Hon. Bassey Etim & Anor. V. Hon. Emmanuel Bassey Obot & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE LOKULO-SODIPE, J.C.A.

HON. EMMANUEL BASSEY OBOT as Plaintiff commenced Suit No. FHC/ABJ/CS/286/2007 by Originating Summons against (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC); (2) PEOPLES DEMOCRATIC PARTY (PDP); and (3) HON. BASSEY ETIM for the determination of the following questions:-

“1. Whether the purported letter of substitution of the Plaintiff with the 3rd Defendant purportedly issued by the 2nd Defendant satisfies the requirement of Section 34(1) & (2) of the Electoral Act 2006.

2. If the answer to question 1 is in the negative, whether the Defendant properly substituted the Plaintiff with the 3rd Defendant giving (sic) regard to the peculiar facts of this case.”

The reliefs sought in the Originating Summons are: –

“1. A declaration that the purported letter of substitution of the Plaintiff with the 3rd Defendant dated 5/02/07 does not contain cogent and verifiable reason for the said substitution as contemplated by the provision of Section 34(1) & (2) of the Electoral Act, 2006.

2. A Declaration that the exclusion of the name of the Plaintiff for the April 2007 general Election as the candidate representing Uyo Federal Constituency is wrongful, null and void.
3. A Declaration that for the purpose of the Election to the House of Representatives the Plaintiff is the candidate of the 2nd Defendant validly nominated and not substituted.
4. An order setting aside the substitution of the Plaintiff for not being in conformity with the provisions of Section 34(2) of the (sic) Act 2006.
5. A (sic) order directing the 1st Defendant to forthwith place the name of the Plaintiff on the ballot as the candidate of the 2nd Defendant representing Uyo Federal Constituency in April General Election to the National Assembly.
6. An order of perpetual injunction restraining the 1st and 2nd Defendants from recognizing or continuing to recognize the 3rd Defendant as the candidate of the 2nd Defendant for the House of Representatives election scheduled for April, 2007.”

The case was entertained by the Federal High Court, Abuja presided over by Hon. Justice Abimbola O. Ogie, The said Federal High Court (hereinafter simply referred to as “the court below”) delivered its judgment in the case on 17th May, 2007, At page 194 of the Records, the court below in its judgment answered the questions for determination thus:-

“Question 1 is in the affirmative, the letter of substitution does not satisfy section 34(1) and (2) of the Electoral Act.

Question 2, is also in the affirmative, the 1st defendant (sic) was not properly substituted for the plaintiff with the 3rd defendant as regards the facts herein.”

Given its answers to the questions for determination as reproduced above, the court below at pages 194 – 195 of the Records, proceeded to make the following orders: –

“(1) A declaration that the purported letter of substitution of the plaintiff with the 3rd defendant of 5/2/07 does not contain cogent and verifiable reasons for the said substitution as contemplated by the provision of section 34(1) and (2) of Electoral Act 2006.

(2) A declaration that the exclusion of (sic) name of plaintiff for April general election as candidate for Uyo Federal Constituency is unlawful, null and void.

(3) A declaration that for the purpose of the election plaintiff is the candidate of the 2nd Respondent validly nominated and not substituted.

(4) I hereby set aside the substitution of plaintiff for not being in conformity with the provision of section 34(1) and (2).

Relief (sic) 5 and 6 of the relief (sic) are completed acts and cannot lie.”

Hon. Bassey Etim – the 3rd Defendant being dissatisfied with the judgment of the court below lodged an appeal against the same by a Notice of Appeal filed on the very day the court below delivered its judgment, i.e. 17/5/2007. Appeal No. CA/A/3/2008 is the appeal lodged by Hon. Bassey Etim as Appellant against the judgment of the court below delivered on 17/5/2007. The Appellant later filed an amended Notice of Appeal containing seven grounds of appeal.

In accordance with the Rules of this Court, briefs of argument were filed and exchanged in this appeal. The appeal was entertained on 19/3/2009 and Tayo Jegede, SAN, learned lead senior counsel for the Appellant, in urging the Court to allow the appeal and dismiss the suit of the 1st Respondent (i.e. Hon. Emmanuel Bassey Obot) adopted and relied on Appellant’s brief of argument dated 17th March, 2008 filed on the same day as well as Appellant’s Reply brief dated 31st March, 2008 equally filed on the same day.

Ekpenyong Ntekim, learned lead counsel for the 1st Respondent in urging that the appeal be dismissed adopted and relied on the said Respondent’s brief of argument dated 26th March, 2008 and filed on 27th March, 2008, Patience Osagiede-Ofeyi, learned counsel for the 2nd Respondent and B.J Akomolafe, learned lead counsel for the 3rd Respondent both disclosed that they did not file any brief for their respective clients in the appeal.

The Appellant, in his brief of argument formulated three (3) Issues for the determination of the appeal from the seven grounds of appeal contained in the amended Notice of Appeal. The Issues are:-

“1. Whether the trial court was not in error in entertaining the matter on the face of lack of personal service of the originating summons on the 3rd defendant/appellant and in proceeding to hear the matter on originating summons when the facts were seriously contestable and contested.

2. Whether the trial court was not in error in refusing to strike out the suit on the ground that it constitutes an abuse of court process and was caught with (sic) the principle of estoppel.
3. Whether the trial court was not in error in granting the reliefs granted to the plaintiff when he did not establish his entitlements to same legally and when the said issues were academic.”

In his brief of argument, the 1st Respondent having expressed the desire to argue the appeal along the Issues formulated by the Appellant however reformulated the Issues thus: –

“1. Whether the Appellant had submitted to the jurisdiction of the trial court to deserve its assumption of jurisdiction over the matter.

2. Whether the matter was properly commenced by originating summons.
3. Whether there was a multiplicity of suits in an abuse of the court’s process.
4. Whether the 1st Respondent was entitled to the reliefs sought and granted,”

The appeal will be determined on the issues as formulated by the Appellants even though they have been re-formulated by the 1st Respondent.

APPELLANT’S ISSUE 1 – WHETHER THE TRIAL COURT WAS NOT IN ERROR IN ENTERTAINING THE MATTER ON THE FACE OF LACK OF PERSONAL SERVICE OF THE ORIGINATING SUMMONS ON THE 3RD DEFENDANT/APPELLANT AND IN PROCEEDING TO HEAR THE MATTER ON ORIGINATING SUMMONS WHEN THE FACTS WERE SERIOUSLY CONTESTABLE AND CONTESTED.

This Issue according to the Appellant focuses on the correctness or otherwise of the position taken by the trial court that there was proper service of the originating process on the 3rd Defendant/Appellant as well as the correctness or otherwise of deciding the instant suit on Originating Summons.

Dwelling on the first part of the Issue, the Appellant submitted that the court below was in error in holding as it did that there was proper service of the originating process on him thereby overruling his objection in that regard. The Appellant said to the effect that he made it clear that he was not served with the originating process in paragraph 2 of the counter affidavit at page 38 (sic, 39) of the Records. He also said that the circumstances by which he became aware of the pendency of the instant case before the court below are set out in paragraph 3 of the same counter affidavit. Furthermore, the Appellant claimed that he was emphatic in paragraph 4 of the counter affidavit in question that he did not brief the lawyer mentioned in paragraph 3 to represent him.

The Appellant said that the 1st Respondent in a bid to show that he (i.e. Appellant) was personally served with the originating process in the instant suit relied on the affidavit of service of the bailiff, one Dada David Ishaya, at page 42 (sic: 43) of the Records, The Appellant however claimed that it is glaring from the said affidavit of service that the originating process was given to an “unnamed lady” in his (i.e. Appellant’s) house and who in accepting service, never signed the endorsement copy. The Appellant further claimed that there was no evidence that the said “unnamed lady’ in any event ever passed the originating process to him.

The Appellant stated that despite all he disclosed concerning the non-service on him of the originating process in the instant case, and the inability of the 1st Respondent to controvert the same, the court below still went ahead in its judgment, especially at pages 192 – 193 (sic: 176 – 177) to hold that there was proper service on him. The Appellant submitted that the court below was wrong in this regard and the provision of Order 13 Rule 2 of the Federal High Court (Civil Procedure) Rules 2000 was cited in aid, Originating process, the Appellant submitted, must be served personally and where there was no evidence of personal service of the same on him, as in the instant case, this goes to the jurisdiction of the court, thereby rendering the whole proceedings a nullity. The issue of service, the Appellant said, is so fundamental that acquiescence on it would still not confer the court with jurisdiction, The case of Skenconsult Nigeria Ltd v. Ukey (1981) NSCC 1 at 11 -13 was cited in aid. The Appellant further said that in any case, he never waived service and never submitted to the jurisdiction of the court below having regard to his counter affidavit and written address before the said court, This being the position, the Appellant submitted that the entire proceeding became a nullity and on this score the judgment was liable to be set aside. The case of ACB Plc v. Losada (Nig) Ltd (1995) 7 NWLR (Pt. 405) 26 at 44 was cited in aid.

At the hearing of the appeal, learned lead senior counsel for the Appellant in adumbrating on the issue of service, stressed that there was no personal service of the Originating Summons on the Appellant nor was any order made for its substituted service. He urged the Court to discountenance the submission in the 1st Respondent’s brief that the issue of service is one of technicality and to resolve the issue in favour of the Appellant.

The 1st Respondent dealt with this part of Appellant’s Issue 1 under his re-formulated issue 1, which addressed the question as to whether the court below properly exercised jurisdiction over the Appellant as a Defendant sued or commanded by a summons to be before it in answer to allegations contained in the said summons against him.

Referring to paragraphs 3 and 4 of the Appellant’s 2nd counter affidavit at page 39 of the Records, the 1st Respondent slated the contention of the Appellant to be that he was not personally served with the originating summons and neither was he aware of the pendency of the case except upon being informed by his “former counsel” Victor Okangbe Esq, and John Erameh Esq, who heard his name being mentioned in connection with this suit before the court below and so sent one Barrister Bunmi Ayo-Ope to hold their brief all of whom he never instructed. The 1st Respondent said that the court below addressed the contention of the Appellant at pages 174-177 of the Records and observed that the finding of the said court accepting the service on the Appellant as proper has not been attacked and cannot be faulted. The 1st Respondent further referred to paragraphs 3 – 5 of the Appellant’s counter affidavit and not only raised the question as to who those referred to therein as;’former counsel’ were, but also observed that the account as deposed to in the said paragraphs 3 – 5 did not tally with series of events leading up to the same, In this regard, the 1st Respondent stated that the Appellant before filing any of his counter affidavits had (i) exhibited the same originating summons served on 24/04/07 to a petition of 25/04/07 written to the National Secretary of PDP and using it as a basis for his request to expel him (i.e, 1st Respondent) from the PDP; and (ii) obliquely made reference to the originating summons in his letter dated 08/05/07 to the Hon. Chief Judge of the Federal High Court. The 1st Respondent also made the point that the Appellant in any event never disclaimed as his counsel, one Ben Akubue Esq. of John Erameh & Co., who deposed to and filed a counter affidavit on the said Appellant’s instructions on 30th April, 2007. Given the scenario created by the facts highlighted above, the 1st Respondent submitted that it could not be correct as contended by the Appellant that the “unnamed lady” never passed the originating summons allegedly served on her to him, It was also the submission of the 1st Respondent that it is not true as contended by the Appellant that he made it clear at the earliest opportunity that he was not served with the originating summons, The 1st Respondent further submitted to the effect that the question of non-service and/or improper service are issues of technicalities and that the current judicial trend was not to allow technicalities, which are a blot on the administration of justice, to impede the dispensation of justice. “Non-service and, as in this case, improper service” the 1st Respondent said “do not automatically render proceedings a nullity, especially where the party complaining had submitted to the jurisdiction of the court, participated in the trial despite the alleged improper service without raising it timeously and has not proved any violation of the principles of fair hearing or a miscarriage of justice as arising fom (sic) such irregularity”. The cases of Famfa Oil Ltd v. A-G Federation (2003) 18 NWLR (Pt. 852) 453 at 467, 469 & 476; Idiata v. Ejeko (2005) 11 NWLR (Pt. 936) 349 at 365; Akpokirtynniovo v. Agas (2004) 10 NWLR (Pt. 881) 394 at 421; Odu’a Investment v. Talabi (1997) 10 NWLR (Pt. 523) 1; and Complete Communications Ltd v. Bianca Onoh (1998) 5 NWLR (Pt. 549) 197; were cited in aid. This, according to the 1st Respondent, is particularly so as the Appellant from the circumstances of this case is purely relying on his own falsehood on the fact of service. The 1st Respondent also stated that it was not enough for the Appellant to deny ”the former counsel” as retained lawyers of his choice at the commencement stage of the instant case, as it is presumed that any counsel who appears in court to announce his appearance for a given party or files processes on his behalf has been briefed by the said party. The 1st Respondent further said that it is the affected counsel themselves who should have deposed to an affidavit rebutting the inference raised by their appearances at the trial court for the Appellant and not the Appellant himself. The case of Shola-Jason Ltd v. Omega Air Ltd (2006) 1 NWLR (Pt. 960) 1 at 34 was cited in aid. The 1st Respondent urged this Court to hold that the three earlier or former counsel who appeared for the Appellant between 25/04/07 and 08/05/07 when Chief Ikwueto, SAN was briefed, all appeared on his (i.e. Appellant’s) instructions and that the presumption raised in favour of such appearance has not been rebutted by the Appellant who has failed to prove that they did not appear on his instruction or that they were debriefed earlier than 08/05/07 when Chief Ikwueto SAN came into the picture. The case of Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661 at 672 was cited in aid. The 1st Respondent also submitted that the case of Skenconsult Nigeria Ltd v. Ukey (supra) was inapplicable given the circumstances of the instant case and cited the case of Uchendu v. Ogboni (1999) 4 SC (Pt. II) 1 at page 15 in this regard.

In his Reply brief, the Appellant submitted to the effect that the conditions set out in the decision of Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397 at 418 were satisfied by him as he protested the lack of service at the earliest opportunity vide his first counter affidavit. The Appellant also submitted that the presumption of authority raised by announcement of appearance by counsel for a party is a rebuttable one as observed in the case of Buhari v. Yabo (2006) 17 NWLR (Pt. 1001) 162 at 177 and that the said presumption was rebutted by his very clear and unequivocal denial on oath which was never controverted, According to the Appellant the onus shifted to the 1st Respondent to establish that counsel who purportedly represented him (i.e. Appellant) the day the case first came up had authority, given the said clear denial.

Appellant’s Issue 1, is a rolled up one in that it raises two distinct questions, The first which is presently under consideration, questions the correctness or otherwise of the decision of the court below to entertain the instant suit after it found that there was proper service of the Originating Summons on the Appellant in the face of the affidavit of service of the bailiff which glaringly showed that the said Originating Summons was not served personally on the said Appellant.

“The Appellant as 3rd Defendant before the lower court raised the issue of the non-service of the Originating Summons on him in the counter affidavit he deposed to in this matter on 7th April, 2007 but which was filed on 7/5/2007. (See pages 39 – 42 of the Records). The relevant depositions in the said counter affidavit read:-

“Paragraph 1

That I am the 3rd Defendant in this suit.

Paragraph 2

That I was not served with the Originating Summons in this suit. That I refer to the affidavit of service dated 24:4:07 sworn to by the bailiff of this Honourable Court which is hereto attached as Exhibit BE1.

Paragraph 3

That I only knew of this case when my former counsel Victor Okangbe Esq. and John Erameh Esq. of counsel informed me that they heard my name being mentioned in connection with this suit before the Honourable Court and so sent one Barr. Bunmi Ayo-Ope to hold their brief.

Paragraph 4

That I am anxious to defend this suit. That I never instructed nor briefed Victor Okangbe nor John Erameh, Esq. to represent me in this suit.

Paragraph 5

That my former counsel gave me a photocopy of the originating summons filed in this suit.

Paragraph 6

That I refer to the counter affidavit filed by Ben Akubue, Esq. on 30:4:2007.”

The depositions from paragraph 7 to the end of the counter affidavit (i.e. paragraph 24) were the Appellant’s response to the case of the 1st Respondent as presented in the affidavit in support of the Originating Summons,

The lower court dealt with the issue of “non-service” at pages 176 – 177 of the Records. This is what the lower court said:-

“On the issue of non-service, the affidavit of service of Bailiff – was that the 3rd Defendant was not around but a lady accepted service on 24/4/07, it was attached to the preliminary objection.

The record of the Court of 25/4/07 was that 3rd Defendant was represented by one Bunmi Ope-Agbe that they were served on 24/4/07. One John Erameh announced appearance for 3rd Defendant and asked for time to file written address. 3rd Defendant has now filed a counter Affidavit in paragraph (sic) 2, 3, 4, that he did not brief either counsel to represent him.

Its trite that the purpose of service on parties was to bring to his notice the attention (sic) of the process this has been settled by Supreme Court in Elmisko Ltd Vs. Exqusite Ind. (2003) FWLR (Pt 151) page 184 at 186 Ogundare JSC.

Having brought the Suit to the attention of the 3rd Defendant it has achieved its purpose, furthermore the counsel on record had informed the court that they had been served the day before 24/4/07 which was the record of the Court and talked (sic) with the bailiff (sic) affidavit.

