UBA v. MOGHALU & ORS
(2022)LCN/16535(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/ABJ/CV/36/2022
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
MR. EMMANUEL ANDY NNAMDI UBA APPELANT(S)
And
1. CHIEF (DR) GEORGE MOGHALU 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)
RATIO
THE JURISDICTION OF THE COURT OF APPEAL
Firstly, Section 19(1) of the Federal High Court Act provides thus:
“The Court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions or parts thereof by such name as he may think fit.”
The issue or question as to the territorial jurisdiction of the Federal High Court has been settled in the case of APC V. GUMAU & ORS (2019) LPELR-49472 where this Court held that:
“By the provisions of Sections 249 of the Constitution of the FRN 1999 (as amended), there is only one Federal High Court created for the country. The jurisdiction as donated by Section 251 of the Constitution extends to the entire length and breadth of the country. Any action in which the Federal High Court has power to adjudicate can be filed in any part of the Country. The establishment of the judicial divisions is for administrative convenience. This is made clear by the provisions of Section 19(1), (2) and (3) of the Federal High Court Act.
See UKPAI V. OKORO & ORS (1983)11 SC 231, OGIGIE & ORS V. OBIYAN (1997) LPELR-2304 (SC) and AKEREDOLU V. ABRAHAM & ORS (2018) SC. In the case of AGIP (NIG) LTD V. AGIP PETROLEUM INT’L & ORS (2010) NWLR (PT. 1187) 348, it was held that:
“The main reason for judicial division is to bring access to justice closer to the people in order to reduce hardship and expenses. It is for administrative convenience to enable the wheels of justice to run speedily and smoothly. It does not imply that a judicial division is devoid of jurisdiction to determine a case which does not emanate from the limits of its territorial jurisdiction. PER SENCHI, J.C.A
THE POSITION OF LAW WHERE A DECISION OF THE COURT IS SAID TO BE PERVERSE
The instances in which the decision of a trial Court would be regarded as perverse does not arise in the instant case. See the cases of OGUNDANA & SONS TRADING CO. (NIG) LTD V FIRST BANK PLC (2019) LPELR 48517(CA).
In the case of ODOM & ORS V PDP & ORS (2015) 24351, the Supreme Court of Nigeria held:
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shot its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice.” PER SENCHI, J.C.A
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Abuja in suit no. FHC/ABJ/CS/648/2021 delivered on the 20th day of December, 2021 by I. E. Ekwo, J. The 1st Respondent (as Plaintiff) had approached the lower Court for the determination of three basic questions in his Originating Summons dated 8th July, 2021 as follows:
1. Having regard that Section 87 of the Electoral Act 2010 (as amended) imposes an obligation on political parties in Nigeria to conduct primary elections for the purpose of selecting or nominating its candidate to fly its flags at the elective positions in Nigeria, including gubernatorial elections in Anambra State, did the 1st Defendant conduct the primary election of the governorship candidate with actual accreditation of voters, voting, collation of votes and announcement of results with the provisions of the Electoral Act 2010 (as amended), the Constitution and the guidelines of the said political party?
2 Having regard that Section 85 of the Electoral Act, 2010 (as amended) and Regulation 17(vi) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4) impose obligations on the 2nd Defendant to attend and monitor the gubernatorial primary election of the 1st Defendant in Anambra State for the forthcoming 6th November, 2021 gubernatorial election, did the 2nd Defendant attend and monitor the 1st Defendant’s primary election for the emergence of its gubernatorial candidate for the 6th November, 2021 gubernatorial election?
3. Whether a political party that fails to conduct its primary election in accordance with the provisions of the Electoral Act 2010 (as amended), the Constitution of the political party and the guidelines of the political party, such as the 1st Defendant conducting its primary election in absence of accreditation of voters, actual voting or casting of votes, collation of votes and announcement of results of primary election based on actual votes cast and counted, can validly field candidate to fly its flag at the gubernatorial election for Anambra State scheduled for 6th November, 2021, or at any subsequent date?
In the event of the questions being determined and answered in favour of the 1st Respondent, he claims against the Appellant and two others (as Defendants) as follows:
1. A DECLARATION of this Honourable Court that pursuant to the Electoral Act, 2010 (as amended) and 1st Defendant’s Guidelines for the nomination of candidates for the Anambra 2021 gubernatorial election-direct primaries (Option A4), it is incumbent on the 1st Defendant to conduct a primary election for emergence of its gubernatorial candidate for 6th November, 2021 or any subsequent date in compliance with the provisions of the said Electoral Act and guidelines of the political party.
2. A DECLARATION that by virtue of the non-conclusion of the Defendant’s primary election process in Anambra State for the emergence of its gubernatorial election on 26th June, 2021 or the conduct of the said primary election in contravention of the provisions of the Electoral Act 2010 (as amended) and the regulations and guidelines of the political party, the 1st Defendant has no candidate to field at the said gubernatorial election, and if the 1st Defendant purports to field the 3rd Defendant, the candidature of the 3rd Defendant shall be voided and set aside as the gubernatorial candidate of the 1st Defendant.
3. A DECLARATION that by virtue of the non-compliance of the 1st Defendant with the provisions of the Electoral Act 2010 (as amended) and the regulations and guidelines of the political party, in the conduct of the said 1st Defendant’s primary election process in Anambra State for the emergence of its gubernatorial candidate for the 6th November, 2021 gubernatorial election, the 3rd Defendant is not a candidate at the said 6th November, 2021 gubernatorial election or at any subsequent postponement.
4. A DECLARATION that 1st Defendant is duty-bound in contract to commence and conclude primary election in Anambra State in accordance with the provisions of the Electoral Act 2010 (as amended) and the regulations and guidelines of the political party, after having demanded and received the sum of Twenty-Two Million, Five Hundred Thousand Naira (N22,500,000) from the Plaintiff, along with other thirteen (13) Aspirants.
5. A PERPETUAL INJUNCTION restraining the 3rd Defendant from howsoever holding out or carrying on or parading himself as the gubernatorial candidate of 1st Defendant for the 6th day of November, 2021 gubernatorial election or any subsequent postponement of the said election in Anambra State.
6. A MANDATORY INJUNCTION compelling the 2nd Defendant to delist the names of 1st and 3rd Defendants from amongst the list of political parties and gubernatorial candidates for the 6th November, 2021 gubernatorial election or at any subsequent postponement or de-recognize the 1st and 3rd Defendants as political party and candidate respectively for the 6th November, 2021 gubernatorial election or any subsequent postponement, and strip them of all rights appurtenant to political parties fielding candidate, and candidate at the said gubernatorial election.
7. N22,500,000 (Twenty-Two Million Five Hundred Thousand Naira) payable by 1st Defendant being refund of payment made by the Plaintiff to 1st Defendant for the expression of interest form and nomination form upon total failure of consideration.
8. N100,000,000 (One Hundred Million Naira only) payable by the 1st Defendant being exemplary and general damages for its breach of contract to commence and conclude primary election and/or breach of Section 87 of the Electoral Act, 2010 (as amended) and the regulations and guidelines of the political party.
9. SUCH CONSEQUENTIAL ORDER OR ORDERS as the circumstances may warrant and as the Honourable Court may deem fit at the time of delivery of judgment for appropriate remedy to the Plaintiff.
In support of the Originating Summons, the 1st Respondent filed a 40 paragraphs Affidavit with documents exhibited. (See pages 10-347 of the Record of Appeal).
The 1st Defendant (now 3rd Respondent) on 24/08/2021 deposed to a Counter-Affidavit of 75 paragraphs and exhibited documents in opposition to the Originating Summons (See pages 610 – 1169 of the Record of Appeal). The Appellant also filed a 45 paragraph Counter-Affidavit with documents exhibited thereto in opposition to the Originating Summons. The 1st Respondent, the Appellant and the 3rd Respondent filed further processes either for or against the Originating Summons. The Appellant and the 3rd Respondent (APC) also filed Notices of Preliminary Objections at the lower Court.
The brief facts of this case is that the Appellant, 1st Respondent and twelve (12) others were aspirants in the primary elections of the 3rd Respondent of 26th June, 2021. On the day of the primary election, both the Appellant and the 1st Respondent sent out their field officers or agents to monitor the primary elections in the 326 Wards in Anambra State. The officers of the 2nd Respondent and some security agencies that were to monitor the primary elections filed in their reports. The agents of the Appellant and that of the 1st Respondent also filed in their Reports. Members of the 3rd Respondent who were aggrieved by the conduct of the primary elections also filed in Affidavits. Allegations and counter-allegations ensued as to whether there was indeed a primary election that took place on 26th June, 2021 in Anambra State to elect the 3rd Respondent’s candidate in the Governorship Election in Anambra State. Thus, the 1st Respondent being dissatisfied with the 3rd Respondent’s conduct in the handling of the primary election in the entire state, including the action of the appeal panel of the 3rd Respondent, approached the lower Court complaining of the infraction of the provisions of the Electoral Act 2010 (as amended) and the 3rd Respondent’s guidelines for the said primary elections that took place on 26th June, 2021 in Anambra State, wherein the Appellant was returned and declared as the winner.
