All Progressives Grand Alliance & Anor. V Chief Victor Umeh & Ors. (2010)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the High Court of the Federal Capital Territory Abuja delivered on the 16th day of April 2008.
The Appellants as Plaintiffs by an action commenced at the Lower Court claimed against the Respondents the following reliefs:-
“(a) A DECLARATION that the defendants are no longer members and/or National Officers of All Progressives Grand Alliance (the 1st Plaintiff) as they stand expelled from the party with effect from January 12, 2005, in accordance with the Constitution of the All Progressives Grand Alliance.
(b) A DECLARATION that 2nd, 3rd and 4th Plaintiffs are the duly and only recognized and authentic National Chairman (North) and Deputy National Chairman (South) respectively of ALL PROGRESSIVES GRAND ALLIANCE (the 1st Plaintiff).
(c) A DECLARATION that the 1st Defendant is not the National Chairman or acting National Chairman of ALL PROGRESSIVES GRAND ALLIANCE (the 1st Plaintiff) and is not competent to parade himself as such.
(d) A DECLARATION that 1st to 10th Defendants are no longer National Officers of the 1st Plaintiff, having been constitutionally and duly expelled from the Party by the 1st Plaintiff.
(e) A DECLARATION that the 1st to 14th Defendants are no longer members of ALL PROGRESSIVES GRAND ALLIANCE (the 1st Plaintiff) having been constitutionally duly expelled from the Party.
(f) AN ORDER of perpetual injunction restraining the 1st Defendant from parading himself or continuing to parade himself as the National Chairman or Acting National Chairman of ALL PROGRESSIVES GRAND ALLIANCE, including issuing press statement purporting to be acting the National Chairman of the 1st Plaintiff, or summoning, convening and/or holding any meeting in such capacity.
(g) AN ORDER of perpetual injunction restraining the 1st to 11th Defendants from parading themselves or continuing to parade themselves as National Officers of the ALL PROGRESSIVE GRAND ALLIANCE or issuing press statements purporting to be acting in such capacities or summoning, convening and/or holding any meetings in such capacities.
(h) AN ORDER of perpetual injunction restraining the 1st to 14th Defendants from parading or continuing to parade themselves as members of ALL PROGRESSIVES GRAND ALLIANCE or holding any meeting in such capacities.
(i) AN ORDER of perpetual Injunction restraining the Defendants whether by themselves, their agents or privies from using the official logo, letter headed papers or other stationeries or symbols of the ALL PROGRESSIVES GRAND ALLIANCE (1st Plaintiff) in any correspondence, meeting, conference or any gathering whatsoever and for any purpose whatsoever and in any manner howsoever.
(j) A DECLARATION that the Defendants purported suspension and/or expulsion of the 2nd, 3rd, 4th Plaintiffs from the 1st Plaintiff is illegal, null, void and of no effect, as same was done without capacity, and in flagrant violation of the constitution of the 1st Plaintiff and without due process.”
The Respondents filed their Statement of Defence while the Appellants also filed a Reply to the Statement of Defence.
At the conclusion of hearing, the Learned trial Judge in a considered Judgment, dismissed the Plaintiffs/Appellants’ claims.
The Appellants dissatisfied with the said Judgment now appealed to this Court.
The Learned Senior Counsel for the Appellants formulated two issues for determination as follows:-
Issue No 1
Was the Learned trial Judge right when he refused the Appellant’s application for discontinuance of the case and proceeded to enter Judgment against the Appellants (Arising from Grounds 1&2).
Issue No 2
Was the Learned trial Judge right when he held that the 2nd Appellant was validly expelled from the party when no such relief was sought by the parties (Arising from Ground 3).
The Learned Senior Counsel for the 1st, 2nd, 5th to 14th Respondents on the other hand also formulated two issues for determination as follows:-
(a) Whether the Learned trial Court rightly refused to grant the Appellants leave to discontinue their case after the matter had been adjourned for Judgment.
