Congress For Progressive Change & Anor V. Hon. Emmanuel David Ombugadu & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal arose from the dispute as to who, the 2nd Appellant or the 1st Respondent, was the duly nominated and sponsored candidate of the 1st Appellant, the Congress for Progressive Change and elected in the April, 2011 general election to represent the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the lower chamber of the National Assembly.

In the Amended Originating Summons filed on 10/5/2011 in the Lafia Judicial Division of the Federal High Court, the Plaintiffs/Appellants raised the following questions for determination:

“1. Having regard to the clear and unambiguous provision of Section 87 of the Electoral Act, 2010 as well as the provision of Article 25 of the 1st Plaintiff’s Constitution, particularly judicial pronouncement on the supremacy of a political party’s decision in respect of nomination of candidates; whether the Court or any other authority at all can compel a party to nominate or dictate a particular candidate it must sponsor for an election.

2. Considering the elaborate provision of Section 83(1)(4)(c)(ii) of the Electoral Act, 2010, as amended as well as the provision of the 1st Plaintiff’s Manual and Guidelines for Primaries, whether the 2nd Plaintiff was not validly nominated and sponsored as the candidate of the 1st Plaintiff for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State for the April 2011 General Election.
3. Having regard to the clear provision of the Electoral Act, 2010 as amended, particularly Section 87 and the provision of the 1st plaintiff’s Constitution with regard to holding of primaries, whether the 1st defendant can recognize the name of a person who did not win his party’s primaries as a candidate in the election and who was not sponsored by his political party as its candidate for the elective position.
4. Considering the facts and circumstances of this case especially the supremacy of political party’s decision on sponsorship of candidates and the fact that the 2nd Plaintiff had acquired a vested interest in the election, whether his candidature can be voided, cancelled or nullified by the 1st defendant.”

In anticipation of answers favourable to the Plaintiffs/Appellants, they prayed the Court for the following:

“1. A declaration that nomination, sponsorship and substitution of candidates for an election, is the exclusive preserve of the political party concerned under the law.

2. A declaration that the 1st Defendant has no vires or statutory power to reject the name of any candidate including the 2nd Plaintiff sponsored by a political party for elective position or compel any political party to sponsor a particular candidate for an election.
3. A declaration that the 1st Defendant has no statutory power to recognize or accept as candidate the name of any person not submitted or sponsored by his political party.
4. A declaration that the 2nd Plaintiff having won the primaries of the 1st Plaintiff pursuant to which his name has been submitted to the 1st Defendant as the sponsored candidate of the 1st Plaintiff for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State, is the 1st Plaintiff’s candidate for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general elections.
5. A declaration that under the provisions of the Electoral Act, 2011 the only way the 1st Defendant can change, reject or substitute a duly sponsored/nominated candidate of a political party is through a Court order.
6. An order of the Honourable Court compelling/directing the 1st Defendant to recognize and accept the 2nd Plaintiff as the duly nominated/sponsored candidate of the 1st Plaintiff for the seat of member of House of Representatives for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general election.
7. An order of this Honourable Court that the 2nd Defendant having lost in the primary election of the 1st Plaintiff conducted on 15th January, 2011 and not having been sponsored by the 1st Plaintiff to be its candidate in the April, 2011 general election into the seat of member of House of Representatives for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State cannot be recognized by the 1st defendant as the 1st Plaintiff’s candidate for aforesaid election.
8. An order of this Honourable Court that the sponsorship/nomination of the 2nd Plaintiff by the 1st Plaintiff having been done in accordance with the law cannot be invalidated in law.
9. An order declaring the 2nd Plaintiff as the sponsored candidate of the 1st Plaintiff for the House of Representatives election for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State in the April, 2011 general election.
10. An order of perpetual injunction restraining the 1st Defendant, its agents, servants or privies from recognizing the 2nd Defendant as the sponsored candidate of the 1st Plaintiff for House of Representative election for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State.”

(See pages 307 to 309 of the transcripts).

A 46-paragraph affidavit in support of the originating process was also filed on 10/5/2011 along with a written address.

On the same date, 10/5/2011, the 2nd Defendant/Respondent filed a Notice of Preliminary Objection predicated on five grounds. A 21-paragraph affidavit in support of the notice of preliminary objection was filed on 9/5/2011. A written address in support of same was filed on 10/5/2011. The 2nd Defendant’s/Respondent’s 42-paragraph counter-affidavit in opposition to the affidavit in support of the Originating Summons was filed, within the time extended for same by the trial Court, on 10/5/2011.

The 2nd Defendant/Respondent also filed his written address opposing the Originating Summons on 10/5/2011. On 20/5/2011, the Plaintiffs/Appellants filed a written address in opposition to the 2nd Defendant’s/Respondent’s preliminary objection. They filed a 3-paragraph further affidavit in support of their Originating Summons on 25/5/2011. On the same date (25/5/2011) they filed a written address “in support of further and better affidavit to the Originating Summons”.

A search in the two volumes of the records and one volume of supplementary record shows that the only process filed by the 1st Defendant/Respondent in the proceedings in the trial Court is a written address on point of law to the Originating Summons. (See pages 740 – 744 of the record).

On 10/6/2011, learned Counsel for the parties adopted and relied on their written addresses in the preliminary objection and their briefs in the Originating Summons. At the conclusion of the proceedings for the day (10/6/2011), the record showed:

“Court: Ruling on the preliminary objection is reserved till the 4th of July, 2011 while judgment in the substantive suit is reserved till 2pm of the same date.” (See page 748 of the record).

On the preliminary objection, the trial Court had held:

“In the circumstances, I hold that the action was properly commenced by Originating Summons. The sum total of all I have been saying is that this Court has jurisdiction to entertain and determine this action and hereby assumes same. The preliminary objection dated and filed on 10/5/2011 lacks merit, fails and is therefore hereby dismissed. There shall be no order as to costs. That is the ruling of this Court.” (See page 837 of the record).

In its judgment running from page 250 to page 286 of the record, the trial Court concluded and ordered as follows:

“In the eyes of the law, Mr. Emmanuel David Ombugadu was never a candidate in the election much less the winner. It is therefore hereby ordered that the 1st defendant returns the 2nd Plaintiff as the winner of the April 9, 2011. National Assembly Election into the House of Representatives of the Federal Republic of Nigeria, representing Akwanga/Wamba/Nasarawa-Eggon Federal Constituency. Prayers/reliefs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 as contained in the body of the amended Originating Summons are hereby granted as prayed. I shall make no order as to costs. That is the judgment of this Court.” (See page 786 of the record).

Aggrieved by the judgment of the trial Court, 1st Appellant appealed to the Court of Appeal, Makurdi Judicial Division on five (5) grounds. The lower Court, in its judgment of 25/5/2012 allowed the appeal and struck out Suit No. FHC/LF/CS/13/2011 for want of jurisdiction. (See page 1248 of the record).

Not satisfied with the judgment of the lower Court, appellant filed a notice of appeal subsequently amended, containing 21 grounds on 29/1/2013. Learned Counsel for the parties filed and exchanged briefs of arguments in accordance with the rules of this Court.

In the Appellants’ brief of argument filed on 29/1/2013, the following seven (7) issues were distilled for determination:

“(i) Were the learned Justices right in law in holding that the trial Court has no jurisdiction to entertain Appellants’ case and make the consequential orders made in this case (Based on Grounds 1, 2 and 6).

(ii) Issue No. 2 – Were the learned Justices right to entertain and determine issues No. 3 and 4 in the appeal before them when Ground 5 held to be incompetent was argued under issue No. 3 and together with issue No. 4 (is based on Ground 4).

(iii) Were the learned Justices right in law in admitting as fresh evidence on appeal, Exhibit CA1 and ascribing probative value to it and or using Exhibit CA1 for the view that the learned trial Judge did not evaluate the evidence before him correctly or at all (Based on Grounds 7, 8, 9 and 15).

(iv) Were the learned Justices right in law in embarking on fresh evaluation of evidence and interfering with the definite findings of fact made by the learned trial Judge or put in another way, had the learned Justices valid legal basis for interfering with the trial Judge’s findings of fact (Based on original grounds 10 and 18).

(v) Were the learned Justices right in their view that 1st respondent’s name was submitted to INEC having regard to:

A: Their Lordships’ affirmation of the findings of the learned trial Judge as to 1st Appellant’s primary elections of 11th and 15th January, 2011;

B: The affidavit evidence and the relevant exhibits in Court and the findings of the learned trial Judge (Based on Ground 11 and 13).

(vi) Were the learned Justices right in interfering with the finding of the trial Judge on Exhibit F, O, G and G1 and affidavit evidence of Appellants on the basis of Exhibits OM5 and or CA1 as credible documentary evidence proving that 2nd Respondent was the candidate CPC submitted to INEC (Based on Grounds 14 and 21).

