UDOMA & ORS v. A.K.I.S.I.E.C
(2020)LCN/15698(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Monday, November 30, 2020
CA/C/362/2020
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
HammaAkawuBarka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. RT. HON. UWEMEDIOM UDOMA 2. HON. IDIONG, OKUKU SAAFORO 3. HON. UKO UDUAK FRIDAY 4. HON. AKPAN, ANTHONY PIUS 5. HON. AKPAN NNAMSO OKON 6. HON. EKANEM GEORGE DANIEL 7. HON. PETER, UMO PETER 8. HON. NYOHO, ASSAM MOSES 9. HON. EKPO, HELEN NDEM 10. HON. UDOUKPONG, UBONG IME (For Themselves And As Representatives Of Several Affected Registered Voters Likely To Be Disenfranchised As A Result Of The Newly Created 39 Wards Of Akwa Ibom State) APPELANT(S)
And
AKWA IBOM STATE INDEPENDENT ELECTORAL COMMISSION (AKISIEC) RESPONDENT(S)
RATIO:
ISSUES FOR THE DETERMINATION OF THE APPEAL MUST FLOW FROM THE SAME GROUNDS OF APPEAL
By law, the Court can only consider and try the case presented by the Plaintiffs, and cannot concern itself with any diversion or issue introduced by the Defendant, outside the claim of the Plaintiff, unless the Defendant has filed a counter claim to project the said diversion/issue. This holds more strongly in originating summons procedure. The same principle also operates in Appeals, wherein the appellate Court must consider the issues distilled from the grounds of Appeal, and the Respondent, must confine his issues for the determination of the Appeal to what flows from or relates to the same grounds of Appeal by the Appellants. Where the Respondent files or distills issue(s) which does not accord with the grounds of Appeal (and they have not filed a Cross Appeal or Respondent’s Notice to situate such strange issue), the same is liable to be struck out. ITA GEORGE MBABA, J.C.A.
ISSUES ADDRESSED MUST BE RAISED IN THE ORIGINATING SUMMONS
See the case of NJC Vs Aladejana (2015) ALL FWLR (Pt.772) 1798 at 1825, where my Lord, Ekanem JCA said:
“In Originating Summons proceedings, the issues to be addressed are thoseraised in the originating summons. It does not lie in the mouth of respondent to formulate his own issues for determination. If a respondent alleges that he has any claim or is entitled to his own relief, he may counter-claim.”
Of course, what constitutes a Suit, is always the Plaintiffs’ claims in the Writ or Originating Summons or motion, except where there is a Counter-Claim, to be considered also. See Ekpenyong & Ors Vs Nyong (1975) LPELR – 1090 SC; NJC Vs Aladejana (supra); Kuti Vs Jibowu (1972) NSCC 447; Irom Vs Okimba (1998) 3 NWLR (Pt.540) 19; UBN Plc Vs Emole (2001) 18 NWLR (Pt.745) 501. ITA GEORGE MBABA, J.C.A.
REDUCING QUESTIONS FOR DETERMINATION INTO FUNCTIONAL ISSUE FOR DETERMINATION FOR EASE OF REFERENCE
I think Appellants’ Counsel was in error, to have thought and submitted that in an Originating Summons proceedings, the Questions for determination represent the Issues for determination and must be followed, strictly, without any attempt to further simplify and narrow them down to clearer focus, to aid the Court to determine the case. The law permits the parties to reduce Question(s) for determination of a case into functional issue for determination, for ease of reference, comprehension and application, to reach the justice of a case, and where the parties (either Plaintiff or Defendant) fail to marshall out such clear Issue(s) for the determination of the case, the Court is enjoined to do so, provided the said Issue(s) does not wander away from the substance of the claim (Questions) before the Court. See the case of PDP Vs Ekeagbara&Ors (2016) LPELR – 40849 CA:
“An appellate Court can formulate issues for determination, as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and properdetermination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy and brevity. . See Okoro Vs State (1988) 5 NWLR (Pt.94) 255; Latunde Vs Lajinfin (1989) 3 NWLR (Pt.108) 177; Awojugbagbe Light Industries Ltd Vs Chinukwe (1995) 5 NWLR (Pt.390) 379. ITA GEORGE MBABA, J.C.A.
THE FINDINGS AND HOLDINGS OF THE TRIAL COURT
It does not appear Appellants clearly understood and/or appreciated the import of the finding and holding of the trial Court, which, in my view, comprehensively reviewed the case of the Appellants and found it wanting, speculative and pre-emptive. The entire case of the Appellants was founded on speculation and unfounded fears, which also raised issue of valid cause of action, to sustain their claim. Their claims and/or fears were, therefore, not real, especially with the evidence that the existing Voters Registers, voters cards, unit and ward numbering and codes, were not going to beaffected by the creation of the new Wards, and that INEC Voters Register and Cards, used in the 2019 general election, would be used and that Appellants would not be disenfranchised or incriminated at the election! ITA GEORGE MBABA, J.C.A.
THE COMPLAIN OF THE DENIAL OF FAIR HEARING
I cannot therefore fault the sound findings of the trial Court, which Appellants, have not even appealed against, especially as Appellants did not contest the unfettered power of the Respondent to create new electoral wards. The judgment was not perverse, and Appellants cannot complain of denial of fair hearing, when they were adequately heard and their evidence adequately considered by the trial Court.
A party, who has been heard or given opportunity to present his case, cannot complain of denial of fair hearing. See Nwaigwe & Ors Vs Anyanwu (2016) LPELR – 40613 (CA); S&D Construction Co. Ltd Vs Ayoku & Anor (2011) LPELR – 2955 (SC); Inakoju & Ors Vs Adeleke &Ors (2007) LPELR – 1510 SC; (2007) 4 NWLR (Pt.1025) 423; Esabunor & Anor Vs Faweya & Ors (2019) LPELR – 46961 (SC); Ukwuyok & Ors Vs Ogbulu & Ors (2019) LPELR – 48741 (SC). ITA GEORGE MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this Appeal, on 13th October, 2020, against the Judgment of the High Court of Akwa Ibom State, in Suit No. HU/242/2020, delivered on 18th September, 2020 by Hon. Justice Ntong F. Ntong, whereof the Learned Trial Judge, dismissed the claims of the Plaintiffs (now Appellants).