(b) Whether the Learned trial court on the evidence before it correctly found as a fact that the 2nd Appellant was validly suspended/expelled as a member/officer of APGA and in accordance with the Constitution of the party.
At the hearing, the learned Senior Counsel for the Appellants referred to the amended brief of argument deemed filed on 7/10/09 and a reply brief filed on 26/10/09. he adopted the two briefs of argument in urging the court to allow the appeal.
The learned Senior Counsel for the 1st, 2nd, 5th to 14th Respondents (otherwise referred to as Respondents) also referred to the amended Respondents’ brief of argument filed on 14/6/09. He adopted the brief in urging that the appeal be dismissed.
The Learned Counsel for the 3rd and 4th Respondents did not file any process before the Court.
The issues formulated by Learned Senior Counsel for the parties are similar but I prefer the issues formulated on behalf of the Respondents in the determination of this appeal.
Issue No 1
Whether the Learned trial Court rightly refused to grant the Appellants leave to discontinue their case after the matter has been adjourned for Judgment.
Learned Senior Counsel for the Appellants submitted that a party has a right to discontinue his action at anytime before final Judgment. He relied on the case of:-
Abayomi Babatunde vs. Pan Atlantic Shipping & Transport Agencies Ltd & 2 Others (2007) 13 NWLR Part 1050 Page 113 at 138 Paragraphs B-E.
He went further in his argument that since the case was at defence stage the Appellants required leave of the Court pursuant to Order 27 rule 3 of’ the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2004. But that the trial Judge refused to discontinue their action and proceeded to enter Judgment against the Appellants.
It was further submitted on behalf of the Appellants that when faced with an application for leave to discontinue an action, a trial Court pursuant to the said order 27 rule 3 has the following options.
(1) The Court may order the action or counter-claim to be discontinued.
(2) Or that any particular claim made in it be struck out, against any or many or all of the parties against whom it is brought on such terms as to costs or the bringing of a subsequent action or otherwise as it thinks just.
Learned Senior Counsel submitted that the Learned trial Judge was wrong and acted without jurisdiction when he failed to adopt any of the two conditions and rather proceeded to entertain final address of Counsel for the Respondents and entered Judgment in favour of the Respondents. He relied on the case of:-
– Inspector General of Police & 2 Others vs. Francis O. Aigbiremolen (1999) 13 NWLR Part 635 Page 443.
He argued further that Order 27 rule 4 of the High Court of the Federal Capital Territory Abuja (Civil Procedure) Rules 2004 contemplated a striking out of such cases to allow the Plaintiff take a second bite at the cherry.
It was further argued that the case of:-
– Rodrigues & Others vs. The Public Trustee & Others (1977) N.S.C.C. Page 148 which recommended the dismissal of an action at such late stage of the matter as in the instant case, would be rather inapplicable to this case.
He went further in his argument that an Appellate Court would interfere with the exercise of discretion in the extra ordinary circumstances where the exercise of discretion by the trial court is not backed by the law. He relied on the following cases:-
– University of Lagos vs. Olaniyan (1985) 1 NWLR Part 1 Page 156;
– University of Lagos vs. M. I. Aigoro (1985) 1 NWLR Part 1 Page 143 at 148.
– Nwabueze vs. Nwosu (1988) 2 NSCC Page 480:
– Efetiroroje vs. Okpalette II (1991) 5 NWLR Part 193;
– The Resident Ibata Province vs. Lagunju (1954) 14 WACA Page 552;
– Ekenebe vs. Ekenebe (1964) I All NLR page 102;
– N. A. Williams vs. Voluntary Funds Society (1982)1- 2 S.C. Page 145.
Learned Senior Counsel finally submitted on this issue that the power of Court to dismiss in limine must be exercised with utmost circumspection and caution. He relied on the case of:-
– Registered Trustees of Ifeloju Friendly Society vs. Kuku (1991) 5 NWLR Part 189 at Page 79.