(vii) Were the learned Justices right in law in holding that the issue in the case was one of substitution of candidate by 1st Appellant even after affirming in the judgment, the issue identified by the trial Judge and in themselves stating the correct issue in the same judgment (Based on original Grounds 16, 19 and 20).

In the 1st Respondent’s brief filed on 26/3/2013, the following five issues were identified and slated for determination:

“1. Whether from the nature of the claim extant position of the law and evidence adduced, the trial Court had jurisdiction to entertain the matter (Grounds 1 and 2 of the notice of appeal).

2. Whether the learned Justices of the Court below were in error when they granted leave to the 1st Respondent to adduce fresh evidence and to have admitted and ascribed probative value to Exhibit CA1 (Grounds 7, 8, 9 and 14 of the notice of appeal).
3. Whether the learned Justices of the Court below erred in law in their review and re-evaluation of the evidence adduced before the trial Court before setting aside the judgment
4. Whether from the facts and circumstances of this case the lower Court was in error to hold that the case was one of attempt to substitute (Grounds 5, 6, 11, 14, 15, 16, 19 and 20 of the notice of appeal).
5. Whether the learned Justices of the lower Court actually entertained issues 3 and 4 in the lower Court when Ground 5 was struck out

On its own part, the 2nd Respondent submitted the following three issues for the Court to resolve:

“1. Whether having regard to the entire circumstances of this case the lower Court was right in its decision that the trial Court lacked jurisdiction to hear and determine the matter (Ground 1, 2 and 3).

2. Whether the lower Court was right in receiving, admitting and ascribing probative value to Exhibit CAL. (Grounds 7, 8, 9 and 14).
3. Whether the lower Court was right when it re-evaluated the evidence adduced before the trial Court and concluded that the name of the 1st Respondent was submitted to the 2nd Respondent and that the case of the Appellants was one of an attempted substitution of candidate. (Grounds 10-13 and 15-201).”

In his argument in issue one in his brief, learned Counsel for the Appellant said that Grounds 1, 2 and 6 of his Grounds of Appeal from which issue one is framed has to do with the conclusion of the lower Court that:

“I hold that neither the trial Court nor this Court has the jurisdiction to entertain the matter in dispute. Again by virtue of Section 141 of the Act, the Courts cannot make the consequential orders made by the Court below.” (See page 1248 of the record).

Learned Counsel for the Appellant impugned the conclusion of the lower Court, arguing that the matter submitted for adjudication and the reliefs sought are cognizable in law and are within the jurisdiction of the Court. He said that the jurisdiction of a Court to entertain a suit is determined from the Writ of Summons, the Statement of Claim and the relief claimed; adding that in the case of originating summons, jurisdiction is determined by its content, the reliefs claimed therein and the supporting affidavit which serve as the Plaintiff’s pleading. He relied on PDP & Anor v. Timipere Sylva & Ors (2012) 13 NWLR (Pt. 1316) at page 127; XS (Nig) Ltd v. Taisei (WA) Ltd (2006) 13 NWLR (Pt. 1003) ;page 535; Metal Construction (WA) Ltd v Aboderin (1998) 8 NWLR (Pt.563) page 538.

Learned Counsel referred to the claim in the Originating Summons and the affidavit in support and said that the complaint of the Appellants is that the CPC successfully conducted its primary election of 15th January, 2012 and that the 2nd Appellant having won the primary election his name was submitted to INEC by the party CPC as its sponsored candidate for the election to the Lower Chambers of the National Assembly for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency of Nasarawa State. He further stated that rather than publish the name of the 2nd Appellant as the party’s sponsored candidate for the election, INEC published the name of the 1st Respondent who did not win the party’s primary election of 15/1/2011 and whose name the party, CPC never sent to INEC. This, learned Counsel said, is the fundamental issue in dispute. He referred to and relied on paragraphs 6 to 25 of the supporting affidavit at pages 312 to 315 of the further affidavit in support of the originating summons at page 539 of Volume 1 of the record.

Learned Counsel emphasized that INEC against whom the substantive claims were made did not file any counter-affidavit and did not controvert the factual situation constituting the cause of action as deposed by the Appellants. He said that the uncontroverted facts deposed to by the Appellants constitute a cause of action and that the case made by Appellants shows (a) A challenge of the validity of executive or administrative action or decision of INEC, an agency of the Federal Government, and (b) A valid legal justiceable dispute within the ambit of Sections 31(1)(3) and 87(4)(c)(i) and (ii) of the Electoral Act 2010 as amended.

He referred to and relied on Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and contended that under the said provision, the Federal High Court has jurisdiction to hear and determine the dispute. He relied on NEPA v Edegbero (2002) 18 NWLR (Pt.798) 19; Abdulraheem v. Oduleye (2005) 8 NWLR (Pt 928) 144 at 129. He argued that the judgment of the lower Court was given without due consideration of Section 251(1)(r) of the Constitution (supra).

He relied on Chief Daniel Awodele Oloba v. Isaac Olubokun Akereja (1988) 3 NWLR (Pt.84) 509 at page 520 on the need to examine the many facts of jurisdiction and pronounce upon same by the Court faced with the issue of jurisdiction to determine a matter before it. He said that the failure of the Court to consider the issue of jurisdiction under the Constitution was the reason for the wrong decision that the Court has no jurisdiction in the matter. He referred to the finding of fact by the trial Judge at page 784 of the record that:

“I am of the view that sufficient materials have been placed before this Court to the effect that the primary election held on 11/1/2011 was inconclusive and came to the conclusion that the authentic primary election of the 1st plaintiff for the.. House of Representative.. was held on 15/1/2011” and said that there was no appeal against the said finding by the trial Court.

He referred to page 1240 of the record and said that the finding of the trial Court was affirmed by the lower Court when it held:

“established at the trial is the fact that CPC conducted two primaries for the selection or nomination of its candidates for the House of Representative (sic) for Akwanga/Wamba/Nasarawa-Eggon Federal Constituency. See the finding of the trial Court at page 780 of the record. The finding of the learned trial Judge was not appealed against. There was therefore no dispute that there were two primaries by CPC for the seat under reference.”

Learned Counsel contended that based on the finding of the trial Court against which there was no appeal and the affirmation of same by the lower Court, the issue as to who emerged from the conclusive party primary of 15/1/2011 is resolved and the issue of the CPC submitting the name of the 1st Respondent who admitted he did not take part in the primary of 15/1/2011 and the question of any dispute between two contestants did not arise.

Learned Counsel said that the CPC through its Nasarawa State Chairman and Secretary deposed that the primary election was inconclusive and did not produce a winner and that the secondary primary election of 15/1/2011 did produce a winner in the person of the 2nd Appellant for which he relied on paragraphs 8, 9, 10 and 11, 17, 22, 34 and 35 of their affidavit in support of the Originating Summons and Exhibits F, G, G1 and N1 at pages 381, 415 of the record, respectively.

He said that the facts of this case and the circumstances are different from the facts that formed the basis of this Court’s decision in Garba Lado & Ors. v. CPC & Ors. (2011) 18 NWLR (Pt.1278) 18. He said that an inconclusive primary election as in Lado’s case is in law not a valid primary election and that there was only one valid primary election held on 15/1/2011 and that there was no parallel party primaries as was the case in Lado’s case.

He argued that in Lado’s case, there were claims and counter-claims and the reliefs were directed against the CPC. He referred to this Court’s decision in Emeka v. Okadigbo (2012) 7 SC (Pt.1) 1 and said that the lower Court was wrong in applying Lado’s case to the present case. He relied in Babatunde v. PAS & TA Ltd. (2007) 13 NWLR (Pt.1050) 112 at 157 and Okafor and Nnaife (1987) 4 NWLR (Pt.64) 129 in his argument that the lower Court erred to go outside the facts of the case to decide the issue in dispute. He urged the Court to resolve issue one in favour of the Appellants.

In issue 2, learned Counsel referred to page 1207 of the records where the lower Court held:

“As for Ground 5 of the grounds of appeal, I had earlier in the course of determining this preliminary objection analyzed it. I will simply add that I agree with the 1st and 2nd Respondents that the ground is not appealable not being a ratio of the case. I also hold that ground 5 of the Appellant’s ground of appeal is incompetent. It is hereby struck out.”

He referred to page 1235 of the record and said that issues 2 and 3 were argued together and considered by the lower Court. He referred to page 1067 of the record and said issue 3 which was argued together with issue 2 was distilled from grounds 3-9 which included ground 5 already struck out by the lower Court. He contended that an issue distilled from a number of grounds of appeal, one of which is incompetent, is incompetent.

He relied on Khali v. Yar’adua (2003) 16 NWLR (Pt.847) 446 AT 481; Chief Bereyin v. Gbodo (1989) 1 NWLR (Pt.97) 372 at 380; Anyalogu v. Agu (1998) 11 NWLR (Pt.532) 129; Honika Saw-Mill (Nigeria Limited) v. Hary Okojie (1994) 2 NWLR (Pt.326) 252 at 262; Nwadike v. Ibekwe (1989) 4 NWLR (Pt.67) 718. He urged the Court to resolve the issue in favour of the Appellants and allow the appeal.

