Engr. Charles Ugwu & Anor. V. Senator Ifeanyi Ararume & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

On 5th of April, 2007, I dismissed this appeal. I indicated that day that I will give my reasons for the dismissal today. I do so now.

The facts of this case as presented by the Court of Appeal are in some material difference from those presented by Dr. Alex Izinyon, SAN, for the 1st appellant in his brief. The material difference is that Dr. Izinyon has introduced the element of the 1st respondent not winning the primaries. He said that the 1st respondent scored 2,061 votes which was less than the 50% of the total votes of 7,504 cast. Dr. Izinyon would appear not to have remembered this important aspect when he settled the pleadings at pages 345 to 348 of the record.

There is yet another aspect. Dr. Izinyon, in part 2 of his brief, contended that the name of the 1st respondent was submitted to the 2nd respondent in error, which error was later corrected. That, to learned Senior Advocate, was responsible for the substitution of the 1st respondent for the 1st appellant. What qualified the 1st appellant to benefit from the exercise of substitution, counsel did not include in narration of facts. All he narrated was that the 1st respondent’s score was 37.5% which was short of the minimum score of 50%.

Although Dr. Izinyon, in the course of narrating the facts, said that the name of the 1st respondent was sent to the 2nd respondent in error, paragraph 4 of the 2nd and 3rd joint defendants’ statement of defence averred to the contrary:

“In further answer to paragraphs 11, 13, 14, 16, 17, 18, 19 of the statement of claim, the 2nd and 3rd defendants deny that the plaintiff’s name was submitted to the 1st defendant and he is put to the strictest proof thereto.”

The above narration conveys some contradictions. I will not say a bundle because the aggregate of the contradictions will not sum to a bundle. The duty of counsel is to present the case of his client and they, at times, do so with some sentiments and emotions. This court cannot hold such human feelings and idiosyncrasies against counsel. That a counsel should love his client’s case to the level of presenting same with some slant favourable to the client is not a condemnable conduct in so far as there is sincerity in the presentation and not an ambition to overreact the case of the adverse party. Such is the fiduciary professional duty of care counsel owes his client. I have no cause or reason to doubt the sincerity of Dr. Izinyon in this area of narration of the facts. One may be sincere in the position he takes but he could be mistaken in his sincerity at the same time”

I have taken up this for only one reason and it is to know the exact factual position. I must say that the 1st respondent took time and pains to narrate the facts of the case from pages 6 to 9 of the brief. I think he did a good job of the facts. Apart from the tradition of appellate courts taking the narration of facts by the lower courts more seriously than those of counsel in the event of conflict, I am inclined to do just that in the light of the situation in this matter.

I should take the narration of facts by the two courts below. The trial Judge narration was brief. I can easily quote the facts here from page 567 of the record:-

“Certain facts are not in dispute in this suit. These are that the plaintiff’s name was submitted to the 1st defendant vide exhibit F as the 3rd defendant’s candidate for the Imo State Gubernatorial election 2007. This is dated 14th December, 2006. That on the 18th January, 2007, vide exhibit K the 3rd defendant sent to the 1st defendant the name of the 2nd defendant as its Gubernatorial candidate for the same office. This submission of a second name is the root cause of this action.” The above is the version of the facts by the trial Judge. Let me take the version of the Court of Appeal. It is a bit more comprehensive. Again, I persuade myself to quote the facts from page 670 of the record:

“The facts are that the appellant emerged winner at the Governorship primaries conducted by the Peoples Democratic Party for Imo State on the 14th of December 2006. The appellant at the contest scored 2,061 votes as against the 36 votes scored by the 2nd respondent Engineer Charles Ugwu. The name of the appellant was forwarded to INEC by the 3rd respondent as the Governorship candidate sponsored by PDP in compliance with the provisions of section 32(1) and (2) of the 2006 Electoral Act, on the 14th of December 2006 as shown in exhs. F and G. The 3rd respondent on the 19th of January 2007 forwarded the name of the 2nd respondent to the 3rd respondent under a letter dated 18th January 2007 exh. K as the candidate it was sponsoring for Imo State Governorship in April 2007.”

The learned trial Judge after taking the interlocutory matter of jurisdiction, threw out the 1st respondent’s case. I did not see the trial Judge dismissing the suit and so I cannot say that; although the result at the end is the same thing. I should quote the two last paragraphs of the judgment at pages 573 and 574 of the record:

“By the provision of Section 34 of the Electoral Act 2006, I find that a political party has the power to change its nominated candidate for another any time before 60 days to election. In its exercise of the power to change, it need to inform the INEC in writing not in any prescribed form of the change. It will also give INEC cogent reason for the change which INEC should be able to verify. In the instant case, the 3rd defendant submitted the name of the Plaintiff as its Governorship candidate, informed INEC of its change of candidate and gave INEC a reason for the change. It is left for INEC to verify the reason or not. But pursuant to all the above, I will say that the political party is within its powers to so change its candidate and have so done as far as the parties on record are concerned.”

The Court of Appeal did not agree with the learned trial Judge.