11. That the Appeal Panel of my party after a careful consideration upheld my petition and nullified the primary election of 9th January, 2011 that produced the 1st Defendant as the winner.
12. That consequently the Party directed and conducted a Re-Run Primary Election for Adamawa North Senatorial District which I won. A copy of the Report of the Re-Run Election dated 30th January, 2011 as annexed hereto and marked as Exhibit “B”
13. Furthermore, my Solicitors wrote on 3rd February, 2011 insisting that the 2nd Defendant forward my name to the 3rd Defendant as the sponsored candidate for Adamawa North Senatorial District instead of that of the 1st Defendant.
14. That instead of the PDP forwarding my name to the 3rd Defendant (INEC) as the party’s candidate for the Senator representing Adamawa North Senatorial District, the Party purported to cancel the re-run election which I won.
15. That it is in the interest of justice to forward my name to the 3rd Defendant (INEC) as the winner of the re-run primary election for Adamawa North Senatorial District as a matter of the utmost urgency before the closure of the INEC Register or alternatively as the right candidate of the Party based on the primary election of 9th January, 2011.
16. An Order removing the name of the 1st Defendant and replacing it with my name as the PDP candidate for office of Senator of the Federal Republic of Nigeria representing Adamawa North Senatorial District.
17. An Order prohibiting the 1st Defendant from presenting or parading himself as the Senatorial candidate for Adamawa North Senatorial District.
18. An Order restraining the 2nd and 3rd Defendants whether by themselves, their agents, servants/privies from recognizing and/or presenting the 1st Defendant as the Senatorial Candidate for Adamawa North Senatorial District for the April, 2011 general elections.
19. That I make this oath in good faith and in accordance with the provisions of the Oaths Act, 2004;”
(2) “The Affidavit in Support of the Amended Originating Summons (See Pages 149- 151 of the Record of Appeal
“4. That I was informed by the Plaintiff herein over the phone on Monday the 7th day of March, 2011 at about 5:30pm in Chambers and I verily believe him to be true as follows:
(i) That he is the Senator representing Adamawa North Senatorial District of Adamawa State in the Senate of the Federal Republic of Nigeria:-
(ii) That the Independent National Electoral Commission (INEC) in the performance of its statutory duties fixed another Election for election of Senators to the National Assembly in April, 2011,
(iii) That the registered political parties are required to sponsor candidates for the said election,
(iv) That he is a member of one of the registered political parties which is the Peoples Democratic Party (hereinafter referred to simply as the PDP),
(v) That the PDP acting in accordance with the law and the constitution fixed January 9, 2011 for the conduct of Senatorial Primaries throughout the country for the purpose of electing candidates to be submitted to the INEC to contest the Senatorial Election in April, 2011.
(vi) That he contested the primary election for the election of the candidate to contest the Senatorial Election in April, 2011 on the platform of the PDP for Adamawa North Senatorial District.
(vii) That the 3rd Defendant herein, the ALHAJI BINDOWO JIBRILLA was also a candidate at the primary election.
(viii) That upon the conclusion of the said primary election, the said ALHAJI BINDOWO JIBRILLA was declared the purported winner.
(ix) That he quickly lodged a complaint against the said purported declaration of the 3rd Defendant to his Party, the PDP that organized the primary election through the Appeal Panel it set up. A copy of his PETITION dated 11th January, 2011 is annexed hereto and marked as Exhibit “A”.
(x) That the Appeal Panel of his party after a careful consideration upheld his petition and nullified the primary election of 9th January, 2011 that produced the 3rd Defendant as the winner.
(xi) That consequently the Party directed and conducted a Re-Run Primary Election for Adamawa North Senatorial District which he won, A copy of the Report of the Re-Run Election dated 30th January, 2011 is annexed hereto and marked as Exhibit “B”.
(xii) Furthermore, his Solicitors wrote on 3rd February, 2011 insisting that the 1st Defendant forward the Plaintiff’s name to the 2nd Defendant as the sponsored candidate for Adamawa North Senatorial District instead of that of the 3rd Defendant.
(xiii)That instead of the PDP forwarding his name to the 2nd Defendant (INEC) as the party’s candidate for the Senator representing Adamawa North Senatorial District, the Party purported to cancel the re-run election which he won.