Issue 3 is on the lower Court’s admission of fresh evidence, Exhibit CA1, on appeal. Learned Counsel referred to page 1091 of the record for the 2nd Respondent’s motion to admit as fresh evidence on appeal a letter written by INEC, 60 days after the trial Court delivered its judgment, and page 1100 for the Appellant’s counter-affidavit opposing the application.

He referred to the ruling at page 1152 which he said was delivered on the same day the judgment on the appeal was delivered and where the lower Court held:

“In all, I hold that the Applicant has satisfied the conditions for this Court to grant this application. Application is therefore granted. I make order granting leave to the Appellant/Applicant to adduce and tender fresh documentary evidence which was not tendered at the trial Court, to wit: A letter from the Office of the Chairman, Independent National Electoral Commission (INEC) to the Inspector-General of Police (IGP), Nigeria Police Force”

Learned Counsel said that the judgment of the trial Court was delivered on 18th July, 2011 and the letter was written on 8th September, 2011, 60 days after the judgment of the trial Court. He concluded from the above that Exhibit CA1 admitted as fresh evidence on appeal was not in existence at any time before the trial Court delivered its judgment on 18/7/2011.

He argued that INEC as a party cannot, by its own letter written after the judgment was delivered, set aside of alter the judgment of the Court. He referred to Order 4 of the Court of Appeal Rules and contended that the said order did not contemplate manufacturing evidence after judgment had been delivered as “further evidence”.

He referred to Ladd v. Marshall (1954) 3 All ER 745-748 where Denning, LJ (as he then was) set three conditions for admission of facts on appeal as:

(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at trial;

(2) The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive, and

(3) The evidence must be such as is presumably to be believed or in other words, it must be apparently credible, although it need not be incontrovertible.

He relied on Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 at 301; UBA Plc. v. Btl Ind. Ltd. (2005) 10 NWLR (Pt.933) 356 at 371; Braitwaite v. M.S.A. (1999) 12 NWLR (Pt 636) 611 at 617 and contended that the evidence envisaged by law and the rules of evidence is evidence of what is or was in existence at the time of the trial which the party could not reasonably obtain from one at the trial.

He referred to page 1160 of the record and said it was unfortunate that the lower Court held it did not have to examine the document sought to be admitted as fresh evidence to ascertain its probative value before granting leave to adduce it as fresh evidence. He said the lower Court violated the principle in Ladd. v. Marshall (supra). He relied also on Hip Foong Hong. v. Neotia & Co. (1918) AC 888. He submitted that Exhibit CA1 did not satisfy the conditions for its being adduced as fresh evidence on appeal.

He relied on Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.108) 250 and Ngige v. Obi (2006) 14 NWLR (Pt.999) 1 at pages 108 – 109 and argued that appeal is regarded as continuation of the original suit rather than initiation of a new suit and what was not in existence during the time of trial and judgment cannot be adduced as fresh evidence on appeal. He relied on Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) and Section 91(3) of the Evidence Act and argued that Exhibit CA1, having been made by INEC, a party during the pendency of the appeal, is inadmissible in evidence.

Contrary to the decision of the lower Court page 1234 of the record that Exhibit CA1 has probative value and weight, learned Counsel argued that asking for investigation of allegation of forgery is no proof of any offence. He relied on Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 414. He urged the Court to resolve the issue in favour of the Appellants.

Issues 4, 5 and 6 were argued together in the Appellants’ brief. Issue 4 questions the legal basis for the lower Court to interfere with the findings of facts of the trial Court. Issue 5 questions the view of the lower Court that the 1st Respondent’s name was submitted to INEC and Issue 6 questions the lower Court’s interference with the findings of the trial Court on Exhibits F, O, G and G1 and affidavit evidence of the Appellants on the basis of Exhibit OM5 and/or CA1 to prove that the 1st Respondent’s name was submitted by the CPC to INEC.

Learned Counsel argued that the learned Justices of the Court Appeal were in error when they embarked on re-evaluation of evidence and substituted their views on the evidence for the view of the learned trial Judge. He said that the case in the originating summons was mostly complaints as to what INEC did or did not do and that the Appellants’ case remained unchallenged in so far as INEC filed no counter-affidavit, adding that INEC is deemed to have admitted the facts which Appellants deposed in their affidavit in support of the originating summons.

He relied on Ajomale v. Yaduat (1991) 5 NWLR (Pt. 191) 257 at 283-3. He referred to the case of each party before the trial Court and the following three issues formulated and resolved by the learned trial Judge:

“1. Whether the 2nd Plaintiff was eligible to contest as an aspirant in the 1st Plaintiff’s primary election

2. When was the authentic primary election held
3. Who amongst the two contestants (i.e. 2nd Plaintiff and 2nd Respondent) won the primary election”

He referred to page 1206 of the record and said that the lower Court agreed that the judgment of the trial Court was based on the three issues above. Learned Counsel referred to pages 772 to 782 of the record and contended that the trial Court resolved the issue of eligibility of the 2nd Appellant on which the 2nd Respondent predicated his case against the 2nd Respondent in favour of the 2nd Appellant.

He said that none of the seven grounds of appeal filed by the 1st Defendant in the Court below complained against any of the following specific findings of the trial Court:

“(i) 2nd Appellant was eligible to seek CPC’s sponsorship and nomination for the election;

(ii) that Exhibit E proved conclusively that 2nd Appellant’s name was duly submitted to INEC and; that

(iii) 1st Respondent’s case was not predicated on an alleged attempted substitution of candidate.”

He referred to Ebbah v. Ogodo (1984) NSCC Vol.15 at 255 and argued that the Court of Appeal erred by revisiting findings of the trial Court against which there was no appeal. He referred to page 1239 of the record where the lower Court held:

“There is no dispute from the records that 2nd respondent was an aspirant.”

It was for this reason that their Lordships held that 2nd Respondent as an aspirant of the CPC can maintain an action for redress under Section 87(9) of the Electoral Act.

He argued that having arrived at the above conclusion, the lower Court ought to have rested the matter. He said that the trial Court found that the authentic primary election was the one held on 15/1/2011 and that there was no appeal against the said finding. With reference to pages 1240-1241 of the record, he argued that the Court of Appeal affirmed that there were two primaries conducted by the CPC for the elections, and that the Court of Appeal also affirmed the finding of the trial Court that the primary election of 15/1/2011 which produced the 2nd Appellant was the authentic one.

He contended that having affirmed the findings of fact made by the trial Court, there was no reason for the lower Court to re-evaluate the evidence upon which the findings were made. He said that the lower Court was in grave error in their view at page 1211 of the record that “on party’s nomination and substitution of a candidate, it is immaterial that the primary is inconclusive.” He urged the Court to resolve the issues in favour of the appellants.

Issue 7 is on whether or not the lower Court was right in its view that the issue in the case was one of substitution of candidate by the 1st Appellant. He impugned this view of the lower Court in the light of the fact that the same Court affirmed the findings of the trial Curt in the resolution of the three issues identified by the trial Court in the resolution of the three issues identified by the trial Court. He said that the question of attempted substitution brought up by the lower Court did not arise from any of the three issues identified and resolved by the trial Court and with which the lower Court agreed.

Relying on Emefuma v. Ngwuomhaike (1993) 3 NWLR (Pt.283) 612 at 620 para. A-G, he said that the lower Court had no business raising issue outside the grounds of appeal in absence of cross-action or cross-appeal. He referred to and relied on Dr. Yesuf Nagogo v. CPC (Unreported) Suit No. SC. 55/2012 of 6th July, 2012 which he said is a sister case to this appeal. He urged the Court to resolve the issue in favour of the Appellants. Having summarized his argument learned Senior Counsel submitted that the appeal be allowed.

In his issue 1 on whether the trial Court had jurisdiction to entertain the matter, learned Senior Counsel for the 1st Respondent relied on Madukolu v. Nkemdilim (1962) NSCC 734, Emeka v. Okadigbo&4 Ors. (2012) 7 SC 1 in his submission that any proceeding conducted without jurisdiction is a nullity. He contended that the issue of jurisdiction can be raised at any stage of the proceedings and even on appeal with or without leave. He cited the case of Fundale Engineering Limited v. McArthur & 4 Ors. (1995 – 1996) All NLR 157. He contended that Exhibit OM3 presented to the 1st Respondent after he won the primaries of 11/1/2011 and which the 1st Respondent filed on the same day 14/1/2011 established the conclusiveness of the primary election of 11/1/2011.

He said that there was evidence that the 1st Appellant after submitting the name of the 1st Respondent to 2nd Respondent made unsuccessful attempt to substitute the 1st Respondent. He referred to paragraphs 26, 27, 28 29 and 39 of the 1st Respondent’s counter-affidavit to the affidavit in support of the Appellants’ originating summons.