The learned trial Judge, after conclusion of hearing, considered the Preliminary Objections of the Appellant and 3rd Respondent and the objections were dismissed for lacking in merit. The learned trial Judge then proceeded to consider the suit of the 1st Respondent on its merit and on the 20th day of December, 2021 held as follows:
“The combination of the evidence in this case by both the 1st and 3rd Defendants has created doubt in me that the Gubernatorial Primary Election of the 1st Defendant for the nomination of its candidate for the Anambra State Governorship Election was held at all or was held in accordance with the provisions of the Electoral Act 2010 (as amended) and 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4). It is clear from the evidence in this case that the 1st Defendant connived with the 3 Defendant to conduct election outside the time prescribed by Articles 17(vi) and 18(e), (g) and (i) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4) to the exclusion of the Plaintiff. At the end, the votes in Exhibit MAM9 of the 3rd Defendant were gratuitously awarded to other aspirants while the 3rd Defendant retained the highest votes. Now, the ingenuity of the 1st and 3rd Defendants has resulted in illegality and has backfired. In any event, it must be said that primary election result sheet is prima facie and not conclusive evidence that such election was conducted at all or that it was conducted in a manner prescribed by the Electoral Act, 2010 (as amended) and the Party’s Guidelines for the Nomination of its Candidates for election.
In the end, it is my finding that the Plaintiff has demonstrated upon preponderance of evidence that the Gubernatorial Primary Election of the 1st Defendant was not conducted in accordance with the provisions of Sections 85(2) and 87(1) of the Electoral Act, 2010 (as amended) and Articles 17(vi) and 18(e), (g) and (i) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4). Therefore, the case of the Plaintiff succeeds on the merit and I so hold.”
(See pages 5194 – 5195, Volume 6 of the Record of Appeal)
Aggrieved with the decision of the learned trial Judge of the lower Court, the Appellant on the 31st day of December, 2021 filed a Notice of Appeal to this Court and raised fifteen (15) grounds. (See pages 5198 – 5214 of Volume 6 of the Record of Appeal).
The fifteen (15) Grounds of Appeal are herein under reproduced as follows (without their particulars):
GROUND ONE
The learned trial Judge erred in law when in spite of the evidence of the 1st Respondent and the Court finding to the effect “that there was no primary election of the 1st Defendant on 26 June, 2021 when it was slated to hold”. His Lordship nevertheless held at page 40 of his judgment as follows:
“Accordingly, I hold that the Plaintiff was an aspirant in the pre-election of the 1st Defendant which legally is being challenged in this case. I therefore uphold the position of the learned silk of Counsel for the Plaintiff on this issue. This leg of objection fails and is hereby discountenanced
GROUND TWO
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when rather than decline jurisdiction to entertain the case, his Lordship held that the 3rd Respondent breached the provisions of the Electoral Act, 2010 (as amended) and the party’s guidelines for selection and nomination of its candidate and thereby tore its toga of exclusivity and supreme authority to choose its candidate to shreds.
GROUND THREE
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when his Lordship held at pages 48-49 of his judgment as follows:
“Where a person has been screened and cleared by a political party, upon meeting all the financial and documentary requirements, his exclusion from the primary election of the political party is a legitimate and legal complaint.”
GROUND FOUR
The trial Court erred in law when after holding thus:
“The evidence of the Plaintiff is that there was no primary election of the 1st defendant on 26 June, 2021 when it was slated to hold. After the aspirants were addressed by the election committee on 25 June, 2021, the members of the election committee were not seen anywhere in Anambra State on 26 June, 2021. No accreditation of voters took place and no voting and collation of votes in all the 326 wards of Anambra State. The election committee suddenly reappeared on the next day and in an hotel (sic) at Agulu Anambra State and announced Election result it did not conduct and declared the 3rd Defendant as the winner of the primary election scheduled for emergence of the 1st Defendant’s candidate for the 6th November 2021 Gubernatorial Election of Anambra State.”
The trial Court proceeded nevertheless to contradict itself and to arrive at a conclusion different from its finding when it held:
“In the end, it is my finding that the Plaintiff has demonstrated upon preponderance of evidence that the gubernatorial primary election of the 1st Defendant was not conducted in accordance with the provisions of SS. 85(2) and 87(1) of the Electoral Act, 2010 (As Amended) and Articles 17 (IV) and 18 (e) (g) and (i) of the 1st Defendant’s guidelines for the nomination of candidate for the Anambra 2021 Gubernatorial Election-Direct Primary (Option A4).”
GROUND FIVE
The trial Court erred in law when it assumed jurisdiction to hear and determine the case of the 1st Respondent despite the 1st Respondent’s own showing to the effect that the case falls within the parameters of a simple contract.
GROUND SIX
The learned trial Judge erred in law when he held thus:
“On page 8 of the report of the Primary Election Committee (Exh. MAM 5), it is stated that there was agreement reached with the Aspirants that the time for accreditation for the primaries be adjusted from 8:00am – 12:00 noon and that voting should accordingly be adjusted to 2:00pm – 4:00pm. There is no evidence that the Primary Election Committee was given any authority to override the provisions of Article 18(e), (g) and (i) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election Direct Primaries (Option A4) in the conduct of the primary election on 26th June, 2021 or power to override the provision of the Electoral Act by proceeding with the said primary election in the absence of the 2nd Defendant’s Monitoring Team. This conduct in my view is a very crude demonstration of impunity on the part of the 1st Defendant Where there is express provision of the law on the method of doing a thing, doing it by any other method is unacceptable. See ABUBAKAR V. A.G.F. (2007)3 NWLR (PT. 1022) 601.”
GROUND SEVEN
The learned trial Judge erred in law when his Lordship held thus:
“It is pertinent to state here that once primary election is conducted in breach of the provisions of Electoral Act and 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4), the fact that primary elections did or did not take place is immaterial. Any vote in primary election conducted in breach of the provisions of Electoral Act and 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4) amount to nothing. This is the issue with Exh. MAM 9 of the 3rd Defendant. Consequently, the result of such illegal primary is an illegal instrument. It is inherently illegal and cannot represent anything other than its illegality. I find that Exh. MAM 9 is bereft of legal foundation upon which to stand. It will fall and has actually fallen like a dead tree.”
GROUND EIGHT
The learned trial Judge erred in law when his Lordship held thus:
“The averment of the 3rd Defendant in this issue is made in such form that the 3rd Defendant was not informed by anybody. This means that he had first-hand information. The question here is, how come it is only the 3rd Defendant that knew the whereabouts of the Primary Election Committee between 25th and 26th June, 2021 when he was not the only Aspirant in the primary election of the 1st Defendant? The answer in my opinion, points to only one direction, that is, the 3rd Defendant was in communication with the Primary Election Committee. In other words, there was ‘collusion’ between the Primary Election Committee and the 3rd Defendant. It is easy to see through and assert that the 3rd Defendant was teleguiding the Primary Election Committee of the 1st Defendant and the said Primary Election Committee was readily doing his bidding. It is obvious that Exh. MAM 5 is tainted and tilted in favour of 3rd Defendant. Another issue that affects the veracity and authenticity of Exh. MAM 5 is that none of the seven (7) members was made to tender it to this Court by way of Affidavit evidence.”
GROUND NINE
The learned trial Judge erred in law when his Lordship held thus:
“It is clear from the evidence in this case that the 1st Defendant connived with the 3rd Defendant to conduct election outside the time prescribed by Article 17(iv) and 18(e), (g) and (i) of 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4) to the exclusion of the Plaintiff. At the end, the votes in Exh. MAM 9 of the 3rd Defendant were gratuitously award to other aspirants while the 3rd Defendant retained the highest votes. Now, the ingenuity of the 1st and 3rd Defendants has resulted in illegality and has backfired. In any event, it must be said that primary election result sheet is prima facie and not conclusive evidence in a manner prescribed by Election Act 2010 (as amended) and the Party’s Guidelines for the Nomination of its Candidates for election.”
GROUND TEN
The learned trial judge erred in law when his Lordship held as follows:
“By the tenor of this suit, this Court will not exceed the right and interest of the parties before the Court. I find that by the tenor of the pleadings, the right and interest of the parties before the Court can be determined without any other person being joined.”
GROUND ELEVEN
The trial Court erred in law when it discountenanced the preliminary objection of the Appellant, assumed territorial and substantive jurisdiction to entertain and determine the 1st Respondent’s Originating Summons.
GROUND TWELVE
The trial Court erred when it entertained and determined the 1st Respondent’s Originating Summons.
GROUND THIRTEEN
The learned trial Judge erred in law when his Lordship refused to be bound by and or to take judicial notice of the various suits to which his attention was respectfully drawn to the effect that other aspirants in the 3rd Respondent’s Anambra 2021 Primary Election contended that election held and that they won.
GROUND FOURTEEN
The trial Court erred in law when it determined the 1st Respondent’s suit under Originating Summons procedure despite the fact that the facts constituting his case were substantially in dispute, hostile and vehemently denied by the Appellant and the 3rd Respondent.
GROUND FIFTEEN
The learned trial Judge erred in law when he granted the reliefs claimed by the 1st Respondent.
The Record of Appeal was compiled and transmitted to this Court on 17th January, 2022. The Appellant subsequently filed his Brief of Argument on 19th January, 2022. The 1st Respondent equally filed his Brief of Argument on 28th January, 2022 and the Appellant on the 2nd of February, 2022 filed a Reply Brief to the 1st Respondent’s Brief of Argument.
