Engr. George T.a. Nduul V. Barr. Benjamin Wayo & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This appeal is against the judgment of the Court of Appeal, Makurdi Division delivered on 29th November 2017, who affirmed the dismissal of the appellant’s suit by the Federal High Court, Makurdi Division in a judgment delivered on 10th December 2015.

The appellant and the 1st respondent were among five contestants on the platform of the 2nd respondent, the All Progressives Congress (APC) who contested the National Assembly primary election conducted by the party on the 10th December 2014 to select its candidate for the House of Representatives for the Kwande/Ushongo Federal Constituency of Benue State in the general election slated for 14th February 2015. There were complaints from some of the aspirants against the candidature of the 1st respondent and one Barr. George Uchi on the ground of non-compliance with the Party’s Guidelines, in that they did not pay for the nomination form and did not produce evidence from any of the designated banks to show that

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they had paid their nomination fee. It was also alleged that they did not possess screening certificates. According to the appellant, in spite of the complaints, the election was allowed to go on. The aggrieved parties were advised to file a petition with the relevant organ of the 2nd respondent. The 1st respondent won the election by scoring 229 votes. The appellant came second with 110 votes. On 18/12/2014, the 1st respondent’s name was forwarded to the 3rd respondent as the party’s candidate for the election.

After the election, in compliance with the 2nd respondent’s 2014 Guidelines for the Nomination of Candidates for Public Office (Exhibit GN2), the appellant appealed to the 2nd respondent’s Appeal Committee for the National Assembly Primary Elections for Benue State against the 1st respondent’s participation in the primary election. His appeal was successful. The committee recommended that, having scored the highest number of votes among the qualified contestants, he should be considered as the party’s candidate. It was the appellant’s contention that the National working committee (NWC) of the National Executive Council (NEC) of the 2nd respondent endorsed

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the finding and recommendation of the appeal committee and directed that he be issued with INEC forms to be immediately forwarded to the 3rd respondent as the party’s candidate. Notwithstanding these facts, it was the name of the 1st respondent that was forwarded to the 3rd respondent as the party’s candidate.

Another complaint was that the 1st respondent was not qualified to contest the primary election because his appointment as a Magistrate with the Benue State Judiciary was terminated for violating the code of conduct for Judicial Officers and for being of “doubtful integrity”.

He therefore took out an Originating Summons before the Federal High Court, Makurdi Division on 6/2/2015 seeking the determination of the following questions:

1. Whether having regard to Paragraphs 3, 4 A (5), 4 B and 12.1 (d) of the 2014 Guidelines for the Nomination of Candidates for Public Office of the 2nd Defendant made pursuant to Article 20 (iv) (d) of the Constitution of the 2nd Defendant, the 2nd Defendant is not bound to follow and adhere strictly to all the requirements and conditions stated therein for the conduct of 2nd Defendant’s Primary elections.

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Whether having regard to Paragraphs 3, 4 A (5), 4 B and 12.1 (d) of the 2014 Guidelines for the Nomination of candidates for Public Office of the 2nd Defendant made pursuant to Article 20 (iv) (d) of the Constitution of the 1st Defendant, the nomination of the 1st Defendant and the subsequent submission of the 14 Defendant’s name to the 3rd Defendant as the 2nd Defendant’s candidate for Kwande/Ushongo Federal Constituency of Benue State for the forthcoming general elections of 14th February, 2015, is in compliance with the 2014 Guidelines for the Nomination of Public Office and Constitution of the 2nd Defendant.

3. Whether non-compliance with Paragraph 6 of the 2014 Guidelines for the Nomination of Candidates for Public Office of the 2nd Defendant before the date fixed for 2nd Defendant’s Primary Elections render a member ineligible to contest a Primary Election.
4. Whether upon a proper construction of paragraphs 3, 4A (5) and 6 of the 2014 Guidelines for the Nomination of Candidates for Public Office of the 2nd Defendant it is mandatory and a condition precedent for all aspirants to pay the prescribed fees before being cleared to contest the primary election of the 2nd Defendant.

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If the answers to questions 3 & 4 above are in the affirmative, whether the 2nd Defendant was not wrong by recognizing and including the name of the 1st Defendant as an aspirant for the Primary Election for Kwande/Ushongo Federal Constituency of Benue State.