I therefore accept the service as proper service under the circumstance.”

The Originating Summons by which the instant suit was commenced and its supporting affidavit can be found at pages 2 – 7 of the Records. The processes show glaringly that they were filed on 24/4/2007, The address for service of the Appellant as provided in the Originating Summons is Block 32 Flat 4, Apo Legislative Quarters, Abuja. The affidavit of service of Dada David Ishaya, bailiff, exhibited to the counter affidavit sworn to by the Appellant filed on 7/5/2007 discloses that the said bailiff was at the address for service of the Appellant, to serve him with the Originating Summons on the same 24/4/2007 and that the bailiff delivered the said process to a lady who accepted service on behalf of the Appellant who was then not around. The lady however refused to sign the endorsement copy of the process. (See page 43 of the Records). This is how the appellation “unnamed lady” came to be ascribed to the said lady in the Appellant’s brief of argument. Suffice it to say that I am in no doubt that the affidavit of service of the bailiff glaringly shows that personal service of the Originating Summons by which this suit was commenced was not effected on the Appellant. The pertinent question having regard to how Appellant’s Issue 1 is couched, however is to the effect as to whether the court below was in error in entertaining the instant suit despite this.

Going by the Records, this suit first came up before the lower court on 25/4/2007, Parties were absent from court. The proceedings of the lower court for the said 25/4/2007 at pages 104-105 of the Records read:-

“Umoh: Parties have been served subject to court’s directives, we are ready to file written address. Plaintiff’s brief before the close of business today,

Ope-Agbe: Victor Okangbe informed me that he was served yesterday and need time to file on Friday.

Umoh: The election is fixed for Saturday 28/4/07 failure to know the candidate is a precarious act.

Chief Assam SAN announces as leading Plaintiff counsel.

Assam SAN: I ask that directives be given straight away.

Court: I direct plaintiff to file address on the issue and serve same by 9 a.m. tomorrow. Defendants are to file reply address on Friday by 12 noon.

Matter is adjourned to April 30, 2007. Plaintiff to notify all parties and serve Hearing Notice accordingly, proof to be in the file. Plaintiff would also convince the Court on the necessity of hearing the matter,”

The proceedings of the court for 30/4/2007 at pages 106 – 107 of the Records revealed that parties were absent. When the instant suit was called on the said dale, Chief Assam SAN with U. Nwoko appeared for the Plaintiff. The case was stood down, It was at 2 p.m. that the case was later called. The proceedings for the day read:-

“U. Nwoko holds Chief Assam Assam (sic) brief for the Plaintiff.

J. Erahmen for 3rd defendant.

Chris Essien for 2nd Defendant.

Nwoko: We filed an Address on 26/4/07.

Erahmen: 3rd defendant has not been served with the process, we file (sic) counter affidavit this morning.

I ask for time to file a written address and an adjournment.

Nwoko: We have served party and Mrs. Ope-Agbe admitted that much.

Court: 3rd Defendant and 2nd Defendant are directed to file counter affidavit by Wednesday 2/5/07 written Address to be filed on Wednesday 2/5/07 and subsumed objection. Plaintiff to filed (sic) amended address if need be.

Adoption is fixed for 8/5/2007”

It is to be noted that the only counter affidavit filed in the instant suit by the 3rd Defendant (now Appellant) on 30/4/2007 (and which is his first counter affidavit in this case) is the one at pages 205-206 of the Records. It is titled “COUNTER AFFIDAVIT OF 3RD DEFENDANT IN REPLY TO ORIGINATING SUMMONS”. The counter affidavit was deposed to by one Ben Akubue a legal practitioner in the Law Firm of John Erameh & Co, The deponent (a lawyer) deposed amongst others to the effect that he was conversant with the facts of the case and that he had the consent of his employers and the 3rd defendant to depose to the affidavit in question. The deponent to the said counter affidavit never deposed to the fact that the 3rd Defendant (now Appellant) on whose behalf the same was filed was never served with the Originating Summons to which the Counter-affidavit relates. Now, ever before the Appellant filed his counter affidavit on 7/5/2007; the 1st Respondent as Plaintiff before the court below, had on 2nd May, 2007 filed a further affidavit in this suit. The purpose of the further affidavit was to bring to the notice of the court the fact that the Appellant was advocating or requesting for his (i.e. 1st Respondent’s) expulsion from the PDP in order to render the outcome of the instant case nugatory. The letter written to the 2nd Respondent – PDP by the Appellant in this regard, and to which the Appellant attached a copy of the Originating Summons that issued in this case was exhibited. The letter in question is dated 25/4/2007. (See pages 34 – 38 of the Records). It is to be noted that though the Appellant in his counter affidavit filed on 7/5/2007 deposed that his “former counsel” gave him a photocopy of the Originating Summons filed in this suit, he was however totally silent as to the date his said “former counsel” did this.

In paragraph 2 of his counter affidavit filed on 7/5/2007, the 3rd Defendant (now Appellant) deposed as to how he came to know about this suit. The deposition in the said paragraph 2 has already been re-produced in this judgment. The deposition is to the effect that he (Appellant) only got to know about this case when his “former counsel” namely Okangbe Esq, and John Erameh Esq., informed him that they caused one Barrister Ayo-Ope to hold their brief simply because they heard his (i.e. Appellant’s) name being mentioned in connection with this suit before the court below. It would appear obvious that the deposition in paragraph 2 under reference is to show that the Appellant did not get to know about this suit from the processes served on the “unnamed lady” at his house by the bailiff on 24/4/2007 and that Victor Okangbe Esq. and John Erameh respectively through whom he even learnt of the pendency of the suit were never retained by him as counsel in the suit. Indeed the Appellant though not disclosing the date, said it more pungently in paragraph 5 of the counter affidavit under reference that it was his “former counsel” that gave him a copy of the Originating Summons filed in this suit.

The Appellant given his counter affidavit filed on 7/5/2007 is depicting himself as having not retained any counsel to act for him in the instant suit until P.I.N. Ikwueto SAN appeared for him therein. I do not think the Appellant can successfully maintain this stance having regard to the proceedings of the court below hereinbefore reproduced; the deposition of Ben Akubue that he had the authority and consent of the 3rd Defendant (now Appellant) to make the counter affidavit sworn to and filed on 30/4/2007 (which the Appellant never denied in his counter affidavit filed on 7/5/2007); and the consistent use of the words “former counsel” by the Appellant in his counter affidavit tiled on 7/5/2007 in relation to both Victor Okangbe Esq. and John Erarneh Esq” both of whom he claimed he never briefed as counsel in the instant case, without disclosing any other case or suit in which these persons ever acted as his counsel before the instant suit. The Records glaringly show that P.I.N, Ikwuelo SAN appeared before the court below in the instant case as 3rd Defendant’s (now Appellant’s) counsel for the first lime on 8/5/2007, (See pages 108 and 114 respectively of the Records). Indeed Ikwuelo SAN made it clear during the proceedings of 10/5/2007 that he could never have qualified as Appellant’s “former counsel” as at 7/5/2007 when the Appellant filed the counter affidavit at pages 39 – 40 of the Records given his statement at page 114 of the Records that “This matter came (sic) first on 25/4/07 and several dales before I appeared on 8/5/07,” P.I.N. Ikwuelo SAN therefore came into the case immediately after Okangbe Esq, and John Erameh ceased to feature therein. In any case and as rightly observed by the 1st Respondent in his brief of argument, reference by the Appellant to;”former counsel” in the circumstances of this suit, in my respectful view can only mean Victor Okangbe Esq. and John Erameh Esq..This is particularly so having regard to the petition dated 8/5/2007 addressed to the Chief Judge of the Federal High Court, against the learned trial Judge of the court below wherein the Appellant revealed the circumstances that led him to debrief his “former counsel” and which was their inability to do what the Appellant wanted them to do in respect of some untoward things he alleged against the trial Judge, (See pages 210 – 212 of the Records for the petition). This petition, from which P.I.N. Ikwueto SAN dissociated himself, it should be noted, led to his eventual withdrawal from the suit as Appellant’s counsel on 10/5/2007. (See pages 114 – 116 of the Records for the proceedings of 10/5/2007).

As already stated, the Appellant consistently used the words “former counsel” in relation to Victor Okangbe Esq. and John Erameh Esq. respectively. On 25/4/2007, Ope-Agbe of counsel appeared for the Appellant before the court below holding the brief of Victor Okangbe. Rule 14(4) of the Rules of Professional Conduct for Legal Practitioners (S.I. No 6 of 2007) enjoins a lawyer employed in respect of a court case to be personally present or to be properly represented throughout the proceedings in court, Victor Okangbe by procuring Ope-Agbe to hold his brief before the court below on 25/4/2007 in the instant case would appear to be alive to what the Rules of Professional Conduct applicable to his profession demands. Ope-Agbe, whom Victor Okangbe procured to hold his brief on 25/4/2007, informed the court of the 767 were applied), and ADEKANYE V. FEDERAL REPUBLIC OF NIGERIA (2005) All FWLR (Pt.252) 514.

Given all that has been catalogued above, I am satisfied that the copious unchallenged documentary evidence in the instant suit, comfortably lend credence to the fact that prior to the appearance of P.I.N. Ikwueto, SAN as counsel for the Appellant on 8/5/2007, the said Appellant had retained all of three lawyers, namely: Victor Okangbe; John Erameh; and Ben Akubue who have all at one time or the other represented him in court, and/or filed processes for and on his behalf in the instant suit. I therefore find the presumptions raised in favour of such appearance/representation not rebutted by the mere ipse dixit of the Appellant in his counter affidavit filed on 7/5/2007. Indeed, I hold the strong view that all the Appellant seeks to achieve by later denying that he briefed those he referred to as “former counsel” is to obliterate or neutralise the admission made by one of the counsel – Victor Okangbe Esq. that he i.e. Appellant was served with the Originating Summons on 24/4/2007 despite the fact that the affidavit of service of the bailiff glaringly did not reveal the fact of personal service. The admission of counsel in this regard clearly goes to show that the “unnamed lady” who accepted service of the Originating Summons on 24/4/2007 actually delivered it to the Appellant and this renders untrue the deposition of the Appellant that it was from his “former counsel” he got to know about the pendency of the instant suit. Suffice it to say that the law is that parties and counsel alike, as well as the court, are all bound by the Record of court. See OGLI OKO MEMORIAL FARMS LIMITED V. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LIMITED (2008) All FWLR (Pt. 419)400 at 412. It is therefore not surprising that J. Erahmen and/or Victor Okangbe Esq. on 30/4/2007, or at any other time thereafter, did not do anything to challenge the correctness of the Records of the court below for 25/4/2007 wherein Mrs. Ope-Agbe reported him as having said that his client was served with the Originating Summons on 24/4/2007. Also while the right of a party to change his counsel at anytime in the course of a proceeding is recognised in law, the party is however estopped from asking the court to review the decisions of his former counsel and remains bound by such decision particularly when it is within counsel’s general instruction for the conduct of the case e.g. decision to compromise, withdraw and abandon amongst others, See the cases of AMORI V. IYANDA (2008) All FWLR (pt. 416) 1864 at 1886- 1888; and NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR V. IBI (2009) All FWLR (Pt. 456) 1870 at 1888.

What the circumstances of the instant case establish is a glaring case of improper or irregular service and not one of lack of service or non-service as the Appellant has portrayed; particularly in the face of the admission/concession made by Victor Okangbe to the court through Mrs. Bunmi Ope-Agbe on 25/4/2007, that the Appellant was on the 24/4/2007 served with the “Originating Summons by which the instant suit was commenced, and the affidavit of service of the bailiff showing that personal service of the said process was not effected on the said Appellant.

It would appear that the Appellant has lost sight of the fact that there is a difference between non-service of Originating Summons and improper or irregular service of the same and that the consequences in law are not necessarily the same. A party to an action aggrieved with the mode of service of a court process, particularly an originating process on him has to apply to set aside the service timeously, Where however an originating process is not served at all, then the party not so served and against whom any order is made is entitled, ex debito justitiae, to have the order set aside. See ADEIGBE V. KUSIMO (1965) NMLR 284 and MARK V. EKE 2004 All FWLR (Pt. 200) 1455; (2004) 1 SC (Pt. II) 1.

I have before now re-produced what the court below said on “non-service” at pages 176-177 of the Records, The court below having stated to the effect that the purpose of service is to bring to the notice of the Appellant the Originating Summons and relying on its Records which showed that the Appellant’s counsel – Victor Okangbe Esq. through Mrs. Ope-Agbe, had on the first day the suit came up for hearing admitted service of the Originating Summons on the Appellant had no difficulty in reaching the conclusion that the instant suit had been brought to the attention of the Appellant. This was more so as the Appellant’s counsel is on the Records as having said that the Appellant was served on 24/4/2007, which tallied with the date of service in the bailiffs affidavit of service. In the circumstances the court below accepted the service of the Originating Summons on the Appellant as proper service.

True it is that the Federal High Court (Civil Procedure) Rules 2000, as submitted by the Appellant in his brief of argument stipulates personal service of an originating process in Order 13 Rule 2, The same Rules, it should however be noted, in Order 3 not only makes failure to comply with its provisions amount to irregularity but demands that any application to set aside any proceeding, step or document, for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken’-any fresh step in the proceedings. The implication of the provisions of Order 3 therefore is that a party who does not timeously apply to set aside any act done in non-compliance with the provisions of the Rules is deemed to have acquiesced or waived the same.

Aside from the provision of Order 3 referred to above, it is indeed settled law that there is “jurisdiction as a matter of procedural law” and “jurisdiction as a matter of substantive law” and that while “procedural jurisdiction” can be waived by a litigant, no litigant can however waive the issue of “jurisdiction as a matter of substantive law”. See the case of JIKANTORO V. DANTORO (2004) All FWLR (Pt. 216) 390 at 414, In the case under reference, the Supreme Court gave an example of waiver of “procedural jurisdiction” to occur when a litigant submitted to the jurisdiction of the court where a writ has been served outside jurisdiction without leave. See also FAMFA OIL LIMITED V. A.G. FEDERATION (supra) cited in the brief of argument of the 1st Respondent. Suffice it to say that I am of the respectful view that the circumstances of the instant case as gathered from the Records, and which I believe have been copiously catalogued hereinbefore, show another glaring instance of waiver of “procedural jurisdiction” when it is noted that the Appellant through his counsel submitted to the jurisdiction of the court below on 25/4/2007 (even though he was not served personally with the Originating Summons that was issued for service on him) not for the purpose of raising the issue of the non-service or improper/irregular service of the said process but of participating in the case, And for this purpose he applied for, and secured an adjournment after the court had been informed that he (i.e. Appellant) was served on 24/4/2007 with the Originating Summons. This irresistibly connotes that the “unnamed lady” who accepted its service on 24/4/2007 duly delivered same to the Appellant. The Appellant having waived the defect in the “procedural jurisdiction” concerning the manner in which he was summoned to court on the 25/4/2007 and further confirmed the waiver on 30/4/2007 by Wing his counter affidavit in reply to the affidavit in support of the Originating Summons cannot afterwards turn round to resile from the waiver. See AFRICAN-CONTINENTAL BANK PLC V. LOSADA NIGERIA LTD (supra) cited in the brief of argument of the Appellant and IDIATA V. EJEKO (supra) cited in the brief of argument of the 1st Respondent.

From the foregoing, I am therefore of the respectful view that acceptance by the court below of the service of the Originating Summons in this case on the Appellant as proper in its peculiar circumstances, is unassailable. Accordingly, I do not find the court below to have been in error in entertaining the instant suit in the face of the lack of personal service of the Originating Summons on the Appellant.

The second question raised by Appellant’s Issue 1, is about the inappropriateness of commencing the instant action by Originating Summons, Dwelling on this question, the Appellant having referred to the provisions of

Order 2 Rule 2(2)(a) and (b) of the Federal High Court (Civil Procedure) Rules, 2000, submitted that the only instance when Originating Summons could be appropriately used is where the principal question is one of the construction of a written law or instrument or where there is unlikely to be any substantial dispute of facts. The Appellant further submitted that there was serious dispute of facts in the instant case which ought to have put the court below on caution as to the desirability of filing pleadings and calling evidence to resolve the dispute in the facts presented, in this regard, the Appellant referred to paragraph 4(a) – (d) of the 1st Defendant’s (sic: 2ndDefendant) (now 3rd Respondent) counter affidavit at page 29 of the Records; paragraphs 3(a), (b)(i) – (iv), 4 and 5 of the 2nd defendant’s further affidavit at pages 85-86 (sic: pages 93 – 94); paragraphs 8, 18 and 19 of the 3rd defendant’s/appellant’s counter affidavit at pages 39-40 of the Records; and 21 paragraphs 4, 5, 6 and 9 of the plaintiffs/1st respondent’s affidavit in support of Originating Summons at pages 4 – 5 (sic: 5 – 7) of the Records. The juxtaposition of the depositions in the various paragraphs referred to, according to the Appellant puts the authenticity of the signature of the National Chairman seriously in issue and the court below without testing the conflicting depositions chose to proceed straight away to decide the matter on Originating Summons. This the court below did despite the fact that learned counsel for the 2nd defendant (now 3rd Respondent) drew its attention to the impropriety of using Originating Summons to entertain the suit. The Appellant said that the court below sidetracked these weighty submissions, proceeded to determine the suit and entered judgment for the plaintiff/1st respondent saying that Exhibit EB3 was not signed by the National Chairman, without properly scrutinizing and providing any basis for this finding. It was the submission of the Appellant that the employment of Originating Summons by the court below has undoubtedly occasioned him great injustice which justifies the inference by this Court. The case of Osuagwu v. Emeji (1998) 12 NWLR (Pt. 579) 640 at 649 was cited in aid.