The learned Silk A. M. Aliyu, on the 2nd day of February, 2022 adopted the two Briefs of Argument on behalf of the Appellant and urged the Court to allow the appeal and set aside the judgment of the lower Court, while the learned senior Counsel, Chief Chris Uche SAN adopted on behalf of the 1st Respondent, the 1st Respondent’s Brief of Argument and urged the Court to dismiss the appeal and affirm the judgment of the trial Court.
A. S. Mohammed Esq., did not file any Brief of Argument on behalf of the 2nd Respondent. The learned senior Counsel M. A. Magaji SAN also did not file any Brief of Argument on behalf of the 3rd Respondent. The appeal was consequently reserved for judgment.
In the Brief of Argument of the Appellant, learned silk for the Appellant formulated seven (7) Issues for Determination in the appeal as follows:
(1) In view of the 1st Respondent’s depositions before the trial Court that no election was conducted by the 3rd Respondent for the nomination of its gubernatorial candidate in Anambra State on the 26th June, 2021, whether the 1st Respondent has the locus standi to institute this action. (Grounds 1, 3 and 4)
(2) Whether, the trial Federal High Court was not wrong to have assumed jurisdiction over the matter, considering the fact that this case borders on the Gubernatorial Primary Election of the 3rd Respondent (APC) held in Awka, Anambra State and that reliefs 4 and 7 the 1st Respondent showed that his case is about a simple contract. (Grounds 2, 6, 11 and 12).
(3) Whether the Anambra Governorship Primary Election conducted by the 3rd Respondent on the 26h June, 2021 was invalidated due to the adjustment of the time for accreditation and voting by the Primary Election Committee. (Grounds 6 and 7)
(4) Whether the trial Court did not deny the Appellant of his fair hearing when it suo motu raised the issue of connivance between Appellant and Primary Election Committee and resolved same against the Appellant without invitation of parties to address it on the issue. (Grounds 8 and 9).
(5) Based on the doctrine of stare-decisis, whether the trial Court was not wrong in refusing to be bound by and/or apply the apt and binding decision of IKECHUKWU V. NWOYE, (2015)3 NWLR (PT.1446) 367; AKPAWGBO-OKADIGBO V. CHIDI (2015)10 NWLR (PT. 1466) 17 and PDP V SOPULUCHUKWU (2017) LPELR 42563 (SC) cited before it in respect of the consequences of non-joinder of other aspirants as parties in the suit (Grounds 10 and 13).
(6) Considering the Affidavit and documentary evidence led by parties at the trial Court, whether the learned Judge properly evaluated the case before him (Ground 15).
(7) Considering the fact that serious dispute of facts arose in the Affidavits filed by parties, whether the trial Court was not wrong when it determined the case on Originating Summons (Ground 14).
The learned senior Counsel on the other hand distilled six Issues for Determination of this appeal on behalf of the 1st Respondent as follows:
(1) Whether the trial Court was right in holding that the 1st Respondent had the locus standi to institute and maintain his action. (culled from grounds 1, 3 and 4 of the Notice of Appeal).
(2) Whether the trial Court was right in holding that it had the jurisdiction to try the 1st Respondent’s suit. (culled from grounds 2, 6, 11 and 12 of the Notice of Appeal).
(3) Whether the trial Court was right in holding that the Primary Election of the 3rd Respondent was conducted in breach of the provisions of the Electoral Act and the Primary Election Guidelines of the 3rd Respondent. (culled from grounds 6, 7, 8 and 9 of the Notice of Appeal).
(4) Whether the trial Court was right in holding that the suit was properly constituted with respect to parties, and in distinguishing the instant case from the decisions of IKECHUKWU V. NWOYE (2015) 3 NWLR (PT. 1446) 367; AKPAMBGO OKADIGBO V. CHIDI (2015)10 NWLR (PT. 1466) 17 and PDP V. SOPULUCHUKWU (2017) LPELR 42563. (culled from Grounds 10 and 13).
(5) Whether the trial Court was right in its evaluation of the evidence before it. (culled from ground 15 of the Notice of Appeal).
(6) Whether the trial Court was right in holding that the 1st Respondent’s suit was triable under the Originating Summons procedure as there were no serious disputes in the case which could not be resolved by the available documentary Evidence before it. (culled from Ground 14 of the Notice of Appeal).
Now, on a close perusal of the issues submitted for determination by the two senior Counsel on behalf of the Appellant and the 1st Respondent, the issues are practically the same and they boil on the same direction. I therefore adopt the issues identified for determination in this appeal by the Appellant and I will thereunder consider the submissions of the Respondent on his issues. I will therefore take the 1st, 2nd and 7th Issues for Determination together and resolve same.
The issues are:
ISSUE ONE
In view of the 1st Respondent depositions before the trial Court that no election was conducted by the 3rd Respondent for the nomination of its Gubernatorial candidate in Anambra State on the 26th June, 2021, whether the 1st Respondent has the locus standi to institute this action.
ISSUE TWO
Whether, the trial Federal High Court was not wrong to have assumed jurisdiction over the matter, considering the fact that this case borders on the Gubernatorial Primary Election of the 3rd Respondent (APC) held in Awka, Anambra State and that reliefs 4 and 7 the 1st Respondent showed that his case is about a simple contract.
ISSUE SEVEN
Considering the fact that serious dispute of facts arose in the Affidavits filed by parties, whether the trial Court was not wrong when it determined the case on Originating Summons.
It is the position of the learned silk for the Appellant that the trial Court having held that the 1st Respondent was excluded from participating in the Gubernatorial Primary of the 3rd Respondent for Anambra State, the 1st Respondent does not have the locus standi to institute the suit at the lower Court. He relies on the case of WUSHISHI V. IMAM (2017)18 NWLR (PT. 1597) at page 175 particularly page 216. He also refers this Court to paragraph 25 of the 1st Respondent’s Affidavit in Support of the Originating Summons and he submits that the deposition of the 1st Respondent, which was denied by the Appellant at the trial Court, underscores the Appellant’s submission that the 1st Respondent did not participate in the Primary Election of the 3rd Respondent for the Anambra State Gubernatorial Election. He cites the cases of EZE V. PDP & ORS (2018) LPELR 44907 (SC); SHINKAFI & ANOR V. YARI & ORS (2016) LPELR 26050 (SC) and MAIHAJA V. GAIDAM (2017) LPELR 42474 (SC).
At paragraphs 3.11 – 3.15 of the Appellant’s Brief of Argument, learned silk submits that it is only an aspirant who participated in the primary election that has the locus standi to challenge the outcome of the primaries. He submits that the totality of the Respondent’s case at the trial Court is that he did not participate in the primary election of the 3rd Respondent and that the primary election result of the 3rd Respondent for the 2021 Gubernatorial Election in Anambra State was fabricated. On his position that the Respondent lacks locus standi, he relies on the cases of SUNDAY & ANOR V. INEC & 4 ORS (2009)12 NWLR (PT. 1154) 194 AT 212 PARAS F-G; MR. SUNDAY ADEGBITE TAIWO V. SARAH ADEGBENRO & ANOR (2011)11 NWLR (PT. 1259) 562 at 579 paragraphs F-G.
At paragraphs 3.17 – 3.32 of the Appellant’s Brief of Argument, learned senior Counsel submits to the effect that the trial Court lacks jurisdiction to hear and determine this case in view of the circumstances of the case, i.e. the 1st Respondent’s case falls under the purview of the internal affairs of a political party. He relies on Section 87(9) of the Electoral Act, 2010 (as amended) and the cases of EMENIKE V. PDP (2012)12 NWLR (PT. 1315); PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR 42563; ARDO V. NYAKO (2015)10 NWLR (PT. 1416) P591; PDP V. SYLVA (2014)13 NWLR (PT. 1316) 125.
Further, learned senior Counsel contends that by his own showing, the 1st Respondent’s case borders on a simple contract and he refers the Court to reliefs 4 and 7 as endorsed by the 1st Respondent in his Originating Summons at page 7, Volume 1 of the Record of Appeal. According to the senior Counsel, by the nature of the reliefs at paragraphs 4 and 7 of the Originating Summons, the trial Court lacks jurisdiction to determine a case founded on simple contract. He relies on the cases of EHINLE V. IKORODU LOCAL GOVERNMENT (2021) NWLR (PT. 1757) 279 AT 304 PARAS F-H; AKINDELE V. ABIODUN (2009)11 NWLR (PT. 1152) 356; ONUORAH V. KADUNA REFINING AND PETROCHEMICAL CO. (2006) 6 NWLR (PT. 921) 379 and IKPEKPE V. W.R. & P. CO. LTD (2018)17 NWLR (PT. 1648) 280 at 294 paragraphs F-G.
Learned senior Counsel submits further that the trial Court lacks the territorial jurisdiction to entertain the case of the 1st Respondent. According to the learned senior Counsel, the 1st Respondent chose to engage in forum shopping by coming to the trial Court in Abuja and for the trial Court to have heard the matter, it was in disregard to the directives of the Hon. Chief Judge of the Federal High Court directing Judges not to entertain matters that arose outside their Judicial Division, especially political matters. On the effect of forum shopping on the jurisdiction of the trial Court, learned senior Counsel relies on the cases of MAILANTARKI V. TONGO (2018)6 NWLR (PT. 1614) 69 and DINGYADI V. INEC (NO. 2) (2010)18 NWLR (PT. 1224) 154 AT 207-209 paragraphs G-A.