6. Whether having regard to the Article 19(2) of the Constitution of the 2nd Defendant and the fact that the plaintiff’s appeal was still pending before the 2nd Defendants Board of Trustees, the 2nd defendant was not wrong to forward the name of the 1st Defendant to the 3rd Defendant as its duly nominated candidate for the February 14, 2015 National Assembly Election for Kwande/Ushongo Federal Constituency of Benue State.
7. If question 2 is answered in the negative, whether the 1st Defendant is in the eyes of the law, the candidate of the 2nd defendant and entitled to all benefits as flag bearer of the 2nd defendant eligible to contest and be voted for on the platform of 2nd Defendant in the forthcoming election of 14th February 2015 in respect of the seat of Kwande/Ushongo Federal Constituency of Benue State.
8. Whether the purported submission of the name of

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the 1st Defendant to the 3rd Defendant as its candidate to represent Kwande/Ushongo Federal Constituency of Benue State in the election into Federal House of Representatives in the forthcoming General Election of 14th February 2015 is not a violation of the 2nd Defendants 2014 Guidelines for the Nomination for Candidates for Public Office and its Constitution and therefore null and void having regards to the fact that the 2nd Defendant was not an aspirant abinitio for the Primary Election for Kwande/Ushongo Federal Constituency of Benue State held on 10/12/2014 at Adikpo Township Stadium.

9. Whether upon proper perusal of INEC Form C.F 001 and the letter dated 4 September, 1997 referenced JSC/SEC/P/1192/1/40 attached to it and submitted by the 1st Defendant to the 3rd Defendant as the evidence of the 1st Defendant’s termination and looking at the Certified True Copy of the said letter dated 4th September, 1997 and referenced JSC/SEC/P/1192/1/40 the information contained on the said Form CF 001 submitted by the 1st Defendant to the 3rd Defendant is not false.
10. Whether upon the perusal and comparing two

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letters: i. the letter from Benue State Judiciary Service Commission reference JSC/SEC/1192/1/39 and dated 4th September 1997 and addressed to the ln defendant titled “Termination of Appointment” (Exhibit GN9B2) citing “doubtful integrity” as reason for terminating the 1st defendant’s appointment, and ii. The letter, dated 4th September, 1997 and referenced JSC/SEC/P/1192/1/40 submitted by the 1st Defendant to the 3rd Defendant as the evidence of the 1st Defendant’s termination; is it not manifest that 1st defendant’s submission to the 3rd Defendant is false

11. Whether by the combined effect of Section 31(5) & (6) of the Electoral Act 2010 (As Amended) vis-a-vis the false information submitted by the 1st Defendant in Form CF.001, this Honourable Court cannot disqualify the 1st Defendant from contesting the forthcoming election of 14th February 2015 as candidate of the 2nd Defendant into the Kwande/Ushongo Federal Constituency of Benue State.

In the event that the questions were answered in his favour, he sought the following reliefs:

1. A Declaration that the 1st Defendant was ineligible to contest the All Progressives Congress (APC)

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National Assembly Primary Election held on 10/12/2014 for Kwande/Ushongo Federal Constituency of Benue State, having failed to comply and abide by the party’s Constitution and Guidelines for the aid primary election.

2. A Declaration that all the purported votes casted for 1st Defendant at the All Progressives Congress (APC) National Assembly Primary Election held on 10/12/2014 for Kwande/Ushongo Federal Constituency of Benue State are invalid or void votes and of no effect whatsoever; the 1st Defendant having not been qualified to stand for the said primary election for Kwande/Ushongo Federal Constituency, held on 10/12/2014.
3. A Declaration that the forwarding of the name of the 1st Defendant to the 3rd Defendant by the 2nd Defendant as the candidate for the House of Representatives for Kwande/Ushongo Federal Constituency for the forthcoming General Election of 14th February 2015 and the corresponding act of 3rd Defendant of accepting, listing and publicizing the 1st Defendant as the 2nd Defendants candidates for the Federal House of Representative for Kwande/Ushongo Federal Constituency Federal Constituency, is illegal, unconstitutional, null and

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void and of no effect whatsoever.