The 1st Respondent dealt with the question under consideration in his Issue 2 which reads: “Whether the matter was properly commenced by originating summons”.

The 1st Respondent agreed with the Appellant that by virtue of the provision of Order 2 Rule 2(2) of the Federal High Court (Civil Procedure) Rules 2000, ‘Originating Summons procedure is indeed appropriate where the principal question is the interpretation of a statute or instrument or where there is the unlikelihood of substantial dispute of facts and said that the provision has been interpreted in a number of decisions by both the Supreme Court and this Court. The case of Ogunsola v. APP (2003) 9 NWLR (pt. 826) 462 at 492 was specifically cited in aid of the submission. The 1st Respondent having stated that the questions posed for the determination of the court below had to be examined to know the degree or substantiality of the disputed facts in the instant case, submitted that it was clear therefrom that the principal question involved is the interpretation of Section 34(1) and (2) of the Electoral Act, 2006 or the application of the provisions thereof to the facts of this case. That nothing in the two questions posed for determination exclusively bordered or rested on the authenticity of the signature of the National Chairman of the 3rd Respondent. The 1st Respondent stressed that whether or not the signature on the letter of substitution was genuine, the question sought to be determined in the case was whether the letter under the cover of the disputed signature satisfied Section 34(1) and (2) of the Electoral Act 2006 in validly and properly substituting him (i.e. 1st Respondent) with the Appellant as the candidate of the 3rd Respondent. That any other fact deposed to in any of the affidavits before the court below that does not touch on and concern this central issue of his (i.e. 1st Respondent’s) valid substitution by the letter of substitution which he has submitted for determination, is not material or substantial to the issue for determination and even its conflicting, such facts being ancillary are of no consequence, In concluding on this Issue, the 1st Respondent stressed that the law does not require absolute or complete absence of disputed facts before the procedure of Originating Summons can be properly invoked and cited in aid the case of Habib (Nig) Bank Ltd v. Ochete (2001) 3 NWLR (Pt. 699) 114 at 135.

The questions posed for the determination of the court below as set out in the Originating Summons have already been reproduced in this judgment. The first seeks for the determination of the question as to whether “the purported letter” by which the Plaintiff (now 1st Respondent) was substituted with the Appellant and which letter was “purportedly” issued by the 2nd Defendant (now 3rd Respondent) satisfied the requirements of Section 34(1) and (2) of the Electoral Act. The second question is conditional on the answer to the first, and it seeks for the determination by the court below of the question as to whether the 1st Defendant (now 2nd Respondent) properly substituted the Plaintiff (now 1st Respondent) with the 3rd Defendant (now Appellant) having regard to the peculiar fact of the case.

In his brief of argument, the Appellant stated “In this case, there was serious dispute of fact which would have put the trial court on caution as to the desirability (sic) of ordering pleadings and calling oral evidence to resolve dispute in the facts presented.”

Reference was then made to paragraphs of affidavits already highlighted above, apparently to bring into focus the “serious dispute of fact”.

The 1st Respondent in his brief of argument at paragraph 3.06 on pages 13 – 15 dwelled on the totally of affidavit evidence in the instant case to show that the Appellant’s claim that there was serious dispute of fact has no basis or cannot be correct. This is what the 1st Respondent said:-

“The 1st Respondent deposed to a 10-paragraph affidavit in support of the originating summons and a further affidavit: see pp. 5 – 7 and 32 – 38 of the record while the Appellant filed a 10-paragraph counter-affidavit at pp, 205 – 209, a 24-paragraph counter-affidavit at pp. 39 – 83 -and – a: further counter-affidavit at pp. 86 – 92 while the 3rd respondent filed two counter-affidavits at pp. 29 – 31 and 93 – 96 of the record. The bases of the two questions posed for determination in the originating summons are contained in the facts deposed to in only paragraphs 2 – 4 of the supporting affidavit, and that is, that the 1st Respondent who contested and won the PDP primaries to be its candidate for the House of Representatives in Uyo Federal Constituency, had his name submitted by PDP to the 2nd Respondent, INEC but was substituted with the Appellant in a letter of 05/02/07. None of the Defendants at the trial court controverted these depositions in any of their counter-affidavits. Rather, they deposed to facts which substantially amounted to admission of those paragraphs. The 3rd Respondent’s counter-affidavit at pp. 29 – 31 did not avert to any of the above paragraphs of the 1st Respondent’s supporting affidavit. Rather, it admitted paragraphs 5 and 6 of the said affidavit and went on to confirm that the leIter of substitution did not carry the signature of the National Chairman. The first and second counter-affidavits of the Appellant at pp. 205 – 209 and 39 – 83 respectively did not dispute the facts in the 1st Respondent’s supporting affidavit alleging his substitution. Rather, paragraph 3(c) and (d) of the Appellant’s first counter affidavit at p. 205 and paragraphs 7 and 8 of his second counter-affidavit at p. 40, after referring, without more, to the letter of substitution confirmed and supported the facts deposed to by the 1st Respondent in paragraphs 2 – 4 of the supporting affidavit, to wit, that the 1st Respondent was substituted with the Appellant as the candidate of the 3rd Respondent in the Uyo Constituency. None of the other affidavits, further affidavits or counter-affidavits raised new issues on this central issue of substitution with the letter of 05/02/07, Given this scenario, what the trial court was faced with was its determination of the agreed letter of substitution of 05/02/07 vis-a-vis section 34(1) and (2) of the Electoral Act In other words, was the 1st Respondent validly substituted with the Appellant in accordance with section 34(1) and (2) of the Electoral Act 2006 as the admitted candidate of the 3rd Respondent by the issuance of the letter of 05/02/7? The parties agreed on the fact of the 1st Respondent having won the Party primaries-and the fact of the letter of 05/02/07 having been issued to replace or substitute the 1st Respondent with the Appellant by the 3rd Respondent. These were the facts submitted to the trial court to examine in line with the provisions of section 34(1) and (2) of the Electoral Act, no more nor less, Even this apart, the trial court considered the effect of the subsequent affidavits on the supporting affidavit of the 1st Respondent. For example, at pp. 188 – 189 of the record, the trial court observed that para. 3 of the 3rd Respondent (sic) at p. 30 of the record admitted para, 5 and 6 of the 1st Respondent’s supporting affidavit. And in para, 2 of its judgment at p. 191, the trial court noted that the 3rd Respondent’s further counter-affidavit of 09/05/07 at p. 93 – 94 of the record reproduced by it at pp. 190 – 191 of the record, “…….did not reflect or contradict the deposition in paragraph 3(a) b, c, 4 of the counter affidavit of the 2nd defendant which is the deposition that the signature is not that of (sic) National chairman in of (sic) 2nd defendant and exhibit EB3 does not carry the joint signature of both National chairman and Secretary and it is therefore not a valid letter of nomination,”

The question, therefore is, where is the trumpeted substantial dispute of facts? The Appellant has not brought out or catalogued these alleged “substantial dispute of facts” for this Honourable Court to assess and determine if the trial court was right, given such highlighted substantially disputed facts, to have proceeded to determine the matter on the originating summons, This Honourable Court respectfully, cannot embark on such search and rescue mission for the Appellant.”

I have myself painstakingly perused all the affidavits in the Records and I cannot but say that I not only completely agree with the analysis of the affidavit evidence undertaken in the portion of the 1st Respondent’s brief of argument extensively quoted above, but also that I cannot agree more with the conclusion that the Appellant has not shown the existence of any substantial dispute of facts in the instant suit.

There are definitely many decisions of both the Supreme Court and this Court dwelling on when it is appropriate to commence an action by Originating Summons, The principle of law which has been consistently stated and reiterated in the decisions is to the effect that Originating Summons is an unusual procedure or method of commencing proceedings in the High Court. It is said to be best suited for cases where there are no substantial dispute of facts, or there is no likelihood of their being in dispute and when the sole, or principal question in issue, is or likely to be one directed at the construction of a written law, Constitution, or any instrument, or deed, will, contract, or other document, or other question of law, or circumstances where there is not likely to be any dispute as to facts. Originating Summons being a procedure for the determination of disputes on affidavit evidence and thereby rendering the calling of witnesses and examination of witnesses rarely necessary, has been recognized as a judicial means of achieving expeditious hearing of deserving cases. See:

1. OSUNBADE V. OYEWUNMI (2007) 4 – 5 S.C.98 at 112 (SC);
2. DAPIANLONG V. DARIYE (No. 2) (2007) All FWLR (Pt. 373) 81 at 122 (SC);
3. OMOJOLA V. OYATERU (2009) All FWLR (Pt. 453) 1318 at 1333 (CA);
4. UNIVERSITY OF ILORIN V. AKINYANJU (2008) All FWLR (406) 1989 at 2007.2009 (CA) and
5. NATIONAL DEMOCRATIC PARTY V. INEC (2007) All FWLR (Pt. 358) 1124 at 1144 CA.

It would appear indisputable that it is not the filing of a counter affidavit to oppose the claims in an Originating Summons that makes such proceedings to be contentious or to result in substantial disputed facts. Indeed, the nature of claims and facts deposed to in the affidavit in support of the prayers in an Originating Summons can by themselves disclose disputed facts and hostile nature of the proceedings. See OSSAI V. WAKWAH (2006) All FWLR (Pt 303) 239 at 256,

Likewise it should be appreciated that the mere filing of a counter affidavit in response to the supporting affidavit of an Originating Summons does not automatically make the matter one in which oral evidence must be adduced and thereby necessitating the ordering of pleadings. This is because where the conflicts in the affidavit evidence of the parties are not material to the case or where the facts therein are inadmissible, the court is not saddled with the responsibility of calling oral evidence. Again, the need to call oral evidence and thereby necessitating the ordering of pleadings would not arise where the areas of conflict are so narrow and insignificant. See A.G. OF ADAMAWA STATE V. A.G. OF THE FEDERATION (2006) All FWLR (Pt. 299) 1450 at 1477-1478. Lastly, it is not in every Instance that there is conflict in affidavit evidence that oral evidence must be called to resolve the same. Where the conflict can be resolved on available documentary evidence before the court, oral evidence need not be called and a fortiori pleadings need not be ordered. This is because there is a presumption of regularity in favour of documents. See PEOPLES DEMOCRATIC PARTY V. YA’UD MOHAMMED [2005] All FWLR (Pt. 289] 1322 at 1343, Embedded in this decision is the principle of law that documents are the hangers of oral evidence.

The questions posed for the determination of the court below in the Originating Summons and reliefs sought therein have earlier been set out verbatim in this judgment. It is glaring from the two questions posed for the determination of the court below, that it is the purported letter of 05/02/07 by which the 1st Respondent was substituted with the Appellant as the candidate of the 3rd Respondent for the Uyo Federal Constituency that the said 1st Respondent submitted for the consideration of the said court in the light of the provisions of Section 34(1) and (2) of the Electoral Act, 2006. The 1st Respondent never sought for any relief in relation to the letter itself. It is what was done pursuant to the letter that he has sought reliefs against. The 1st Respondent has in no way whatsoever sought for the invalidation of the letter talk less of seeking for its invalidation on the basis of the signature of the National Chairman of the 3rd Respondent thereon. The purported letter of 05/02/07 by which the 1st Respondent was substituted with the Appellant is attached to the supporting affidavit of the Originating Summons as Exhibit EB3, The 3rd Respondent in its further counter affidavit at pages 93-94 of the Records confirmed in paragraph 5 thereof that the substitution in question was made by virtue of the said Exhibit EB3. Before the further counter-affidavit in question was filed, the 3rd Respondent had earlier admitted that the signature on Exhibit EB3 was indeed not that of the National Chairman of the PDP. Given the counter affidavits of the 3rd Respondent, I definitely do not see any dispute concerning the authenticity of the signature of the National Chairman of the 3rd Respondent; talk less of substantial dispute in relation thereto, Dwelling on when it is appropriate to commence a suit by Originating Summons in the case of PAM V. MOHAMMED (2008) All FWLR (Pt. 436) 1868 the Supreme Court per Oguntade, JSC; said thus at 1905: “In the instant case, the simple question for the trial court to determine was whether or not the letter by which the 2nd appellant sought to substitute the 1st respondent with the 1st appellant was in conformity with the requirements of section 34 of the Electoral Act, 2006. This was not a case in which the truth of the relevant facts was in serious controversy. The trial court needed to determine whether or not there was cogent and verifiable reason given for the substitution of the 1st appellant for 1st respondent. In my humble opinion, this type of case in which the procedure of originating summons is eminently reasonable and relevant. ……The procedure of originating summons is the appropriate one to used in a dispute as this where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary: Joseph Din v. Attorney- General of the Federation (1986) 1 NWLR (Pt. 17) at 471.” See also the case of AGBAKOBA V. INEC (2008) 18 NWLR (Pt. 1119) 489 at 537.

The instant suit having regard to the questions posed for the determination of the court below in the Originating Summons by which the 1st Respondent as Plaintiff commenced the same and the reliefs being sought is undoubtedly one that simply calls for the application of the interpretation of the provisions of Section 34(1) and (2) of the Electoral Act, 2006 to a document to wit: the letter dated 5/2/2007 by which the 1st Respondent was substituted with the Appellant. In the circumstances, I find the instant suit to have been appropriately commenced by way of Originating Summons and court below was eminently right to have proceeded to hear the same on the process.

In conclusion, and having earlier found the court below not to have been in error in entertaining the instant suit in the face of the lack of personal service of the Originating Summons on the Appellant and that the said court was eminently right in proceedings to hear the case on the process, Appellant’s Issue 1, must be and is hereby resolved against him.

APPELLANT’S ISSUE 2 – WHETHER THE TRIAL COURT WAS NOT IN ERROR IN REFUSING TO STRIKE OUT THE SUIT ON THE GROUND THAT IT CONSTITUTES AN ABUSE OF COURT PROCESS AND WAS CAUGHT WITH THE PRINCIPLE OF ESTOPPEL.

The Appellant stated that this Issue raised the question as to whether the case that culminated in the instant appeal did not constitute an abuse of court-process and whether the principle of estoppel was not applicable to this case. The Appellant said that a cursory reading of the exhibits attached to his counter affidavit particularly Exhibits G and D reveals that the 1st Respondent had earlier filed an action in which himself (i.e. Appellant); the 2nd Respondent and the 1st Respondent were parties before the Federal High Court Abuja. The reliefs in the said case according to the Appellant were targeted at restraining or preventing INEC, the 2nd Respondent in the appeal, from disqualifying the 1st Respondent from contesting the election or substituting his name or in any other way tampering with his candidature in the National Assembly election. The trial court in the said case granted the reliefs sought by the 1st Respondent herein but refused outrightly relief 4. The Appellant further said that in realization of the effect of the judgment of the Federal High Court, the 151 Respondent rushed to the Federal High Court, Uyo to seek certain reliefs but expectedly, he failed to get any succour from the said court and had to withdraw the action. According to the Appellant, the 1st Respondent herein, rather than appeal against the refusal of relief 4 in the action that he first brought, surprising went back to the same Federal High Court that refused it the relief in question, and filed the instant suit which has culminated in this appeal. Given the foregoing, the Appellant not only submitted that the reliefs sought in the instant suit are the same with relief 4 that was refused by the trial court in Exhibit C, but also that the trial court by expressly refusing relief 4 in Exhibit C, had pronounced on the entitlement or otherwise of the 1st Respondent to that relief and had resolved that he was not entitled to it. Given this situation, the Appellant said it was beyond the same court to turn round in a subsequent proceeding to consider and grant the same relief it had earlier refused. The subsequent case (i.e. the instant suit) the Appellant further submitted was caught by the principle of issue estoppel or even estoppel per res (sic) judicata and cited the case of Ogbogu v. Ugwuegbu (2003) 10 NWLR (Pt. 827) 189 at 210 – 211 in aid. It is equally the submission of the Appellant that the instant suit also constitutes an abuse of court process in view of the earlier judgment of the same court which has not been appealed against. The cases of Akpononu v. Bekaert Overseas (1995) 5 NWLR (Pt. 393) 42 at 64; and Arugbo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142 were cited in aid, Staling that every court whose process is being abused has the right to punish the party in abuse of its process by dismissing the abusive action, the Appellant urged this Court to invoke its powers under Section 15 of the Court of Appeal Act, and discharge the duty that the court below ought to have carried out and to now dismiss the instant action.