On the issue that considering the serious dispute of facts in the Affidavits filed by parties, whether the trial Court was not wrong when it determined the case on Originating Summons, learned senior Counsel on behalf of the Appellant submits at paragraphs 3.104 – 3.117 of the Appellant’s Brief of Argument to the effect that the procedure of Originating Summons is one which is used where the facts are not in dispute as well as where facts can be ascertained without being tested under cross-examination. He relies on the case of OLOMODA V. MUSTAPHA & ORS (2019) LPELR 46438 (SC). He then submits that a critical scrutiny of the plethora of Affidavits, Counter-Affidavits and Further Affidavits filed by the parties in the suit reveals that there are very contentious facts that could only be resolved by calling witnesses and the witnesses cross-examined. He submits that despite the contentious nature of the suit and the application by the Appellant to order pleadings, the trial Court refused. He refers to pages 5168 – 5171 of the Record of Appeal. Learned senior Counsel to the Appellant at paragraph 3.108 of the Appellant’s Brief of Argument chronicled the Affidavits evidence placed before the trial Court. In response and in proffering arguments on the three issues, i.e. Issues 1, 2 and 7, the learned senior Counsel to the 1st Respondent at paragraphs 4.2 – 4.13 of the 1st Respondent’s Brief of Argument submits that the trial Court was perfectly right in holding that the 1st Respondent had the requisite locus standi to institute and maintain his action. He submits further that the trial Court was right in holding that the 1st Respondent was an aspirant in the said primary election of the 3rd Respondent and thus imbued with the locus standi to challenge the said primary election under Section 87(9) of the Electoral Act 2010 (as amended).
Learned senior Counsel submits that it is settled law that to determine whether a party has locus standi to institute a matter under the Originating Summons procedure, it is the Affidavit filed in support of the Originating Summons that will be considered. He relies on the cases of GLOBAL TRANSPORT OCEANICO S. A. & ANOR V. FREE ENTERPRISES (NIG) LTD (2001)5 NWLR (PT. 706) 426; ANUFORO V. OBILOR (1997)11 NWLR (PT. 530) 611 at 667. In the instant case, learned senior Counsel refers to paragraphs 2, 9, 13, 14, 15, 16, 18, 19, 22, 25 and 27 of his Affidavit in Support of Originating Summons and he posits that the 1st Respondent is a registered member of the 3rd Respondent, and he purchased the Expression of Interest Form for the purpose of contesting in the 3rd Respondent’s primary election and was cleared to contest the said primary election, given a clearance certificate, and his name was among the list of contestants. He cites the cases of ALL PROGRESSIVES CONGRESS V. LERE (2020)1 NWLR (PT. 1705) PAGE 285 PARAS D-H; AKINLADE V. INEC (2020)17 NWLR (PT. 1754) 439 AT 465 paragraph E.
Learned senior Counsel also referred the Court to the Affidavits of the Appellant and the 3rd Respondent and Exhibits APC73 where the 1st Respondent was allocated 18,596 votes under the heading “Gubernatorial Aspirant”. The name of the 1st Respondent is listed as No. 2 while that of the Appellant is listed as No. 8 and this, according to the learned senior Counsel, amounts to an admission against interest.
On whether the trial Court was right in holding that it had jurisdiction to try the 1st Respondent’s suit, senior Counsel to the 1st Respondent submits at paragraphs 4.17 – 4.38 of the 1st Respondent’s Brief of Argument to the effect that the jurisdiction of a Court over a matter is determinable by the claims of the Plaintiff. He submits simply that the claims of the 1st Respondent (as Plaintiff at the trial Court) were a challenge against the 3rd Respondent’s conduct of its primary election on the 26th day of June, 2021 and by paragraphs 2, 9, 13, 14, 15, 16 and 18 of the 1st Respondent’s Affidavit in support of his Originating Summons, the suit of the 1st Respondent falls within the provision of Section 285(14)(a) of the 1999 Constitution and Section 87(9) of the Electoral Act. He submits that the claims or reliefs of the 1st Respondent were justiciable and triable by the Federal High Court, Abuja.
On the allegation of the Appellant that the 1st Respondent engaged in forum shopping by filing the suit in Abuja instead of Awka, Anambra State, learned senior Counsel to the 1st Respondent submits that the Appellant misconceived the jurisdiction of the Federal High Court. He then relies on and refers this Court to Section 19(1) of the Federal High Court Act and posits that the territorial jurisdiction of the Federal High Court covers the whole of the Federal Republic of Nigeria, unlike the State High Court.
As to whether the trial Court was right in holding that the 1st Respondent’s suit was triable under the Originating Summons Procedure as there were serious disputes, senior Counsel submits that the trial Court was perfectly right in determining this suit under the Originating Summons procedure. He contends that the respective Affidavits of parties and the attached documents were capable of being used by the trial Court to resolve the issues in the case without the necessity of ordering pleadings. He submits further that the annexed documents in an Originating Summons provide the hanger upon which depositions in the Affidavit would be considered, since oral depositions cannot challenge or override the contents of a document. He relies on the cases of FIRST BANK V. MAY CLINIC (2001) 4 SCNJ 1 at 12; SHIPCARE LTD V. OWNERS OF M. V. FORTUNATO (2003) FWLR (PT. 179) 1238 AT 1256; U.B.V LTD V. OZIGI (1994)3 NWLR (PT. 333) 385; NNUBIA V. A.G. RIVERS STATE (1993)3 NWLR (PT. 593) 82 and OGUNDELE & ORS V. AGIRI & ORS (2008)18 NWLR (PT. 1173) 219 at 239 paragraph A.
In the instant case, the main issue in controversy between the parties, the senior Counsel contends, was whether the said primary election was conducted outside the time prescribed in Articles 18(e), (g) and (i) of the 3rd Respondent’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4), in a manner that robbed the 1st Respondent of the opportunity to be voted for and robbed his supporters the opportunity to vote for him, and whether this was a breach of the Electoral Act and the said Guidelines. Learned senior Counsel submits on behalf of the 1st Respondent that from the Affidavits supporting the Originating Summons, the various reports exhibited and other documentary evidence, one fact stands unassailable that accreditation and voting did not start within the periods specifically and mandatorily provided by the 3rd Respondent’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Elections-Direct Primaries (Option A4). He further contends that it is also an admitted fact by the Appellant and the 3rd Respondent that accreditation and voting did not start within the periods the 3rd Respondent ‘claimed’ it agreed with the aspirants. Senior Counsel states that another admitted fact was that INEC officials had all left at about 5:30pm and so did not witness any accreditation, much more voting in the 326 wards. He therefore concludes by submitting that the above issues do not raise any controversy whatsoever or serious issues of dispute as to have necessitated a resort to pleadings. He relies on the case of NGUROJE & ANOR V. EL-SUDI & ORS (2012) LPELR-20865 (CA).
As I said earlier, I will consider and determine these three issues together because of the jurisdictional issues raised by the appellant in his Brief of Argument.
Firstly, on the issue of whether the 1st Respondent has the locus standi to institute this action, in view of the 1st Respondent’s depositions before the trial Court that no election was conducted by the 3rd Respondent, the law is that to determine the locus standi of a party, it is the averments of that party in his Statement of Claim in cases begun by means of Writ of Summons, or the depositions in the supporting Affidavits in cases begun by means of Originating Summons that would be critically examined to see whether the party has disclosed sufficient interest in the subject matter of the suit and how such interest has arisen to clothe him with the requisite locus standi to sue the other party.
See ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA OF NIGERIA & ORS V. JUSUN & ORS (2014) LPELR-41104 (CA).
Locus standi is a threshold issue which affects the jurisdiction of the Court. In other words, locus standi is the legal capacity to institute an action in a Court of law and where a party, especially the Plaintiff, lacks the locus standi to institute or maintain an action, the Court will lack the competence to entertain the complaint. See NYESOM V. PETERSIDE & ORS (2016) LPELR-40036 (SC); U.O.O. (NIG) PLC V. OKAFOR & ORS (2020) LPELR-49570 (SC).
In the instant case, this suit was commenced vide an Originating Summons dated and filed on the 8th day of July, 2021 and supported by an Affidavit and exhibits attached thereto. Thus, to determine the locus standi of the 1st Respondent in the suit at the lower Court, it is the Affidavit in support of the Originating Summons that would be looked at to see whether the 1st Respondent had sufficient interest to institute this suit against the Appellant and the other Respondents.
I have perused the Affidavit in Support of the Originating Summons deposed to by one Chief (Dr) George Moghalu, the Respondent, and at paragraphs 2, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 22, 25, 27, 28, 35 and 37, he averred facts to show that he is a registered member of the 3rd Respondent, and that he purchased the Expression of Interest Form and the Nomination Form for the purpose of contesting in the 3rd Respondent’s primary election. It is also in evidence from the facts deposed in the Affidavit in support of the Originating Summons that the 1st Respondent was screened and cleared to contest the said primary election, he was given a Clearance Certificate and his name was among the list of contestants. In other words, by the Affidavit evidence in support of the Originating Summons and the Clearance Certificate handed over to the 1st Respondent by the 3rd Respondent for him to contest the primary election, the 1st Respondent became an Aspirant. In the case of ALL PROGRESSIVES CONGRESS V. LERE (SUPRA) cited by the 1st Respondent’s Counsel, the Supreme Court held as follows:
“Where a member of a political party is cleared to contest the primaries of the party, he becomes an Aspirant.”