At the Lower Court, the Plaintiffs had posed the following questions for the Court to determine, in an Originating Summons Process:
(1) Whether, in view of Section 19 AKISIEC Law, 2007; Sections 9(1)-(6); 10(1)-(6); 16(1)-(4); 19(1)-(3) and 20 of the Electoral Act, 2010 (as amended), defendant, can conduct election in the purported additional 39 electoral wards created by Defendant when Independent National Electoral Commission (INEC) had not carried out the conditions precedent in those Sections for proper recognition of the additional electoral wards as voting centers?
(2) Whether, in view of Section 10(2) AKISIEC Law, 2007; the Third Schedule, Part IIB(4b) of the 1999 constitution (as amended); Section 10(4b) of AKISIEC Law 2007, and Sections 15 and 16(1) of the Electoral Act 2010, granting exclusive control powers over printing and issuance of voters registers and voters cards to INEC, defendant can print any kind of voters registers and voters cards to be used in the conduct of the 2020 Local Government Election in the purported additional 39 electoral wards?
(3) Whether, in view of Section 32 of the Akwa Ibom State Independent Electoral Commission (AKISIEC) Law, 2007, criminalizing voting at any ward other than that of a registered voter, defendant can make any arrangement for voters to vote in the purported new wards, when their particulars are registered at different wards?
(4) Whether the purported 39 additional wards hurriedly created by Defendant, without consultation with relevant political stakeholders and public hearings are valid in law and can be sustained?
Arising from the said questions for determination, Appellants (as Plaintiffs) sought the following reliefs:
(1) A declaration that the Notice of the election in respect of the purported additional 39 Wards of Akwa Ibom State, was pre-mature, null and void, for non-compliance with the conditions precedent, as expressly set out in the relevant Sections of the Electoral Act, 2010 (as amended), Sections 19 and 32 of the Akwa Ibom State Independent Electoral Commission (AKISIEC) Law, 2007, and the 1999 Constitution (as amended).
(2) An Order of Mandatory Injunction compelling the Respondent to comply with the provisions of the Third Schedule, Part II Paragraph B(4b) of the 1999 Constitution (as amended) to enable INEC perform all the conditions precedent for recognition of any additional new Wards to be created as electoral or voting centers in Akwa Ibom State.
(3) An Order of Perpetual Injunction restraining the Respondent from conducting the 2020 Local Government Election in the purported additional 39 Wards, pending when the Independent National Electoral Commission (INEC) performs all the conditions precedent to guarantee a free, valid and credible Local Government elections that will not criminalize affected voters in the additional Wards.
(4) An Order setting aside the purported additional 39 electoral Wards, for being in violation of provisions of the AKISIEC Law, 2007, Electoral Act 2010, and the 1999 Constitution, as amended, and for lack of public hearing and none consultation with relevant stakeholders (Pages 72 – 74 of the Records of Appeal)
Appellants had filed the requisite statement, disclosing the particulars of the parties, affidavits in support of the Application and documents (Exhibits) thereto. Upon being served with the processes, the Respondent (as Defendant) filed a Counter affidavit, with documents (Exhibits) denying the claims of the Appellants (See pages 74 – 110, and 120 to 140 of the Records of Appeal)
After hearing the case and considering the evidence and the addresses of Counsel, the Learned Trial Judge held against the Plaintiffs, saying (among other things):
“The Provisions of Sections 10 and 12 of the AKISIEC Law, 2007 need no glossary. It is clear and unambiguous. The Defendant need not consult anyone or authority before executing its statutory function as stated above. I wonder where the Claimants import such extraneous materials to foist on the Defendant… And since the Claimants are not challenging the powers of the Defendant to create Wards in the Local Government within Akwa Ibom State, this Court too will not disturb the said creation… the Claimants variously submitted that the Defendant has unfettered right to create Wards and conduct Local Government Election over production of voters registers and voters cards. There is no evidence before me where the Defendant announced or published that it is about to produce voters registers or voters cards for the forthcoming Local Government Elections. Even by the Claimants’ Exhibit 11 which is the notice of election, dated 20/7/2020, issued by the Defendant and the 2020 Local Government Election in Akwa Ibom State date 21/7/2020 also issued by the Defendant, the said exhibit did not show that the Defendant wants to do anything towards (sic) and unwholesome or do anything detrimental to the interest of the Claimants or any other person… I took judicial time to check and gross check the said Exhibits, I am still unable to see where the Defendant raised and canvassed the vexed issue of new voters register and/or new voters card, change of existing unit code number and revision of voters registers which will affect the Claimants and/or the other citizens of Akwa Ibom State. The averments of the Defendant in their Counter affidavit have not been controverted or challenged. At Paragraph 9… the Defendant stated:
(9) “That Paragraph 12 of the affidavit is denied. The Defendant states that the creation of new 39 Wards has not altered the Ward numbers or the Unit numbers as designated by INEC.”
At Paragraph 11, the Defendant also stated:
(11) “That Paragraph 14 of the affidavit is not correct and thereby denied. The Defendant states that the voters register which will be used for the forthcoming Local Government Election is the same voters register used by INEC for the 2019 General Election which is the current voters register across Nigeria.”