Learned Senior Counsel for the 1st, 2nd, 5th to 14th Respondents submitted that the contention of Learned Senior Counsel for the Appellants in respect of Order 27 rule 3 of the Federal Capital Territory High Court (Civil Procedure) Rules 2004 is applicable only upon the grant of the leave sought and that the two options referred to in the said Order 27 rule 3 do not apply where leave has been refused as in the instant case.
He argued further that the word “leave” means “permission”. He referred to the following cases:
– Ajibola vs. Sodeke (2001) 23 WRN Page 68 at 89.
– Ojemen vs. Momodu II (1983) SCNLR Page 188.
– Wellington vs. Reg. Trustees Ijebu-Ode (2000) 3 NWLR Part 647 Page 139.
– B.B.N. Ltd vs. Olayiwola & Sons Ltd (2005) 5 NWLR Part 912 Page 434.
It was further argued that leave may be given or refused. He referred to the case of:-
– Dalfam Nig Ltd vs. Okaku International Ltd (2001) 15 NWLR Part 735 Page 203.
Learned Senior Counsel for the Respondents submitted that an Appellant cannot be heard to complain about “injustice” merely because the Court below determined their case on the merit and rendered Judgment.
He relied on the following cases:-
– Aliyu vs. Ibrahim (1992) 7 NWLR Part 253 Page 361;
– Sanusi vs. Makinde (1994) 5 NWLR Part 343 Page 214 at 227;
– Tiwani Ltd vs. C.T.M.B Ltd (1997) 8 NWLR Part 515 Page 140 at 150.
He therefore urged this Court not to interfere with the Lower Court’s exercise of discretion and to dismiss this appeal.
The Learned Senior Counsel for the Appellants in his reply brief of argument to the Respondent’s Amended brief of argument submitted that upon refusal of their application for discontinuance, the Learned trial Judge ought to have called upon the Appellants to address the Court before proceeding to Judgment. He stated that it is immaterial that the trial Judge had sometime earlier in the case, before the application for discontinuance came into the scene requested parties to submit written addresses upon peremptorily closing the case of the 3rd and 4th Defendants.
It was further submitted on behalf of the Appellants that even though a final address by Counsel may not be evidence, it is still a material and integral part of the conduct of a party’s case the absence of which imparts heavily on the fair hearing component of the entire trial.
He relied on the following cases:-
– Ayisa vs. Akanji & Others(1995) 7 NWLR Part 406 Page 129 at 144 Paragraph F to 145 Paragraph D;
– Salami vs. Odogun (1991) 2 NWLR part 173 Page 291 at 301 Paragraphs
– Akabogu & Others vs. Akabogu (2003) 9 NWLR Part 826 Page 445 at 458 Paragraph H and 459 Paragraph A;
– Ihom vs Gaji (1997) 6 NWLR Part 509 Page 526 at 532;
-Amough vs. Zaki (19981 3 NWLR Part 542 Page 484 at 491 Paragraph A-D
“Learned Senior Counsel again referred to Order 27 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004. He submitted that there is no mention or provision for Judgment on the merits upon an application for discontinuance of a suit, and the principle of the Law is encapsulated in the Latin maximum “expression unius est exclusio alterius” Where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included.
He therefore urged this Court to hold that the Learned trial Judge was in error to have delivered a Judgment on the merit in this matter.
In order to get to the root of the controversy in this appeal it would be necessary to delve into the record of proceedings.
On 23/1/08 the trial Court closed the case of the 4 Defendant after refusing his application for adjournment. Consequently, the Learned Senior Counsel for the 1st, 2nd, 5th -14th Defendants took 3 days to deliver his final address Counsel for the 3rd and 4th Defendants took her statutory days while Counsel for the Plaintiffs now Appellants took 21 days. The Court then adjourned to 25/2/08 for adoption of final addresses. (See page 1061 of the Record).