4. A Declaration that the 2nd Defendant has breached its 2014 Guideline for Nomination of Candidates for public Office and its Constitution, by allowing the 1st Defendant to participate in the primary election and forwarding his name to the 3rd defendant as the 2nd Defendants candidate for Kwande/Ushongo Federal Constituency of Benue State, having not qualified abinitio to stand for the primary election.
5. A Declaration that the information submitted by the 1st Defendant to the 3rd Defendant in Form C.F 001 is false.
6. An Order setting aside the 229 votes purportedly scored by the 1st Defendant at the All Progressives Congress (APC) National Assembly Primary Election held on 10/12/2014 for Kwande/Ushongo Federal Constituency of Benue State held at Adikpo Township Stadium.
7. An order declaring the Plaintiffs 110 votes as valid and highest valid votes cast at the 2nd Defendants primary election for Kwande/Ushongo Federal Constituency of Benue State and consequently declare the plaintiff as the winner of the All Progressive Congress (APC) National Assembly Primary

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Election held on 10/12/2014 for Kwande/Ushongo Federal Constituency of Benue State.

8. An Order of Perpetual Injunction restraining the 1st Defendant from parading himself as the 2nd Defendant candidate for the Federal House of Representative for Kwande/Ushongo Federal Constituency of Benue State in the forthcoming Election of 14th February, 2015 into the Federal House of Representative.
9. An Order of Perpetual Injunction restraining the 2nd and 3rd Defendants from recognizing and dealing with the 1st Defendant as the 2nd Defendants candidates for the House of Representative for Kwande/Ushongo Federal Constituency of Benue State in respect of the forthcoming election of 14th February, 2015 into the Federal House of Representive.
10. An Order directing the 2nd and 3rd Defendants to take all steps/actions including listing the name of the Plaintiff as the 2nd Defendants candidates for Kwande/Ushongo Federal Constituency of Benue State in the forthcoming election of 14th February, 2015 into the Federal House of Representative and to allow the Plaintiff contest the election into House of Representative Kwande/Ushongo Federal Constituency of Benue State in the said

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forthcoming election on the platform of the 2nd Defendant.

11. An Order of this Honourable Court disqualifying the 1st Defendant from contesting the forthcoming election of 14th February, 2015 into Kwande/Ushongo Federal Constituency of Benue State.
12. And for such other orders that this Honourable Court may deem fit to grant in the circumstances of this case.

Affidavits, counter affidavits, further and better affidavits and written addresses were filed and exchanged between the parties. The 1st and 2nd respondents, who were the 1st and 2nd defendants at the trial Court also filed a motion on notice challenging the Court’s jurisdiction to entertain the suit. The grounds for the objection to Court’s jurisdiction were that reliefs 1 – 8 of the Originating Summons are incompetent because they do not allege an infraction of Section 87 (9) of the Electoral Act, 2010, as amended; that the questions raised for determination on the originating summons are different from the issues raised and argued in the claimant’s written address; and that the originating summons was incompetent because it could not be ascertained that it was signed by an

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identifiable legal practitioner. The objection was considered along with the substantive suit.

In a considered judgment delivered on 10/12/2015, the preliminary objection was overruled. The Court resolved all the questions in the substantive suit against the appellant and dismissed the suit. The appellant was dissatisfied with the decision and appealed to the lower Court. The 1st and 2nd respondents cross appealed against the decision overruling their objection to the Court’s jurisdiction. In a considered judgment delivered on 25/9/2017, the appeal and cross appeal were dismissed.

The appellant is still dissatisfied and has further appealed to this Court vide his notice of appeal deemed filed on 21/2/2018 containing 18 grounds of appeal.

At the hearing of the appeal on 30/4/2018, Mathew Burkaa Esq., learned counsel for the appellant adopted and relied on the following processes in urging the Court to allow the appeal:

i. Appellant’s brief deemed filed on 21/2/2018;

ii. Reply brief to 2nd respondent’s brief deemed filed on 30/4/2018;

iii. Reply brief to 3rd respondent’s brief also deemed filed on 30/4/2018.

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G.T. Yongo Esq., adopted and relied on the 1st respondent’s brief deemed filed on 30/4/2018 in urging the Court to dismiss the appeal. Messrs. S.A. Akpehe and Abdullahi Haruna adopted and relied on the 2nd respondent’s brief and the 3rd respondent’s amended brief respectively, both deemed filed on 30/4/2018, in urging the Court to dismiss the appeal.

Learned counsel for the appellant formulated a whopping 11 issues for the determination of this appeal. They are as follows:

1. Whether in the light of Section 240 of the 1999 Constitution (as amended) the Learned Justices of the Court of Appeal were not wrong in law when they assumed Jurisdiction and determined the 1st Respondent’s fresh issue which was a direct complaint against the National Assembly Primaries Appeal Committee of the 2nd Respondent (Ground 10).
2. Whether the Lower Court was not wrong in law when it assumed Jurisdiction and gave effect to the arguments of the 1st Respondent as contained in paragraphs 13.0.4 to 14.0.5 of the 1st Respondents brief of argument which did not arise from any of the grounds of appeal filed before the Lower Court (Ground 11).