(xiv) That it is in the interest of justice to forward the Plaintiff’s name to the 2nd Defendant (INEC) as the winner of the re-run primary election for Adamawa North Senatorial District as a matter of the utmost urgency before the closure of the INEC Register or alternatively as the right candidate of the Party based on the primary election of 9th January, 2011.
(xv) An Order removing the name of the 3rd Defendant and replacing it with the Plaintiff’s name as the PDP candidate for the office of Senator of the Federal Republic of Nigeria representing Adamawa North Senatorial District.
(xvi) An Order prohibiting the 3rd Defendant from presenting or parading himself as the Senatorial candidate for Adamawa North Senatorial District.
(xvii) An Order restraining the 1st and 2nd Defendants whether by themselves, their agents, servants/privies from recognizing and/or presenting the 3rd Defendant as the Senatorial Candidate for Adamawa North Senatorial District for the April, 2011 general elections.
(5) That I make this oath in good faith and in accordance with the provisions of the Oaths Act, 2004;
(3) “Counter Affidavit filed on behalf of the 1st Respondent (See Pages 176-180 of the Record of Appeal)
(1) That I am a lawyer in the law firm of Chief Chris Uche (SAN) & Co, the Counsel for the 1st Defendant (People’s Democratic Party) in this matter, and I have the authority and consent of the said 1st Defendant to swear to this Affidavit, and I do so on its behalf.
(2) That by virtue of my aforesaid position, knowledge of the facts of this matter.
(3) That I have seen and read the originating summons and supporting affidavit filed by the Plaintiff, and I have also gone through same with the National Legal Adviser of the 1st Defendant, Chief Olusola Oke in our chambers at 34 Kumasi Crescent, Wuse 11, Abuja on 8th March, 2011 at about 1 pm, and he informed me, and I verily believe him, as follows:
(a). That paragraphs 11 to 19 of the said affidavit are false and misleading and are hereby denied.
(b). That the primary election conducted on 9th January, 2011 for the purpose of electing the candidate of the Party to contest election into the Senate, to represent the Adamawa North Senatorial District was transparent, free and fair and was conducted in accordance with the guidelines of the Party and the provisions of the Electoral Act, 2010, and was monitored by the 2nd Defendant.
(c). That there were five (5) aspirants of the Party who contested the said primary election, namely Alhaji Bindowo Jibrilla, Sen. Mohammed Mana, Zira Maigadi, Emmanuel T. Vahyale and Mrs. Esther Walabi.
(d) The result of the said primary election is as follows:-
(i). Alhaji Bindowo Jibrilla. ………… 626 votes
(ii). Sgn. Mohammgd Mana ……… 474 votes
(iii). Zira Maigadi………………… 162 votes
(iv). Emmanugl T. Vahyale …… 21 votes
(v). Mrs. Esthgr Walabai……… 0 vote
(e) That the 3rd Defendant, Alhaji Bindowo Jibrilla emerged the winner of the said primary election, and I annex a copy of the result sheet as EXHIBIT “A”.
(f). That all the other aspirants who lost conceded victory to the 3rd Defendant, except the Plaintiff, who wrote a petition to the Appeal Panel of the Party, and a copy of his petition is annexed herewith as EXHIBIT “B”.
(g) That the Party set up a Re-Run Committee to re-examine the matter.
(h). That the said Re-Run Committee went to Adamawa State and held several meetings with stakeholders in the State to ascertain the true state of affairs, and returned with a finding that the primary election conducted on 9th January, 2011 which produced the 3rd Defendant as the winner was transparent, free and fair and ought to be upheld.
(i). That a copy of the report of the Re-Run Panel is annexed herewith as EXHIBIT “C”.
(j). That the Re-Run Panel concluded thus in their report:
“In view of the foregoing, the committee was unanimous in concluding that the previous result of the Adamawa North Senatorial District be upheld in the interest of peace and fair play, having taken into consideration the main objective which is winning the 2011 general election.”
(k). That no re-run primary election was ever conducted in Adamawa North Senatorial District by the Party, and that is why the Plaintiff could not annex the result of any such re-run, to indicate who the aspirants were, what scores were recorded, who the electoral and returning officers were etc.
(l). That the report annexed by the Plaintiff to his supporting affidavit as EXHIBIT “B” is not authentic, and is not a document of the 1st Defendant, and but a forged an doctored document.
(m). That results of primary election and re-run election are entered in official results sheets of the Party, and no such result sheet was annexed by the Plaintiff.