Further, in the case of AKINLADE V. INEC (2020), the Supreme Court held:
“The words, aspirant and candidate, mean the same thing. The aspirant means or is a candidate and the candidate means or is an aspirant according to the Lexicon Websters Dictionary, Encyclopaedic Edition. Both words are mutually synonymous.”
Arising from the above decisions of this Court and the Apex Court, Section 87(9) of the Electoral Act 2010 (as amended) provides as follows:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the Guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.”
This Court and indeed the Supreme Court have pronounced on the scope of Section 87(9) of the Electoral Act, 2010 (as amended), and what an aspirant must show to be eligible to challenge the conduct of a party’s primary election. In the case of OGARA V. ASADU & ORS (2014) LPELR-22862 this Court held thus:
“In Ikechi Emenike V. Peoples Democratic Party & Ors (2012)13 NWLR (Pt. 1316) page 556, His Lordship Fabiyi, JSC while pronouncing on the scope of Section 87(9) of the Electoral Act 2010 (as amended) stated thus:
“From the above, it occurs to me that for a complaint to come within the narrow compass of the above provision of the law and be cognizable by a Court, the aspirant must show clearly and without any equivocation that the National Executive Committee of a political party conducted a primary election in which he was an aspirant and that the primary election was conducted in breach of specific provisions of the Electoral Act/Electoral Guidelines.”
Thus, Section 87 of the Electoral Act, 2010 (as amended) clearly states that a political party seeking to nominate candidates for election under the Act shall hold primaries for aspirants to all elective positions. In the instant case, the 1st Respondent by his Affidavit in Support of Originating Summons has clearly shown that he was an aspirant to the primary election of the 3rd Respondent for the Gubernatorial election of Anambra State come 6th November, 2021 or any other date. And it is in evidence, and there is no dispute that the primary election of the 3rd Respondent for the Gubernatorial Election in Anambra State is by Option A4-Direct Primaries. Apart from the Affidavit evidence of the 1st Respondent that he is a registered member of the 3rd Respondent, he averred that he purchased the Expression of Interest Form and Nomination Form for the purpose of contesting in the 3rd Respondent’s primary election, and he was screened and cleared, and indeed issued a Certificate of Clearance to contest the primary election and his name was listed as No. 2 by the 3rd Respondent, while the Appellant was listed as No. 8. Exhibits APC 73 and APC 83 of the 3rd Respondent lend credence to the fact that the 1st Respondent was indeed an aspirant in the primary election of the 3rd Respondent. The complaint of the 1st Respondent, as shown by his Affidavit evidence was that the 3rd Respondent failed to conduct the said primary election on 26th June, 2021 in the 326 wards of Anambra State for the Gubernatorial election in line with the Electoral Act and the Guidelines for nomination and for primary election of the 3rd Respondent. In his Affidavit evidence, the 1st Respondent averred that there was no accreditation, voting and collation of votes.
The 3rd Respondent in the primary election of 26th June, 2021 for the Gubernatorial Election of Candidates for Anambra State had adopted the Option A4, for which Section 87(3) of the Electoral Act, 2010 (as amended) provides as follows:
“A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.”
However, by the Affidavit of the 1st Respondent in support of the Originating Summons, it was averred that there was no accreditation, voting and collation of votes and yet the 3rd Respondent produced Exhibit APC73 showing that the 1st Respondent garnered 18,596 votes. There is therefore a genuine complaint by the 1st Respondent that the essential elements that herald a credible, transparent, fair and equal playing ground for all aspirants appear absent from the conduct of the 26th June, 2021 Gubernatorial primary election of the 3rd Respondent in Anambra State.
Having said the above, I have perused the Appellant’s reply brief, particularly paragraphs 1.0-1.8 and the arguments therein. The reliance of the Appellant on the case of WUSHISHI V. IMAM (SUPRA) is not helpful to the Appellant. By the Affidavit of the 1st Respondent in support of the Originating Summons, the facts before the lower Court are not the same with the facts in the case of WUSHISHI V. IMAM (SUPRA). Further, the Appellant’s Counsel rightly referred to paragraph 25 of the 1st Respondent’s Affidavit in support of the Originating Summons and cited the case of EZE V. PDP & ORS (SUPRA). The ratio decidendi in the case of EZE V. PDP (SUPRA) is not applicable because the 1st Respondent, by his Affidavit evidence, did not refuse to participate in the primary election, rather, by paragraphs 2, 9, 13, 14, 15, 16, 18, 19, 22, 24, 25 and 27 of his Affidavit, he clearly established the fact that he was an aspirant and not excluded by the 3rd Respondent from participating in the primaries. Thus, the Appellant clearly misconceived and misconstrued the holding of the trial Judge when he held thus:
“Where a person has been screened and cleared by a political party, upon meeting all the financial and documentary requirements, his exclusion from the primary election of the political party is a legitimate and legal complaint.”
Thus, the trial Court was right in its holding that where a person has been screened and cleared by a political party and has met all the requirements to contest, the exclusion here is in the context of accreditation and voting. Nowhere in the Affidavit of the 1st Respondent did he depose to being excluded by the 3rd Respondent. Paragraph 25 of the 1st Respondent’s Affidavit in Support of Originating Summons quoted at paragraph 3.6 of the Appellant’s Brief of Argument never refers to exclusion, but the context was that no accreditation of voters took place, no voting and collation of votes in all the 326 wards of Anambra State.
In the whole, the submissions of the learned senior Counsel on behalf of the Appellant on locus standi is misconceived and I hold the view that the lower Court was right when it held that the Respondent has locus standi to institute the action, and I so hold.
The learned senior Counsel to the Appellant raised some jurisdictional issues under Issue 2 for determination. As rightly submitted by the learned Senior Counsel to the Appellant, to determine jurisdiction of a Court, the Court has to examine, in light of the reliefs claimed, whether the reliefs sought come within its jurisdiction. See AKINDELE V. ABIODUN (SUPRA) and EHINLE V. IKORODU LOCAL GOVERNMENT (SUPRA).
In the instant appeal, the Appellant’s Counsel is of the view that by reliefs 4 and 7 which border on contract, the trial Court has no jurisdiction on matters pertaining to simple contracts. See IKPEKPE V. W. R. & P. CO. LTD (SUPRA). I quite agree with the Appellant that by the Supreme Court’s pronouncement, the Federal High Court does not have jurisdiction to entertain matters relating to simple contracts. However, the question that requires an answer in the instant appeal is whether the 1st Respondent’s suit before the lower Court was relating to or pertaining to simple contracts that should oust the jurisdiction of the trial Court?
I have examined the reliefs sought by the 1st Respondent as indorsed in his Originating Summons before the lower Court. Reliefs 1-3 are the main reliefs claimed by the 1st Respondent and they pertain to the interpretation of the Electoral Act, 2010 (as amended) and the party’s (i.e. the 3rd Respondent’s) Guidelines for Nomination of Candidates for Election. This clearly falls under the purview of Section 285(14)(a) of the Constitution of the FRN 1999 (as amended) and Section 87(a) of the Electoral Act 2010 (as amended). Thus, the 1st Respondent’s depositions at paragraphs 2, 8, 9, 13, 14, 15, 16, 18, 22, 25 and 27 show that the 1st Respondent is a registered member of the 3rd Respondent and he purchased an Expression of Interest Form and Nomination Form for the Gubernatorial primary election scheduled for the 26th June, 2021 in Anambra State and the 1st Respondent paid the sum of N22,500,000. Thus, on a close perusal of the reliefs claimed by the 1st Respondent, the claims were not based on simple contract simpliciter, but reliefs 4 and 7 arose as consequential Reliefs for the 3rd Respondent to refund the N22,500,000 paid by the 1st Respondent for the purchase of Expression of Interest Form.
Now, by the Affidavit evidence of the 1st Respondent in support of the Originating Summons, there is no dispute that the 1st Respondent is an aspirant in the Gubernatorial Primary Elections of the 3rd Respondent in Anambra State. Further, by the Affidavit evidence of the 1st Respondent in support of the Originating Summons, the Respondent deposed to facts in which the provisions of the Electoral Act, 2010 (as amended) and the 3rd Respondent’s Constitution and its guidelines were breached in the conduct of the Gubernatorial Primary Election of the 3rd Respondent in Anambra State. Thus, the 3rd Respondent, having failed to comply with the provisions of the Electoral Act, 2010 (as amended) and its Constitution and Guidelines, the jurisdiction of the trial Court is evoked. For the avoidance of doubt, Section 285(14)(a) of the Constitution of the FRN 1999 (as amended) states:
“For the purpose of this section, ‘pre-election matter’ means any suit by an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of the political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election.
Section 87(9) of the Electoral Act, 2010 (as amended) also provides thus:
“Notwithstanding the provisions of this Act or Rules of a political party, an aspirant who complains that any of the provisions of this Act and the Guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or High Court of a State or FCT for redress.”
Thus, by the complaints of the 1st Respondent who was an aspirant in the Gubernatorial primary election of the 3rd Respondent purportedly held on 26th June, 2021, the trial Judge was right to have assumed jurisdiction to entertain this suit, as it was no longer within the scope of the internal or domestic affairs of the 3rd Respondent. See page 5157 of Volume 6 of the Record of Appeal. The submission of the Appellant at paragraphs 2.1 -2.2 of pages 3 and 4 of his Reply Brief of Argument is misconceived and it is accordingly discountenanced.
The Appellant’s Counsel had accused the 1st Respondent of forum shopping by filing his matter in Abuja and avoiding to file it at Awka, Anambra State. He further accused the trial Judge of entertaining the suit in violation of the directives of the Chief Judge of the Federal High Court.