It is now trite and well settled… that when in a situation in which facts are proven by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary, if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, the facts may be regarded as duly established… The crux of this action is squarely predicated on Sections 10 and 11 of the AKISIEC Law, 2007. There is no portion of those provisions that ties thefunctions of the Defendant with or to any other person or authority. To say the least the Claimants will make themselves busy bodies to demand or request the Defendant to act ultra vires its statutory powers. It is my humble view that the much the Defendant has done in Exhibit 11 suffices and signifies good intentions and due diligence…
The power to compile, maintain and continue to revise or update Voters Registers is entirely vested in INEC. INEC is not a party to this Suit, but even at that, the only remote connection between INEC and this Defendant is that AKISIEC may render such advice as it may consider necessary to INEC on compilation of the register of voters in so far as that register is applicable to Local Government Elections in that State. See Section 10(1)(b) of AKISIEC Law supra. In this action that advice is established in the Defendant’s Exhibit 11. And it is the INEC current and extant voters register and voters numbers in existing units and wards that Defendant is going to use to conduct the 31st October, 2020 Local Government Election, since INEC has not revised the National Electoral Register throughout the Nation. Asstated before, the Claimants did not challenge this averment and submission. I am inclined to believe the Defendant that the creation of new Wards will not disturb the forthcoming Local Government Elections which will be conducted per the existing wards and existing voter’s cards and numbers which the Claimants all have. What then is the Claimants apprehension and fear?
I think the fear is speculative and self-inflicted… The Claimants herein have nothing to put their wild goose chase. None of the Claimants, from the evidence before this Court, will be disenfranchised and none will be unjustly punished, if he or she votes at the appropriate unit and ward in their Exhibits 10 and 12…” (Pages 193 – 198 of the Records)
The trial Court, thereupon, dismissed the Suit with cost. That is the decision Appellants appealed against, as per the Notice and grounds of Appeal on pages 200 to 208 of the Records of Appeal.
In the Notice of Appeal, Appellants sought the following reliefs:
(i) To allow this Appeal and set aside the judgment of the trial Court in its entirety.
(ii) To grant all the reliefs sought by theAppellants as per their Originating Summons, or Alternatively:
To declare any purported Local Government Election conducted during the pendency of this Appeal in the 39 new Ward of Akwa Ibom State, without INEC certified voters registers being produced and used for them (like in the other 329 wards) as being unlawful for violation of Sections 9, 10, 15 and 16 of the Electoral Act, 2010, Section 10(1)(b) and 32 of the AKISIEC Law 2007 and the Third Schedule, Part II, Paragraph B(4b) of the 1999 Constitution (as amended).” (See Page 207 of the Records of Appeal).
Appellants filed their brief of argument on 30/10/2020 and distilled three Issues for the determination of the Appeal, namely:
(1) Was the trial Court right, when it abandoned and failed to resolve the crucial legal issues for determination in the Originating Summons, while preferring Respondents issues in the written address, which did not address the legal questions for determination? (Grounds 1, 2, 3 and 4)
(2) Was the trial Court right to have held that Appellants had a duty to have deposed to a further affidavit to counter Respondent’s averments in its paragraphs 9and 11 when those paragraphs supported and effectively established Appellants’ fears of lack of authentic INEC certified voters registers to be used in the additional 39 Electoral Wards? (Ground 5)
(3) Was trial Court judgment not perverse, a denial of fair hearing and miscarriage of justice for being biased, lob-sided, harsh and unnecessarily upbraiding and castigating the Appellants who merely exercised their constitutional rights upon genuine fears of their imminent disenfranchisement? (Grounds 6 and 7).
The Respondent filed its Brief on 23/11/2020 and adopted the Issues for the determination of the Appeal as distilled by the Appellants. The Appeal was heard on 24/11/2020, as agreed by the parties.
Arguing the Appeal, Appellants’ Counsel, Jumbo Uyo-ObongUdom, Esq, (who settled the Brief) posited his main grouse of Appellants as being the abandonment of the Issues raised by Appellants for the determination of the Originating Summons, by the trial Court, in preference of the Issues framed by the Respondent, in their addressing the Court. He submitted that in an Originating Summons proceedings, it is the questions for determination in the originating summons that the Court must consider and resolve; that the Defendant in an originating summons has no right to formulate questions different from that which are in the originating summons, when it has not counter-claimed. He added that the Court is enjoined to ignore the questions posed by the Defendant and focus on those by the Claimant in the originating summons. He relied on the cases of NJC Vs Aladejana (2015) ALL FWLR (Pt.772) 1798 at 1825 and Achu Vs Cross River State (2009) 3 NWLR (Pt.1129); Garba Vs Mohammed (2016) NWLR (Pt.1537) 114; and on Ramada International Pharm Ltd Vs Eze Udo (2016) NWLR (Pt.1533) 339, on the duty of the Court to consider and determine all material issues, properly raised before it, whether at first instance or on appeal.
Counsel said the crucial question for determination at the trial Court of this case, was:
“Whether in view of Section 19 AKISIEC Law 2007; Section 9(1)-(6); 10(1)-(6); 16(1)-(4); 19(1)-(3) and 20 of the Electoral Act, 2010 (as amended), Respondent can conduct election in the purported additional 39 electoral Wards created by Respondent, when Independent National Electoral Commission (INEC) had not carried out the conditions precedent in those Sections for proper recognition of the additional electoral wards as voting centers?
Counsel said that throughout the 27 paged judgment, there was no attempt by the trial Court to resolve this question, rather the trial Court preferred and considered the Respondent’s Issue 1, extensively, to determine the Suit, abandoning the most crucial and determinant question.
Appellants referred us to the said Issue 1, posed by the Respondent, being:
“Whether the powers of the Defendant to create new Local Government Wards is dependent on the registration of new voters, display of new voters list or control of the process or registration of voters.”
Counsel argued that the above issue by the Respondent did not arise from any of the questions in the originating summons; that Appellants, in their affidavit or address, never alleged that there ought to have been registration of new voters, or display of new voters registration of voters before Respondent could create wards; he said that Appellants expressly conceded that Respondent had the right tocreate wards – pages 166 and 193 of the Records. Counsel reiterated that Appellants’ contention in the Suit was not a challenge of Respondent’s power or right to create new electoral Wards, but “whether after creation of the 39 alleged electoral wards, Respondent could proceed to conduct the October, 2020 Local Government Election in the said 39 new Wards, when INEC had not yet carried out any registration of voters in the said new Wards and issued new voters cards to intending electorates of the new ward to enable them vote, lawfully?”