(n). That the National Working Committee accepted the report of the Committee annexed hereinabove as Exhibit “G”, validated and upheld the results declared at the primary election, and endorsed the candidature of the 3rd Defendant, and I annex herewith the extract of the minutes of the National Working Committee of the Party as EXHIBIT “D”.
(o) That the 3rd Defendant is the candidate of the Party to contest election into Senate to represent the Adamawa North Senatorial District.
(p) That the 1st Defendant had since, in a list of candidates signed by the National Chairman and the National Secretary, forwarded the name of the 3rd Defendant to the 2nd Defendant as the Party candidate to contest election into Senate to represent the Adamawa North Senatorial District.
(q) That the 1st Defendant had given the relevant nomination forms to the 3rd Defendant who had duly completed and signed same, and same had been submitted to the 2nd Defendant accordingly.
(r) That the said primary election was conducted in accordance with the guidelines of the Peoples Democratic Party.
(s) That the Plaintiff did not claim that any provision of the guidelines of the Party was contravened and did not annex any copy of the Party’s Guidelines.
(4) That the Plaintiff has no reasonable cause of action whatsoever against the Defendants.
(5) That the Party has exercised its right to choose its candidate to fly its flag in the said election, and did so in accordance with its guidelines.
(6) That this suit is incompetent, improperly constituted as well as lacking in merit, and ought to be dismissed with substantial costs against the Plaintiff.
(7) That I swear to this affidavit conscientiously believing the contents hereof to be true and in accordance with the Oaths Act 2004.”
(4) “Counter Affidavit filed on behalf of the 2nd Respondent in opposition to the Amended Originating Summons. (See Pages 210- 212 of the Record of Appeal)
“1. That I am an Executive Officer in Legal Services Department of the 2nd Respondent.
2. That by virtue of my position aforesaid, I am conversant with the facts and circumstances of this suit.
3. That I have the consent and authority of the 2nd Defendant to depose to this affidavit.
4. That I was informed by Rahima Aminu Esq. Counsel to the 2nd Defendant at our office Plot 643 Zambezi Crescent-Maitama, Abuja on the 7th day of March, 2011 at about 5:00pm of the following facts which I verily believed same to be true and correct as follows:
a) That pursuant to the Constitution of the Federal Republic of Nigeria 1999 as amended, and the Electoral Act 2010 (as amended), the 2nd Defendant issued out an election time table which was inclusive of the date within which political parties are to conduct and conclude their primary election into the various elective positions. The time table issued by the 2nd Defendant is herein attached and marked as exhibit A.
b) That the Political Parties by the time table and Guidelines issued by the 2nd Defendant were directed to conclude the entire conduct of primary elections on or before 15th day of January, 2011.
c) That the 2nd Defendant pursuant to the provisions of the Electoral Act 2011 (as amended) and upon being served with a notice by various Political Parties inclusive of the 1st Defendant monitored and supervised the conduct of Parties Primaries.
d) That pursuant to the said Notice, the 2nd Defendant monitored the conduct of the primary election for the Adamawa North Senatorial District held on the 9th day of January, 2011. The report is herein, attached and marked as exhibit B.
e) That pursuant to the said primary election conducted on the 9th day of January, 2011 as stated in sub paragraph (d) herein, the 1st Defendant forwarded the name of the 3rd Defendant as its Senatorial Candidate for Adamawa North Senatorial District for April 2011 general election.
f) That the 1st Defendant on or before the 15th day of January, 2011 never issued a notice to the 2nd Defendant of the cancellation of the primary election conducted on the 9th day of January, 2011 which was monitored and supervised by the 2nd Defendant.
5. That I depose to this affidavit in good faith and in accordance with the Oath Act.”
(5) “The Counter Affidavit filed on behalf of the 3rd Respondent to the Originating Summons. (See Pages 132-134 of the Record of Appeal)
1. That I am the 3rd Defendant in this matter and by virtue of my position I am conversant with the facts of this case.
2. That the Plaintiff filed an originating summons dated 7th day of February, 2011 with an Affidavit in support.
3. That I am a registered member of the Peoples Democratic Party (PDP), a registered political party in Nigeria.
4. That on the 9th day of January, 2011 I contested the Peoples Democratic Party Primaries for Adamawa North Senatorial District and I emerged victorious after polling a total number of 626 votes as against the Plaintiff who had 474 votes. The result of the primary election is as follows:-
(i) Alhaji Bindowo Jibrilla 626
(ii) Sen. Mohammed Mana 474
(iii) Zira Maigadi 162
(iv) Emmanuel T. Vahyale 21
(v) Mrs. Esther Walabai 0
5. That contrary to paragraph 9 of the Plaintiff’s Affidavit in Support of the originating summons, I was the actual and declared winner of the primary elections held on January 9, 2011 for the Peoples Democratic Party (PDP) Adamawa North Senatorial District.