Learned Senior Counsel contended that having submitted the name of the 1st Respondent to INEC as its candidate in compliance with the requirement of the law, the 1st Appellant is stopped from asserting that the primary election of 11/1/2011 was inconclusive. Relying on estopel by conduct, he cited the case of A.G. Nasarawa State v. A.G. Plateau State (2012) NWLR (Pt.1309) 419 at 470 and Chukwuma v. Ifeloye (2008) 18 NWLR (Pt.1118) 204 at 237 – 238 paras E – B.

The 2nd Appellant, learned Senior Counsel argued, cannot be described as an aspirant within the purview of Section 87(9) of the Electoral Act, 2010 (as amended) because he did not participate in the primaries of 11th January, 2011. He cited the case of PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85 at 126 para B – E and 148 para C. Learned Senior Counsel relied on Exhibit Q, a waiver granted the 2nd Appellant and dated 12th January, 2011 in the following terms:

“I hereby wish to notify that his application for waiver to contest under our great party has been approved.”

He said that the waiver was granted prospectively and has no retrospective effect and therefore did not relate to the primary election of the 1st Appellant of 11/1/2011. It was further submitted that the 2nd Appellant, not having obtained a waiver before 11/1/2011, cannot be said to be an aspirant and cannot litigate the alleged inconclusiveness of primary election conducted by the 1st Appellant on 11/1/2011 a day prior to the waiver Exhibit Q.

Learned Senior Counsel submitted that the trial Court had no jurisdiction to inquire into a dispute as to which of the candidates from the two primary elections was the candidate of the 1st Appellant.

It was conceded that the 2nd Respondent did not counter the deposition in the affidavit of the 1st Appellant but it was stated that INEC also did not dispute the facts in the counter-affidavit or the documents exhibited by the 1st Respondent to show that his name has been validly submitted to it (INEC) by the 1st Appellant as its candidate for the election.

It was conceded on behalf of the 1st Respondent that under Section 251 of the 1999 Constitution (as amended), the 2nd Respondent can only be sued in the Federal High Court but that the case of the Appellants was hinged on Sections 87(4)(c)(1) & (11), 31, 33 and 35 of the Electoral Act, 2010 (as amended).

Learned Senior Counsel argued that there is no provision either in the Electoral Act or the Constitution of the Federal Republic of Nigeria for 1st Appellant to approach the Court to select any candidate to represent it in any election, which is what the 1st Appellant, in concert with the 2nd Appellant, did in the trial Court. He re-emphasized that the trial Court had no jurisdiction in the matter.

He referred to the finding of the lower Court at pages 1240 – 1241 of the record he said which remained unchallenged and said the issue is who, between the 1st Respondent and 2nd Appellant, is the candidate of the 1st Appellant. He relied on Garba Lado v. CPC (2011) 12 SC (Pt.111) 113 at 140. He said it is now settled that a person who did not win the primary election of the party can still be the candidate of the party if the party submits his name to INEC, and the party has got no right to withdraw his candidature. He relied on Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 113) 357 at 411 paras C – F.

Learned Senior Counsel contended that it is not in dispute that the 1st Appellant submitted the name of the 1st Respondent to INEC on 31/1/2011. He urged the Court to disregard the argument that the lower Court confirmed that the conclusive primary was that of 15th January, 2011, adding that what was established is that the CPC had two primaries and the Federal High Court had no jurisdiction to decide who was the duly nominated candidate from the party’s two primaries.

He referred to Exhibit OM3 sworn to on 14/1/2011 and the Form CF 001 issued by the 1st Appellant to 1st Respondent as evidence that the primary election the 1st Appellant conducted on 11/1/2011 was conclusive, and urged the Court to so hold.

It was argued for the 1st Respondent that the 1st Appellant having duly submitted his name to the INEC, cannot, for any reason withdraw, cancel, substitute or nullify his nomination since the candidate is not dead and did not withdraw his candidature. Reliance was placed on Section 33 of the Electoral Act, 2010.

Relying on Section 87 of the Electoral Act as interpreted by this Court in Garba Lado v. CPC (supra), learned Senior Counsel submitted that the lower Court was right in its determination that neither the trial Court nor the Court of Appeal had jurisdiction in the matter. He re-emphasized the dictum of Onnoghen, JSC in Lado’s case (supra) that:

“Once there arises a dispute as to which of the two primaries conferred a right of candidate on the parties to represent a political party in an election, the matter is taken outside the preview of Section 87(4)(b)(ii), (c)(ii) and (9) of the Electoral Act, 2010 (as amended).”

He urged the Court to discountenance the argument of the Appellants that Lado’s case and the present are not on all fours. He referred to Exhibit 7 and said that the 1st Appellant had already submitted the 1st Respondent’s name and Exhibits OM3 and OM5 to the 2nd Respondent before the name of the 2nd Appellant was sent to 2nd Respondent.

Learned Senior Counsel referred to page 853 of the record and contended that the affidavit of one Mohammed Abubakar, particularly paragraph 5 thereof, shows that one of the two primaries was conducted by the State Chapter of the party which had no powers to do so but that if the two primaries were conducted by the National body then the name of the 1st Respondent was the first to be forwarded to 2nd Respondent and that the subsequent submission of the name of the 2nd Appellant was an attempt at substitution, contrary to Sections 87(4) and 33 of the Electoral Act, 2010.

He referred to page 860 of the record and said that the name of Dr. Solomon Ewuga did not appear on the executive summary of candidates for the election. He prayed the Court to affirm the decision of the Court below as the subject of the suit is not justiceable. He urged the Court to resolve the issue in favour of the 1st Respondent.

In Issue 2, learned Senior Counsel relied on Okpanum v. SGE (Nig.) Ltd. (1998) 7 NWLR (Pt.559) p.537 at 546 in his submission that the lower Court rightly admitted Exhibit CA1 which was evidence as to matters that occurred after the judgment of the trial Court, adding that Exhibit CA1 is a piece of evidence which could not have been, with reasonable diligence, obtained for use at the trial. He relied on Ladd v. Marshall (1954) 3 ER 745, Asaboro v. Aruwaji & Anor. (1974) NSCC page 211 at 214, Amaechi v. INEC (2008) 1 SC (Pt.1) 36 at 86.

Reference was made to the argument that the author of Exhibit CA1 is an interested party under Sections 83(3) of the Evidence Act and it was argued that Exhibit CA1 is admissible because it was made in the discharge of a statutory duty. Reference was placed on HMS Ltd. v. First Bank (2001) NWLR (Pt. 167) at 312 and NSITFMB v. KLIFC (Nig.) ltd. (2010) All FWLR (Pt.534) page 73 at 88 in support of the argument that the 2nd Respondent who made Exhibit CA1 has no personal interest in any of the litigants before the Court. Learned Senior Counsel urged the Court to hold that Exhibit CA1 is fresh evidence admissible in law and was accorded its necessary probative value and weight.

In issue 3 on review and re-evaluation of evidence before the trial Court, it was stated for the 1st Respondent that the cases of the parties were fought on affidavit and documentary evidence and that the lower Court was in a good position from the printed records to review the case for the parties and evaluate the evidence and ascribe probative value to same. Learned Counsel relied on Pavex Co. (Nig.) Ltd. v. IBWA Ltd. (2000) FWLR (Pt.26) P.1891 at 1912.

Learned Counsel referred to Onuoha v. Okafor & Ors. (1983) 14 NSCC page 494, PDP v. Sylva (2012) All FWLR (Pt.637) P.606 and submitted that if the trial Court had appreciated the principle in the said cases in the light of Section 87(4) of the Electoral Act, it would have been clear to it that the dispute as to when the authentic primary was held was not justiceable. He argued that while trying to authenticate the candidature of one party against the other, the trial Court failed to consider the fact that the Appellants never stated when the name of the 2nd Appellant was submitted to INEC.

He referred to Exhibits OM12 and OM12B and said they were made the same day to dethrone the 1st Respondent, a fact the trial Court failed to appreciate and evaluate, nor did the Court consider Exhibit CF002 which was not denied by the Appellants as showing the name of the 1st Respondnet and other winners of the primary election submitted to INEC by their party CPC. He said that the signatures of the National Chairman and Secretary of CPC on exhibit OM5 (Form CF 002) were not disputed by the Appellants. He argued that in view of the conclusion reached by the trial Court, the evidence was not evaluated or properly evaluated and the lower Court was right to have re-evaluated same.

He relied on Adebayo v. Adusei (2004) 4 NWLR (Pt.862) p.44 at 77; Narumal & Sons Nig. Ltd. v. Niger Benue Trans Co. Ltd. (1989) 2 NSCC (Pt.11) p.147 at 161. He urged the Court to resolve issue 3 against the Appellants in favour of the 1st Respondent.