Counsel urged us to hold that the trial Court, totally, missed the point, or misunderstood the issues in the originating summons. He added that, there was no evidence that the Respondent had fulfilled those conditions, actually substantiated and established the position of Appellants, that Respondent intended conducting elections in the new wards when it had not fulfilled the condition precedent by advising INEC to proceed to review register of voters and produce voters cards for the new wards, as the law enjoins it to do, upon its creation of new Wards, by virtue of theThird Schedule, Part II, Paragraph B(4b) of the 1999 Constitution as amended and Section 10(1b) of AKISIEC Law, 2007, to enable use of the new Wards as electoral Wards.
He relied on Sections 9 and 20 of the Electoral Act, to say that only INEC has the exclusive right to compile, maintain and update the register of Voters in every ward all over the Nation. Also that by Section 10(4) of the Electoral Act, only the current register of voters, as certified by INEC, can be used for any Local Government Election. He also cited Sections 15 and 16 of the Electoral Act, to the effect that only INEC has the exclusive right to print voters registers and voters cards for every Local Government.
Counsel referred us to Section 19 of the AKISIEC Law, to show that the Respondent relied on the provision of the Electoral Act for the procedure for its Local Government Election.
On Issue 2, Counsel answered in the negative, saying that Appellants did not have a duty to depose to further affidavit to counter Respondent’s averments in paragraphs 9 and 11 of the Counter affidavit; that those paragraphs, effectively, supported and established Appellants’ fears of lack ofauthentic INEC certified voters registers to be used in the additional 39 electoral wards. He argued that paragraphs 12, 13 and 14 of their affidavit in support, were to the effect that the newly created 39 Wards had altered the ward numbers and units and required new voters registers and voters cards of the new Wards, and that Respondent had not given any notice of intention to register new voters or revise the voters register to reflect existence of the new created 39 Wards; that paragraphs 9 and 11 of Respondents Counter affidavit amply supported the Appellants’ fears, that there was no intention of registering new voters or creating valid INEC voters registers for the newly created 39 electoral Wards. Thus, the fear of likelihood of disenfranchisement, illegalities and manipulations of the existing 329 voters registers to accommodate the present 368 Wards was evident and imminent.
On Issue 3, whether the judgment was perverse, and a denial of fair hearing, and miscarriage of justice for being biased, lob-sided, harsh and unnecessarily upbraiding, castigating Appellants, Counsel answered in the affirmative.
On what constitutes perversedecision he relied on the case of Uka Vs Irolo (2002) FWLR (Pt.127) 1167 at 1198 – 1199; White Diamonds Property Development Co. Ltd Vs Trade Wheels Ltd (2018) LPELR – 44572 CA; NEPA Vs Ososanya (2004) 1 SC (Pt.1) 159 (among other cases).
He added that the failure of the trial Court to properly evaluate the issues placed before it also resulted in a miscarriage of justice. He relied on Ukpong Vs Esopndem & Ors (2013) LPELR – 21948 CA.
On denial of fair hearing, Appellants relied on the case of Achuzia Vs Ogbomah (2016) 11 NWLR (Pt.1522). He said that the trial Court was terribly biased against the Appellants and one sided in its analysis of the case of the parties and resolutions. He urged us to resolve the Issues for Appellants and to allow the Appeal.
In his response, the Respondent’s Counsel, Uwemedimo Nwoko, the Learned Senior Counsel and A.G. Akwa Ibom State, said the contention of Appellants in Issue 1, that the trial Court did not consider the issues they raised for determination, was very misleading and did not represent what actually happened at the trial Court. He referred us to Page 106 of the Records, that is the Claimants’ Address, where they stated their title as “Arguments on the Questions for Determination.” He said that Appellants proceeded to argue Question 1, Question 2, Question 3 and Question 4, without formulating any issue for the Court to determine; he said that the Respondent thought it wise, and in tandem with the Rules of Procedure, to formulate issues for determination, to assist the trial Court to be able to evaluate the case to determine the Questions presented to the Court for determination. He said that it is instructive to note that, even though Respondent formulated the issues for determination, the same were carefully tied and married to the questions which Appellants proposed for the determination of the Suit; that they clearly stated on page 127 of the Records of Appeal (Paragraph 4.02 of the Address), thus: ”Our Issue No. 1 is distilled from Questions for determination Nos. 1, 2 and 3, which essentially bother on voters registers, Registration of Voters, display of voters lists and the right to vote”; that similarly, on page 135 of the Records, the Respondent tied the Issue No. 2 toAppellants’ Question No. 4 for determination. Thus the Issues framed by Respondent flowed and derived from the Questions for determination of the Suit, as proposed by the Appellants.
Counsel said it was therefore most uncharitable for Appellants to paint the picture that Respondent formulated Issues that were at variance with Appellants’ Questions for determination; he said that it is even more condemnable to attack the Learned trial Judge, who actually invested valuable time and industry to carefully evaluate the cases of the parties before reaching conclusions.
Counsel asserted that Appellants’ reasoning, above, was therefore not correct and constituted attempt to mislead this Court. He said that the trial Court had carefully and painstakingly considered the facts of the case presented by Appellants, with all the exhibits as can be seen on page 191 of the Records, where the trial Court held:
“I also agree with the Claimants that I will be guided by the issues formulated by the Claimants for determination, as it is the Claimants who ought to formulate issues in a way and manner to enable the Court understand andeffectively determine and resolve what is on contention. However, I will not overlook the issues raised by the Defendant in order to clearly drive home its contention.”
Counsel said it was obvious, that in the face of the above, the trial Court, in reaching the above conclusion, had carefully considered the various Affidavits of the parties as well as the Written Addresses, before coming to that conclusion that Appellants’ Case was devoid of merit.