6. That this suit relates to the determination of who should or should not be declared as winner of the primary election of the Peoples Democratic Party (PDP) held in Adamawa North Senatorial District.
7. That contrary to paragraph 11 of the Plaintiff’s Affidavit in support of originating summons, the appeal panel after due consultations, discussions and deliberation with a large majority of delegates came up with the view that the previous primary elections conducted in Adamawa North Senatorial District was transparent, free and fair and as such opposed vehemently any attempt to conduct any re-run elections as that would amount to subverting the will of the people and advised the 1st Defendant accordingly.
8. That contrary to the Plaintiff’s averment in paragraph 11 of his Affidavit in support of originating summons, the party hierarchy decided that a re-run election could only spell doom for the party as there was heightened tension already in anticipation of a contrary outcome. A copy of the “Report of the Committee for re-run primary election for Adamawa North Senatorial District” is attached hereto and marked Exhibit COMMITTEE REPORT “1”.
9. That contrary to paragraph 12 of the Plaintiffs Affidavit in Support of originating summons, the Committee for Re-run Primary Election for Adamawa North Senatorial District in favour of the 3rd Defendant was unanimous in concluding that the previous result of the Adamawa North Senatorial District be upheld in the interest of peace and fair play taken into consideration the main objective which is winning the 201 1 general election.
10. That further to paragraph (9) above, the committee’s decisions and actions were taken on the advise of the state party and government and as such, the party did not at any material time conduct any re-run primary election which the plaintiff purportedly won.
11.That contrary to paragraph 14 of the Plaintiff’s Affidavit in Support of originating summons, Exhibit “B” attached to the Affidavit of the Plaintiff’s Originating Summons was an unlawful gathering that was not approved by the party.
12.That the purported re-run held on 30th January, 2011 as contained in Exhibit “B” attached to the Affidavit of the Plaintiff’s originating summons was spurious, never took place and was purportedly attended by one Aspirant, that is, the Plaintiff Mohammed Mana.
13. That further, to (121 above, the other aspirants: Zira Maiqadi, Emmanuel Tari Vahyale, Bindowo Jibrilla and Esther Walabai were not present at the said re-run election.
14.That there was no reason why I would not attend the re-run election if any was held having a high stake in the primaries.
15. That further to (14) above, the electoral panel of the purported re-run election was not duly constituted as not all the members of the panel took part in the re-run election or signed the purported re-run election result.
16. That I dispute all the facts deposed to in paragraphs 11-18 of the Affidavit in support of the Plaintiff’s originating summons.
17. That it is in the interest of justice to dismiss this suit.
18. That I depose to this Counter Affidavit in good faith, believing same to be true and in accordance to the Oaths Acts, 2014.
The learned Counsel for the Appellant submitted that the 1st, 2nd and 3rd Respondents did not file any counter affidavit to oppose the Amended Originating Summons.
The convenient starting point is to examine the affidavit in support of the Originating Summons and the affidavit in support of the Amended Originating Summons earlier set out in this Judgment.
It is clear that the facts deposed to in the two affidavits are the same. As was stated in Appeal No: CA/A/216/2011 – Senator Grace F. J. Bent vs. P.D.P and the other judgment was delivered on the 5/7/2011 by this Court, the difference between the two affidavits may perhaps be like the difference between half a dozen and six. It is only the numbering that changed.
It is the law that a party who intends to oppose an application is required to file an affidavit in opposition challenging the truth of the facts contained in the affidavit in support of the application. And where a Respondent does not file an affidavit in opposition to the facts deposed to in the affidavit in support of the application, then the facts deposed to in the affidavit in support of the application is deemed to be true and unchallenged and the Court is entitled to act upon it. See:-
– Akangbe vs. Abimbola (Supra)
It is on record that the learned trial Judge granted an order deeming the 1st and 3rd Respondent’s counter affidavit as having been duly filed and served being their defence to the Amended Originating Summons.