In issue 4, learned Counsel referred to the 1st Respondent’s case that there was an attempt to substitute him as well as the two issues the 2nd Respondent submitted for determination and observation of the Court below at page 1211 of the record and submitted that they justified a finding of fact that there was an attempt to substitute a candidate and the trial Court erred in its failure to reach that conclusion. He urged the Court to resolve the issue against the Appellants.

Issue 5 is whether or not the lower Court actually entertained issues 3 and 4 when ground 5 of the grounds of appeal was struck out. Learned Counsel referred to the record and stated that the words “distilled from ground 3-9” were inserted in error, adding that a holistic review of issues formulated for determination will reveal that argument on issue 3 which he said was numbered as issue 2 was not anchored on grounds 3 and 9.

He said that the reframed issue 1 was based on grounds 2, 6 and 7, issue 3 was formulated from grounds 4 and 8 while issue 2 was framed from grounds 3 and 9. He said that no issue was formulated from ground 5 which was struck out. He referred to issues 2 and 3 which he said formed the basis of the Appellants’ complaint and said the issues had to do with the jurisdiction of the trial Court while the issue 1 had to do with whether there was no need for ordering parties to file pleadings in spite of irreconcilable conflicting evidence and whether the case can be determined by way of originating summons.

He referred to pages 1067 and 1082 of the record and paragraph 6.1 page 1082 of the record and maintained that issues 3 and 4 were distilled from grounds 3, 4, 8 and 9. He said that Counsel and Court are bound by the record of proceedings for which he relied on Garuba & 8 Ors. v. Omokhodion & 13 Ors. (2011) 6-7 SC (Pt.2) 89 at 130. He urged the Court to resolve issue 2 as formulated against the Appellants. Learned Senior Counsel summarized his argument and urged the Court to dismiss the appeal and affirm the judgment of the lower Court. He asked for substantial costs.

In issue 1 of his three issues for determination, learned Counsel for the 2nd respondent contended that it is the claim of the plaintiffs that determines whether or not the Court has jurisdiction in the matter. However, he relied on Lado v. C.P.C. (2011) 48 NSCQR 501 and submitted that the Court can only rely on the totality of pleadings of both parties and evidence adduced to settle the question of jurisdiction, in which case the question is whether or not, from the issues joined, the Court has jurisdiction in the mater in dispute.

He referred to the findings of fact made by the trial Court at pages 1240 – 1241 of the record and submitted that the said findings show that this case is on all fours with Lado’s case (supra). He said that the lower Court considered Lado’s case as well as Section 87(4)(b)(ii)(c) and (9) of the Electoral Act, 2010 (as amended) and contended that since the issue relates to the dispute as to which of the two primaries conferred a right of candidature to represent the party in an election, the lower Court came to the right conclusion that the Courts have no jurisdiction in the matter. He urged the Court to resolve the issue in favour of the 2nd respondent.

In issue 2 on whether the lower Court was right to receive in evidence Exhibit CA1 and ascribe probative value thereto, he relied on Order 4(2) of the Court of Appeal Rules. He said the document is relevant and that facts relating to, and making the document admissible, were pleaded, that is; the submission of the name of the 1st respondent to the 2nd respondent. He said that Exhibit CA1 satisfied the condition for its admission as additional evidence as set up in Asobor v. Aruwaji (1974) 1 All NLR (Pt.1) 140; Owata v. Anyigor (1993) 2 SCNJ at pages 12 – 13; Obasi v. Onwuka (1987) 2 NSCC 981. He relied on Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 30 in his argument that the paramount consideration for the exercise of discretion to admit or reject additional, new or fresh evidence is for the furtherance of justice.

He referred to the argument of the appellants that CA1 was made by an interested party but said that the appellant failed to show in what manner the 2nd respondent can be said to be interested in the matter in dispute. He said Exhibit CA1 showed that the name of 1st respondent was submitted by the CPC to the 2nd respondent and called on the Police to investigate the signature on the letter of purported withdrawal of the 1st respondent.

He argued that the forged nomination papers which warranted Exhibit CA1 is an electoral offence and the 2nd respondent has statutory duty to prosecute electoral offences under Section 150(2) of the Electoral Act. He relied on HMS Ltd. v. First Bank (2001) 7 NWLR (Pt.167) P.312; NSITFMB v. Klife (Nig.) Ltd. (2010) All FWLR (Pt.534) 73 and 88 and contended that a person discharging a statutory duty in his official capacity cannot be said to be a person interested under Section 83(3) of the Evidence Act.

Learned Counsel contended that Exhibit CA1 is a public document and has been duly certified by the 2nd respondent and having satisfied the conditions for admissibility as fresh evidence, was admitted and given probative value and weight by the Court below. He relied on Agbakoba v. INEC (2009) All FWLR (Pt.462) at 1073. He urged the Court to resolve issue 2 against the appellants.

In issue 3, learned Counsel submitted that the lower Court was correct when it re-appraised the evidence before the trial Court and arrived at the conclusion that the case of the appellants was that of a failed attempt at substitution of candidate. He pointed out that the evidence was basically documentary and the appellate Court is in as good a position as the trial Court to draw inference from the documents admitted by the trial Court.

He relied on Agbakoba v. INEC (supra); Oduwole v. Aina (2001) 17 NWLR (Pt.741) at 47; FATB v. Panternership Investment & Co. Ltd. (2003) 18 NWLR (Pt.851) 35 at 65 – 66. He referred to Sections 31(1) 33 and 35 of the Electoral Act, 2010 (as amended) and said that the three Sections constitute the legal basis for nomination and substitution of candidates by political parties.

He argued that the 1st responded having been nominated and his name sent to the 2nd respondent and not having withdrawn his candidature and still alive, the 1st appellant’s action in purporting to remove his name was in violation of Section 33 of the Act. He referred to Exhibit OM12 at page 621 of the record as well as Exhibit OM12B and Exhibits N and F and argued that the only inference to be drawn from scrutinizing the exhibits is that the appellants attempted to substitute the 1st respondent whose name was submitted to the 2nd respondent pursuant to Section 31 of the Act.

Learned Counsel argued further that even if it is assumed, without conceding it, that the 1st respondent’s name was never submitted to the 2nd respondent as argued by the appellants, the name of the 2nd respondent was submitted after the expiration of the time-frame in Section 31 of the Act. He contended that the lower Court was right in re-evaluating the evidence received by the trial Court. He urged the Court to dismiss the appeal and affirm the decision of the Court below.

In his reply brief, learned Senior Counsel for the appellants referred to the record (pages 784 and 1240 – 1241) for the finding of the trial Court and the affirmation of the said finding by the Court below that appellants conducted two primaries – the inconclusive one of 11/1/2011 and the conclusive one of 15/1/2011 and argued that the respondents who did not appeal the concurrent findings of fact of the two Courts below cannot reopen the issue of fact in the Supreme Court.

It was submitted that estoppels was not in issue in either of the two Courts below and as such the 1st respondent cannot be heard to argue the issue in the Supreme Court. Learned Senior Counsel referred to pages 772-782 of the record and contended that the issue of the appellant’s eligibility raised as the main defence by the 1st respondent was resolved against the 1st respondent. The finding in favour of the 2nd appellant was affirmed by the Court of Appeal at page 1239 of the record, learned Senior Counsel stated, adding that the respondents did not appeal the concurrent finding of facts of the two Courts below.

On the issue of jurisdiction, he argued that the 1st respondent’s reference to, and reliance on the case of Garba Lado v. CPC (supra) was completely misplaced. He said that the matter was not one of the Court choosing a candidate for a political party but one seeking a declaration that the 2nd appellant is the sponsored candidate, having won the authentic primary election of 15/1/2011. He contended that the 1st respondent conceded the concurrent findings of facts as to the authenticity of the party’s primaries which produced the 2nd appellant. He relied on Emeka v. Okadigbo (2012) 18 NWLR (Pt.1331) 55.

On fresh evidence on appeal, he referred to Ladd v. Marshall (supra) and the Nigerian cases following it and contended that the respondents’ reliance on Okpanum v. SGE (Nig.) Ltd. (supra) is erroneous and untenable in law. He relied on Order 4 Rule 2 of the Court of Appeal Rules and said the evidence referred to in the rule is evidence “as to question of fact” and contended that by its nature, a state of facts or affairs is presently occurring or have occurred, and that there is nothing like a future “fact” in law.

He said that the fact in Order 4 Rule 2 is either existing fact or past fact or event. He argued that the rule does not permit admission of a letter written 60 days after the judgment of the trial Court as fresh evidence. He said that the record at page 1160 showed that Exhibit CA1 was admitted without examination of its contents to determine whether it satisfied the prescribed conditions. He said that Exhibit CA1 was written by INEC, a party to the case.