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Whether the Lower Court did not breach the Appellants right to fair hearing when it failed to consider the submissions of Appellants Counsel on the fresh issue raised by the 1st Respondent in paragraphs 13.0.4. to 14.0.5 of the 1st Respondents brief of argument (Ground 14).

4. Whether the Lower Court was not wrong in law when it failed to give effect to Exhibit GN7E on the ground that the 1st Respondent is not affected by the recommendation contained therein. (Ground 12 and 13).
5. Whether the Learned Justices of the Court of Appeal were not wrong in law when they failed to uphold the Appellants complaint that the 1st Respondent was not qualified to have participated in the primary elections of the 2nd Respondent by reason of his failure to pay for the mandatory nomination fee as required by the Guidelines of the 2nd Respondent (Ground 4, 5, 6 and 7).
6. Whether the Lower Court was not wrong in law when it dismissed the Appellants complaint that the 1st Respondent was not qualified to have participated in the primary elections of the 2nd Respondent by reason of his failure to possess a payment advise Slip as provided by the Guidelines of

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the 2nd Respondent (Ground 8 and 9).

7. Whether the Lower Court was not wrong in law when it treated the 2nd Respondent as a neutral party in resolving the complaint of the Appellant that the 1st Respondent did not pay for a nomination form as provided by the Guidelines of the 2nd Respondent (Ground 16).
8. Whether the Lower Court was not wrong when it relied heavily on Exhibit B2 in determining the question of the qualification or otherwise of the 1st Respondent. (Ground 17)
9. Whether the Lower Court was not wrong when it held that the Appellant was not issued INEC forms as the duly nominated candidate of the 2nd respondent (Ground 15)
10. Whether the Learned Justices of the Court Appeal were not wrong in law when they failed to invoke the provisions of Section 31 (6) of the Electoral Act, 2010 (as amended) and disqualify the 1st Respondent for giving false information in his form CF001. (Ground 1, 2, and 3).
11. Whether the judgment of the Lower Courts were not against the weight of evidence and therefore perverse (Ground 18).

The 1st respondent formulated three issues thus:

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In view of the extant provisions of Section 240 of the 1999 Constitution of the Federal Republic of Nigeria, Section 15 of the Court Appeal Act (2010 as amended) and Order 4 Rules 3 and 4 of the Court Appeal Rules 2016, can it be said that the lower Court erred when it considered before it the new issue of the breach of fair hearing of the 1st respondent (Ground 10, 11, 12, 13 and 14).

2. Whether the Learned Justice of the Court Appeal were not right when they rejected the contention of the appellant that, he was by the decision of the NEC of the 2nd respondent issued with INEC forms as the 2nd respondent candidate for the House of Representatives election for Kwande/Ushongo Federal Constituency but instead upheld the judgment of the trial Court that “The 1st respondent is a competent person to contest election. And having scored the highest number of votes casts at the primaries is eligible to have his name sent to the 3rd respondent as the candidate for the 2nd respondent…” (Grounds 4, 5, 6, 7, 8, 9, 15, 16, 17 and 18).
3. Whether or not the Court of Appeal was right when it held that Section 31(5) & (6) of the Electoral Act, 2010 (as amended) can only be invoked against a

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candidate who gives false information in the relevant affidavit or a document submitted by him and the same relates to any of the qualifying or disqualifying factors in Section 65(1) and 66 of the Constitution of Nigeria, 1999 (as amended) and that the appellant failed to prove the criminal allegation of forgery and perjury against the 1st respondent, (Grounds 1, 2, & 3).

The 2nd Respondent distilled the following three issues for determination:

1. Whether the Court of Appeal was wrong by upholding the judgment of Federal High Court Makurdi that the 1st Respondent was qualified to have contested in the House of Representatives primaries election of the 2nd Respondent for Kwande/Ushongo Federal Constituency of Benue State held on the 10/12/14 (Grounds 4, 5, 6, 7, 8, 9, 16 and 18).
2. Whether the Court of Appeal was wrong by refusing to hold that the 1st Respondent gave false information to the 3rd Respondent when filling Form CF001 (Exhibit GN9A) (Grounds 1, 2, 3 & 15).
3. Whether the Court of Appeal was wrong by holding that the 1st Respondent was not given fair hearing by the Election Appeal Committee of the 2nd

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Respondent that sat and heard the petition of the Appellant without putting the 1st Respondent on Notice (Grounds 10, 12 & 13).