He said that the trial Court acted in line with the law and practice and relied on the case of Howetel Vs Dering (1915) 1 KB 54 at 62. Counsel said that the main purpose of formulation of issues for determination, is to enable the parties to narrow the issue or issues in controversy, in the interest of accuracy, clarity and brevity, and that the Court can only hear and decide matters on issue(s) for determination. He argued that Appellants’ address at the trial Court merely reproduced the 4 questions for determination, without distilling the Issue(s) therefrom; that the Issues distilled by the Respondent, derived and flowed from the said 4 questions by Appellant for the determination ofthe Suit. He relied on the case ofMessrs Lewis & Peat (NRI) Ltd Vs Akhimien (1976) 6 SC 159, to say that “It is impossible to say that every question of fact which is in dispute between parties, is “an issue”; that the word can be used in more than one sense; that in the real sense, an issue is that which, if decided in favour of the Plaintiffs, will give him the right to the relief sought, and if decided in favour of defendant, entitles him to a defence. Counsel also relied on Adeogun& Anor Vs Fashogbon & Ors (2008) 5 – 6 SC (Pt.1) 23, on the need for parties to formulate issues, and on Okoye Vs NC & F Co. Ltd (1991) 7 SC (Pt.111) 33 on the need for Issue formulated, to adequately pinpoint a substantial issue which, if resolved one way or the other, will affect the result of the Appeal. He urged us to hold that the Issues formulated by the Respondent was to enable a focused navigation of the evaluation of the case of the Appellants, and that the same assisted the Court to determine the case presented by the Appellants.
Counsel further submitted that Appellants were not sincere, when they argued that their case was simply, whether Respondent could use the newly created wards to conduct lawful and credible local government election in October, 2020, when INEC had not yet registered voters and printed voters registers for the new wards as well as issued voters cards to electorates of the new wards as stipulated by law, and that the trial Court did not answer this vital issue.
He said that the trial Court had clearly considered that issue, as the entire position of the Respondent was that none of the provisions of the law – Constitution and statutes – cited by Appellants and relied upon to sustain the Suit, remotely suggested that creation of new wards were dependent on registration of voters or reviews of voters register or consultation of stakeholders; he said that it is a totally independent action of the Respondent that has no statutory prescribed condition precedent attached.
He referred us to paragraph 11 of the Respondent’s Counter affidavit (which he said was not denied) and stated that the voters register, used for the election (which actually held) was the same voters register used by INEC for the 2019 general election, which is the current voters register in Nigeria. He added that Appellants never stated or established the alleged condition precedent, which they touted and that neither Sections 9, 10, 16, 19 or 20 of the Electoral Act, nor the Third Schedule, Part II, Paragraph B(4b) of the 1999 Constitution, contains any condition precedent for the creation of new wards and holding of elections therein. He said that the alleged conditions existed only in the imagination of the Appellants. He relied on Section 10(2) of the AKISIEC Law, on the power of Respondent to create new wards in the local government, after every 10 years; that no precondition was attached.
On Issue 2, Counsel said Appellants had a duty to depose to further affidavit to deny paragraphs 9 and 11 of the Respondent’s Counter affidavit; that this issue by Appellants is strange and curious, as the trial Court, correctly, understood the Appellants’ Suit and resolved the same, correctly. He said that having controverted the facts deposed to by the Appellants in paragraphs 12, 14 and 15 of the Supporting affidavit, by introduction of some salient facts (which the trial Court considered) the Appellant shad a duty to file further affidavit to contest the new facts, especially as Respondent had stated in the Counter affidavit, that it would hold the election with the existing voters register used by INEC in the 2019 general elections, and that the Code numbers for the wards and units would still be maintained, as Respondent would not tamper with the voters register, and so no eligible voter would be disenfranchised.
Counsel said the entire case of the Appellants hung on their fears expressed in their said paragraphs 12, 14 and 15 of the Supporting affidavit, which Respondent controverted by the said paragraphs 9 and 11 of the Counter affidavit. Thus, having punctured that contention and having shown that there was no condition precedent, as claimed by Appellants, their case collapsed as a pack of cards.
On Issue 3, Counsel answered in the negative, saying the judgment of the trial Court was not perverse and did not deny Appellants fair hearing, neither did it upbraid or castigate Appellants; Counsel said that Appellants were even magnanimously granted extra time and liberty to conduct their case, wondering how the allegation of denial of fair hearing came about, after Appellants were duly heard. He relied on the case of Chiadi Vs Aggo (2018) 2 NWLR (Pt.1603) 175, on fair hearing, as well as on Orugbo Vs UNA (2002) 16 NWLR (Pt.792) 175; Darma Vs Ecobank Ltd (2017) 9 NWLR (Pt.1571) 480 at 502; Pam Vs Mohammad (2008) 16 NWLR (Pt.1112) 1 at 49; INEC Vs Musa (2003) 3 NWLR (Pt.806) 72, to the effect that denial of fair hearing should not be resorted to as a magic wand to defeat sound decision(s) of Court, after a party had, in fact, been heard, or given opportunity to present his case.
Counsel further argued that even after Appellants had adopted their written address, as per pages 173 to 178 of the Records, the trial Court still allowed their Counsel the time (up to one hour, forty minutes) to adumbrate on the written address, for which Appellants’ Counsel expressed profound gratitude to the Court, only for them to now accused the trial Court of denial of fair hearing! He urged us to resolve the Issues against the Appellants and to dismiss the Appeal.
Appellants’ Counsel had rejoined, orally, on points of law, by saying that in an Originating Summons process, the questions posed for determination of the Suit, remain as the Issues for the determination of the Suit, requiring no further framing of Issues for determination by the Plaintiffs for the Court to consider.
RESOLUTION OF THE ISSUES
I shall adopt the 3 Issues distilled by the Appellants (which were adopted by Respondent’s Counsel) for the determination of this Appeal. But I shall take them, together, as they appear to relate to the same complaint, which is whether the trial Court failed to consider the Issues raised by the Appellants at the trial and rather considered the Issues framed by the Respondent, thereby failing to determine Appellants’ case, denied them fair hearing, and wrongly dismissed their Suit, upon reaching perverse conclusions.