He referred to pages 1159-60 of the record for the finding of the Court below that Exhibit CA1 was made by an adverse party and argued that INEC is an interested party within the meaning of Section 83(3) of the Evidence Act and therefore Exhibit CA1 made by it is inadmissible either in the discretion of the Court or in the interest of justice. On review of evidence, learned Counsel referred to the three issues formulated by the trial Court and affirmed by the Court below and said that the issues were resolved in favour of the appellants and that the resolution was affirmed by the Court below.

He referred to Ebba v. Ogodo (supra) in his argument that an appellate Court is not entitled to embark on re-evaluation of evidence when the material findings of fact made by the trial Court is affirmed as shown in the appellant’s brief. He referred to Exhibit N, personal particulars of the 2nd appellant compared with Exhibit OM3, the personal details of the 1st respondent and said on the evaluation of the two exhibits and another Exhibit OM5 the trial Court made a finding at page 782 of the record and neither the Court below nor the 1st respondent faulted the finding which is fatal to the 1st respondent’s case. He maintained that the Court below was wrong to re-evaluate the evidence.

On the issue of substitution, learned Senior Counsel said that issue in an appeal is a form of art and that a party cannot by his pleading alone raise an issue for determination. He relied on Lewis Peat (NRI) Ld. V. Akhimien (1976) NSCC 360 at 363. He said that the Court below agreed with the three issues on which the trial Court predicated its judgment and that the issue of substitution was not one of them; as it did not arise from the pleadings. He said that the 1st respondent has no answer to the appeal and urged the Court to allow same as the judgment of the Court below was totally flawed.

I have critically examined the seven, five and three issues raised and argued on behalf of the appellants, 1st respondent and 2nd respondent, respectively. In my view, the five issues submitted by the 1st respondent and the three issues presented by the 2nd respondent are subsumed in the seven issues presented for determination by the appellants.

Appellants’ issue 1 is in substance the same as issue 1 in each of the 1st respondent and 2nd respondents’ briefs of argument. Appellants’ issue 2 corresponds with 1st respondent’s issue 5 while the 2nd respondent had no corresponding issue. Appellants’ issue 3 is the same as the 1st and 2nd respondents’ issue 2.

Issue 4 in appellants’ brief is the same in substance as the 1st respondent’s issues 3 and 4 and 2nd respondent’s issue 3. None of the 1st and 2nd respondents had issue corresponding to appellants’ issues 5 and 6. Issue 7 in the appellants’ brief is similar to the 1st respondent’s issue 3 and 4 and the 2nd respondent’s issue 3.

In view of the above, I will determine the appeal on the seven issues formulated by the appellants in their joint brief of argument. I intend to deal with the issues seriatim.

Issue 1 in the set of three briefs in this appeal challenges the conclusion of the Court below at page 1247 – 8 of Vol II of the record to the effect that:

“From the totality of all I have said in the course of resolving this issue, particularly as it relates to Section 87 of the Electoral Act (supra) and the decision of the Supreme Court in Garba Lado & Ors. v. CPC (supra); I hold that neither the trial Court nor this Court has the jurisdiction to entertain the matter in dispute. Again by virtue of Section 141 of the Act, the Court cannot make the consequential order made by the Court below.”

As a result of the above conclusion, the Court below struck out Suit No. FHC/LF/CS/18/2011 for want of jurisdiction. The issue is a two pronged attack on the judgment of the Court below that the trial Court had no jurisdiction in the matter. The sub-issues are:

(1) Whether or not the trial Court had jurisdiction in the matter, and

(2) Was the trial Court competent to make the consequential order it made

Appellants argued that the case is outside the provision of Section 87(9) of the Electoral Act, 2010 (as amended) and that the decisions in the case of Lado & Ors v. CPC (supra) and similar cases in which the above provision was applied do not apply to this case. On the contrary, the respondents contend that this case falls within the same provision of the Electoral Act (as amended).

The Section of the Electoral Act is hereunder reproduced:

“S.87(9): Notwithstanding the provisions of the Act or rules of a political party, an aspirant who claims that any of the provisions of this Act and the guidelines of political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.” (Underlining mine).

Two conditions must be satisfied before the jurisdiction donated by the Section reproduced above can be ignited:

1) The plaintiff is not at large; he/she must be an aspirant.

2) In the same vein, the complaint is not at large; it must be founded “in the selection or nomination of a candidate for an election.”

From the claim and the affidavit evidence of both sides, it is not in doubt that the 2nd plaintiff/appellant is not an aspirant. His case is that he is a candidate for the election which leads to the conclusion that the process of selection or nomination of a candidate has been completed. Secondly, since the process of selection or nomination has been completed and the 2nd plaintiff/appellant is no longer an aspirant but a candidate he cannot be said to have complained about the process of nomination or selection which he claims has produced him as a candidate of his party for the election.

It is my view, therefore, that this case is outside the ambit of Section 87(9) of the Electoral Act (supra) and that the decision of this Court in Lado’s case (supra) and other similar decisions do not apply to the facts of this case. In any case, the special jurisdiction vested in the High Court (Federal, State or FCT) does not derogate from the general jurisdiction of the High Court, being one of the Courts established for the Federation. See Section 6 (1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Without attempting to derogate from this Court’s decision in Lado’s case and similar case on Section 87(9) of the Electoral Act (supra), a particular matter falls either within the special and specific jurisdiction under Section 87(9) of the Act or the general jurisdiction of the Court. In my view, the import of the decision in Lado’s case is that the special jurisdiction of the High Court is circumscribed by the provision of Section 87(9) of the Act.

In the case at hand, the facts are completely outside the purview of Section 87(9) of the Act. The Court below was in error when it relied on Lado’s case in its decision that “neither the trial Court nor this Court has the jurisdiction to entertain the matter in dispute.”

The second arm of the issue is the propriety vel non of the consequential order made by the trial Court in view of Section 141 of the Electoral Act (supra). The consequential order reads:

“It is therefore hereby ordered that the 1st defendant returns the 2nd plaintiff as the Winner of the April 9, 2011 National Assembly Election into the House of Representatives of the Federal Republic of Nigeria representing Akwango/Wamba/Nasarawa-Eggon Federal Constituency.” (See page 1056 of the record).

Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms:

“An election tribunal or Court shall not under any circumstance declare any person Winner of an election in which such a person has not fully participated in all the stages of the said election.”

By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) 5 NWLR (Pt 1080) page 227 at 296. Contrary to the decision of this Court in Amaechi’s case, the implication of Section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him.

In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting.

In view of the above, the 1st part of issue 1 on the jurisdiction of the trial Court or the Court below to hear and determine the Suit is resolved in favour of the appellants. On the other hand, the second arm on the propriety of the consequential order is resolved against the appellants in favour of the respondents.

Issue 2 is whether the lower Court was right to have determined issue 3 and 4 (renumbered 2 and 3) after striking out ground 5 of the grounds of appeal. Issue 3 which was renumbered issue 2 was said to have been framed from grounds 3-9 of the grounds of appeal. Appellants in the Court below argued issues 2 and 3 together.

At page 1207 of the record, the Court below held:

“Grounds 1 and 5 of the grounds of appeal and issue 1 arising therefrom are struck out.”

To meet the appellants’ case that the lower Court was in error to have determined issues arising from ground 5 already struck out as incompetent, learned Counsel for the 1st respoodent said that the insertion that the issues were “distilled from grounds 3-9” was made in error. This is not the type of error, if in fact it is an error, which can be waived aside as typographical error, or correct in the ipse dexit of learned Counsel in his brief.

If it was an error, it cannot be correct by learned Counsel in his address. That the issues were distilled from grounds 3-9 means that the issues were distilled from each of grounds 3, 4, 5, 6,7, 8 and 9 whereas ground 5 had been struck out as incompetent. No Court is going to do a surgical operation to determine and expunge from the record, the part of the issues arising from the incompetent ground 5. Any issue formulated from ground 5 is incompetent and liable to be struck out.

The incompetence of an issue argued together with otherwise competent issues affects all issue argued with it. See Khali v. Yar’Adua (2003) 16 NWLR (Pt.847) 446 at 481 relied on by learned Senior Counsel for the appellants. Issue 2 is therefore resolved in favour of the appellant. However, that is a pyrrhic victory as I have already determined that the consequential order made by the trial Court with which the lower Court disagreed, was made in violation of Section 141 of the Electoral Act 2010 (as amended).

Issue 3 queries the admission of Exhibit CA1 as fresh evidence on appeal and ascription of probative value thereto. In the affidavit in support of the motion for leave to adduce additional evidence on appeal, it was averred in paragraph 4 as follows:

“4. I was informed by Hon. Emmanuel David Ombugadu, the appellant in our chambers on the 10/12/2011 and I verily believe him as follows:

(a) At the trial Court, the 2nd Defendant, now appellant in this Court had in his counter-affidavit in opposition to the Respondents’ Amended Originating Summons, deposed that the 1st Respondent had submitted his name as a candidate for the Akwanga/Wamba/Nasarawa-Eggon Federal Constituency in Nasarawa State, to the 3rd Respondent herein.