Firstly, Section 19(1) of the Federal High Court Act provides thus:
“The Court shall have and exercise jurisdiction throughout the Federation and for that purpose, the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions or parts thereof by such name as he may think fit.”
The issue or question as to the territorial jurisdiction of the Federal High Court has been settled in the case of APC V. GUMAU & ORS (2019) LPELR-49472 where this Court held that:
“By the provisions of Sections 249 of the Constitution of the FRN 1999 (as amended), there is only one Federal High Court created for the country. The jurisdiction as donated by Section 251 of the Constitution extends to the entire length and breadth of the country. Any action in which the Federal High Court has power to adjudicate can be filed in any part of the Country. The establishment of the judicial divisions is for administrative convenience. This is made clear by the provisions of Section 19(1), (2) and (3) of the Federal High Court Act.
See UKPAI V. OKORO & ORS (1983)11 SC 231, OGIGIE & ORS V. OBIYAN (1997) LPELR-2304 (SC) and AKEREDOLU V. ABRAHAM & ORS (2018) SC. In the case of AGIP (NIG) LTD V. AGIP PETROLEUM INT’L & ORS (2010) NWLR (PT. 1187) 348, it was held that:
“The main reason for judicial division is to bring access to justice closer to the people in order to reduce hardship and expenses. It is for administrative convenience to enable the wheels of justice to run speedily and smoothly. It does not imply that a judicial division is devoid of jurisdiction to determine a case which does not emanate from the limits of its territorial jurisdiction.”
Thus, I hold that the trial Court was right in its holding at pages 5152 – 5153 of Volume 6 of the Record of Appeal and such holding cannot be faulted, and I so hold.
On whether the trial Judge was not wrong to have determined the case on Originating Summons, taking into account the Affidavit evidence of both parties in the suit supported by documentary evidence, it appears that all the parties relied on documentary evidence. There is no dispute or any controversy on any of the documents exhibited, including the various Reports. This means there were no serious issues of dispute that will require filing of pleadings and adducing oral evidence. Thus, the finding of the trial Court at page 5169 of Volume 6 of the Record of Appeal cannot be faulted and the trial Court was right.
Thus, issues 1, 2 and 7 of the Appellant are hereby resolved against the Appellant and in favour of the 1st Respondent.
ISSUE THREE
Whether the Anambra Governorship Primary Election conducted by the 3rd Respondent on the 26h June, 2021 was invalidated due to the adjustment of the time for accreditation and voting by the Primary Election Committee.
At paragraphs 3.34-3.52 of the Appellant’s Brief of Argument, learned senior Counsel submits that the finding and holding of the trial Court that the Governorship Primary Election held on 26th June, 2021 was not conducted in line with the provisions of Section 85(2) of the Electoral Act 2010 (as amended) and Regulations 17 and 18 of the 3rd Respondent’s Guidelines for Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4) was largely influenced by extraneous factors and suspicion rather than hard evidence. He refers this Court to pages 518-5197 of Volume 6 of the Record of Appeal that the trial Court arrived at its erroneous and perverse finding. According to the Senior Counsel, the Primary Election Committee did not have the power to adjust the timing for the election beyond 2:00pm. He refers to exhibit MAM5.
Now Regulation 18 (e) and (h) of the 3rd Respondent’s Guidelines provides:
18(e) “Accreditation shall be done by the returning officer between the hours of 8:00am to 12 noon. And member, candidate or agent who arrives after the commencement of voting shall not be accredited or allowed to vote.”
“18 (h) voting shall commence immediately accreditation ends and continue till 2:00pm when voting closes. Voters shall queue up at the voting center.”
Then the Electoral Act 2010 (as amended) also makes provisions for a political party to comply within the course of conducting its primaries. Sections 85 (2) (b), 86 (1), 87 (1), (2) and (3) of the Electoral Act made elaborate provisions for compliance by the political party.
In particular, Section 87(1) and (3) provides:
(1) A political party seeking to nominate candidate for elections under the Act shall hold primaries for the aspirants to all elective positions.
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.”
Now, I have seen the arguments advanced by the learned Senior Counsel in respect of Exhibit MAM5 and I have also seen paragraph 6 of the Report of the Primary Election Committee.
By paragraph 18 (e) and (h) of the 3rd Respondent’s Guidelines, it is compulsory or mandatory by the use of the word “shall” that accreditation shall be done between the hours of 8:00am to 12noon. Further, voting shall commence immediately accreditation ends, it must therefore be noted that by the 3rd Respondent’s guidelines for the conduct of primary election, accreditation is a very fundamental factor because voting by any member of the 3rd Respondent cannot take place without accreditation.
The Appellant has relied on Exhibit MAM5 to contend that there was a report obtained by the primary election committee from the authority of the party leadership of the 3rd Respondent to adjust the timing for the election beyond 2:00pm.
The report, Exhibit MAM5 was not a report from the leadership of the 3rd Respondent but rather, it appears an agreement reached by the Primary Election Committee with the aspirants that the time for accreditation for the primaries be adjusted from 8:00am – 4:00pm. This agreement or report as per Exhibit MAM5 is contrary to Regulation 18 (e) and (h) of the 3rd Respondent’s Guidelines.
I have seen the arguments of learned senior Counsel for the Appellant at paragraphs 3.43 – 3.50 of the Appellant’s brief of argument and his reliance on the case of BUHARI V INEC, (2008) 4 NWLR (pt. 1078) page 546 at 660 paragraphs A-H. Senior Counsel relied on paragraph 23 (iii) and (iv) of the 3rd Respondent’s counter-affidavit, and according to him it corroborates exhibit MAM5 with regard to time of accreditation and commencement of voting. He therefore submitted that there was no evidence before the trial Court that accreditation and voting did not start at about 5:45pm.
With the greatest respect to the senior Counsel, by paragraphs 25 and 29 of the affidavit in support of the 1st Respondent’s Originating Summons, the press statement on the failed Governorship Primary Election in APC Anambra State, press statement by Forum of Chairmen of Local Government Chapters of the 3rd Respondent on the Governorship of June 26th, 2021 primary election of Anambra State, report of the 2nd Respondent and various affidavits filed as to the conduct of the primary election of Anambra State Governorship, it was crystal clear that up to 5:30 pm, there was no accreditation and therefore there was no voting as officials that supposed to observe and watch the conduct of the 3rd Respondent’s primary election had left and there was no accreditation that took place to enable voting and the 3rd Respondent did not notify the other aspirants of the change.
Thus, based on the affidavits evidence and the exhibited documents before the trial Court, the trial Court was right to have posed a question at pages 5192 of Volume 6 of the Record of Appeal and the trial Court also at page 5192 stated thus:
“It is obvious that Exhibit MAM5 is tainted and tilted in favour of the 3rd Defendant” (Appellant). The position and finding of the trial Court was perfectly correct and this Court cannot disturb such finding.”
I must also state that I have gone through the case of BUHARI V INEC (supra) and the facts and circumstances of the instant case are not the same because the 3rd Respondent failed to produce any notice of change of the accreditation and voting while in the case of BUHARI V INEC, the shift by Independent National Electoral Commission (INEC) for 7 hours, all the parties were notified including the general public. However, in the instant case, the evidence before the trial Court appears that only the Appellant was notified and Appellant declared a winner in a Hotel as averred at paragraph 29 of the affidavit in support of originating summons. And I completely disagree with the learned senior Counsel that the Court fell into a serious error of speculation and thus the findings at pages 5191 – 5192 of the volume 6 of the record is perverse.
The instances in which the decision of a trial Court would be regarded as perverse does not arise in the instant case. See the cases of OGUNDANA & SONS TRADING CO. (NIG) LTD V FIRST BANK PLC (2019) LPELR 48517(CA).
In the case of ODOM & ORS V PDP & ORS (2015) 24351, the Supreme Court of Nigeria held:
“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shot its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice.”
In the instant case, the learned trial judge was right in his assessment or evaluation of affidavit evidence before him especially Exhibit MAM5 heavily relied by the Appellant and the trial Court’s finding cannot be said to be extraneous or erroneous or speculative. I agree with the Appellant’s Counsel that the role of the 2nd Respondent Independent National Electoral Commission (INEC) monitoring team is observatory. However, that role by Independent National Electoral Commission (INEC) is a statutory obligation so that primaries election would not be left to whims and caprices of political parties wherein one influential person or strongman would not impose candidates of his own choice. See APC & ANOR V EMAKPOR & ANOR, (2019) LPELR 48299 (CA) and in AMAECHI V INEC (2008) LPELR 446.
The Supreme Court held as follows:
“Under Section 85 of the Electoral Act, 2006, (same as 885, 2010 as amended), it is mandatory that political parties inform Independent National Electoral Commission (INEC) of the date and time of holding a convention or congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral Act, 2006 (now 2010 as amended). If parties were not to be bound by the results of their party primaries in the nomination of candidates at any level, why would it be necessary for Independent National Electoral Commission (INEC) representatives to be present to monitor the proceedings of such congress? It seems that the obligation on the parties to inform Independent National Electoral Commission (INEC) of such congresses was to ensure that Independent National Electoral Commission (INEC) would know and keep a record of candidates who won at the primaries.”