A brief facts of the case at the Lower Court shows that Appellants acted in a manner meant to preempt and frustrate the Respondent’s intention to conduct the 2020 Local Government election in Akwa Ibom State, by raising complaint against the creation of 39 new electoral wards in the state, saying that they (Appellants) and electorates would be disenfranchised as a result of the creation of the new electoral wards; that Respondent did not comply with or fulfill the conditions precedent to the creation/use of the said new electoral wards in the conduct of the local government election in the State, considering the state of the law, particularly, Sections 10(2) and19 of AKISIEC Law, 2007; Sections 9(1)-(6); 10(1)-(6); 16(1)-(4); 19(1)-(3) and 20 of the Electoral Act, 2010 (as amended), and the Third Schedule Part II, Paragraph B(4b) thereof. They argued that, by the above laws, and Sections 15 and 16(1) of the Electoral Act, INEC has the exclusive control and powers over printing and issuance of voters registers and voters cards and that the Respondent cannot print same to be used in the conduct of the 2020 Local Government election in the said 39 new electoral wards, and that by Section 32 of the AKISIEC Law, Appellants (and any other person) stood the risk of being criminalized for voting at any ward other than that stipulated under the INEC Voters Register and INEC Voters Card. Appellants therefore questioned whether the 39 new additional wards, allegedly hurriedly created by the Respondent, without consultation with relevant political stakeholders and public hearings, were valid in law and can be sustained.
In the Suit, Appellants claimed to bring the case (for themselves and as representatives of several affected registered voters, likely to be disenfranchised as a result of the newly created 39 wards of Akwa Ibom State).
Appellants’ contention in this Appeal appears to be that the entire findings and decision of the trial Court, failed to consider their case, but rather founded on the issues, framed by the Respondent (which according to Appellants) were different from the issues/questions posed for the determination of the Suit; that in an Originating Summons process, the questions for determination constitute the issue(s) for the determination of the case, and the trial Court must confine itself to the said questions for determination and not wander away to consider Respondent’s issues for determination, except where the Respondent filed a counter-claim.
Of course, that statement of the law, about the need for a Court to confine itself to the case presented by the Plaintiffs (whether in Originating Summons or Writ of Summons is unassailable. But whether that position of the Lawhas been breached or compromised in this case by the trial Court is what should concern this Appeal.
By law, the Court can only consider and try the case presented by the Plaintiffs, and cannot concern itself with any diversion or issue introduced by the Defendant, outside the claim of the Plaintiff, unless the Defendant has filed a counter claim to project the said diversion/issue. This holds more strongly in originating summons procedure. The same principle also operates in Appeals, wherein the appellate Court must consider the issues distilled from the grounds of Appeal, and the Respondent, must confine his issues for the determination of the Appeal to what flows from or relates to the same grounds of Appeal by the Appellants. Where the Respondent files or distills issue(s) which does not accord with the grounds of Appeal (and they have not filed a Cross Appeal or Respondent’s Notice to situate such strange issue), the same is liable to be struck out.
See the case of NJC Vs Aladejana (2015) ALL FWLR (Pt.772) 1798 at 1825, where my Lord, Ekanem JCA said:
“In Originating Summons proceedings, the issues to be addressed are those raised in the originating summons. It does not lie in the mouth of respondent to formulate his own issues for determination. If a respondent alleges that he has any claim or is entitled to his own relief, he may counter-claim.”
Of course, what constitutes a Suit, is always the Plaintiffs’ claims in the Writ or Originating Summons or motion, except where there is a Counter-Claim, to be considered also. See Ekpenyong & Ors Vs Nyong (1975) LPELR – 1090 SC; NJC Vs Aladejana (supra); Kuti Vs Jibowu (1972) NSCC 447; Irom Vs Okimba (1998) 3 NWLR (Pt.540) 19; UBN Plc Vs Emole (2001) 18 NWLR (Pt.745) 501.
In the case of Agbaso Vs Iwunze & Ors (2014) LPELR – 24108 CA, it was held, in respect of Appeals, that a Respondent cannot distill an issue for consideration of appeal outside what the grounds of Appeal suggest, except he filed a cross-appeal or Respondent notice, to peg such strange issue. See also Nwaobilo Vs Ahukanna (2018) 46574 CA; Duru Vs Duru (2016) LPELR – 40444 CA; PML Nig. Ltd Vs FRN (2017) LPELR – 43480 (SC); APGA Vs Umeh (2011) 8 NWLR (Pt.1250) 544 (SC).
Were the Appellants correct to say that thetrial Court did not consider the Suit on their claim, as per their Questions for determination, but on the issues raised by the Respondent, outside their said Questions for determination? I have my doubt, considering the substance of the case presented by the Appellants at the trial Court and the findings made by the trial Court, thereon.
The Respondent has stated that the two Issues it formulated, for the consideration of the trial Court, were founded on and derived from the Questions for determination of the originating summons. Counsel had argued that the Appellants did not articulate any summarized Issues for the determination of the case (from the 4 Questions they raised for the Court to consider); that what Respondent did was to carefully tie and marry the issues it distilled to the said Questions for Determination; that the Respondent considered it wiser and more in tandem with the Rules of Procedure, to formulate issues for determination, to assist the trial Court to be able to evaluate the case in order to determine the said questions presented by the Appellants for determination. And in doing so, the Respondent in their Address (on page 127 of the Records) said:
“Our Issue No. 1 is distilled from Questions for determination Nos. 1, 2 and 3, which essentially bother on Voters Register, Registration of Voters display of Voters Lists and the right to vote.”
Similarly, on page 135 of the Records, they tied their Issue No. 2 to the Appellants’ Question No. 4 for determination.
I have had a careful look and perusal of the said two Issues, donated by the Respondent at the trial Court, for the consideration of the Suit, and I find it to have properly summarized and articulated the four (4) Questions, which Appellants raised for the determination of the Suit. The said 2 Issues, in my view, were not formulating a different case, but rather made the Questions, raised by Appellants, in an unwieldy manner, more articulate, pungent and apt, for the determination of the real Issues and substance of the Originating Summons. It was actually the duty of the Appellants to have articulated those Issues (or something like that) in the Appellants’ Address, to narrow down the Questions for determination into more acceptable and clearly defined Issues for the Court to focus on, is the attempt to answer the 4 questions posed in the Originating Summons.