(b) That it was only on the 7/12/2011 that it came to his knowledge that 3rd Respondent’s Chairman had earlier written to the Inspector General of Police to investigate the forged signature.

(c) That the document under reference INEC/CH/LC/004/V.1 dated 3/9/2011 and signed by the Chairman of the 3rd Respondent was made after the judgment of the trial Court.

(d) That the document sought to be tendered was never tendered during the trial because it was not available then.

(e) That the documentary evidence is to establish that the appellant’s name was submitted earlier in time by the 1st respondent to the 3rd Respondent.

(f) That materials necessary for tendering and admission of the letter are present in the Records of Appeal filed in the Court.”

The affidavit was deposed to by Omale Mike Ajonge, a legal practitioner in the law firm of J. S. Okutepa SAN & Co. who authorised him in that behalf.

The relevant depositions in the five paragraph counter-affidavit deposed to by Mohammed Abubakar who described himself as the legal Adviser of the 1st Respondent are contained in paragraph 5 hereunder reproduced:

“5. That I was informed by Edwin Anikwem of Counsel and I verily believe him that:

(a) The evidence sought to be adduced at the Court of Appeal could have been obtained with reasonable diligence for use of the trial as has been with the 3rd Respondent since the commencement of the action.

(b) That the evidence will not have an important influence on the result of the case.

(c) That the evidence is not credible.

(d) That the appellant in his counter-affidavit raised the issue and the same was considered and discountenanced by the Court in the judgment.

(e) That the petition written by INEC was an abuse of Court process.

(f) That the 1st and 2nd Respondents stated this position to the Police through the Counsel. Attached as

Exhibit A is a copy of the said letter.

(g) That the Appellant will not be prejudiced if the application is dismissed.” (See pages 1100 – 1101 of the record).

In paragraph 4(c) of the supporting affidavit, it was sworn that:

“the document under reference INEC/CH/LC/004/V.1 dated 8/9/2011 and signed by the chairman of the 3rd Respondent was made after the judgment of the trial Court.” (See page 1095).

In opposition to the above averment, it was deposed to on behalf of the 1st Respondent in paragraph 5(a):

“The evidence sought to be adduced at the Court of Appeal could have been obtained with reasonable diligence for use at the trial as has been with the 3rd Respondent since the commencement of this action.”

(See page 1100 of the record).

My noble Lords, I have reproduced once more, at risk of being boring, the averments in paragraphs 4(c) and 5(a) of the supporting affidavit and counter-affidavit, respectively, to demonstrate to what depth of recklessness and or deliberate dishonesty one who calls himself a legal practitioner can descend.

The dates of the commencement of the Suit No. FHC/LF/CS/18/11, the judgment in the matter and the date on which Exhibit CA1 came into existence, are empirical facts which can be verified, even by a layman, by reference to the record. The Originating Summons was filed on 1/4/2011; the judgment of the trial Court was delivered on 18th July, 2011. See pages 3 and 786 of the record. Exhibit CA1, the document admitted as fresh evidence on appeal was dated 8th September, 2011.

In view of the dates above, how can a legal practitioner state on his solemn Oath that Exhibit CA1 has been with the 3rd Respondent since the commencement of the action” or that with reasonable diligence the appellant could have obtained the document for use at trial Learned Counsel may not help the Court but he cannot afford to distort the fact on Oath to mislead and misdirect the Court. True, he owes a duty to his client but that duty must be performed within the ambit of the law and its rules, hearing in mind that he owes a duty higher than that he owes his client to the higher case – the cause of justice.

The facts learned Counsel distorted in his affidavit are within his knowledge from the record to which he had access. By his deposition, he lays himself open to citation for contempt and could in addition be prosecuted for perjury.

Now to the resolution of issue 3. In paragraph 4(d) of the affidavit in support of the application, it was deposed for the applicant that the document sought to be tendered was needed to establish the fact pleaded that the appellant’s name was submitted earlier in time by the 1st Respondent to the 3rd Respondent. This averment was not contested in the counter-affidavit save for the averment that the issue was raised, considered and rejected by the trial court.

But if the trial court had not rejected the appellant’s case that his name was earlier submitted to INEC, appellant would have had no need to appeal against the judgment of the trial Court. Order 4 Rule 2 of the

Court of Appeal Rules on Further Evidence provides:

“Ord. 4r.2: The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit or by deposition taken before an examiner or Commissioner as the Court may direct, but in the case of an appeal from a judgment after trial or hearing of any case or matter on the merit no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.” (Underlining mine).

Exhibit CA1 falls within the portion in brackets and underlined the provision reproduced above and by the rules the applicant did not have to show special grounds for its admission.

The factors to be considered in granting or refusing leave to adduce fresh evidence on appeal are:

(a) Evidence sought to be adduced could not have with reasonable diligence been obtained for use at the trial;

(b) Evidence should if admitted have an important, not necessarily crucial effect on the whole case, and

(c) The evidence must be such as is apparently credible in the sense that it is capable of being believed.

(See Jadesimi v. Okotie-Eboh (No. 2) (1986) 1 NWLR (Pt. 16) 264 at 275, Esangbedo v. State (1989) 7 SCNJ 16).

Exhibit CA1 could not have been obtained with reasonable diligence for use at the trial for the simple reason that it was not in existence at the trial. Evidence that the appellant’s name was submitted earlier in time by the respondent to the 3rd respondent has an important, if not necessarily, crucial effect on the whole case and the evidence is capable of being believed.

It was strenuously argued on behalf of the appellants that Exhibit CA1 was made at a time when proceedings were pending contrary to Section 91(3) of the Evidence Act, 2011 by the 2nd respondent who has an interest in the proceeding contrary to Section 83(3) of the Evidence Act (supra).

The interest of the 2nd respondent as the maker of Exhibit CA1 is purely official or as servant or employee having no personal interest in the litigation. The provisions of the Evidence Act relied on by the appellants do not apply to Exhibit CA1. (See High Grade Maritime Services Ltd v. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt 167) 290 at 307). In making Exhibit CA1, the 2nd respondent was performing an official assignment without direct personal interest in the result of litigation and cannot therefore be considered as a person interested in the suit. See Alhaji Ya’u v. Dikwa (2001) FWLR (Pt 62) 1987.

It was also averred in the counter-affidavit that Exhibit CA1 was an abuse of Court process. See paragraph 5(e) of the appellants’ counter-affidavit in opposition to the motion for leave to adduce fresh evidence on appeal wherein it was averred that: “That the petition written by INEC was an abuse of Court process.”

Briefly stated, an abuse of the judicial process means that the process of the Court has not been used bona fide and properly. See Okorodudu v Okoromadu (1977) SC 21, Ikine v. Edjenode (2001) 92 LRCN 3288 at 3307.

The legal concept of the abuse of the judicial process or the abuse of the proceedings of the Court is very wide. It is of infinite variety and it does not appear that the category can be closed. Be that as it may, a process not meant to be filed, and was in fact not filed, in Court is not a process of Court and can therefore never constitute abuse of process of Court. Only a process filed in Court can constitute abuse of Court process. Exhibit CA1 is not a process of Court. It is a letter written by the Chairman of INEC to the Police. It found its way into the proceedings as evidence and not as a process of Court.

I find and hold that the Court below was right to have admitted Exhibit CA1 as fresh evidence on appeal and having admitted it, the lower Court rightly ascribed probative value thereto. I resolve issue 3 against the appellants and in favour of the respondents.

Issues 4, 5 and 6 are complaints of impropriety of the Court below embarking on re-evaluation of the evidence before the trial Court, interfering with the findings of fact made by the trial Judge and substitution of the view of the Court below for the view of the trial Court. Once an appellate Court embarks on re-evaluation of the evidence before the Court below, the necessary and in fact, intended consequence is interference with the findings of fact based on the evidence and a view different from the view of the trial Court or the Court below, the appellate Court.

It is appropriate to determine whether or not the re-evaluation embarked upon by the Court below is justified. At page 1211 of the record, the lower Court held that:

“On a party’s nomination and substitution of a candidate, it is immaterial that the primary election was inconclusive. What is relevant is the nomination of a candidate and submission of his name by the party to INEC within the prescribed period.”

With profound respect to their Lordships, the learned Justices of the Court of Appeal, the sole purpose of a party’s primary election is the emergence of one of the contestants as the party’s candidate at the election. An inconclusive primary election cannot produce a candidate and if it is immaterial that the primary election is inconclusive, the party might as well forgo the primary election and simply pick one of its members to bear its flag at the election.

The next view expressed by the lower Court at the same page of the record appears to conflict with the earlier view reproduced supra. It reads:

“It does greatly appear that the concurrent position of the law does not take lightly the inviolability of nomination and the vested interest acquired thereunder by a candidate of a political party.”