However on 25/2/08, Counsel for the Plaintiffs/Appellants instead of adoption of his address brought two applications for stay of proceedings which was taken and dismissed by the Learned trial Judge. (See Pages 1070 to 1074 of the Record).
Upon the dismissal of the Plaintiffs/Appellants’ applications for stay of proceedings, Learned Counsel for the Plaintiffs/ Appellants sought for adjournment to enable the Plaintiffs respond to the address of the Defendants. The application was objected to and the trial Court ruled as follows:-
“The parties seeking adjournment were ordered by this court on the 23rd Jan 2008 (more than a month earlier) to file their written address before today. That was not done and no reason has been tendered as an inhibiting factor-
Accordingly there is no cogent reason for adjournment. The final addresses is closed and the case is adjourned for Judgment. The Judgment is adjourned to 7/4/08.”
It is important to point out that there is no appeal against the refusal to grant the stay of proceedings nor the adjournment sought on 25th February 2008.
However on 7/4/08 the Judgment could not be delivered because counsel for the Plaintiffs/Appellants referred the trial Court to a fresh application filed to discontinue the case. The application was taken and ruling was fixed for 16/4/08. On that day leave was refused, and the Judgment of the Court was delivered.
It has been contended on behalf of the Appellants that when faced with an application to discontinue an action the Court has two options according to Order 27 rule 3 of the Federal Capital Territory High Court (Civil Procedure) Rules 2004.
It is my view that the contention is applicable only upon the grant of the leave sought. The two options do not apply where leave has been refused as in the instant case. In fact leave to discontinue may be granted or refused. In Dalfam (Nig) Ltd vs. Okaku International Ltd (Supra) it was held among others that:-
“Leave to withdraw may be refused in which case the suit must be dismissed on terms as to cost.”
The Learned Senior Counsel for the Appellants relied heavily on the case of:-
– Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd and 2 Other (Supra).
In Babatunde’s case, the application for leave to discontinue was brought before trial commenced, but in this case under consideration the application was brought after the matter has been adjourned for judgment.
In Babatunde’s Case (supra) the Supreme Court per Ogbuagu JSC stated as follows at pages 163-164:-
“Secondly when an application for discontinuance of an action is made, one of the things to be considered by a trial Court is at what stage the said application is made. If it is made before a hearing date has been fixed, it seems to me that it is now firmly settled that the proper order to make is one of striking out. This is because there has been no litis contestatio and a determination on the merit has not been made after hearing evidence of either the whole or some fundamental part of the claim. If the application is made after hearing has commenced, the trial court must weight and consider all the case in the interest of the parties involved including the balance of convenience and disadvantage which might be suffered by any of the parties concerned.
Further on page 164 Ogbuagu JSC stated further:-
“From some of the Rules of some State High Courts, I note that from the first date that a case is fixed for hearing and beyond, leave to discontinue the suit is no longer automatic. This is because it seems to me at that stage the plaintiff is no longer “dimius litis”. Even at that stage, it is for the trial Court to decide whether or not the action should be discontinued and upon what terms. In effect a trial Court can disallow discontinuance and ask the plaintiff to proceed with his case ………”
It is my view that the trial court weighed and considered all the circumstances of the case in the interest of justice and thus balance of the interest of the parties involved before refusing to grant the application for leave to discontinue the action.
A trial Court is also entitled to refuse leave to discontinue a suit and allow the Case to proceed, as it is the case of the trial Court when it delivered its judgment.
In Nwokedi vs. R.T.A Ltd (2002) 6 NWLR Part 762 Page 191 this Court was emphatic that an application for discontinuance and subsequent striking out of a suit ought not to be allowed at a very late stage of proceedings.