In the instant case, by the report of Independent National Electoral Commission (INEC) there was no primaries election on 26th June, 2021 for the Governorship of the 3rd Respondent in Anambra and there was no notice served on Independent National Electoral Commission (INEC) of any change of date and time as to when the primary election would hold. The fact that the 3rd Respondent did not serve notice of change on Independent National Electoral Commission (INEC), it adds credence to the position of the 1st Respondent that there was no accreditation and voting. It is therefore absolutely untrue and indeed erroneous as submitted by the Appellant’s Counsel that the trial Court nullified the Governorship Primary Election of the 3rd Respondent simply because the monitoring team of Independent National Electoral Commission (INEC), the 2nd Respondent sent to observe the primary election on 26th June, 2021 stated in their report that up to 5:30pm when they visited some registration centres that the accreditation and voting had not started and that the primary election committee does not have power to adjust the timing of the election beyond 2:00pm.
The trial Court was right in its holding at pages 5189-5190 of vol 6 of the record of appeal and up to the moment of the adoption of brief of arguments by parties, the senior Counsel did not refer this Court to any regulation, statute or law that empowers the Primary Election Committee to adjust time of the Primary Election contrary to Regulation 17 and 18 of the 3rd Respondent’s Guidelines. I cannot see how Article 13.4 Sub-paragraphs (v) (x) (xiv) is helpful to the Appellant contrary to the clear and unambiguous Regulations 17 and 18 of the 3rd Respondent’s Guidelines.
The trial Court in considering the affidavit evidence before him and the exhibits and provisions of the 3rd Respondent’s Regulation and the Electoral Act, 2010 (as amended) at pages 5188-5190 of Volume 6 of the Record of Appeal held that the 3rd Respondent did not comply with the provisions of its guidelines and the provisions of the Electoral Act 2010 (as amended) and that the 3rd Respondent Guidelines or the Electoral Act as (as amended) did not vest any discretion on the Primary Election Committee to adjust or wave the provision of the regulation by agreement of parties.
Thus, having said all of the above, issue three of the Appellant is hereby resolved against the Appellant and in favour of the 1st Respondent.
ISSUE FOUR
Whether the trial Court did not deny the Appellant fair hearing when it suo motu raised the issue of connivance between Appellant and Primary Election Committee. The learned senior Counsel had submitted at paragraphs 3.62 -3.72 in the Appellant’s Brief of Argument to the effect that the trial Court erred in law thereby occasioning miscarriage of justice when it raised the issue that the Appellant teleguided and connived with the 3rd Respondent (APC) Primary Election Committee to conduct the election outside the time prescribed by Article 17 (iv) and 18 (e), (g) and (i) of the 3rd Respondent and Guidelines suo motu and did not give the Appellant the opportunity to address the Court on it before the decision was given. He referred to pages 3-359 Vol 1 of the Record of Appeal to contend that the issue was not raised specifically and no facts pleaded upon which it could be inferred. He cited plethora of judicial authorities to support his contention.
The 1st Respondent’s senior Counsel at paragraphs 4.49-4.50 of the 1st Respondent’s brief of argument submitted that contrary to the accusation of the Appellant, the conspiracy and collusion between the Appellant and the Primary Election Committee was exposed by the 1st Respondent in his replies to the Appellant and 3rd Respondent counter-affidavits.
He submitted that apart from the facts on record, the trial Court under its inherent powers can make and draw inferences and conclusion.
I have perused the affidavit of the 1st Respondent in support of his originating summons and I have seen the depositions at paragraphs 25,29 and 32 and Exhibits K and L of the 1st Respondent, I have equally seen the report of the 2nd Respondent Independent National Electoral Commission (INEC) at pages 106 – 109 Vol 1 of the Record of Appeal, the report of the 2nd Respondent states:
“4.1 – All registered members of the party in each ward who were duly accredited voters in the Governorship primaries.
While members of the party were seen waiting at designated voting centers, party electoral officials were not available at the voting centers.
4.2: The monitors deployed by the Commission noted that APC election officials did not arrive at the designated voting centers between 8:00am and 5:30pm, thus accreditation and voting did not take place during the period.
4.3: No resolution nor decision were made at voting centers monitored because of the unavailability of the election officials between 8:00am and 5:30pm when the commission monitors were deployed.
6.0 (1) Electoral officials and materials were not available at the voting centers for all progressives (APC) Governorship Primaries scheduled for 26th June, 2021 in Anambra State up to 5:30 pm when Independent National Electoral Commission (INEC) monitors withdrew from the field.
(2) Contrary to the provisions of Section 18 of the Guidelines for the conduct of direct primaries issued by All Progressives’ Congress (APC), accreditation of party members did not take place in any of the voting centers in Anambra State up to the time Independent National Electoral Commission (INEC) monitors were recalled by 5:30pm
3. The commission’s monitors did not witness accreditation, voting, counting of votes, collation or declaration of result at the voting centers and collation centers up till 5:30pm when the monitors were recalled.
4. Across the State, there was a large turnout of party members at the voting centers for the APC Governorship Primaries who waited in vain for the arrival of party election officials and materials at the time the commission’s monitors were recalled.” The above are the events or observations of the 2nd Respondent on the Governorship Primaries of the 3rd Respondent throughout Anambra State. Apart from the deposition of the 1st Respondent and the report of the 2nd Respondent, registered members of APC deposed to affidavits to the effect that no primary election was conducted in their respective wards (see Vol 1 pages 110-343 of the Record of Appeal). Further to the above, the 1st Respondent by his letter see (Vol. 1 pages 343 – 347 of the Record of Appeal) raised serious concerns and allegation associated with the announcement of the results vide Facebook by the Chairman of the Primary Election Committee. In addition, exhibited to the affidavit in support of originating summons were press statement – titled “Failed Governorship Primary Elections in APC Anambra State” and press statement of forum of Chairmen of Local Government Chapters of the All Progressives Congress (APC) in Anambra State on the 26th June, 2021 Governorship Primary Elections in Anambra State. (See pages 100-103 of Vol 1 of the Record of Appeal).
Now by the above facts and evidences as contained in the exhibits to the affidavit in support of the originating summons the replies of the 1st Respondent to the counter-affidavits of the Appellant and 3rd Respondent including Exhibit MAM5, the trial Court has inherent powers to draw and make inferences from the facts and evidence before it. See ARANDA V KELGUM (2016) LPELR 40324 (CA) and OKONKWO V KPAJIE (1992) 2 SCNJ 290.
In the case of GREAT (NIG) INSURANCE PLC V ZEAL TRUST LTD (2020) LPELR 53107, this Court held as follows:
“The lower Court is alleged to have suo motu raised some issues in the case and decided same and that is in relation to Exhibits A and G which the Appellant’s Counsel submitted were dumped on the Court. On the subject of suo motu while it is the law that a Court cannot raised an issue suo motu and resolve same without calling for address from the parties, many a times what amounts to raising issue suo motu is confused by Counsel. An issue that is put before the Court which was not addressed exhaustively by the Counsel to which the Court decides to go into greater details to resolve the issue before it cannot be said to be raised suo motu. If for whatever reason both Counsel in a matter decide to stop at a particular aspect of the matter before the Court, a Court which exist to do justice between the parties is not limited to stop where Counsel stopped for fear of being accused of raising and resolving issue suo motu. The Court is at liberty to explore those areas of the matter or issues before it that parties did not explore without calling upon parties to address the Court. An issue is said to be raised suo motu when it was not part of what was brought before the Court which the Court discover on its own.”
In the instant case, based on the affidavits evidence of the 1st Respondent and the documentary evidence before the trial Court, certain facts were established that the 1st Respondent and other aspirants, the 2nd Respondent and registered members of the 3rd Respondent were not informed of the change after 5:30pm of waiting and election was later conducted by the 3rd Respondent’s primary committee late in the night, it amounts to infraction of Regulation 18 of the 3rd Respondent’s Guidelines and Section 87(3) of the Electoral Act 2010 (as amended). The lower Court was therefore right to have held at pages 5194 of the record of appeal and by raising certain questions and drawing inferences and such finding cannot be said to be perverse or occasioned any miscarriage of justice on the Appellant.
Thus, issue four of the Appellant is hereby resolved against the Appellant and in favor of the 1st Respondent.
ISSUE FIVE
Whether the trial Court was not wrong in refusing to be bound by and/or apply the apt and binding decisions of IKECHUKWU V. NWOYE (2015)3 NWLR (PT. 1446) 367, AKPAMGBO-OKADIGBO V. CHIDI (2015)3 NWLR (PT. 1466) 17 and PDP V. SOPULUCHUKWU (2017) LPELR 42563 (SC) cited on the consequences of non-joinder of other Aspirants as parties in the suit.
In respect of issue five (5) of the Appellant, senior Counsel in the Appellant’s Brief of Argument at paragraphs 3.74 – 3.87 submits to the effect that by the hierarchical structure of the various Courts in Nigeria, a Court of first instance ought to and must be bound by celestial pronouncements of higher Courts, especially when it is made upon similar facts. He relies on the cases of ROE LTD V. U.N.N. (2018)6 NWLR (PT. 1616) 420 PAGES 434-435 PARAS G-A, STATE V. YANGA (2021)5 NWLR (PT 1769) 375 AT 393 PARAS D-G.