The 1st Respondent having summarised the arguments of the Appellant that the instant suit on appeal is caught by the principles of issue estoppel and res judicata and therefore constitutes an abuse of the process of court, to be based on Exhibits C and D purportedly annexed to the Appellant’s 2nd counter affidavit, at pages 39 – 42 of the Records, observed that no such Exhibits were attached to the counter affidavit in question. That the Exhibits annexed to the counter affidavit in question are Exhibits BE2 judgment of 28/03/07 in FHC/ABJ/CS/86/2007); and BE3; and BE4 (motions in FHC/UY/CS/30/2007] referred to in paragraphs 10, 12 and 14 respectively of the said counter affidavit. Referring to the parties in Suit No: FHC/ABJ/CS/86/2007 vis-a-vis those in the instant suit; the issues for determination in the said Suit No: FHC/ABJ/CS/86/2007; and the reliefs sought therein; it was said that no matter how widely the judgment in the said suit was viewed, it concerned itself with the lack of fair hearing in the 1st Respondent’s purported indictment by the Administrative Panel of Enquiry set up by the Federal Government, the report of which the Appellant herein propagated in his desperation to have the 1st Respondent substituted with him. The 1st Respondent also said that while himself, the Appellant and the 2nd Respondent in the instant appeal were the Plaintiff, 5th and 4th Defendants respectively in Exhibit BE2, the 3rd Respondent in this appeal was not a party in the said Exhibit; and the 1st, 2nd and 3rd Defendants in the Exhibit in question are not parties in the suit now on appeal. Adverting to Exhibits BE3 and BE4, the 1st Respondent while stating that he was the Plaintiff therein; the 2nd Respondent herein was the 1st Defendant therein; and the Appellant herein was the 2nd Defendant therein; observed that the 3rd Respondent herein was not a party therein.

Reacting to the submission of the Appellant that the court below shoved aside the objection raising the issue of estoppel, the 1st Respondent said that the court below dutifully and meticulously gave a consideration to the pleas of res judicata and issue estoppel from paragraph 6 at page 178 to paragraph 5 at page 186 of the Records and came to the right conclusion that the pleas and that of abuse of court process failed. The 1st Respondent submitted to the effect that no mailer how much the Appellant strained the expression “the reliefs sought were targeted at restraining or preventing especially INEC, the 1st Defendant in this case from disqualifying the plaintiff from contesting the election” and the words “essence and purpose of both suits” would not make the reliefs sought in the two cases to be the same. According to the 1st Respondent, it is not enough for the parties and issues to have some relationship with the subject matter of the previous suit. The parties and issues must be the same for the principles being sought to be invoked to be applicable. The case of PDP v. Kwara State Independent Electoral Commission (2006) NWLR (Pt. 968) 565 at 621 where this Court relied on the case of Fadiora v. Gbadebo (1978) 3 SC 219 at 228 was cited in aid.

On the question of abuse, the 1st Respondent submitted that it is not in all cases of similarity of proceedings that a successful plea of abuse of court process can be made, That just as in the plea of estoppels, some conditions must be pleaded and proved before the plea of abuse of court process can be sustained, The cases of Dumez (Nig) Ltd v, UBA Plc (2006) 14 NWLR (Pt.1000) 515; Ngige v. Achukwu (2004) 8 NWLR (pt. 875) 356; and The Vessel “Saint Roland” v. Osinloye (1997) 4 NWLR (Pt. 500) 387 were cited on the issue of abuse of court process. The 1st Respondent stated that the instant suit was not an abuse of the process of court.

The case on which the Appellant relied in invoking the pleas of estoppel per rem judicata and issue estoppel in the instant suit is SUIT NO: FHC/ABJ/CS/86/2007, A certified copy of the judgment in the said Suit marked as Exhibit BE2 was attached to the Appellant’s counter affidavit filed on 7/5/2007. See pages 45 – 65 of the Records. The 1st Respondent herein as Applicant commenced the said suit by way of Judicial Review against (1) Attorney-General of the Federation; (2) Prof. Ignatius Ayua (for himself and on behalf of the Administrative Panel of Enquiry set up by the Federal Government to investigate allegations of corruption against some politicians); (3) Economic and Financial Crime Commission; (4) Independent National Electoral Commission; and (5) Hon. (Elder) Etim Bassey, The reliefs which the 131 Respondent as Applicant sought in the suit in question are: –

“1) An order to remove into court the proceedings, determination and recommendations of the Administrative Panel of Enquiry set up by the Federal Government and headed by the 2nd respondent for the purpose of its being quashed.

2) An order quashing the proceedings, determination and recommendations of the said Administrative Panel.

3) A declaration that the applicant is not indicted for embezzlement or fraud and is therefore nor disqualified from contesting election under Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria, 1999.

4) An order of injunction restraining the respondents from giving effect to the report of the Panel or the Government white paper accepting the Report and in particular from disqualifying the applicant from contesting or substituting his name or in any way tampering with the applicant’s candidature in the coming election.

5) Any further order or other orders as this Honourable Court may deem necessary to make in the circumstances of this case.”

The three-issues which the 1st Respondent as Applicant distilled for the determination of the trial court as set out in the judgment in Suit No. FHC/ABJ/CS/86/2007 at page 47 of the Records are:-

“- Whether the Administrative Panel of Enquiry headed by the 2nd Respondent was bound to observe the rules of natural justice.

– Whether upon the facts, the applicant was given fair hearing, – Whether order of certiorari can lie.

At pages 46 – 47 of the Record, the trial court in the case, dwelling on the processes before it, is recorded as having said thus: –

“Applicant filed affidavit in support and attachment exhibit EB1 – EB3 statement pursuant to order 47 rule 3(2), verifying affidavit, Affidavit of urgency exhibit Av1 – Av2 being application for Certify True Copy and White Paper, 3rd Respondent filed a Counter affidavit, 5th Respondent filed a Preliminary Objection that the suit be struck out as the order sought before a choice a candidate of a political party and that the act sought to be restrained as a completed Act. 5th Respondent also filed a Counter Affidavit to the applicant application to which Plaintiff filed a further and better affidavit and one exhibit.

xxxxxxxxxxxxxxxxxx

The Plaintiff, 3rd and 5th respondent filed written addresses.

The other Respondents though served did not file any Counter Affidavit or address,

I shall highlight the salient point in the address, affidavit and Counter Affidavits.”

At page 54 of the Records, the trial court in its judgment in Suit No: FHC/ABJ/CS/86/2007 having first overruled the Preliminary Objection further stated at pages 63 – 64 of the Records thus: –

” On the above, analysis I now examine each relief viz-a-viz (sic) on the reasoning above.

Relief 1 – having found that the procedural unfairness adopted in the conduct of the hearing, I grant relief 1 to the extent as it relates to the Plaintiff.

Relief 2 is granted to that extent to the plaintiff.

On relief 3 I make a declaration that the applicant is not indicted for embezzlement or fraud and is not disqualified from running under section 66(1) h of Constitution.

On relief 4, there is no allegation that all the respondents tampered with the candidature or substituted his name.

The relief is too wider (sic). Furthermore, the report according to him has been given effect to and it has been accepted by Government.

It means that it is a completed act and an injunction cannot lie against such act

The power to substitute a candidate’s name lies in the political party and I find his political party not a party here and therefore cannot be bound by any order of court. No evidence is shown as to substitution by any body.

Furthermore, a court cannot grant a relief not sought.

This relief falls in the entirety.

On the whole, relief 1 is varied and granted, only as it relates to the plaintiff on page 23 clause 2.36.

Relief 2 is varied and granted as it relates to plaintiff in page 23 clause 2.36.

Relief 3 granted.

Relief 4 refused.”

Having regard to the questions posed for the determination of the court below in the Originating Summons by which the instant suit was commenced and the reliefs being claimed. I have before now said that this suit is undoubtedly one that simply calls for the application of the interpretation of the provisions of Section 34(1) and (2) of the Electoral Act, 2006 to a document, to wit: the letter dated 5/2/2007 by which the 1st Respondent was substituted with the Appellant.

In the case of AGBOGUNLERI V. DEPO (2008) 33 NSCQR (Pt 2) 781 at 800- 801 the Supreme Court, per Muhammad, JSC; dwelling on estoppel said thus:

“……..estoppel, generally, is that doctrine where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not.

It is therefore a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the mailer giving rise to that disability.

Estoppel can be created in several ways. The Common law recognises three kinds:

1) Estoppel by record or quasi by record

2) Estoppel by deed and

3) Estoppel in pais

The one that concerns us in this appeal is estoppel by record or quasi by record. It is more popularly known as Estoppel Per Rem Judicatam. It presupposes that a final decision of a court of competent jurisdiction once pronounced between the parties cannot be contradicted by any of such parties in any subsequent litigation between them respecting the same subject matter. It arises in the following situations:

1) where an issue of fact has been judicially determined in a final manner between the parties by a court/tribunal having Jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties, (cause of action estoppel).

2) where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question in subsequent proceedings between same parties (issue estoppel)

3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in REM of a court/tribunal having jurisdiction to determine that status and the same issue comes directly in question in subsequent proceedings between any parties whatever,”

Also in the case of IKOTUN V. OYEKANMI (2008) All FWLR (Pt. 433) 1271 at 1281-1282 the Supreme Court dwelling on the objective of issue estoppel and res judicata as well as distinction between them and effect on subsequent proceedings said per Chwukwuma-Eneh, JSC; thus:-

“I think that against the background of the facts of this matter, the misconception of the parties’ cases as accentuated in the sale issue for determination raised in this matter has clearly portrayed want of proper appreciation of the distinction between issue estoppel and res judicata, although, both estoppels come under one head as estoppel by judgment with a clear objective to prevent a cause of action and issues as arising from the cause of action and directly decided in a previous suit from being re-opened or re-litigated in subsequent litigation by the same parties or their privies, The issue must be relevant in the subsequent proceedings. ………It is in this respect that judgments are said to be conclusive as to cause of action and issue directly arising and decided in the cause of action as between the parties or their privies.xxxxxxxxxxxxxxxxxxxxx. On other hand, issue estoppel arises where an issue has been adjudicated upon by a court of competent jurisdiction and the same issue has arisen in question in a subsequent proceedings between the same parties or their privies……..There is however high authority that a party relying on issue estoppel need not prove unlike res judicata that the res, the claims and the parties are the same in the previous suit as in the subsequent proceedings, Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.”

See also the cases of NTUKS V. NIGERIAN PORTS AUTHORITY (2007) All FWLR (Pt. 387) 809 at 823 – 824 and 830 (SC); BALOGUN V. ODE (2007) All FWLR (Pt. 358) 1050 at 1065 (SC); and AGADA V. KADUNA STATE DEVELOPMENT AND PROPERTY COMPANY LIMITED [2007) All FWLR (Pt. 364) 375 at 384 (CA).

The arguments of the Appellant on the applicability of both issue estoppel and estoppel per rem judicata to the instant suit on appeal is predicated on the assertion that the reliefs sought in the instant suit are the same as relief 4 claimed in Suit No: FHC/ABJ/CS/86/2007 which was refused. Before now, I have set out the portion of the judgment in the said Suit No: FHC/ABJ/CS/86/2007 in which the trial court disclosed its reasons for refusing the said relief 4. Relief 4 in question is an order for injunction. The relief must be understood in the con of the reliefs that preceded it. The relief is basically hinged on the outcome of the first three claims, Now, though the first three claims in Suit No: FHC/ABJ/CS/86/2007 were granted the Applicant, (now 1st Respondent in the instant appeal), the trial court however refused relief 4 for diverse reasons, namely, (i) that there was no allegation that all the respondents tampered with the candidature or substituted his name; (ii) the relief was too wide; (iii) the report upon which the order for relief 4 is predicated has been accepted by Government thereby making the relief to be in respect of a completed act for which injunction cannot lie; and (iv) the relief cannot be granted in the absence of the applicant’s political party as a party in the case, This is against the backdrop that the power to substitute a candidate’s name lies in the politician party. That in any case no evidence of – substitution by anybody was shown.

The Appellant in his brief of argument never identified the specific issue the trial Court decided in Suit No: FHC/ABJ/CS/86/2007 that constitutes issue estoppel in the instant case on appeal. The argument of the Appellant is that the trial court in the said suit, by refusing relief 4, has thereby pronounced on the entitlement of the Applicant (now 1st Respondent) to the same and has resolved that he was not entitled to it expressly. I am unable to agree with the submission of the Appellant in this vein given the reasons catalogued by the trial court in refusing the said claim. In any event, it is simply stretching the doctrines of estoppel per rem judicata and/or issue estoppel beyond reasonable limits to argue that the refusal of “an order of injunction restraining – he respondents from acting on or giving effect to the report of the Panel or Government white paper accepting the report and in particular from disqualifying the applicant from contesting or substituting his name or in any way tampering with the applicant’s candidature in the coming election” in an action for judicial review for the purpose of quashing the proceedings, determination and recommendations of the Panel that produced the Report and White Paper based thereon, and which reliefs were granted can properly create any kind of estoppel in the instant suit which is basically for the determination of the question as to whether the letter of substitution by which the 1st Respondent was substituted with the Appellant satisfied the provisions of Section 34(1) and (2) of the Electoral Act, 2006.

In the light of the foregoing, I am in total agreement with the conclusion of the court below that estoppel does not apply in the instant case.

In the case of NTUKS V. NIGERIAN PORTS AUTHORITY (supra) the Supreme Court per Tabia, JSC; dealt with the issue of abuse of court process at 832. His Lordship said thus: –

“Abuse of court process generally means that a party in litigation takes an irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing harm to the mailer in dispute, The process of court is used mala fide to overreach the adversary to the direct annoyance of the court. The court process is initiated with malice or in some premeditated or organised vendella, aimed at frustrating either the quick disposal of the matter or the abatement of the mailer for no good cause, The court process could also be said to be abused where there is no iota of law supporting it. In other words, the court process is premised or founded on frivolity or recklessness.”

The Appellant predicated the argument that the instant suit on appeal constituted an abuse of the process of court on the fact that it cannot be brought, as the decision in Suit No: FHC/ABJ/CS/86/2007 had not been appealed against, thereby making this suit amount to a re-litigation of the earlier mentioned suit

I believe that it has been sufficiently shown hereinbefore that the Appellant is under serious misapprehension of the facts, reliefs claimed, and reliefs granted in Suit No. FHC/ABJ/CS/86/2007 vis-a-vis the facts, issues, reliefs claimed and reliefs granted in the instant suit in arguing that this suit as constituted, is caught by the doctrines of estoppel per rem judicata and issue estoppel. A fortiori, the reliance on the judgment in the same case i.e. FHC/ABJ/CS/56/2007 which has not been appealed against as rendering the instant suit to be in abuse of court process cannot be well founded in the face of the complaint raised against the letter of 05/02/2007 by which the 1st Respondent claimed that he was substituted as the candidate of the 3rd Respondent with the Appellant.

Accordingly, I have no cause to disagree with the conclusion of the court below that the instant case on appeal is not an abuse of the process of court.

In conclusion Appellant’s Issue 2, is accordingly resolved against him given the earlier findings (i) that the instant suit is not caught by the doctrines of estoppel per rem judicata and/or issue estoppel and (ii) that the instant suit is not an abuse of court process .

APPELLANT’S ISSUE 3 – WHETHER THE TRIAL COURT WAS NOT IN ERROR IN GRANTING THE RELIEFS GRANTED TO THE PLAINTIFF WHEN HE DID NOT ESTABLISH HIS ENTITLEMENTS TO SAME LEGALLY AND WHEN THE SAID ISSUES WERE ACADEMIC,

This issue as stated by the Appellant in his brief of argument, questions the propriety of the court below in awarding reliefs 1, 2, 3 and 4 sought by the 1st Respondent in the Originating Summons.

The Appellant submitted to the effect the 1st Respondent had an obligation to establish his entitlement to the reliefs sought as they are essentially declaratory. This, according to the Appellant, is against the backdrop of the stringent requirement of the law pertaining to proof of entitlement to declaratory relief. Thus he said, that a plaintiff or claimant for the same must establish his entitlement thereto on the strength of his own case. In other words, that a plaintiff seeking a declaratory relief cannot establish the same based on the admission of the defendant and harp on the weakness of the case of the defendant to prove his own entitlement. The cases of Bello v. Eweka (1981) 1 SC 101; Motunwase v. Soroungbe (1988) 4 NWLR (pt. 92) 90 and Ogunjumo v. Ademola (1995) 4 NWLR (Pt. 389) 255 at 269 were cited in aid.

The Appellant submitted that the 1st Respondent did not establish his entitlement to the reliefs sought. In this regard the Appellant said it was clear from the face of Exhibits EB5 and EB6 that whether or not the National Chairman of the 3rd Respondent did any substitution was in question, while by Exhibit EB4 it was clearly stated that there was substitution of the 1st Respondent with the Appellant. Exhibit EB5 according to the Appellant not only suggested that Exhibit EB4 was forged but the said Exhibit (i.e. Exhibit EB5) also made reference to a letter dated 17th February, 2007 which was not attached to it. The court below was accused of speculating on the content of the said letter when it jumped to the conclusion that the substitution of the 1st Respondent with the Appellant was not done by the National Chairman of the 3rd Respondent when it did not sight the letter dated 17/2/2007. The court below, according to the Appellant, ought to have invoked Section 149(d) of the Evidence Act against the 1st Respondent. The Appellant also submitted that the court below in reaching its decision merely relied on the counter affidavit filed on behalf of the 3rd Respondent on 26/4/2007 which is at pages 28 – 30 (sic: 29 – 31) of the Records and completely ignored the content of the 3rd Respondent’s counter affidavit filed on 9/412007 at pages 85 – 87 of the Records. The counter affidavit filed on 9/4/2007 according to the Appellant not only confirmed the substitution but in its paragraph 6 was clear that the Appellant was the candidate of the 3rd Respondent for the election for Uyo Federal Constituency of the House of Representatives, The Appellant submitted that the decision of the court below was erroneous. The Appellant also submitted that cogent and verifiable reason was given for the substitution of the 1st Respondent with him and in this regard reference was made to Exhibit EB3 where the reason was staled to be “lack of enough information”. It was also submitted that it is clear from the Records that a further reason for the substitution of the 1st Respondent was his indictment at all relevant times by the Federal Government that issued a white paper on same.