The Appellant did not appeal against the said deeming order.
The effect of a deeming order is to regularise the process in question.
The Black’s Law Dictionary (8th Edition) Page 446 defined the word “deem” as follows:-
“To treat something as if it were really something else or it had qualities that it does not have e.g. although a document was not in fact signed until April 21, it explicitly states that it must be deemed to have been signed on 14th April.”
In Williams vs. Mokwe (Supra) it was held that where an Appellate Court grants an application for leave to appeal and also deems the notice of appeal as being properly filed, the appeal is therefore regularised and has retrospective effect.
See also the case of:-
– Ubom vs. Anaka (Supra)
In view of the fact that the trial Court deemed the counter affidavits as being properly filed in response to the amended originating summons could the trial Court have turned a blind eye to the defence of 1st and 3rd Respondents as contained in their counter affidavits?
It is my view that once a defence has been filed, the Court must consider it before delivering its Judgment, it cannot turn a blind eye to it even if it was filed out of time.
In Buhari vs. Obasanjo (Supra) Salami JCA (as he then was) held among others as follows:-
“The Court could no longer dispense with the filing of reply, the Petitioners having admitted in the ground for seeking the reliefs that the two sets of Respondents had in fact, filed their respective replies. Assuming without so deciding that the Respondent filed their respective replies irregularly this Court cannot ignore them. A defence put in irregularly has to be taken into account in the trial. The Court cannot close its eyes to the existence of both replies. See UBA vs. Nworah (1978) 2 LRN Page 149, (1978) 11 – 12 S. C. Page 1. In the circumstance, the Petition has to be contended in the light of the defence already proffered in the two replies. It is too late in the day to dispense of an act which had already been accomplished. Also in the case of:-
– Oteju vs. Magma Maritime Services Ltd (Supra) it was held among others that:-
“The law is settled that if before Judgment is entered, the Defendant serves a defence even though it is out of time, a Court of trial must never ignore it.”
Consequent upon the foregoing it is my view that the counter affidavits filed on behalf of the 1st and 3rd Respondents are competent and valid.
As for the 2nd Respondent there is evidence on record that the counter affidavit filed on behalf of 2nd Respondent was in response to the Amended Originating Summons. Its situation is therefore different from that of 1st and 3rd Respondents. The said counter affidavit filed on behalf of the 2nd Respondent in response to the Amended Originating Summons is therefore valid.
Since the counter affidavits filed on behalf of 1st, 2nd and 3rd Respondents are competent, it is my view that the amended originating summons before the lower court was contested. The next issue to consider is whether the learned trial Judge had discretion in this case in view of the uncontradictory averments in the affidavit in support of the amended originating summons.
The learned Counsel for the Appellant contended that the affidavit in support of the Amended Originating Summons was not challenged and that it was uncontroverted therefore that the trial Court is bound to act on it.
Earlier in this Judgment the affidavit in support of the amended originating summons, the counter affidavits of 1st, 2nd and 3rd Respondents in response to the amended originating Summons were set out.
A careful examination of the said affidavit in support of the amended originating summons vis-a-vis the counter affidavits of the 1st, 2nd and 3rd Respondents filed in response to the Originating Summons would show that, when it is read together, the said counter affidavits of the 1st, 2nd and 3rd Respondents controverted and rebutted the averments in the affidavit in support of the amended Originating Summons.
It is my view that it is the facts in an affidavit that are required to be controverted and not the numbering of paragraphs. A counter affidavit is to controvert the facts contained in affidavit in support of an application. See the case of:-
– Odutola vs. NITEL (2006) All FWLR Part 335 Page 73 at 87.
The questions set out by the Appellant for determination at the trial Court was set out at the beginning of this Judgment. So also, the facts upon which the Appellant relied to establish his case as contained in paragraph 4 of the affidavit in support of the amended originating summons have also been set out in this Judgment.
The summary of the facts relied upon by the Appellant is that he the Appellant contested the Primary Election with the 3rd Respondent. That the 3rd Respondent was declared the winner and he lodged a complaint against the declaration of the 3rd Respondent. It was also stated in the affidavit the PDP organised a re-run Primary Election which the Appellant said he won but that the name of 3rd Respondent was surreptitiously forwarded instead of that of the Appellant. Exhibits “A” and “B” were attached to the affidavit.