Senior Counsel submits that there was unchallenged evidence before the trial Court to the effect that there were existing suits in the High Court of the Federal Capital Territory, Abuja and Awka Divisions by the Plaintiffs alleging that they were the respective rightful candidates duly elected as the flag bearers of the 3rd Respondent (APC) in the Anambra State Governorship Primaries that held on 26th June, 2021. He refers to paragraphs 36-51 of the 3rd Respondent’s Counter-Affidavit to the Originating Summons at pages 616-619, Vol. 2 of the Records of Appeal.
On the strength of the case of IKECHUKWU V. NWOYE (SUPRA) and others, he argues that non-joinder of the other Aspirants whose interests will be affected by the suit renders the suit incompetent. He further argues that the grant of Relief 2 by the lower Court at pages 80-81 of the judgment of the lower Court binds parties that are not before the lower Court.
Now, as rightly submitted by the 1st Respondent’s senior Counsel at paragraphs 4.66 – 4.84 of the 1st Respondent’s Brief of Argument, the simple question that requires an answer is whether the Appellant, from his Counter-Affidavit evidence, has set out facts to justify or has justiciable claim to complain of non-joinder of the other Aspirants in the suit at the lower Court? In other words, whether the Appellant by his Counter-Affidavit has deposed to facts that will necessitate joining the other Aspirants in this suit?
The issue raised by the Appellant appears to be jurisdictional and the question is whether the Appellant has locus standi to complain on behalf of the other Aspirants whom he failed to bring an application before the lower Court to join them in the suit or approach other Aspirant to join the suit as interested persons? In the case of ISA & ORS V A.A RANO CONSTRUCTION LTD (2017) LPELR 45063, this Court stated clearly that in determining whether to be joined as a party to a suit or not, the Court ought to peruse the pleadings or the affidavit of the parties to the suit.
I have perused the affidavit evidence of parties filed before the lower Court, especially the Counter-Affidavit of the Appellant. The Appellant did not refer me to any relevant averment in his Counter-Affidavit and neither have I seen any relevant facts(s) deposed to in the Appellant’s Counter-Affidavit to warrant me to entertain the complaint of the Appellant. However the Appellant has, it appears relied on paragraph 36-51 of the 3rd Respondent’s Counter-Affidavit to contend that there were existing law suit in the FCT High Court and the Federal High Court alleging that they were the rightful candidates duly elected as flag bearers of the 3rd Respondent in Anambra State Governorship Primaries that held on 26th June, 2021. And it is trite that a party can rely on the pleading or in this case Counter-Affidavit of his adversary to prove his case. In the instant case, I have perused paragraphs 36-51 of the Counter-Affidavit of the 3rd Respondent, and I am unable to establish the interest or claim of the Appellant for the joinder of the other candidates. As I said earlier, if the Appellant strongly feels that the other candidates were necessary parties, he should have filed an application before the lower Court for their joinder, but the Appellant, for reasons best known to him, failed to do so.
In any event, the position of the law is that a person is joined in a suit as a Defendant or as the case may be where the party has a claim against such a party. And if there is no such claim disclosed in the processes filed, the trial Court will have no such jurisdiction to make such order of joinder. The decision of the trial Court at pages 5160 of Volume 6 of the Record of Appeal cannot be faulted or disturbed by this Court.
Thus, the trial Court, based on the facts of this case distinguished the facts of the cases cited by the Appellant’s Counsel and the trial Court was right when he stated that “the judicial authorities cited and relied upon by the 1st Respondent do not relate to the facts of this case and are therefore inapplicable”. This finding cannot be faulted and the trial Court was right and I cannot disturb such finding.
Issue five is therefore resolved against the Appellant and in favour of the 1st Respondent.
ISSUE SIX (6)
Whether the trial Court, considering the affidavit and documentary evidence led by parties, there was proper evaluation of the case before him?
The Appellant’s learned senior Counsel submits that the lower Court failed to duly review, evaluate and appraise the evidence led by parties especially documentary evidence, i.e. Exhibits M, M1-M231 and exhibits MAM1 to MAM237. I have however perused the entire judgment of the trial Court. At pages 5188-5189 of Volume 6 of the Record of Appeal, the trial Court properly analyzed and evaluated the affidavit evidence of parties including documentary evidence. The trial Court not only evaluated the evidence of parties but made specific findings and ascribing probative value to such evidence and exhibited documents as follows:
“Upon going through Exh. MAM 5 which is the report of the Primary election Committee particularly pages 13 and 14 thereof, I find that the report confirms the fact that voting materials arrived at 3:00pm, on 26th June, 2021, while accreditation and thereafter voting started at about 5:45pm and by this time INEC staff had left various voting centers. This report in Exh. MAM 5 corroborates the averment in paragraph 6.0(3) of Exh. L of the Plaintiff (also tendered by the 3rd Defendant as Exh. MAM 17) which is the report by INEC monitoring team that they did not witness accreditation, voting, counting of votes, collation or declaration of result at the centers up till 5:30 pm when they were recalled. Simply put, this means that the 2nd Defendant’s monitoring team did not monitor the primary election. This is contrary to the provision of Section 85 (2) of the Electoral Act 2010 (as amended) and Regulation 17 (vi) of 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Elections.
Again, there is contradiction between the averments in paragraphs 23 (iii) and (iv) and the report in Exh. MAM 5. It averred therein that at the time the INEC Monitoring Team visited some wards as at 5:30 pm, they found out that Electoral officials and materials were not available. If therefore, electoral officials and materials did not arrive by 5:30 pm on 26th June, 2021, it is not possible that accreditation and thereafter voting starts at about 5:45pm. Furthermore, assuming that it is true that accreditation of voters and election commenced at 5:30 pm, then these activities were carried out in contravention of Article 18 of the 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4). It is expressed in paragraph (e) thereof that accreditation shall be carried out by returning officers between the hours of 8:00 am – 12:00 noon. All the explanations by the 1st and 3rd Defendants on the cause of the delay are merely oral and not backed up by any documentary evidence. On page 8 of the report of the Primary Election Committee (Exh. MAM 5), it is stated that there was an agreement reached with the Aspirants that the time for accreditation for the primaries be adjusted from 8:00am – 12 noon and that voting should accordingly be adjusted to 2:00 pm – 4:00 pm. There is no evidence that the Primary Election Committee was given any authority to override the provisions of Article 18 (e), (g) and (i) of the 1st Defendant’s Guidelines for the Nomination of Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4) in the conduct of the primary election on 26th June, 2021 or power to override the provision of the Electoral Act by proceeding with the said primary election in the absence of the 2nd Defendant’s Monitoring Team. This conduct in my view is a very crude demonstration of impunity on the part of the 1st Defendant.”
At pages 5193 – 5194 of Vol. 6 of the Record of Appeal, the trial Court further held as follows:
“However, assuming that the Police report in this case tendered as Exh. MAM8 can be taken for whatever it is worth, it is notable ex facie thereof that the security teams of the Nigeria Police for the primary election was deployed at 1600hrs which is 4:00 pm and the primary election concluded at about 1900hrs which is 7:00 pm. This report is contradictory to the report of the Primary Election Committee of the 1st Defendant per pages 13 and 14 of Exh. MAM5 that as at 3:00 pm, 26th June, 2021, all the election materials for 20 out of 21 Local Government Councils has been successfully dispatched. Accreditation and thereafter voting started at about 5:45 pm. This means that the police which was mobilized at 4:00 pm did not witness the dispatch of the electoral materials for the primary election. There is no information on when the police arrived the respective venues of the primary election to fully witness the primary election, which commenced by 5:30 pm. The credibility of Exh. MAM5 is questionable. Apart from all else, the evidence of the police also confirms that the said election was conducted outside the time prescribed in Article 18 (e), (g) and (i) of the F Defendant’s Guidelines for the Nomination of the Candidates for the Anambra 2021 Gubernatorial Election-Direct Primaries (Option A4).”
In the circumstance, the evaluation of evidence and ascribing probative value to same by the trial Court cannot be faulted.
The issue number six for determination by the Appellant is hereby resolved against the Appellant and in favour of the 1st Respondent.
In the whole, the seven issues distilled for determination in this appeal by the Appellant are hereby resolved against him and in favour of the 1st Respondent. Hence, this appeal lacks merit and it is accordingly dismissed. The judgment of the Federal High Court in suit no. FCH/ABJ/CS/648/2021 delivered on 20th day of December, 2021 by I. E. Ekwo, J is hereby affirmed.
No award as to cost and parties to bear their respective costs, if any.
STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Danlami Zama Senchi, JCA.
My learned brother has adequately dealt with all the issues generated in this case. I agree with the reasoning and the conclusion that this appeal be dismissed. I do not have anything further to add.
I accordingly dismiss the appeal and I abide by the consequential orders made therein.
BATURE ISAH GAFAI, J.C.A.:I have read in advance the draft of the judgment just delivered by my Lord Senchi, JCA. I agree with the reasonings and conclusion reached therein. I too find this appeal unmeritorious and is dismissed by me too.
Appearances:
A. M. Aliyu, SAN, with him, Okechukwu G. Edeze, Esq. and A. E. Osayomon, Esq. For Appellant(s)
Chief Chris Uche, SAN and Chief Gordy Uche SAN, with, Ifeoma Charles-Ume, Esq. and Chief Obiora Osakwe, Esq. – for 1st Respondent
I. S. Mohammed, Esq. – for 2nd Respondent
M. A. Magaji, SAN, with him, Christian Kelechi Udeoyibo, Esq. and Vincent Ottaokpukpu, Esq. – for 3rd Respondent For Respondent(s)