I subscribe to the above view and I wish to add that there can be no nomination of a candidate and acquisition of vested interest in an inconclusive party primary election. Be that as it may, their Lordships of the Court below posed the crucial question in the matter thus:

“The simple question that requires an answer in the resolution of this issue is from the totality of the Exhibits before the trial Court, was the decision of the learned trial Judge perverse when it did not arrive at a conclusion that there was an attempt to substitute a candidate”

And as the lower Court rightly pointed out, the respondents failed to address the issue but preferred to stress the well established principle of law that the choice and sponsorship of a candidate is an unfettered right of a political party over which the Court cannot interfere. May be the respondents did not appreciate the mode of making the choice of its candidate by a political party which is by conclusive primary election.

The Court below painstakingly reproduced not only Exhibits OM3, OM5, OM7, OM8, OM9, OM10, OM11, OM12, 12b and CA1 tendered by the appellants (now respondents) and Exhibits C, D, F, I, K, M and N tendered by the respondents (now appellants) which both parties invited the court to examine but also the totality of the documentary evidence received by the trial Court. It has to be noted that Exhibit CA1 was not tendered in the trial Court but was admitted as fresh evidence in the lower Court.

It’s evaluation by the lower Court was therefore imperative. Having considered all the exhibits listed, the lower Court came to the conclusion that:

“I hold that the lower Court both failed to evaluate and to properly evaluate all the material evidence put forth before it.” (See page 1215 of the record).

From the documentary evidence, it is beyond dispute that the name of the 1st respondent was first submitted by the 1st appellant to the 2nd respondent as its candidate in the election. Also submitted to the 2nd respondent was Form C.F001 – affidavit in support of personal particulars of the 1st respondent sworn to on 14/1/2011 before the primaries of 15/1/2011.

Exhibit OM7 is “Withdrawal of Candidate Form” and Exhibit OM9 is a protest letter against the purported withdrawal in Exhibit OM7. There is unchallenged evidence that the 1st respondent did not withdraw from the race and Exhibit CA1 was written by the 2nd respondent on account of forgery committed in the attempt to effect the withdrawal of 1st respondent.

The question is; if the primary election in which the 1st respondent was nominated was not conclusive, could the 1st respondent have emerged as a candidate and his name and particulars sent to the electoral umpire, the 2nd respondent If he was not nominated, could he or another person make the attempt herein made in Exhibit OM7 to withdraw his candidature The answer to the above poses is in the negative.

Exhibit CA1 which could not have been evaluated by the trial Court and which was evaluated by the lower Court supports the conclusion that the 1st respondent was nominated and there was an attempt to force a withdrawal of his candidature. The trial Court could have come to the conclusion even without Exhibit CA1, if it had properly evaluated the documentary evidence and ascribed probative value thereto.

In my humble view, the lower Court was justified in its re-evaluation of the documentary evidence before the trial Court and evaluation of the Exhibit CA1 which it admitted as fresh evidence on appeal. The trial Court did not evaluate or properly evaluate the evidence before it which was merely documentary.

An appellate Court enjoys the same position as the trial Court in evaluation of documentary evidence as in this case where the controversy is limited to the interpretation of the documents.

Where the findings of the trial Judge on documentary evidence is perverse an appellate Court will employ its appellate power to correct the perversity. See Iwoha v. Nipost (2003) 4 SC (Pt 11) p.37; Egba v. Ogodo (1984) 1 SCNLR 372; Whyte v. Jack (1991) 2 NWLR (Pt.431) 407; Audu v. Okeke (1998) 3 NWLR (Pt.542) 373.

And it follows that on the facts of this case, the interference by the lower Court with the finding of fact of the trial Court and the substitution of its view for the view of the trial Court are the necessary and logical consequence of the re-evaluation of the documentary evidence before the trial Court and the evaluation of the fresh evidence on appeal, Exhibit CA1. I resolve issues 4, 5 and 6 argued together in the appellants’ brief against the appellants and in favour of the respondents.

Issue 7 is hereunder reproduced for ease of reference:

“Issue No. 7: Were the learned Justices right in law in holding that the issue in the case was one of substitution of candidate by 1st appellant even after affirming in the judgment, the issue identified by the trial Judge and in themselves stating the correct issue in the same judgment. (Based on grounds 16, 19 and 20).”

Learned Counsel for the appellants did not expatiate on the alleged adoption by the lower Court of the issues framed by the trial Court. May be it was left for this Court to find same in the record. I will limit the issue to attempted substitution as argued on behalf of the appellants and, of course, disputed by the respondents.

It was argued for the appellants that the issue of attempted substitution was raked up in the middle of the appeal by the 1st respondent who did not counter-claim. Reliance was placed on Emetuma v. Ngwuomhaike (1999) 3 NWLR (Pt.283) 612 at 620 for the principle.

“that in civil matters, in absence of cross-action or counter-claim, no relief can be granted in favour of defendant.”

With profound respect to Learned Senior Counsel, the issue of attempted substitution allegedly raked up in the middle of the appeal by the 1st respondent is not a relief. In my humble view, what the 1st respondent meant by raking up attempted substitution is that if the totality of materials presented by both parties is examined, the case between them is one of attempt at substitution of candidate. It is not a relief.

The words “attempted substitution” need not be stated at all. This Court could arrive at a conclusion justified by the facts irrespective of the words used by either party to the appeal. See Mr. Peres Peretor & 4 Ors v. Chief Koko Gariga & 4 Ors (2013) 5 NWLR (Pt. 1348) 415 at 436 where I expressed the view in paras E-F that:

“Substitution is the direct meaning of the entire process of the PDP for which the respondents complained to the Court, even if the word did not appear in the proceedings. From the record, the Court did not raise the issue of substitution suo motu. It was there in substance from all who care to see”

I hold the same view in this case. Attempted substitution is the definition and substance of the processes that brought the parties to the trial Court.

On the facts before this Court, the words “attempted substitution” is the same as one dozen in place of 12, as it were. If plaintiff makes a claim for 12 items and his opponent in his defence refers to the claim as one for one dozen items, the defendant has not raised a new issue and has not asked for a relief. I resolve issue 7 against the appellant and in favour of the respondents.

Before I conclude this matter, permit me, My Noble Lords, to emphasize a point I made in a similar case before us. (See Mr. Peres Peretu & 4 Ors. v. Chief Koko Gariga & 4 Ors. (2013) 5 NWLR (Pt.1348) 514 at 420).

An army is greater than the numerical strength of its soldiers. In the same vein, a political party is greater than the numerical strength of its membership just like a country, for instance, Nigeria, is greater than the totality of its citizens. It follows that in the case of a political party, such as the 1st appellant herein, the interest of an individual member or a group of members within the party, irrespective of the place of such member or group in the hierarchy of the party, must yield place to the interest of the party. It is the greed, borne of inordinate ambition to own, control and manipulate their own political parties by individuals and groups therein and the expected reaction by other party members that result to the internal wrangling and want of internal democracy that constitute the bane of political parties in Nigeria.

If the party primary that produced the 1st respondent whose name and particulars were duly sent to INEC by the party that conducted it was not conclusive, it could not have produced a candidate. The second primary election conducted by the 1st appellant was a farce, subterfuge to accommodate a new entrant and a late comer to the party to the detriment of the party and its duly nominated candidate. May be if another higher bidder had come up before the election, the purported second primaries would have been discarded in favour of a third one to accommodate the later comer.

This shows lack of principle, sincerity of purpose and patriotism dictated by excessive materialism. It is apparent that a few powerful elements therein hijack the parties and arrogated to themselves the right to sell elective and appointive positions to the party member who can afford same. The 2nd appellant was not even in the party until 12/1/2011 when he got waiver to participate in the make-believe primary of 15/1/2011. This is a betrayal of the collective trust of the members of the party and in appropriate case such as this; the Court will rise to the occasion.

There is a popular saying that politics is a dirty game. I do not share this view. It is the players who are dirty and they inflict their filth on their members and, by implication, on the society. Politicians must learn to play the game of politics in strict compliance with its rules and the rules of organized society.

It is for the avoidance of doubt that I proceeded to resolve the rest of the issues after dealing with issue 1 in which I set aside the order of the lower Court that neither that Court nor the trial Court had jurisdiction in the matter, and the order of the trial Court in favour of the 2nd appellant.

In conclusion; the first sub-issue in issue one and issue 2 are resolved in favour of the appellant while issues 3-7 are resolved against the appellants in favour of the respondents. Based essentially on second sub-issue 1 and issues 3-7 resolved against the appellants in favour of the respondents, I dismiss the appeal as devoid of merit.

I set aside the order of the lower Court striking out Suit No. FHC/LF/CS/18/2011; dismiss the suit and set aside the order made therein in favour of the 2nd appellant.

The appellants shall pay costs of N100,000.00 each to the 1st respondent. The nominal party, 2nd respondent, shall bear its own costs.

Appeal dismissed.

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SC.281/2012