The 1st Respondent in his brief of argument dealt with the issue under consideration from pages 20 – 34 (a whopping 14 pages of A4 paper). Suffice it to say, that the 1st Respondent in the main disagreed with the point canvassed by the Appellant to the extent that it suggested that the court below ought to have held that he (i.e. 1st Respondent) was validly substituted with the Appellant for cogent and verifiable reasons on the basis of evidence before it. It was submitted by the 1st Respondent that the genuineness or falsity of the signature of the National Chairman of the PDP is immaterial and ancillary to the issue of the validity of Exhibit EB3, the purported letter of substitution against the provisions of Section 34(1) and (2) of the Electoral Act, 2006.

The 1st Respondent dwelling on the arguments of the Appellant that cogent and verifiable reasons namely (i) lack of enough information; and (ii) 1st Respondent’s indictment at all relevant time by Federal Government that issued a white paper on same; were given for the substitution, submitted in the main that the court below in the face of the Supreme Court decisions in Ugwu v. Ararume 12 NWLR (Pt. 1048) 367: SC. 252/2007, Amaechi v. INEC and Action Congress v. INEC (2007) 12 NWLR (pt. 1048) 222; was justified in its decision that that no cogent and verifiable reason was given for the substitution,

The 1st Respondent made the point that the instant suit was fought on the basis of affidavit evidence and that it is settled law that such evidence if not controverted is deemed admitted and the court is perfectly entitled to rely on same. The cases of Nigerian Navy v. Garrick (2006) 4 NWLR (Pt. 969) 69 at 112; and A-G v. Agbakoba (1999) 3 SCNJ 1 at 19 were cited in aid.

“The court below was said to have rightly proceeded to award the 1st Respondent the reliefs sought except reliefs 5 and 6 in the circumstances and given its interpretation of the words ‘cogent and verifiable reasons’, In concluding on this issue, the 1st Respondent said that the Appellant in the eyes of the courts remained an impostor, usurper and pretender as he was not and could not have been the candidate of the 3rd Respondent because he (i.e. 1st Respondent) was not substituted for cogent and verifiable reasons.

The instant action was commenced by way of Originating Summons, I do not understand the Appellant as challenging the propriety of the 1st Respondent in filing an affidavit deposing to the facts relied upon by him in support of the said Originating Summons. An affidavit when duly sworn to or deposed to before the official designated by law for that purpose, is in itself documentary evidence. See AGBEOTU V. BRISIBE (2005) All FWLR (Pt.257) 1454 at 1468; and CHIDUBEM V. EKENNA (2009) All FWLR (Pt. 455) 1692 at 1706 and 1721. Indeed in the case of AGBAKOBA V. INEC (supra) at 549, the Supreme Court made it clear that the affidavits filed by parties in actions commenced by Originating Summons take the place of evidence, and that any material paragraph of an affidavit not specifically denied is taken as admitted and constitutes unchallenged evidence upon which the court can act. It is also settled law, that unchallenged facts in an affidavit which remain uncontroverted are not only deemed admitted but also that the unchallenged and uncontroverted facts deemed admitted in the affidavit of a party must be capable of proving and supporting the case of the party to entitle him to judgment. See the case of OGOEJEOFO V. OGOEJEOFO (2006) All FWLR (Pt. 301) 1792 at pages 1803-1806,

I consider it pertinent to state at this point that contrary to what the Appellant stated in his brief of argument, there is no counter affidavit of the 3rd Respondent at pages 85 – 87 of the Records. The 3rd Respondent made two counter affidavits. The first is simply titled “Counter Affidavit”. It is at pages 29 – 31 of the Records. It was deposed to and filed on 26/4/2007. The second one is titled “2ND DEFENDANT’S FURTHER AFFIDAVIT”. It is at pages 93- 95 of the Records. Though the deponent is shown on the face of the process to have deposed to it on 9/4/2007, it is equally glaring therefrom that it was filed on 9/5/2007. So there is no counter affidavit of the 3rd Respondent filed on 19/4/2007 in the Records.

The questions posed for the determination of the court below as set out in the Originating Summons have already been reproduced in this judgment. The first seeks for the determination of the question as to whether “the purported letter” by which the Plaintiff (now 1st Respondent) was substituted with the Appellant and which letter was “purportedly” issued by the 2nd Defendant (now 3rd Respondent) satisfied the requirements of Section 34(1) and (2) of the Electoral Act. The second question is conditional on the answer to the first, and it seeks for the determination by the court below of the question as to whether the 1st Defendant (now 2nd Respondent) properly substituted the Plaintiff (now 1st Respondent) with the 3rd Defendant (now Appellant) having regard to the peculiar facts of the instant case.

In the supporting affidavit of the Originating Summons, the 1st Respondent deposed eloquently to facts which he relied upon in bringing the instant suit and particularly that he was purportedly substituted as the candidate of the 3rd Respondent for the election into the House of Representatives for the Uyo Federal Constituency by a letter dated 5/2/2007 which was not signed by the Chairman of the 3rd Respondent and which also did not give any cogent and verifiable reason for the substitution. This letter was attached to the supporting affidavit as Exhibit EB3. The 1st Respondent further said that the – signature on the letter dated 5/2/2007 was not that of the National Chairman of the 3rd Respondent and for the purpose of establishing this, he relied on the signature of the Nationai Chairman in question as shown in letters dated 19/02/2007 and 12/02/07 equally attached to the supporting affidavit as Exhibits EB5 and EB6 respectively. I do not understand the Appellant as saying that he controverted these aspects of the 1st Respondent’s case. The 3rd Respondent expressly admitted paragraphs 5 and 6 of the supporting affidavit without any qualification, By the admitted paragraphs, the case of the 1st Respondent that the Chairman of the 3rd Respondent did write a letter dated 19/2/2007 to disown all spurious letters purporting to substitute nominated and presented candidates of the party within the period; the signature on the letter of substitution dated 5/2/2007 is not that of the Chairman of the 3rd Respondent; and the signature of the Chairman of the 3rd Respondent is as shown on Exhibits EB5 and EB6, therefore stands unchallenged and uncontroverted. As has already been stated, the 3rd Respondent filed a further counter affidavit, but I do not understand the counter affidavit as having in the least countered the admissions and other depositions made in the counter affidavit that was filed before it. Given the facts deposed to in the supporting affidavit vis-a-vis the counter affidavits, I sincerely do not see any meaningful facts deposed to therein controverting those contained in the supporting affidavit and which the 1st Respondent relied on in establishing the facts upon which his case (i.e. questions posed for determination) is founded. In the circumstances and once the court below answered the questions in favour of the 1st Respondent, it was eminently proper for the said court to enter judgment for the 1st Respondent in respect of the reliefs which the unchallenged and uncontroverted facts in the supporting affidavit of the 1st Respondent entitled him to.

Now, the first of the two questions posed for the determination of the court below is whether the purported letter of substitution of the 1st Respondent purportedly issued by the 3rd Respondent satisfies the requirement of Section 34(1) and (2) of the Electoral Act, 2006.

To answer the question it is pertinent to set out the provisions of Section 34 in question and they read thus:-

“Section 34(1)-

A political party intending to change any of its candidates for any election shall inform the Commission of such a change in writing not later than 60 days to the election.

Section 34(2)-

An application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.”

The attack on the letter of 5/2/2007 by which the substitution of the 1st Respondent with the Appellant was purportedly carried out is definitely two pronged: namely that the letter was not signed by the National Chairman of the 3rd Respondent, and that it did not give any cogent and verifiable reason for the substitution, I however do not think that the first of the two grounds of attack require any consideration when it is appreciated that no relief is anchored on the said ground. The ground on which a relief is anchored is that, attacking the purported letter of substitution for not containing the requisite cogent and verifiable reason.

It is not in dispute from the totality of affidavit evidence placed before the court below that it is by the letter dated 5/2/2007 that the substitution of the 1st Respondent with the Appellant was undertaken. The letter was re-produced in the judgment of the court below at pages 187 – 188 of the Records. The letter is also at page 17 of the Records. By no stretch of imagination can it be argued that any other reason was given for the substitution of Bassey Etim (i.e. Appellant) for “the earlier name for the aforementioned constituency” save that of “without enough information”.

The 1st Respondent has clearly staled in the supporting affidavit of the Originating Summons that his name was submitted to the 2nd Respondent as the candidate of the 3rd Respondent for the Uyo Federal Constituency on 21/12/2006 and attached Exhibit EB1 as the list bearing this out. The fact was not controverted by any of the Respondents particularly the 3rd Respondent. The 1st Respondent placed before the court below the letter dated 5/2/2007 as the letter pursuant to which he was substituted with the Appellant as the candidate of the 3rd Respondent for the Uyo Federal Constituency. There is no other “application for substitution” placed before the court below by the 3rd Respondent as the application by which it applied for the substitution of the 1st Respondent with the Appellant. By virtue of Section 34(2) of the Electoral Act, 2006, any application for change of a candidate by a political party made pursuant to subsection (1) of Section 34 shall not only be in writing but give cogent and verifiable reasons. In other words, whatever cogent and verifiable reason that the 3rd Respondent has or had for the substitution of the 1st Respondent with the Appellant must be looked for in the letter dated 5/2/2007 by which the said substitution was applied for. I cannot but state again that the only reason given for the substitution in the letter of 5/2/2007 is “without enough information”. This in my respectful view puts paid to the strenuous effort made by the 3rd Respondent in the further counter affidavit filed on its behalf on 9/5/2007 to introduce the fact of the 1st Respondent being investigated for allegations bordering, among others, on abuse of office and breach of the 1999 Constitution, which came to its notice after the 1st Respondent’s name was initially submitted, as an additional ground for his substitution, The 3rd Respondent for the purpose of buttressing the allegations exhibited a letter dated 11/1/2007, marked Exhibit ‘PDP1’ to the further counter affidavit.

The pertinent question however is, if the 3rd Respondent had the letter in its possession or otherwise had notice of it as at 5/2/2007 when Exhibit EB3 was written, why was the reason not stated therein? And if the 3rd Respondent did not have the letter in its possession or never had notice of it as at 5/2/2007, it only becomes obvious that reliance cannot then be placed on the said letter or Information acquired therefrom. All this is just to bring out more clearly that the only reason given for the substitution in Exhibit EB3 which all the parties have apparently accepted as the application required by Section 34(2) of the Electoral Act, 2006 and in which the cogent and verifiable reason for the substitution must be stated or disclosed remains “without enough information”, See AGBAKOBA V. INEC (supra) at 545 – 546, 550 – 551 and 553.

The words “cogent” and “verifiable” in Section 34(2) of the Electoral Act have now been judicially recognised and interpreted by the Nigerian judiciary. The Supreme Court gave the meanings of the words “cogent”; and “verifiable” in PAM V. MOHAMMED (supra) 1868 at 1901. See also UGWU V. ARARUME & ANOR [2007] All FWLR (Pt. 377) 807 at 922. Indeed in the case of ODEDO V. INEC (2008) 17 NWLR (Pt. 1117) the Supreme Court held amongst others to the effect that the words “without enough information” do not connote anything that is cogent or verifiable.

Guided by the meanings of the words “cogent” and “verifiable”, I definitely do not see how it can be said by any stretch of imagination that the phrase “without enough information” used in the letter dated 5/2/2007 furnished any cogent and verifiable reason for the seeking of the substitution of the 1st Respondent with the Appellant. The words “without enough information” as used in the letter dated 5/2/2007 were used at large and they do not relate to anything specific about the Appellant.

Given all that has been said, I therefore find the conclusion of the court below that “exhibit EB3 does not comply with section 34(2) of Electoral Act and therefore cannot be a valid substitution” very much in order. And the said court, given its answers to the two questions posed for its determination in the circumstances, was eminently correct in granting reliefs 1, 2, 3 and 4 to the 1st Respondent.

In conclusion, Appellant’s Issue 3 is accordingly resolved against him.

Having resolved the three Issues formulated by the Appellant for the determination of the appeal against him, the appeal fails in its entirety In the circumstances, It is hereby dismissed. The judgment of the court below delivered on 17/5/2007 is accordingly affirmed, I make no order as to costs, APPEAL NO: CA/A/4/08

This Appeal No: CA/A/4/08 – PEOPLES DEMOCRATIC PARTY (PDP) V. HON. BASSEY ETIM & 2 ORS was consolidated with Appeal NO: CA/A/3/08- HON. BASSEY ETIM V. HON. EMMANUEL BASSEY OBOT & 2 ORS on 14th April, 2008, Notwithstanding the fact of consolidation, this appeal retains its own identity and would be determined on its own merit. HON. EMMANUEL BASSEY OBOT as Plaintiff commenced Suit No. FHC/ABJ/CS/286/2007 by Originating Summons against (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC); (2) PEOPLES DEMOCRATIC PARTY (PDP); and (3) HON. BASSEY ETIM for the determination of the following questions:-

“1. Whether the purported letter of substitution of the Plaintiff with the 3rd Defendant purportedly issued by the 2nd Defendant satisfies the requirement of Section 34(1) & (2) of the Electoral Act 2006.

2. If the answer to question 1 is in the negative, whether the 1st Defendant properly substituted the Plaintiff with the 3rd Defendant giving (sic) regard to the peculiar facts of this case.”

The Reliefs sought in the Originating Summons are:-

“1. A declaration that the purported letter of substitution of the Plaintiff with the 3rd Defendant dated 5/02/07 does not contain cogent and verifiable reason for the said substitution as contemplated by the provision of Section 34(1) & (2) of the Electoral Act, 2006.

2. A Declaration that the exclusion of the name of the Plaintiff for the April 2007 general Election as the candidate representing Uyo Federal Constituency is wrongful, null and void.
3. A Declaration that for the purpose of the Election to the House of Representatives the Plaintiff is the candidate of the 2nd Defendant validly nominated and not substituted.
4. An order setting aside the substitution of the Plaintiff for not being in conformity with the provisions of Section 34(2) of the (sic) Act 2006.
5. A (sic) order directing the 1st Defendant to forthwith place the name of the Plaintiff on the ballot as the candidate of the 2nd Defendant representing Uyo Federal Constituency in April General Election to the National Assembly.
6. An order of perpetual injunction restraining the 1st and 2nd Defendants from recognizing or continuing to recognize the 3rd Defendant as the candidate of the 2nd Defendant for the House of Representatives election scheduled for April, 2007.”

The case was entertained by the Federal High Court, Abuja presided over by Hon. Justice Abimbola O. Ogie, The said Federal High Court (hereinafter simply referred to as “the court below”) delivered its judgment in the case on 17th May, 2007, At page 194 of the Records, the court below in its judgment answered the questions for determination thus:-

“Question 1 is in the affirmative, the letter of substitution does not satisfy section 34(1) and (2) of the Electoral Act.

Question 2, is also in the affirmative, the 1st defendant (sic) was not properly substituted for the plaintiff with the 3rd defendant as regards the facts herein.”

Given its answers to the questions for determination as reproduced above, the court below al pages 194 – 195 of the Records, proceeded to make the following orders:-

“(1) A declaration that the purported letter of substitution of the plaintiff with the 3rd defendant of 5/2/07 does not contain cogent and verifiable reasons for the said substitution as contemplated by the provision of section 34(1) and (2) of Electoral Act 2006.

(2) A declaration that the exclusion of (sic) name of plaintiff for April general election as candidate for Uyo Federal Constituency is unlawful, null and void,

(3) A declaration that for the purpose of the election plaintiff is the candidate of the 2nd Respondent validly nominated and not substituted.

(4) I hereby set aside the substitution of plaintiff for not being in conformity with the provision of section 34(1) and (2).

Relief (sic) 5 and 6 of the relief (sic) are completed acts and cannot lie,” The Peoples Democratic Party – 2nd Defendant being dissatisfied with the judgment of the court below lodged an appeal against the same. Appeal No. CA/A/4/2008 is the appeal lodged by the Peoples Democratic Party (hereinafter simply called “the PDP”) as Appellant against the judgment of the court below delivered on 17/5/2007.

The facts of the case as gathered from the affidavit of the 2nd Respondent in support of the Originating Summons are that the 2nd Respondent claimed to have been nominated as the candidate of the Appellant for the Uyo Federal Constituency in the April, 2007 General Election and that his name was forwarded to the 3rd Respondent on 21/12/2006 along with the names of other candidates of the Appellant. The 2nd Respondent contended that he won the primaries and as such was issued with certificate of return dated 8th December, 2006, It is the case of the 2nd Respondent that by a letter dated 5/2/2007 the 3rd Respondent substituted his name with that of the 1st Respondent as the Appellant’s candidate. The said letter was attached as Exhibit EB3 to the supporting affidavit and it is the contention of the 2nd Respondent that the said letter of substitution was not signed by the National Chairman of the Appellant as portended therein and that it did not give cogent and verifiable reason for seeking the substitution. The 2nd Respondent further claimed that his name was purportedly substituted on or about 13/2/2007 when the instant suit was pending.