According to Fabiyi JCA(as he then was) at pages 196-197:-
“From the first date that a case is slated for hearing and beyond, leave to discontinue same is no longer automatic. This position is no longer a moot point. A trial Judge has discretion whether to allow same on terms or disallow discontinuance and order the Plaintiff to proceed with his case…………… I agree with the learned trial Judge that the Appellant appeared to be at war with himself. He put himself in an awkward situation at a time when the entire issues involved have become manifestly crystallized and the trial Court was fully in a position to give a decision on the merit.”
See also the following cases:-
– Adhadiuno vs. Onubogu (1978) 5 NWLR Part 548 Page 16;
– Eronini vs. Iheuko (1989) 2 NWLR Part 101 Page 46;
– Dalfam Nig Ltd vs. Okaku International Ltd (supra).
In the instant case, the Appellants have invited this Court to interfere with the Lower Court’s exercise of discretion.
An Appellate Court may interfere with the trial Court’s Exercise of discretion in the following cases although the list is not exhaustive.
(a) Where the trial court exercised its discretion based on wrong principles, irrelevant facts and a misapprehension of the facts in issue between the parties.
(b) Where the trial Court’s exercise of discretion is under a mistake of Law, not backed by Law or its decision will work injustice to any or both parties to the matter before the court.
(c) Where the exercise of discretion palpably lead to miscarriage of justice.
(d) Where the discretion appears to have thrown to the wind, the dictates of due administration of justice.
(e) Where the exercise of discretion is mala fide, arbitrary, illegal or perverse.
See the following cases:-
-Unilag v. Aigoro (supra);
-Nnubia vs. A.G. Rivers State (1999) 3 NWLR Part 593 Page 82;
-Menkiti v. Menkiti (2000) 8 NWLR Part 607 page 154;
– Ariori v. Elemo (1983) 1 S.C. page 13;
-Tiwani Ltd. v. C.T.M.B Ltd (supra).
In my humble view whenever a question as to the exercise of discretion arises, an appellate Court will ordinarily accord respect to the decision reached by a lower Court. It would not reverse the lower Court or interfere with the exercise of the discretion merely because it would itself have exercised that discretion differently. An appellate Court will only interfere in situations listed earlier in this Judgment which I said is not exhaustive.
See the following cases:-
– Nigeria LNG Ltd vs. A.D.I.C. Ltd (1995) 8 NWLR Part 416 Page 677 at 694;
– Omadide v. Aajeroh (1979) 12 S.C. page 87 at 96.
In view of the foregoing, it is my view that the trial Judge was right when he refused the Appellants’ application for discontinuance of the case after the case has been fixed for Judgment.
This issue is therefore resolved in favour of the Respondents
Issue No 2
Whether the Learned trial Court, on the evidence before it correctly found as a fact that the 2nd Appellant was validly suspended/expelled as a member/officer of APGA and in accordance with the constitution of the party. (Distilled from ground 3).
The Learned Senior Counsel for the Appellants referred to paragraph 23 of their Amended Statement of Claim before the lower Court and he submitted that the Learned trial Judge exceeded his bounds, and went on a frolic of his own, formulating issues and deciding issues not placed for determination before him by either of the parties.
He relied on the following cases:-
– Okoya vs. Santili (1994) 4 NWLR Part 338 Page 256;
– Total Nig Plc vs. Ajayi (2004) 3 NWLR Part 860 Page 270 at 298
It was further submitted on behalf of the Appellants that the declaratory order granted by the lower Court was not even sought for by the Respondents themselves. He went further that a Court will not grant a relief not claimed by a plaintiff. He relied on the following cases:-
– Ekpeyong vs. Nyong (1975) 2 S.C. Page 71 at 80-81;
– Akinboni vs. Akinboni (2002) 5 NWLR Part 761 at Page 564-578;
– Baba-lya vs. Sikeli (2006) 3 NWLR Part 968 Page 508 at 536 to 537
Learned Senior Counsel for the Appellants submitted that the declaratory order made by the Lower Court was not one which can be termed a consequential order. He relied on the following cases:-
– Obayagbona vs. Obazee (1970) 5 S.C. Page 247;
– Nwanya vs. Nwanya (1987) 3 NWLR Part 62 Page 697;
– Peter Adeboye Odofia vs. Chief Agu & Another (1992) 3 NWLR Part 229 Page 350 at 372.