A perusal of the affidavit evidence relied upon by the Appellant would reveal that the said affidavit did not establish the Appellant’s Claim. The affidavit did not disclose the date of the alleged re-run Primary Election, the scores of candidates and where the re-run Primary Election took place was not stated. Also the exhibits attached did not show that there was a re-run election.
It is my view that when facts, dates, times and names are alluded to but not specifically stated in an affidavit, the Court is entitled to presume that no such facts actually exist. Such an affidavit is clearly bereft of requisite facts to support the application placed before the Court.
The Appellant in this case under consideration did not adduce sufficient facts upon which the trial Court would have found in his favour.
Furthermore the burden of proof in civil cases generally lies on the Plaintiff because he is the one making the burden of proving his case, where he fails to adduce relevant evidence to the relief he claims, his case must fail.
See Sections 135, 136, 137 and 139 of the Evidence Act.
In Buhari vs. INEC (2008) 19 NWLR Part 1120 Page 246 at 355 Paragraphs A to D the Supreme Court held among others that:-
“By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the sub-section, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the sub-section, will be so on successively until all the issues in the pleadings have been dealt with. Section 139 of the Evidence Act provides for proof of a particular fact. By the Section, the burden of proof as to any particular fact lies on the person who wishes the Court to believe in ifs existence unless it is provided by any law that the proof of that fact shall be on any particular person, but the burden may in the course of a case be shifted from one side to the other.”
A Plaintiff in an action of this nature must succeed on the strength of his own case and where as in this case, he has not made out a case by his affidavit evidence the case must fail.
Furthermore the Appellant did not discharge the burden of proof on him that there was a re-run election which he won.
On the other hand the 3rd Respondent in his counter-affidavit stated in Paragraph 4 the scores of all the contestants in the primary election which showed him as the winner with 626 votes while Appellant came second with 474 votes. Furthermore paragraphs 6, 7, 8, 9 and 10 of the 3rd Respondent’s counter affidavit showed that Electoral Appeal Panel of the PDP upheld the result of the primaries and that no re-run primary election was conducted.
It is also important to observe at this juncture that the Appellant did not bother to file a further affidavit to either join issues with the Respondent on facts deposed to in the counter affidavit or to deny the facts in documents annexed by the Respondents.
It is settled law that where a party deposed to a fact in a counter affidavit which the other party ought to rebut in a further affidavit but later fails to do so he is deemed to have admitted such facts in the counter affidavit.
See the case of:-
– ASOL Nig. Ltd vs. Access Bank Nig. Plc (2009) 10 NWLR Part 1149 Page 283.
Consequent upon the foregoing it is my view that the trial Court was right in determining the case in favour of the 3rd Respondent.
Issues 1 and 2 are hereby resolved in favour of the Respondents and against the Appellant.
The inevitable conclusion in this appeal is that it lacks merit and it is hereby dismissed.
There shall be no order as to costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, J. O. Bada, JCA. I am in total agreement with the reasons therein and the inevitable conclusion that the appeal is bereft of merit and have nothing to add.
Accordingly the appeal fails and same is hereby dismissed, with no order as to costs.
REGINA OBIAGELI NWODO, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Jimi Olukayode Bada JCA, and I agree with his reasoning and conclusion.
It is trite law that the party who avers to facts must adduce evidence to establish same. Once issues are joined on any averment in an affidavit in support of originating summons, the plaintiff must lead credible evidence to support such averments in prove of his claim. When he fails to do so his claim cannot succeed.
See Omoboriowo v. Ajasin (1984) 1 SC 206 at 207.
The appellant failed to discharge the burden of proof under Section 139 of the Evidence Act. I have no reason to interfere with the finding and decision of the court below. I adopt the fuller reasoning in the lead judgment and hold that this appeal is devoid of merit and is hereby dismissed.
I make no order as to cost.
Appearances
Mr Rotimi Ojo for the Appellant with him are Dayo Odunlami, Isaac Folorunsho, Joy Umoren (Mrs) and J. Ojeh.For Appellant
AND
Mr Gordy Uche for the 1st Respondent with him are S. I. Okonkwo, M. Igwe and C. Maduka.
Mr. Ahmed Raji for the 2nd Respondent with him are Rehima Aminu (Mrs), Alhassan A. Umar, Adeola Adedipe, Grace Ogbonna (Mrs) and Zekeri Garba.
J. N. Egwuonwu for the 3rd Respondent with him is I. H. Nagada.For Respondent