In the counter affidavit which the Appellant caused to be filed on its behalf, it was deposed to the effect (i) that the signature on Exhibit E83 is not that of the Chairman of the Appellant; (ii) that the signature on Exhibit E85 is that of the National Chairman of the Appellant; and (iii) that a valid letter of nomination or substitution is one jointly signed by the National Chairman and the National Secretary of the Appellant. The Appellant also caused a further counter affidavit to be filed on its behalf. Therein it was disclosed to the effect that the deponent to the counter affidavit was unaware of some developments since Exhibits E83 and EB5 attached to the affidavit in support of the Originating Summons were made. The developments were thereafter catalogued as (i) that the Chairman of the Appellant had treated doubtful cases of substitution by sending correct names to the 3rd Respondent and that the case of the 2nd Respondent was not among the doubtful cases; (ii) that the 2nd Respondent was substituted because it came to the notice of the Party that he was being investigated for allegations bordering among others on abuse of office and breach of the 1999 Constitution and which information was not available to the party as at the time the name of the 2nd Respondent was initially submitted; and (iii) that all efforts made by the Party to get the 2nd Respondent to clear his name met with nonchalance from him.

The 1st Respondent deposed to the fact that he was not served with the Originating Summons that issued in the suit. It was his case that he was validly substituted as the candidate of the Appellant for the election to the

House of Representatives for the Uyo Federal Constituency. It was also the case of the 1st Respondent that the court below had previously in Suit No: FHC/ABJ/CS/86/2007 between him and the 2nd Respondent determined the issue of substitution in his favour. The 1st Respondent also disclosed that the 2nd Respondent had before the institution of the instant suit also instituted another action – Suit No: FHC/UY/CS/30/07 against him before the Uyo Federal High Court but that the case was struck out.

In accordance with the Rules of this Court, briefs of argument were filed and exchanged in this appeal. The appeal was entertained on 19/3/2009 and B.J. Akomolafe, learned lead counsel for the Appellant, in urging the Court to allow the appeal relied on and adopted Appellant’s brief of argument dated 14/4/2008 filed on the same day as well as Appellant’s Reply brief dated 4/6/2008 filed on the same date, but deemed to have been properly filed and served on 23/6/2008.

Ekpenyong Ntekim, learned lead counsel for the 2nd Respondent in urging that the appeal be dismissed relied on and adopted the said Respondent’s brief of argument dated and filed on 22/4/2008.

Both Tayo Jegede (SAN) learned lead senior counsel for the 1st Respondent and P. Osagiede-Ofeyi of counsel for the 3rd Respondent stated that they filed no briefs of argument for their respective clients as they were not contesting the appeal.

The Appellant identified five Issues as arising for determination in the appeal having regard to the facts and decision of the court below as chronicled in its brief of argument. The Issues are:

“1. Whether or not the essential elements in Suits No: FHC/ABJ/CS/86/2007 and FHC/ABJ/CS/286/2007 are not the same as to establish the Appellant’s plea of res judicata (Grounds 1 and 2).

2. Whether or not the decision of the learned trial Judge in Suit No: FHC/ABJ/CS/86/07 refusing to grant Relief NO.4 was final or interlocutory (Ground 3) and therefore rendered the court functus officio on that point.
3. Whether or not the definition of abuse of court process is limited to when 2 cases with similar reliefs are filed simultaneously .
4. Whether or not from a holistic view of the further affidavit of the Appellant deposed to by Z.E. Abdulahe Esq, at pages 93 – 96 of the Records, the Appellant has not denied the deposition of the 2nd Respondent on the authenticity of Exhibit EB3.
5. Whether or not the content, circumstances and facts surrounding Exhibit EB3 is on all fours with the Supreme Court case of Ugwu v. Ararume for the court to be bound by the doctrine of stares decisis.,”

In his brief of argument, the 2nd Respondent identified three Issues only as arising for determination in the appeal having regard to the amended grounds of appeal filed by the Appellant. The Issues read thus: –

“1. whether the suit upon which this appeal is predicated was an abuse of court process and an offence against the doctrines of issue estoppel and res judicata,

2. whether the deposition in paragraph 3 of the 2nd Respondent’s supporting affidavit that the letter of 05/02/07 was not signed by the National Chairman was controverted.
3. whether the trial court was bound to follow the Court of Appeal and Supreme Court decisions in Ugwu v, Ararume.

The appeal will be determined on the Issues formulated by the Appellant.

This is however not to say that the observation made by the 2nd Respondent in his brief of argument to the effect that Appellant’s issues 1 – 3 distilled from Grounds 1 – 4 all relate to issues of res judicata and issue estoppel is not well grounded. All that I will do in the circumstance is to consider Appellant’s Issues 1 – 3 together inasmuch as they are all glaringly intertwined.

APPELLANT’S ISSUES 1 – 3

Dwelling on Issue 1 which essentially raises the question of res judicata, the Appellant submitted that the “essential elements” common to both Suit No: FHC/ABJ/CS/86/2007 and the instant suit is the issue of substitution of the 2nd Respondent. This issue according to the Appellant was decided or determined between the 1st and 2nd Respondents respectively in these two suits by the court below. The “essential elements” in the cause of action of the 2nd Respondent against the 1st Respondent in Suit No: FHC/ABJ/CS/86/2007 (hereinafter called “the previous suit”) is contained in relief 4 which the court below refused after a full hearing on the merit. The Appellant having set out the reliefs sought in the instant suit as being the essential elements” in the cause of action therein, submitted that estoppel can arise on judgment inter-parties and referred to what Halsbury’s Law of England.(4th-Edition)has to say on the matter in Vol. 16(2) at paragraph 976, The position canvassed in paragraph 4.05 of the same treatise was also commended to the court and the cases of Faleye v. Otapo (1995) 3 NWLR (Pt. 381)1 at 29; Aru v. Fabalode (1983) 1 SCNLR 58; Abiodun v. Fasoya (1974) 11 SC 61 at 78; and Iyayi v. Eyi Gebe (1987) 3 NWLR (pt. 61) 523 at 533 were cited in relation to the principles and purpose of res judicata and issue estoppel as well as the effect of a finding that a plaintiffs claims are barred by res judicata. The Appellant submitted to the effect that the 1st Respondent being its nominated candidate ‘to represent it in the election into Uyo Federal Constituency of Akwa Ibom State” is deemed to be its privy in the previous suit. This according to the Appellant is because there is privity in law with knowledge and consent. It was contended that where a party consented to be represented in an action by another party, under the doctrine of privity with the knowledge and consent, the other party who had that knowledge is bound. In this regard, reference was made to the definition of privy and representative as contained in Osborn’s Concise Law Dictionary, 9th Edition, by Sheila Bone and Black’s Law Dictionary, 7th Edition, by Bryan A. Garner respectively. It was also submitted by the Appellant that as a general principle, a party to a suit cannot put his case forward piecemeal but is to do so en bloc and the cases of Ikenna v. Bosah (1997) 3 NWLR (Pt. 494) 439 at 454 – 455; Majaroh v. Fassassi (1986) 5 NWLR (Pt. 40) 243; and Ramon v. Jinadu (1986) 5 NWLR (Pt. 39) 100 were cited in aid. It was accordingly contended by the Appellant that the court below had become functus officio under the doctrine of res judicata having refused Relief 4 on the issue of substitution of the 2nd Respondent in the previous suit The balkanization of the said relief into new reliefs 1 – 5 in the instant suit, the Appellant further submitted, cannot make the court assume jurisdiction to try the case as a new case as it now did especially when it is seen that parties and privies are essentially the same.

This Court was urged to sustain the Appellant’s plea of res judicata and hold that the lower court was already functus officio the issue of substitution as at the time its judgment was delivered on 17/5/2007, The remedy open to the 2nd Respondent according to the Appellant was to have appealed and not instituting a new suit.

Dwelling on the issue as to whether or not the decision of the lower court in the previous suit refusing to grant Relief 4 therein was final or interlocutory, the Appellant submitted that it was final and that this rendered the said court functus officio the said issue, In this regard the findings made by the lower court in relation to the said Relief 4 were set out in the Appellants brief of argument and having done this, it was further said that the decision disposed of the rights of the parties on the issue of substitution. It was submitted to the effect that the remedy open to any party aggrieved with the decision was to appeal against the same and not to re-litigate the issue, Several cases relating to when a decision can be said to be final and the effect of final decisions were cited in the Appellant’s brief of argument. The cases include. The Honda Place Ltd v. Globe Motors Ltd (2005) 14 NWLR (Pt. 943) 273 at 297; Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) 574; and Akinsanya v. UBA Ltd (1986) 4 NWLR (Pt. 35) 273. The court was urged to hold that the decision of the trial court in the previous suit was final and that the findings and pronouncements of the said court in respect of Relief 4 therein were both final and in rem and cannot be re-litigated by the 2nd Respondent.

Dwelling on whether the definition of abuse of court process is limited to when 2 cases with similar reliefs are filed simultaneously, the Appellant submitted that the concept of abuse of judicial process is imprecise and cited the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 in aid. The Appellant having further highlighted some instances of abuse of court process from cases which were duly cited, submitted that the court below, in finding that the instant suit did not constitute an abuse of the process of court because it was filed after the previous suit had been concluded, gave abuse of court process a restrictive interpretation opposed to all known judicial meanings of the concept. This Court was accordingly urged to set aside the finding of the court below in this regard and hold the instant suit as an abuse of court process, This is more so as the main issue in the instant suit which is the substitution of the name of the 2nd Respondent as the candidate of the Appellant in the General Elections for Uyo Federal Constituency had been pronounced upon by the very same court. It was said that the intention of the 2nd Respondent to further irritate and annoy the 1st Respondent is buttressed by the filing of Suit No: FHC/UY/CS/30/07 at Uyo Division of the Federal High Court before the same was struck out on the issue of abuse.

In his brief of argument, the 2nd Respondent submitted to the effect that the “essential elements” in the cause of action in the previous suit which the Appellant has argued as constituting res judicata cannot be taken out of the con of the substance or substratum of the said case. The case of Ebenogwu v. Onyemaobim (2008) 3 NWLR (Pt. 1074) 396 at 422 was cited on what cause of action is. The 2nd Respondent also said that an injunction is merely an ancillary or consequential relief in equity which cannot stand or be claimed alone but within the con of the existing suit. That it is only granted by the court as an insurance against the flouting of its substantive orders in the case itself. The cases of Yil v. Ngumar (1998) 8 NWLR (Pt. 560) 125 at 137; A-G Abia & Ors v. A-G Federation (2006) 16 NWLR (Pt. 1005) 265 at 388; and NNPC v. A.I.C. Ltd (2003) 2 NWLR (Pt. 805) 560 were cited in this regard. The 2nd Respondent made the point that the previous suit was grounded on lack of fair hearing and was instituted in challenge of his disqualification to contest the election on the basis of his alleged indictment in a Federal Government White Paper, whereas the instant suit was instituted to challenge the 2nd Respondent’s purported substitution for lack of sufficient information and calling In aid for this purpose, the interpretation of section 34 of the Electoral Act, 2006, In the circumstances it was submitted that the refusal of the ancillary Relief 4 has no implication on the instant suit. The case of Nwokedi v. Okugo (2002) 7 SCNJ 205 was cited in aid. The 2nd Respondent in the main also submitted that the doctrines of res judicata and issue estoppel do not apply to the instant suit as the pre-conditions required for their invocation are nol present. The cases of Tsokwa Oil & Marketing Co Nig Ltd v. UTC (Nig) Ltd & Ors (2002) 12 NWLR (Pt. 782) 437 at 466; and Odulola v. Oderinde (2004) 12 NWLR (Pt. 888) 574 were cited in aid. The 2nd Respondent submitted that parties in the previous suit and the instant one are not the same and further contended that the Appellant cannot claim to be the privy of any of the parties as it does not fall into any of the sallied categories of privy as judicially determined.

Dwelling on the instant case being an abuse of court process as it is caught by the pleas of res judicata and issue estoppel, the 2nd Respondent submitted that it is not in every case of multiplicity of actions even on the same subject matter that an abuse is said to have occurred. This is more so where there is no proof of malice and/or improper use of court process. The case of Fasakin Foods (Nig) Co Ltd v. Shosanya (2003) 17 NWLR (Pt. 849) 237 at 247 was cited in aid. The cases of Plateau State of Nigeria v. A-G, Federation (2006) 3 NWLR (Pt. 967) 346 at 393; Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 at 221; and ANPP v. Haruna (2003) 14 NWLR (Pt. 841) 546 at 574; were also cited as deciding amongst others that the concept of abuse of court process admits of the situation where two or more actions exist between the same parties and in respect of the same subject matter in one or more courts at the same time, It was submitted that the instant suit cannot be an abuse of court process given the fact that the parties, issues and subject matter therein are not the same with those in the previous suit. It was further submitted that in the light of the case of ANPP v. Haruna (supra) in particular, the court below was right to have held that there was no abuse of court process as the previous suit had been concluded when the instant suit was filed. That where the suits were not pending simultaneously, then at the best what the party complaining could raise or invoke was either the plea of res judicata or issue estoppel or both pleas on the basis that the previous suit had been adjudicated upon on the same issues, between the same parties and in respect of the same subject matter.

In its Appellant’s Reply brief, the Appellant in maintaining the stance that res judicata applied to the instant case submitted that it was not in doubt that the two suits instituted by the 2nd Respondent deal with the same issues and would have been sustained by the same evidence. The cases of Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Fadiora v. Gbadebo (1978) 3 SC 219; Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 155; ACB Plc v. Nwaighe (2001) 1 NWLR (PI, 640) 201 at 210 – 211; and Afolabi v. Military Gov. Osun State (1998) 8 NWLR (Pt. 561) 269 at 281; were cited in aid.

The Appellant said that the submission of the 2nd Respondent that the doctrine of res judicata could not apply in the instant suit as there were no privies of the A-G of the Federation, Prof. Ignatius Ayua and EFCC was untenable in the light of the case of Min. for Works v. Tomas (Nig) Ltd (2002) 2 NWLR (Pt. 752) 740 at 780 where this Court held to the effect that a slight difference in the parties is of no importance as long as the substantial and crucial parties in the suit are so present. Also cited on the point are the cases of Ali v. Albishir (2008) 3 NWLR (Pt. 1073) 94 and Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) 613 at 624. The Appellant also ‘submitted that the relitigation of an already decided case is an abuse of court process even if the matter is not strictly res judicata.

It is in my respectful view obvious from decided cases, that there is a difference or distinction between Estoppel per rem judicata and Issue estoppel, their respective objectives and effect on subsequent proceedings. In this regard see IKOTUN V. OYEKANMI (2008) All FWLR (pt. 433) 1271 at 1281.1282 where the Supreme Court in dwelling on these, said per Chwukwuma-Eneh, JSC; thus:-

“I think that, against the background of the facts of this matter, the misconception of the parties’ cases as accentuated in the sole-issue for determination raised in this matter has clearly portrayed want of proper appreciation of the distinction between issue estoppel and res judicata, although, both estoppels come under one head as estoppel by judgment with a clear objective to prevent a cause of action and issues as arising from the cause of action and directly decided in a previous suit from being re-opened or re-litigated in subsequent litigation by the same parties or their privies. The issue must be relevant in the subsequent proceedings, that is, as in the instant suit: Osunrinde v. Ajamogun (1992) 6 NWLR (Pt 246) 156. It is in this respect that judgments are said to be conclusive as to cause of action and issues directly arising and decided in the cause of action as between the parties or their privies. One crucial feature of estoppel by judgment is that it has to be specifically pleaded as otherwise it cannot be relied upon in court although it is not required to be pleaded in any form: Ebba v. Ogodo (1984) 4 SC 84, (2000) FWLR (Pt. 27) 2094, Ukaegbe v. Ugorji (1991) NSE (vol. 22) 298 and Chinwendu v. Mbamali (1980) 3-4 SC 31. As the judgments as per exhibits B and D are final decisions given by courts of competent jurisdiction, they are conclusive as to the cause of action and all the issues that are germane and decided in directly establishing the cause of action as between the parties or their privies, A party so affected by it is estopped as per rem judicatam from re-litigating the matter allover again.The implication of the above assertion vis-a -vis the judgments as per exhibits B and D is that they are binding as to the cause of action and the issues in any subsequent proceedings in which the cause of action and the issues directly decided in the previous case are called to question as between the same parties or their privies, So that the party is estopped from bringing a fresh suit before any court on the same case and on the same issue already pronounced upon by the court in a previous case: Lademeji v. Salami (1998) 5 NWLR (Pt. 548) 1, Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561, Dokubo v. Omoni (1999) 8 NWLR (Pt. 616) 647 and Oshodi v. Eyifunmi (2000) FWLR (Pt. 8) 1271, (2000) 7 SC (Pt.11) 145. On the other hand, issue estoppel arises where an issue has been adjudicated upon by a court of competent jurisdiction and the same issue has arisen in question in a subsequent proceedings between the same parties or their privies: Ito v. Ekpe (2000) FWLR (Pt. 6) 927, (2000) 2 SC 98, Ebba v. Ogodo (1984) 4 SC 84, Alakija v, Abdulai (1998) 6 NWLR (Pt. 552) 1. There is however high authority that a party relying on issue estoppel need not prove unlike res judicata, that the res, the claims and the parties are the same in the previous suit as in the subsequent proceedings, Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27.” (Underlining provided by me for emphasis). Again in the case of AGBOGUNLERI V. DEPO (2008) 33 NSCQR (Pt 2) 781 at 800 – 801 the Supreme Court, per Muhammad, JSC; dwelling on estoppel said thus:

“‘..estoppel, generally, is that doctrine where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not.