Learned Senior Counsel finally urged this Court to hold that the said order of the trial Court is null and void and of no legal consequence.
In his own submission on this issue the Learned Senior Counsel for the 1st, 2nd, 5th to 14th Respondents referred to reliefs No. (a) (d) and (j).
He stated that the three reliefs constituted the gravamen and principal reliefs sought by the Appellants at the trial Court. He also referred to issues for determination submitted by the Defendants at the Court below for determination. It is set out as follows:-
“(a) Whether the 2nd, 3rd and 4th Plaintiffs were validly suspended and subsequently expelled from the 1st Plaintiff on grounds of anti-party activities and embezzlement of party funds.
(b) Whether the defendants can be validly expelled from the 1st Plaintiff by the 2nd, 3rd and 4th Plaintiffs who were no longer members of the party.”
It was contended on behalf of 1st, 2nd, 5th to 14th Respondents that by relief J. in the amended Statement of Claim the 2nd Appellant specifically requested the Learned trial Court to determine that his suspension and expulsion was in violation of the constitution of the party.
Learned Senior Counsel for the Respondents submitted that this Court will not interfere with the findings made by the learned trial Court on evidence before it which it believed or disbelieved unless it is obvious that the trial Court has not made good use of the unique advantage which it had of seeing and hearing the witnesses before it. He relied on the following cases:-
– Fashanu vs. Adekeye (1974) 6 S.C. Page 83;
– Woluchem vs. Gudi (1981) 5 S.C. Page 319.
– Atanda vs. Ajani (1989) 3 NWLR Part II Page 511 at 525.
In conclusion, he urged this Court to dismiss the 2nd Appellant’s contention and uphold the findings and conclusion of the Learned trial Court that the 2nd Appellant was validly expelled as a member of the party in accordance with the Constitution of the party.
The Learned Senior Counsel for the Appellants in his reply brief of argument submitted that the 1st Appellant is a duly registered political party with a copy of its Constitution recognized by Section 222 (c) of the Constitution of the Federal Republic of Nigeria 1999. He went further that the constitution is binding on all the parties.
It was also submitted on behalf of the Appellants that the procedure adopted by the Respondents in the purported expulsion of the 2nd Appellant as National Chairman of the party failed to accord with the procedure laid down by the constitution of the party and therefore it cannot be correct as contended by the Respondents that the expulsion was duly made. He relied on the case of:-
– Balonwu vs. Obi (2009) 5 NWLR Part 1028 Page 488.
In conclusion, he urged this Court to discountenance the submissions of the Respondents and hold that the Court below was in error in holding that the 2nd Appellant was duly and constitutionally expelled from the 1st Appellant.
It was the contention of Learned Senior Counsel for the Appellants that the expulsion of the 2nd Appellant from APGA was never placed for determination by any of the parties before the trial court.
A careful examination of the Plaintiffs/Appellants claim set out at the beginning of this Judgment would show that reliefs Nos. (a) (d) and (j) are among others in respect of whether the 2nd, 3rd and 4th Plaintiffs were validly suspended from and subsequently expelled from the 1sf Plaintiff.
In my humble view, all that the learned trial Court did was to determine the claim presented before it.
The findings of the trial Court on this issue is a finding of fact and the position of the law is that the appraisal of oral evidence and ascription of probative value to such evidence is within the primary function of the trial Court, the question of credibility of witnesses being essentially within the province of the trial Court which heard and saw the witnesses testify.