I think Appellants’ Counsel was in error, to have thought and submitted that in an Originating Summons proceedings, the Questions for determination represent the Issues for determination and must be followed, strictly, without any attempt to further simplify and narrow them down to clearer focus, to aid the Court to determine the case. The law permits the parties to reduce Question(s) for determination of a case into functional issue for determination, for ease of reference, comprehension and application, to reach the justice of a case, and where the parties (either Plaintiff or Defendant) fail to marshall out such clear Issue(s) for the determination of the case, the Court is enjoined to do so, provided the said Issue(s) does not wander away from the substance of the claim (Questions) before the Court. See the case of PDP Vs Ekeagbara & Ors (2016) LPELR – 40849 CA:
“An appellate Court can formulate issues for determination, as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy and brevity. See Okoro Vs State (1988) 5 NWLR (Pt.94) 255; Latunde Vs Lajinfin (1989) 3 NWLR (Pt.108) 177; Awojugbagbe Light Industries Ltd Vs Chinukwe (1995) 5 NWLR (Pt.390) 379. Furthermore, in the interest of justice, and for just determination of an appeal, an appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of Appeal…”
See also Shema & Ors Vs FRN (2018) LPELR – 43723 (SC); Gov. of Imo State & Ors Vs E.F. Network Nig. Ltd & Anor (2019) LPELR – Suit No. SC/001/2016. The trial Court also enjoys such liberty and leverage in formulating issues, in my view.
I had earlier held that the 2 Issues, distilled by the Respondent on which the trial Court considered the case, were derived from and founded on the same 4 Questions, posed by Appellants for determination of the Suit, and that they summarized and properly articulated the substance of the case of Appellants in the Originating Summons. I had also earlier summarized the facts of the case at the trial Court, wherein Appellants fought against the creation of the 39 new electoral wards by Respondent, saying the same did not comply with the conditions precedent and that same had violated stated provisions of the law and would work against Appellants and lead to their disenfranchisement and/or criminalize them in the conduct of the Local Government election. They sought order to nullify the said 39 new electoral Wards, saying that their creation and use cannot be located in the existing Registers of Voters by INEC and did not comply with the law. They sought to frustrate or nullify any such election in the said new wards.
The above was what the Respondent’s Issues for determination, in my view, focused on, namely:
(1) Whether the powers of the defendant to create new Local Government Wards is dependent on Registration of new Voters, display of new voters list or control of the process or registration of voters.
(2) Whether, pursuant to Section 10(2) of AKISIEC Law, 2007, the Defendant is under a duty to consult with political stakeholders or hold public hearings before exercising its powers to create new wards.
I cannot see how that is different from the substance of the questions posed by Appellants for the Court to determine (as earlier reproduced in this judgment). The trial Court had considered the whole essence of the Appellants questions for determination, in my view, when it held, as earlier reproduced:
“The Provisions of Sections 10 and 12 of the AKISIEC Law, 2007 need no glossary. It is clear and unambiguous. The Defendant need not consult anyone or authority before executing its statutory function as stated above. I wonder where the Claimants import such extraneous materials to foist on the Defendant… And since the Claimants are not challenging the powers of the Defendant to create Wards in the Local Government within Akwa Ibom State, this Court too will not disturb the said creation… the Claimants variously submitted that the Defendant has unfettered right to create wards and conduct Local Government Election over production of voters registers and voters cards. There is no evidence before me where the Defendant announced or published that it is about to produce voters registers or voters cards for the forthcoming Local Government Elections. Even by the Claimants’ Exhibit 11 which is the notice of election, dated 20/7/2020, issued by the Defendant and the 2020 Local Government Election in Akwa Ibom State date 21/7/2020 also issued by the Defendant, the said exhibit did not show that the Defendant wants to do anything towards (sic) and unwholesome or do anything detrimental to the interest of the Claimants or any other person… I took judicial time to check and gross check the said Exhibits, I am still unable to see where the Defendant raised and canvassed the vexed issue of new voters register and/or new voters card, change of existing unit code number and revision of voters registers which will affect the Claimants and/or the other citizens of Akwa Ibom State. The averments of the Defendant in their Counter affidavit have not been controverted or challenged. At Paragraph 9… the Defendant stated:
(9) “That Paragraph 12 of the affidavit is denied. The Defendant states that the creation of new 39 Wards has not altered the Ward numbers or the Unit numbers as designated by INEC.”
At Paragraph 11, the Defendant also stated:
(11) “That Paragraph 14 of the affidavit is not correct and thereby denied. The Defendant states that the voters register which will be used for the forthcoming Local Government Election is the same voters register used by INEC for the 2019 General Election which is the current voters register across Nigeria.”
It is now trite and well settled… that when in a situation in which facts are proven by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary, if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, the facts may be regarded as duly established… The crux of this action is squarely predicated on Sections 10 and 11 of the AKISIEC Law, 2007. There is no portion of those provisions that ties the functions of the Defendant with or to any other person or authority. To say the least the Claimants will make themselves busy bodies to demand or request the Defendant to act ultra vires its statutory powers. It is my humble view that the much the Defendant has done in Exhibit 11 suffices and signifies good intentions and due diligence…
The power to compile, maintain and continue to revise or update Voters Registers is entirely vested in INEC. INEC is not a party to this Suit, but even at that, the only remote connection between INEC and this Defendant is that AKISIEC may render such advice as it may consider necessary to INEC on compilation of the register of voters in so far as that register is applicable to Local Government Elections in that State. See Section 10(1)(b) of AKISIEC Law supra. In this action that advice is established in the Defendant’s Exhibit 11. And it is the INEC current and extant voters register and voters numbers in existing units and wards that Defendant is going to use to conduct the 31st October, 2020 Local Government Election, since INEC has not revised the National Electoral Register throughout the Nation. As stated before, the Claimants did not challenge this averment and submission. I am inclined to believe the Defendant that the creation of new Wards will not disturb the forthcoming Local Government Elections which will be conducted per the existing wards and existing voter’s cards and numbers which the Claimants all have. What then is the Claimants apprehension and fear?