It is therefore a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability, Estoppel can be created in several ways. The Common law recognizes three kinds:

1) Estoppel by record or quasi by record

2) Estoppel by deed and

3) Estoppel in pais

The one that concerns us in this appeal is estoppel by record or quasi by record, It is more popularly known as Estoppel Per Rem Judicatam. It presupposes that a final decision of a court of competent jurisdiction once pronounced between the parties cannot be contradicted by any of such parties in any subsequent litigation between them respecting the same subject matter.

It arises in the following situations:

1) where an issue of fact has been judicially determined in a final manner between the parties by a court/tribunal having Jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties, (cause of action estoppel).

2) where the first determination was by a court having exclusive jurisdiction, and the same issue comes incidentally in question in subsequent proceedings between same parties (issue estoppel)

3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in REM of a court/tribunal having jurisdiction to determine that status and the same issue comes directly in question in subsequent proceedings between any parties whatever.”

At pages 802 – 803 his Lordship said further:-

“Where the earlier decision being relied upon by a party to disable the other party from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability, then that decision can create Estoppel by record, Such judgments are known as “judgments in personam or inter parties or res judicata. They are those which determine the rights of parties as between one another to or in the subject matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or unliquidated demand, but which do not affect the status of either persons, or things, or make any disposition of property or declare or determine any interest in it except as between the parties in litigation, They include all judgments which are not judgments in REM.

In order words to succeed on the plea of estoppel by judgment, it is necessary for the defendant to show:-

1) the subject matter in dispute is the same namely that everything that is in controversy in the second suit as foundation of the claim for relief was also in controversy or open to controversy in the first suit.

2) it came in question before a court of competent jurisdiction. See Cardoso V. Daniel (1986) 3 NWLR (PI. 20) 1; and

3) the result was conclusive so as to bind every other court. See: Cardoso V. Daniel (supra)”

See also the cases of NTUKS V. NIGERIAN PORTS AUTHORITY (2007) All FWLR (Pt. 387) 809 at 823 – 824 and 830 (SC); BALOGUN V. ODE (2007) All FWLR (Pt. 358) 1050 at 65 (SC); and AGADA V. KADUNA STATE DEVELOPMENT AND PROPERTY COMPANY LIMITED (2007) All FWLR (Pt. 364) 375 at 384 (CA).

In deciding on the applicability of the pleas of res judicata and/or issue estoppel to the instant case, I am of the view that the first thing to be identified is the “issue” relied upon by the Appellant in this regard.

The “essential elements” in the cause of action of the 2nd Respondent against the 1st Respondent in the previous suit which the Appellant relies upon as constituting res judicata and/or issue estoppel in the instant case is the issue of the substitution of the 2nd Respondent. The said “essential elements” it is further slated is (sic) contained in Relief 4 claimed in the said previous suit. Relief 4 in question reads:-

“4) An order of injunction restraining the respondents from giving effect to the report of the Panel or the Government white paper accepting the Report and in particular from disqualifying the applicant from contesting or substituting his name or in any way tampering with the applicant’s candidature in the coming election,”

A certified copy of the judgment in the previous suit marked as Exhibit BE2 was attached to the 1st Respondent’s counter affidavit filed on 7/5/2007. See pages 45 – 65 of the Records. The 2nd Respondent herein as Applicant commenced the previous suit by way of Judicial Review against (1) Attorney- General of the Federation; (2) Prof. Ignatius Ayua (for himself and on behalf of the Administrative Panel of Enquiry set up by the Federal Government to investigate allegations of corruption against some politicians); (3) Economic and Financial Crime Commission; (4) Independent National Electoral Commission; and (5) Hon. (Elder) Etim Bassey. The reliefs which the 2nd Respondent as Applicant sought in the previous suit including Relief 4 earlier set out are: –

“1) An order to remove into court the proceedings, determination and recommendations of the Administrative Panel of Enquiry set up by the Federal Government and headed by the 2nd respondent for the purpose of its being quashed.

2) An order quashing the proceedings, determination and recommendations of the said Administrative Panel.

3) A declaration that the applicant is not indicted for embezzlement or fraud and is therefore not disqualified from contesting election under Section 66(1)(h) of the Constitution of the Federal Republic of Nigeria, 1999.

4) An order of injunction restraining the respondents from giving effect to the report of the Panel or the Government white paper accepting the Report and in particular from disqualifying the applicant from contesting or substituting his name or in any way tampering with the applicant’s candidature in the coming election.

5) Any further order or other orders as this Honourable Court may deem necessary to make in the circumstances of this case.”

The three issues which the 2nd Respondent as Applicant distilled for the determination of the trial court as set out in the judgment in the previous suit at page 47 of the Records are:-

“Whether the Administrative Panel of Enquiry headed by the 2nd Respondent was bound to observe the rules of natural justice. – Whether upon the facts, the applicant was given fair hearing.

– Whether order of certiorari can lie,”

At pages 46 – 47 of the Record, the trial court dwelling on the processes before it in the case, said thus: –

“Applicant filed affidavit in support and attachment (sic) exhibit E81 – E83 statement pursuant to order rule 3(2), verifying affidavit, Affidavit of urgency exhibit Av1 – Av2 being application for Certify True Copy and White Paper. 3rd Respondent filed a Counter affidavit, 5th Respondent filed a Preliminary Objection that the suit be struck out as the order sought before (sic) a choice a candidate of a political party and that the act sought to be restrained as a completed Act. 5th Respondent also filed a Counter Affidavit to the applicant application to which Plaintiff filed a further and better affidavit and one exhibit.

xxxxxxxxxxxxxxxxxxxxxxxxx

The Plaintiff, 3rd and 5th respondents filed written addresses.

The other Respondents though served did not file any Counter Affidavit or address.

I shall highlight the salient point in the address, affidavit and Counter Affidavits.”

At page 54 of the Records, the trial court in its judgment in the previous suit, having first overruled the Preliminary Objection further stated at pages 63 – 64 of the Records thus: –

” On the above, analysis I now examine each relief viz-a-viz (sic) on the reasoning above.

Relief 1 – having found that the procedural unfairness adopted in the conduct of the hearing, I grant relief 1 to the extent as it relates to the Plaintiff, Relief 2 is granted to that extent to the plaintiff.

On relief 3, I make a declaration that the applicant is not indicted for embezzlement or fraud and is not disqualified from running under section 66(1) h of Constitution.

On relief 4, there is no allegation that all the respondents tampered with the candidature or substituted his name.

The relief is too wider (sic). Furthermore, the report according to him has been given effect to and it has been accepted by Government. It means that it is a completed act and an injunction cannot lie against such act.

The power to substitute a candidate’s name lies in the political party and I find his political party not a party here and therefore cannot be bound by any order of court. No evidence is shown as to substitution by any body.

Furthermore, a court cannot grant a relief not sought.

This relief fails in the entirety.

On the whole, relief 1 is varied and granted, only as it relates to the plaintiff on page 23 clause 2.36,

Relief 2 is varied and granted as it relates to plaintiff in page 23 clause 2.36.

Relief 3 granted,

Relief 4 refused.”

Now, the questions posed for the determination of the court below in the instant suit and reliefs claimed based on the resolution of the questions have been earlier set out in this judgment. It is in my respectful view most glaring from a consideration of the claims in the instant suit and the grounds or basis for the same that the cause of action in the instant suit and the previous suit cannot be said to be the same. No one is left in any doubt whatsoever from the portion of the judgment of the trial court in the previous suit reproduced above as to the reasons given by the trial court for refusing Relief 4 therein which is an obiter for injunction. The relief, being one for injunction and given the circumstances it came to be claimed, cannot rightly be considered in isolation as the Appellant would appear 10have done in its brief of argument. The said relief must be understood or appreciated in the con of the reliefs that preceded it. The relief (i.e, No, 4) is basically hinged on the outcome of the first three claims. Now, though the first three reliefs in the previous suit were granted, the Applicant (now 2nd Respondent in the instant appeal), the trial court however refused relief 4 for diverse reasons, namely, (i) that there was no allegation that all the respondents tampered with the candidature or substituted his name; (ii) the relief was too wide; (iii) the report upon which the order for relief 4 is predicated has been accepted by Government thereby making the relief to be in respect of a completed act for which injunction cannot lie; and (iv) the relief cannot be granted in the absence of the applicant’s political party as a party in the case. This is against the backdrop that the power to substitute a candidate’s name lies in the political party. That in any case no evidence of substitution by anybody was shown.

The Appellant in his brief of argument it should be noted never identified the specific issue the trial Court decided in the previous suit that constitutes issue estoppel in the instant suit on appeal. The argument of the Appellant would appear to be that the trial court in the said suit, by refusing relief 4, has thereby pronounced on the entitlement of the Applicant (now 2nd Respondent) to the same and has thereby resolved that he was not entitled to it. I am definitely unable to agree with the submission of the Appellant that the refusal of relief 4 in the previous suit by the trial court having regard to the community reading of the reliefs claimed, decided the issue of substitution of the 2nd Respondent particularly in the light of the reasons catalogued by the said court in refusing the relief in question, In an action commenced by writ of summons, issues in dispute are circumscribed by the pleadings of the parties. In actions fought upon affidavits, the affidavits of the parties lake the place of pleadings and issues in controversy in such cases are of course to be identified from the affidavits before the court. What was exhibited 10 the counter affidavit of the 1st Respondent in respect of the previous suit was the judgment therein alone. Issues are decided on the basis of evidence. The trial court, as it can be seen from the portion of its judgment at page 63 of the Records and which had earlier been reproduced amongst others, specifically said, (i))that there is no allegation that all the respondents tampered with the candidature or substituted his name; and (ii) no evidence is shown as to substitution by anybody. Surely if issues have not been joined and evidence led in relation to the tampering with the candidature and/or substitution of the name of the 2nd Respondent as stated by the trial court in the previous suit, how then can the said court meaningfully decide or pronounce on the same? In any event, it is simply stretching the doctrines of estoppel per rem judicata and/or issue estoppel beyond reasonable limits to argue that the refusal of “an order of injunction restraining the respondents from acting on or giving effect to the report of the Panel or Government white paper accepting the report and in particular from disqualifying the applicant from contesting or substituting his name or in any way tampering with the applicant’s candidature in the coming election” in an action for judicial review for the purpose of quashing the proceedings, determination and recommendations of the Panel that produced the Report and White Paper based thereon, and which reliefs were granted, can properly create any kind of estoppel in the instant suit which is basically for the determination of the question as to whether the letter of substitution by which the 2nd Respondent was substituted with the 1st Respondent satisfied the provisions of Section 34(1) and (2) of the Electoral Act, 2006.

It is in my respectful view, most glaring from the findings of the trial court in the previous suit that it never considered the issue of the substitution of the 2nd Respondent with the 1st Respondent as arising for its determination in the said suit and never pronounced on it (i.e. the legality, correctness or otherwise of it). This being the situation, the said issue that was never raised, unconsidered and unresolved can never be directly in issue in the instant case and accordingly cannot sustain either a plea of res judicata or issue estoppel notwithstanding the finality of the decision of the trial court in the previous suit. This is to say that though I find the judgment in the previous suit to be a final judgment in respect of all issues that were decided in it, but the said judgment cannot be a final judgment in relation to the issue of the substitution of the 2nd Respondent as the said issue never arose for resolution therein.

Also may I say that it is glaring from the judgment of the trial court in the previous suit vis-a-vis that in the instant suit that the parties in the two suits are indeed not the same. It is indeed correct as submitted by the Appellant in its Reply brief that slight difference in parties and reliefs might not be enough to displace or dislodge the application of the plea of res judicata. With reference to the case of Ali v. Albishir (supra) cited by the Appellant, what I understand the position of the law to be in this regard when it is related to the previous case and the instant one, is that all the defendants in the previous case need not be defendants in the instant case before the plea of res judicata can be raised and properly upheld if all the other conditions are established, This situation however does not allow a party that was never a party in the earlier suit to raise the plea for its/his own benefit unless such a party can show that a defendant in the earlier suit is its privy. I believe that it is in realisation of this that the Appellant has argued that the 1st Respondent is its privy by being its flag bearer aside from being its representative.

The Appellant is a political party duly registered under the Electoral Act, 2006 and by virtue of the provision of section 80 of the said Act, it is a body corporate with perpetual succession, a common seal, and may sue and be sued in its corporate name.

The categories of privies in law would appear to be settled and closed. The Supreme Court dealt with the issue of privy in the AGBOGUNLERI case (supra) at page 804 per Muhammad, JSC. This is what his Lordship said:-

“But who is a privy? In Arabia v. Kanga (1932) 1 WACA at p. 254, a privy was defined as that person whose title is derived from and who 66 claims through a party, It may also imply identity of successive interest or persons having interest in property. There are said to be three kinds of privies:

a) privy in blood, such as testator and heir

b) privies in law such as testator and executor or in the case of intestate succession, successor and administrator,

c) privies in estate, such as vendor and purchasers; lessor and lessee etc, see Nwosu vs. Udeaja (1990) 1 NWLR (pt. 125) 188.”

The Appellant has not argued that the privity between the 1st Respondent and itself falls into any of the above categories. The Appellant based the privity between the 1st Respondent and itself on knowledge and consent. The Appellant also alluded to the 1st Respondent being its representative. Suffice it to say that the law is clear that both the Appellant and its candidate for an election have independent recognition and rights. See BUHARI v. OBASANJO (2003) All NLR 168. In any event it is inconceivable that the issue of privity between parties and indeed representation can be established in the absence of averments in that regard and supporting evidence. Suffice it to say that there is no iota of affidavit evidence placed before the court below and indeed this Court that go to show that the 1st Respondent was the privy or representative of the Appellant in the previous suit. Definitely it is not in its brief of argument that the Appellant is supposed to present this. in the light of the foregoing, I am in total agreement with the conclusion of the court below that estoppel does not apply in the instant case, Consequently I hold that the “essential elements” of Suit No: FHC/ABJ/CS/86/2007 and the instant suit are not the same as to establish the Appellant’s plea of estoppel as argued by it. Appellant’s Issue 1 is therefore resolved againsl it.

Now, to the issue of abuse of court process; may I say that I have painstakingly perused the judgment of the court below and I cannot but say that I do not see anywhere therein that the said court slated or defined abuse of court process to be limited to when 2 cases with similar reliefs are filed simultaneously. All that the learned trial Judge would appear to have done was that she considered the particular class or type of abuse of court process she felt was most appropriate in the circumstances of the instant case. I do not think that the learned trial Judge is required to write a treatise on abuse of court process before she can decide on a particular type or class of abuse to rely on in the instant case, Suffice it to say that I do not see any misapplication of law to the circumstances of the instant suit when the learned trial Judge having initially found that issue estoppel did not apply, and after citing cases which are undoubtedly relevant on the issue of abuse of court process at page 186 of the Records proceeded on the same page to say thus:.”

“Definitely 286/07 was not filed when 86107 was pending, it therefore cannot be an abuse of court process more so as the reliefs are different.”

In the case of NTUKS V. NIGERIAN PORTS AUTHORITY (supra the Supreme Court per Tabai, JSC; dealt with the issue of abuse of court process at page 832. His Lordship said thus:-

“Abuse of court process generally means that a party in litigation takes an irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time, It is an action which is one (or more) too many; an action which could be avoided by the party without doing harm to the matter in dispute. The process of court is used mala fide to overreach the adversary to the direct annoyance of the court, The court process is initiated with malice or in some premeditated or organised vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause, The court process could also be said to be abused where there is no iota of law supporting it. In other words, the court process is premised or founded on frivolity or recklessness.” The Appellant predicated the argument that the instant suit on appeal constituted an abuse of the process of court on the fact that it cannot be brought, as the decision in Suit No: FHC/ABJ/CS/86/2007 had not been appealed against, thereby making this suit amount to a re-litigation of the earlier mentioned suit.

I believe that it has been sufficiently shown hereinbefore that the Appellant is under serious misapprehension of the facts, reliefs claimed, and reliefs granted in Suit No, FHC/ABJ/CS/86/2007 vis-a-vis the facts, issues, reliefs claimed and reliefs granted in the instant suit in arguing that this suit, as constituted, is caught by the doctrines of estoppel per rem judicata and/or issue estoppel. A fortiori, the reliance on the judgment in the same case i.e. FHC/ABJ/CS/86/2007 which has not been appealed against as rendering the instant suit to be in abuse of court process cannot be well founded in the face of the complaint raised against the letter of 05/02/2007 by which the 2nd Respondent claimed that he was substituted as the candidate of the 3rd Respondent with the Appellant.