See the following Cases:-
– Okoye vs. Ejiefo (1934) 2 WACA Page 130;
– Kodilinye vs. Odu (1935) 2 WACA 336:
– Fashanu vs. Adekoya (1974) 6 S.C. Page 83:
– Obodo vs. Ogba (1987) 7 NWLR Part 540 Page 1 at 10:
– Chinwendu vs. Mbamali (1980) 3 -4 S.C. Page 31 at 75:
– Enang vs. Adu (1981) 11-12 S.C. Page 25 at 38:
– Ojo vs. Philips (1993) 5 NWLR Part 296 Page 751:
– Ogbechi & Others vs. Onochie & Others (1988) 1 NWLR Part 70 Page 370;
– In Sagay vs. Sajere & Others (2000) 6 NWLR Part 661 Page 360.
The Supreme Court held among others that:-
“The appraisal of oral evidence and the ascription of probative value to such evidence is the primary function of the trial Court…….
Where the issue turns on the credibility of witnesses an appellate court which has not seen the witnesses must defer to the opinion of the trial Court”
It has not been shown that the Learned trial Judge did not appropriately utilize the unique advantage it had in seeing the witnesses testify before it nor has it been shown that the findings made by the Learned trial Court are not supported by the evidence before it which it believed.
The Learned trial Judge of the lower Court resolved this issue and held as follows:-
“I have considered the evidence of the parties on this point and I am satisfied from the Exhibits tendered that the NWC and NEC met on the dates stated and took decisions to expel the 2nd to 4th Plaintiffs. Exhibits D23 shows that 8 members of the NWC including the 3rd and 4th Defendants attended the meetings. Exhibits D24 and D25 show that 12 members attended the NWC meeting on 30/12/04, while exhibit D26 reveal that there was NEC meeting of APGA on 11/1/05 and that 60 members were present. In the face of these overwhelming documentary evidence it could be ridiculous for the 3rd and 4th Defendants who participated in all the steps leading to the expulsion of the Plaintiffs to turn round to say there were no meetings.
The 3rd Defendant did not impress me as a witness of truth. I see him as a miserable liar who would stop at nothing in lying to suit his convenience, why would the 3rd Defendant who believes in the futility of the meetings of NWC without the 2nd Plaintiff participate in same. This conduct of his speaks volume and creates doubt about his credibility as a witness and doubts as to the veracity of his evidence in Court.”
The Learned trial Judge has in my view exercised the primary function of the Court to resolve which of the conflicting evidence before it, it was entitled to believe.
See the following cases:-
-Leventis Technical vs. Petrojessica (1999) 6 NWLR Part 605 Page 45;
-N.B.C.I v. International Gas Nig Ltd (2005) 4 NWLR Part 916 Page 617 at 639 Paragraphs C-E;
-Dabo vs. Abdullahi (2005) 7 NWLR Part 923 Page 181 at 206 Paragraph; G-H:
-Josadeg Nig Ltd vs. NDIC (2005) 9 NWLR Part 929 Page 167 at Page 181.
Furthermore, concerning the allegation of anti-party activities made against the 2nd Appellant which he denied and allegation of embezzlement of party fund against him, the learned trial Judge made findings of fact which are consistent with the evidence before the Court and this is a proper exercise of Judicial function vested in the Court to assess and evaluate evidence before it.
It is my view that all other arguments put forward by the Learned Senior Counsel for Appellants are diversionary.
In view of the foregoing, it is my view that the learned trial Court on the evidence before it correctly found as a fact that the 2nd Appellant was validly suspended/expelled as a member/officer of APGA and in accordance with the constitution of the party.
This issue is therefore resolved in favour of the Respondents.
In the final analysis it is my view that this appeal lacks merit and it is hereby dismissed.
The 1st, 2nd, 5th to 14th Respondents are entitled to costs which is fixed at N75,000.00 (Seventy Five Thousand Naira) against the 2nd Appellant.
Other Citations: (2010)LCN/3524(CA)