I think the fear is speculative and self-inflicted… The Claimants herein have nothing to put their wild goose chase. None of the Claimants from the evidence before this Court, will be disenfranchised and none will be unjustly punished, if he or she votes at the appropriate unit and ward in their Exhibits 10 and 12…”
In paragraph 4.34 of their Brief of Argument, Appellants’ Counsel said:
“Appellant’s issue was simply whether Respondent can use the newly created wards to conduct lawful and Local Government election in October, 2020, when INEC had not yet registered Voters and printed voters registers for the new wards as well as issued voters cards to electorates of the new wards as stipulated by law. There was no answer on this vital issue by either the Respondent or the Court, throughout its judgment.”
I doubt whether learned Counsel for Appellants truly believed the above submission, in the light of the averments by Respondent in paragraphs 9 and 11 of their Counteraffidavit, to the effect that the creation of new wards did not alter the ward numbers or code, nor the unit numbers as designed by INEC, and that “the voters registers which will be used for the forthcoming Local Government election is the same as voters register by INEC for the 2019 general election, which is the current voters register across Nigeria”, and that “the purported confusion and fears of the Claimant is self-inflicted and totally unfounded. No eligible Voter is going to be disenfranchised from voting their preferred candidates in the forthcoming Local Government election.” (See Pages 121 – 122 of the Records).
The Learned trial Judge had considered the above evidence, vis-à-vis Appellants deposition that:
(11) Claimants are voters whose wards have been divided or from whose wards new wards had been purportedly created in Akwa Ibom State.
(12) That I and the other Claimants who were in particular units in particular wards now find ourselves in supposedly new Wards and new units, with different Ward numbers and unit numbers but our voters cards still bear our old particulars in the former wardsand units.
(13) That there had not been updating or revision of the Register of Voters by … INEC in the affected wards, since 2019 general elections.
(14) That the public had not been notified of any intention by INEC to register new Voters or update or revise the register of voters in the newly created wards or units, to reflect the new state of thing.”
The Court did so before coming to its said decision, especially as Appellants never controverted those fatal averments in Paragraphs 9 and 12 of the Counter affidavit of the Appellants!
It does not appear Appellants clearly understood and/or appreciated the import of the finding and holding of the trial Court, which, in my view, comprehensively reviewed the case of the Appellants and found it wanting, speculative and pre-emptive. The entire case of the Appellants was founded on speculation and unfounded fears, which also raised issue of valid cause of action, to sustain their claim. Their claims and/or fears were, therefore, not real, especially with the evidence that the existing Voters Registers, voters cards, unit and ward numbering and codes, were not going to beaffected by the creation of the new Wards, and that INEC Voters Register and Cards, used in the 2019 general election, would be used and that Appellants would not be disenfranchised or incriminated at the election!
With such clear position of the Respondent, which was upheld in the judgment, what then remained as the basis of Appellants’ action? Appellants have even admitted that the Election has actually held in the state! What then is the purport of the Suit and Appeal?
I cannot find any, as I see the case and the Appeal as a wild goose chase, as opined by the trial Court. I also therefore see it as mere academic exercise or a pursuit of mischief.
I cannot therefore fault the sound findings of the trial Court, which Appellants, have not even appealed against, especially as Appellants did not contest the unfettered power of the Respondent to create new electoral wards. The judgment was not perverse, and Appellants cannot complain of denial of fair hearing, when they were adequately heard and their evidence adequately considered by the trial Court.
A party, who has been heard or given opportunity to present his case, cannot complainof denial of fair hearing. SeeNwaigwe&Ors Vs Anyanwu (2016) LPELR – 40613 (CA); S&D Construction Co. Ltd Vs Ayoku& Anor (2011) LPELR – 2955 (SC); Inakoju&Ors Vs Adeleke &Ors (2007) LPELR – 1510 SC; (2007) 4 NWLR (Pt.1025) 423; Esabunor& Anor Vs Faweya&Ors (2019) LPELR – 46961 (SC); Ukwuyok&Ors Vs Ogbulu&Ors (2019) LPELR – 48741 (SC).
I see no merit in this Appeal, as I resolve the Issues against the Appellants and dismiss the Appeal. Parties to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: Let me begin by stating that the reasoning and ultimate conclusion reached by my Learned brother, Ita G. Mbaba, JCA in the lead judgment is agreeable to me. I do not find it necessary rehashing the facts that generated the instant appeal, the facts having been well set out in the lead judgment.
Apart from the appellants’ complaint bordering on the way and method the questions raised in the originating summons were considered, and the thrust ofthe appellants’ complaint of perceived denial of fair hearing and imminent disenfranchisement, settled, it seems to me that parties are on common ground that the respondent can validly create wards in line with the powers granted it, and in furtherance of their duty of conducting a viable and sustainable election into the Local Government within its scope of authority.
If no voter was disenfranchised as claimed by the respondent, which the appellants did not rebut, the perceived apprehensions by the appellants, of being disenfranchised must have been unfounded and thereby of no moment.
My Learned brother has meticulously considered all the issues agitated upon in the appeal to the inevitable conclusion that the appeal is lacking in any merit and deserved to be dismissed. I agree with him.
I thereby join my Learned brother in dismissing the appeal, and also abide on order made as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have the benefit of reading in draft the lead judgment of my learned brother Ita G. Mbaba, JCA, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed by me.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read the judgment just delivered by my Noble Lord, Hon. Justice I. G. Mbaba, JCA and I agree with his reasoning and conclusion that the appeal has no merit and only qualifies for dismissal. I also dismiss same, abiding by the consequential orders.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother I. G. Mbaba, JCA and I am in complete agreement with the reasoning and conclusions reached therein. I too dismiss this appeal for lack of merit. I abide by all other consequential orders as contained in the lead judgment.
Appearances:
JUMBO UYO-OBONG UDOM ESQ. For Appellant(s)
UWEMEDIMO NWOKE, ESQ., with him, JANE NWOKOCHA (MISS.) SC For Respondent(s)