Accordingly, I have no cause to disagree with the conclusion of the court below that the instant suit on appeal is not an abuse of the process of court. This is particularly so as I have before now found the finding of the court below to the effect that the estoppel has no application in the instant suit to be correct.

Accordingly Appellant’s Issue 3 is resolved against it.

APPELLANT’S ISSUE 4

This Issue questions the correctness of the finding of the court below that the Appellant did not deny or contest the deposition of the 2nd Respondent that Exhibit EB3 was not a valid letter of substitution and as such that the Appellant has admitted the said facts which therefore required no further proof.

The Appellant referred to the finding of the court below at page 189 of the Records “that Exhibit EB5, was written to 1stdefendant (now 3rd Respondent) and that the signature on exhibit EB3 the letter of substitution is not that of the National Chairman of 2nd defendant (now Appellant) and that a valid letter of nomination or substitution of candidate of 2nd defendant must be jointly signed by the National Chairman” and submitted that the holding of the court that paragraph 3(b)(i) of the Appellant’s further counter affidavit (which the Appellant called a denial) is an admission is strange and mysterious. The cases of Fasakin v. Fasakin (1994) 4 NWLR (Pt. 340) 597 at 621 and Nizhizawa Ltd v. Jethwani (1984) 15 NSCC 877 at 890 were cited on how the depositions in affidavits ought to be construed or interpreted, Also cited on the same point were the cases of Eigbe v. NUT (2006) 6 NWLR (Pt. 1005) 244 at 258; and Pan Asial1 African Co. Ltd v. National Insurance Corporation Nig. Ltd (1992) 9 SC 1 at 12-13.

It was also submitted by the Appellant that the depositions in paragraphs 4, 5 and 6 of the affidavit in support of the originating summons are weighty allegations touching on forgery and fraud and that the allegations the extent that they are those of crimes needed to be proved beyond reasonable doubt. The case of Psychiatric Hospitals Management Board v. Edosa (2001) 5 NWLR (Pt. 707) 612 was cited in aid. This Court was urged to set aside the finding made by the court below to the extent that it did not take any step to unravel the allegation of crime alleged by the 2nd Respondent before relying on and accepting the same as admission.

The 2nd Respondent submitted to the effect that the information that cases of doubtful substitution had been treated by sending the correct names to INEC (which did not include that of the present 2nd Respondent as it was not one of the doubtful ones) cannot be an answer to the positive assertion “by him (i.e. 2nd Respondent) and an earlier admission by the Appellant that the National Chairman of the Appellant did not sign Exhibit EB3, The 2nd Respondent submitted that a specific allegation must be met and denied with specific and clear denial and not an evasive one. The cases of Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 537; Ikono Local Govemment v. De Beacon Finance & Securities Ltd (2002) 4 NWLR (Pt. 756) 128 at 142 amongst others were cited in aid. In respect of the contention relating to allegation of crimes in the supporting affidavit, the 2nd Respondent submitted that the deposition in paragraph 4 of the supporting affidavit cannot be said to relate to fraud or crime within the meaning of the words as defined in Bua v. Dauda (2003) 13 NWLR (Pt. 838) 657; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; and Nnachi v. Ibom (2004) 16 NWLR (Pt. 900) 614. The 2nd Respondent made the point that the Appellant admitted in its counter affidavit that a valid letter of substitution must be jointly signed by the National Chairman and the National Secretary of the Appellant and that all that was required if the Chairman did sign it was a deposition to that effect.

The instant action was commenced by way of Originating Summons, An affidavit in support of the Originating Summons was duly filed by the 200 Respondent who brought the suit. An affidavit when duly sworn to or deposed to before the official designated by law for that purpose, is in itself documentary evidence, See AGBEOTU V. BRISIBE (2005) All FWLR (Pt. 257) 1454 at 1468; and CHIDUBEM V. EKENNA (2009) All FWLR (Pt. 455) 1692 at 1706 and 1721. Indeed in the case of AGBAKOBA V. INEC (2008) 18 NWLR (Pt. 1119) 489 at 549, the Supreme Court made it clear that the affidavits filed by parties in actions commenced by Originating Summons take the place of evidence and that any material paragraph of an affidavit not specifically denied is taken as admitted and constitutes unchallenged evidence upon which the court can act. It is also settled law, that unchallenged facts in an affidavit which remain uncontroverted are not only deemed admitted but also that the unchallenged and uncontroverted facts deemed admitted in the affidavit of a party must be capable of proving and supporting the case of the party to entitle him to judgment. See the case of OGOEJEOFO V. OGOEJEOFO (2006) All FWLR (Pt. 301) 1792 at pages 1803 -1806.

The Appellant relying on the deposition in paragraph 3(b)(i) of its further counter affidavit at pages 93 – 95 of the Records has described the finding of the court below that it did not deny or contest the deposition of the 2nd Respondent that Exhibit EB3 was not a valid letter of substitution and needed no further proof as the Appellant has admitted it, as strange and mysterious, I cannot but say that I find the words “strange” and “mysterious” used to describe the finding of the court below in the Appellant’s brief which was settled by counsel to be most inappropriate and somehow crude as they are definitely not a lawyer’s language which is supposed to be professional, temperate and cultured at all times in keeping with the ethics of our honourable profession. Be that as it may.

Now, what is strange and mysterious about the finding of the court below in respect of Exhibit EB3? In the supporting affidavit of the Originating Summons, the 2nd Respondent deposed thus concerning the said Exhibit:-_

“Paragraph 4

The 3rd Defendant presented a letter dated 5/2/07 to the 1st Defendant which sought to substitute my name as the candidate of the 2nd Defendant. The said letter was not signed by the National Chairman of the 2nd Defendant and did not give any cogent and verifiable reason for seeking to substitute my name. The letter dated 5/2/07 is here annexed and marked Exhibit EB3.

Paragraph 5

By a letter dated the 19/02/2007, the National Chairman of the 2nd Defendant wrote to the 1st Defendant to disown all spurious letters purporting to substitute nominated and presented candidates of the party within that period, The said letter is annexed and marked Exhibit EB5.

Paragraph 6

The signature on the substitution letter dated 5.02.07 is not that of the National Chairman of the 2nd Defendant. The signature of the National Chairman is as shown in his disclaimer letter of 19/02/07 and on another letter of substitution dated 12/02/07, the said letter of 12/02/07 is attached annexed and marked Exhibit EB6.”

In the counter affidavit of the Appellant deposed to by Ndam Nanchang which is at pages 29 – 31 of the Records, the said deponent admitted paragraphs 5 and 6 of the supporting affidavit without qualification. The deponent further disclosed what he was told by one Chris Essien Esq. the National Director Legal, Intelligence and Security to the Appellant. These are (i) that the National Chairman of the Appellant wrote Exhibit EB5 to the 1st Defendant; (ii) that he (Le. Essien) is familiar with the signature of the National Chairman of the Appellant – Senator (Dr.) Ahmadu Ali (GCON); (iii) that the signature on Exhibit EB3 is not that of the said National Chairman; and (iv) that a valid leller of nomination or substitution of a candidate of the 2nd Defendant is that jointly signed by the National Chairman and National Secretary.

I am in no doubt that by the depositions in the counter affidavit as set out above, the Appellant has directly responded to all that the 2nd Respondent said in relation to Exhibit EB3. In so doing, the Appellant not only admitted that the signature on Exhibit EB3 is not that of the Appellant’s Chairman but also made it clear that any letter of substitution that did not bear both the signature of the National Chairman (at least as it appeared on Exhibit EB5), and that of the National Secretary is no! a valid letter of substitution. The further counter affidavit of the Appellant is at pages 93 – 97 of the Records. I have painstakingly and dutifully scrutinized the same and I cannot but say that there is absolutely no deposition in it that remotely denies what had initially been admitted in relation to Exhibit EB3. Surely it cannot be said that the deposition that the National Chairman of the Appellant treated the cases of doubtful substitution by sending the correct names to INEC and which cases did not involve the case of the 2nd Respondent specifically relate to or deny the issue of signature on Exhibit EB3 as raised in the supporting affidavit. Likewise it cannot be said that the deposition that the Appellant has the final say on the question of candidates specifically addresses the said Exhibit and the issue of signature raised therein.

From the above, I am of the respectful view that the finding of the court below that the Appellant did not deny or contest the deposition of the 2nd Respondent that Exhibit EB3 was not a valid letter of substitution and which admitted facts required no further proof, is eminently correct in law having regard to the affidavit evidence before it particularly the affidavit evidence presented by the 2nd Respondent vis-a-vis that of the Appellant on the issue of Exhibit EB3.

The Appellant has also argued that the finding of the court below in relation to Exhibit EB3 should be set aside as the allegation in respect of the signature of the National Chairman of the Appellant as presented by the 2nd Respondent bordered on forgery and fraud and as the court below did not unravel that allegation before it relied on the deposition and acted on the same as an admission.

As it has been slated in this judgment before now, affidavit is in itself evidence. In the case of AMINU V. OGUNYEBI (2004) All FWLR (Pt. 221) 1528 at 1545, this Court amongst others held that a party who alleges forgery of a document must not only plead the document but also provide the particulars he relies on, Assuming that the 2nd Respondent has raised the issue of forgery as contended by the Appellant, the said Respondent having regard to the supporting affidavit clearly pleaded the document which the Appellant has now said to throw up the issue of forgery and fraud. He also provided the particulars he relied on. Given the law that the supporting affidavit itself is evidence, he has also given evidence in respect of what he pleaded and also tendered documentary evidence in the proof thereof. If it is forgery as alleged, that the 2nd Respondent has raised in Exhibit EB3, then the Appellant has definitely admitted the fact of the forgery by having admitted the fact that the signature of the Chairman is indeed as shown on Exhibits EB5 and EBB. It is however to be appreciated that the 2nd Respondent never alleged that any particular person forged the letter of substitution. It is the Appellant that has decided to elevate the complaint of the 2nd Respondent in respect of Exhibit EB3 to the level of criminality. The 2nd Respondent given his complaint in respect of Exhibit EB3 has clearly furnished sufficient evidence in its proof. The Appellant admitted the evidence presented by the 2nd Respondent to be as he asserted. So what was there that the lower court had to unravel in the face of the evidence presented by the Appellant itself that the evidence relied upon by the 2nd Respondent in respect of Exhibit EB3 is indeed true? I see nothing left for the court below to unravel in the face of the admissions in the counter affidavit of the Appellant. Even in criminal proceedings an accused person who admits the evidence adduced by the prosecution can properly be convicted on the strength of the same. In the same vein an admission in respect of an allegation that is criminal in nature in a civil matter will suffice to establish the same.

Given all that has been said I see no justification in tampering with the finding of the court below as the Appellant has invited this Court to do. The finding is anchored on solid foundation, to wit: admissions of the Appellant that properly established the truth of the assertion of the 2nd Respondent that Exhibit EB3 does not carry or bear the signature of the Chairman of the said Appellant. In conclusion Appellant’s Issue 4, is resolved against it.

APPELLANT’S ISSUE 5

Dwelling on this Issue the Appellant said that the court below misconceived the facts of the instant suit as well as those of Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365. This according to the Appellant is because ‘the facts of the instant suit and its circumstances particularly the time of removal and position of events at the time of the substitution are radically different. The differences were catalogued. The catalogued differences will be dealt with in due course in this judgment.

The 2nd Respondent on his part submitted that the court below in applying the decision in the case of Ugwu v. Ararume (supra) was only giving effect to the doctrine of stares decisis. Then as the Appellant did, the 2nd Respondent equally dwelled extensively on the doctrine of stares decisis.

The first question posed for the determination of the court below in the Originating Summons is – “Whether the purported letter of substitution of the plaintiff with the 3m Defendant purportedly issued by the 2nd Defendant satisfies the requirement of Section 34(1) & (2) of the Electoral Act, 2006.” Parties are no doubt agreed that the letter pursuant to which the substitution of the 2nd Respondent with the 1st Respondent was done is Exhibit EB3. The letter is at page 17 of the Records. It is titled “Substitution: PDP Candidates for Uyo Federal Constituency Akwa Ibom State” the letter is addressed to Prof. Maurice Iwu. In the first paragraph the Professor was informed that the 1st Respondent is the PDP candidate for the Constituency in question. In the second paragraph it is stated to the effect that the 1st Respondent “substitutes the earlier name for the aforementioned constituency which was submitted without enough information.” The Appellant in its brief has stated that the reason given in the instant case is “name was submitted without enough information”, I must say that what is glaring as the reason for the substitution in Exhibit EB3 is that the name earlier submitted was so submitted “without enough information”. The court below would appear to have stated the reason to be “not enough information” at page 194 of the Records. Whatever the reason for substitution, what should be noted however is that the cogent and verifiable reason for substitution must by law be given or stated in the application by which the substitution is being sought. See Section 34(2) of the Electoral Act, 2005, See also AGBAKOBA V. INEC supra.

The words ‘cogent” ‘and “verifiable” in Section 34(2) of the Electoral Act have now peen judic1alry recognised and interpreted by the Nigerian judiciary. The Supreme Court gave the meanings of the words “cogent”; and “verifiable” in PAM V. MOHAMMED (2008) All FWLR (Pt. 436) 1868 at 1901. See also UGWU V. ARARUME & ANOR (2007) All FWLR (Pt. 377) 807 at 922. Indeed in the case of ODEDO V. INEC (2008) 17 NWLR (Pt. 1117) 554 the Supreme Court held amongst others to the effect that the words “without enough information” do not connote anything that is cogent or verifiable.

The Appellant would appear to have argued that the case of Ugwu v. Ararume (supra) is not applicable to the instant suit because what was said not to be cogent and verifiable in the said case was the reason of “error”. This argument definitely overlooks the fact that the Supreme Court gave the parameters of what constitute cogent and verifiable in the said case, Accordingly anything on reason that is found not to fall within the said parameters can be properly held not to be cogent and verifiable. This is all I understand the court below as having done by relying on the case in question. The case of Ugwu v. Ararume never decided that the only reason that qualifies as not being cogent and verifiable is that of “error”.

The Appellant has argued to the effect that the instant action was not brought timeously and that the 2nd Respondent was guilty of estoppel by silence or standing by. On the submission, the 2nd Respondent said that the issue was not raised at the court below, is not part of any ground of appeal or issue formulated therefrom and therefore cannot be competently raised before this Court without leave, The Appellant in its Reply brief relied on interest of justice in support of its stance that the issue has been properly raised and argued in its brief of argument and cited the cases of Akpene v. Barclays Bank of Nig. Ltd (1977) 1 SC 47; and Ejuetani v. Olaiya (2001) 18 NWLR (Pt. 746) 572 at 595.

May, I say right away that I am in total agreement with the 2nd Respondent that the Appellant having not raised anything in its affidavits from which the estoppel of silence even if it were applicable to the instant suit could be deduced, then the question of allowing the same to be raised before this Court in Ihe-Olerest of justice has no basis. In this regard I cannot but note that the Appellant has made references to certain dates in its brief of argument in order to sustain the issue of estoppel in question but has not referred to any affidavit in which those dales were mentioned. It is in the better interest of justice that Rules of Court be obeyed.

In the case of EHINLAWO V. OLUSOLA OKE (2008) All FWLR (Pt. 442) 1007 the Supreme Court decided 10the effect that a court has no jurisdiction to inquire into the question of who is the right candidate of a political party for an election once the party has nominated a candidate. It was also decided that the exception to the rule has to do with substitution of a candidate already nominated and submitted to INEC and that the substitution must be done within the time frame provided in the Electoral Act with cogent and verifiable reasons given. The case further decides that where no cogent and verifiable reasons are given, the substitution or change of candidate cannot be effected and the original candidate presented to INEC by the political party, in accordance with the law, remains the candidate of the party for the particular election. In the instant suit the deposition of the 2nd Respondent to the effect that his name had been forwarded to INEC by the Appellant in December, 2006 was not controverted, Indeed the very fact that the Appellant sought to substitute the “earlier name for the aforementioned constituency” leaves no one in doubt that the 2nd Respondent’s name was indeed forwarded to INEC, The Appellant only said that to the effect that the 2nd Respondent’s name was submitted “without enough information”, It therefore behoves the Appellant to establish that it effected the substitution of the 2nd Respondent with the 1st Respondent in strict compliance the provisions of Section 34(1) and (2) of the Electoral Act, 2006, before the court below could properly answer or resolve the questions posed for its determination against the ” Respondent. In other words it is only the substitution of the 2nd Respondent with the 1st Respondent made in strict compliance with the provisions of Section 34 of the Electoral Act, 2006 that can validly dislodge the authenticity of the candidature of the 2nd respondent for the PDP in respect of Uyo Federal Constituency. And as the authorities are very clear that “without enough information” is not cogent and verifiable reason for the substitution of a political party’s candidate whose name had been ‘submitted to INEC, in the circumstances I cannot but say that the decision of the court below in as much as it found the reason for the substitution of the 2nd Respondent with the 1st Respondent not to be cogent and verifiable applying the case of Ugwu v. Ararume is very correct. Accordingly, Appellant’s Issue 5 is resolved against it.

Having resolved all the Issues raised by the Appellant for the determination of the instant appeal except Issue 2 against it, the appeal in the circumstances fails. It is hereby dismissed. The judgment of the court below delivered on 17/5/2007 is affirmed.

I make no order as to costs.

---

Other Citations: (2009)LCN/3502(CA)