The 3rd respondent also submitted three issues for determination:

1. Having regard to the provisions of Sections 31 (5) & (6) of the Electoral Act, 2010 (as amended) and Sections 65 & 66 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), whether the Lower Court was not wrong in arriving at the conclusion that the Appellant failed to prove that the 1st Respondent was not qualified to contest the election for House of Representatives for Kwande/Ushongo Federal Constituency of Benue State
2. Whether considering the facts and circumstance of this case, the trial Court and the lower Court position did not occasion a miscarriage of justice and breached the Appellant’s right to fair hearing, when the trial Court disregarded the contents of Exhibits GN9B1, GN1B2, GN9B3, GN9B4 and GN9BS in arriving at the conclusion that the issue of termination may be weighty, but same was not done by a Tribunal or Court of Criminal Jurisdiction
3. Having regard to the Appellant’s state of pleadings

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and documentary evidence at the trial Court, whether the appellant has proved his case that the 1st respondent was not qualified to contest primary election of the 2nd Respondent for House of Representatives for Kwande/Ushongo Federal Constituency of Benue State

It must be stated right away that this Court and indeed all appellate Courts frown at the proliferation of issues for determination. It is not the number of issues distilled for determination that determines the success of an appeal but their content and quality. Issues for determination should not be unnecessarily prolix and unwieldy. They should be a clear and concise statement of the complaint against the judgment, which is the subject of the appeal. The danger in proliferating the issues for determination is that they often obscure the real issues in the appeal. It serves no useful purpose and it is a practice that should be avoided. See: Ogbuanyinya Vs Okudo (No. 2) (1990) 4 NWLR (146) 551 @ 567; Clay Industries (Nig.) Ltd vs. Aina & Ors (1997) 8 NWLR (pt. 516) 208; Ogunyade vs. Oshunkeye (2007) 15 NWLR (Pt.1057) 218. The 11 issues formulated by the appellant for the disposal of this appeal are unnecessary.

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The issues formulated by learned counsel for the 1st respondent are clearer, more direct and apt for the determination of this appeal. I shall adopt them with slight modifications where necessary to meet the justice of the appeal.

Issue 1

In view of the extant provisions of Section 240 of the 1999 Constitution of the Federal Republic of Nigeria, Section 15 of the Court of Appeal Act (2010 as amended) and Order 4 Rules 3 and 4 of the Court of Appeal Rules 2016, can it be said that the lower Court erred when it considered before it the new issue of the breach of fair hearing of the 1st respondent

The issue covers the appellant’s issues 1, 2, 3 and 4.

Learned counsel for the appellant commenced his submissions by stating the position of the law with regard to the issue of jurisdiction. He submitted that the settled principle of law is that any proceeding conducted without jurisdiction is a nullity, no matter how well conducted, and is liable to be set aside once it is established that the Court lacked jurisdiction to entertain it. He referred to: Olofu & ors vs. Itodo & ors (2010) 18 NWLR (pt. 1225) 545; (2010) LPELR – 2585 (SC) @ 21 – 22 F – A.

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He submitted that the 1st respondent raised a fresh issue at the Court below, which was argued in paragraphs 13.0.4. to 14.0.5 of his brief and that the Court relied heavily on the submissions therein in reaching its conclusions. He submitted that Section 240 of the 1999 Constitution sets out the categories of Courts whose decisions are appealable to the Court of Appeal.

He argued that the fresh issue raised did not arise from the decision of any Court enumerated in Section 240, as it was a direct attack against the decision of the 2nd respondent’s National Assembly Primaries Appeal Panel. He referred to paragraph 16 of the 2nd respondent’s Guidelines, which provide for the setting up of a 5-member Legislative Election Appeal Committee for each State of the Federation and the Federal Capital Territory (FCT) to determine appeals arising from primary elections in a particular State or the FCT and noted that in sub-paragraph (d), it provides that the decision of the National Working Committee of the party (acting on behalf of the NEC) shall be final. He submitted that in raising the fresh issue at the Court of Appeal, the appellant had by-passed

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the NWC in ventilating his grievance against the decision of the Appeal Committee. In essence, learned counsel argues that the jurisdiction of the Court of Appeal is restricted to appeals from the Courts mentioned in Section 240 of the Constitution, as amended, and that the Court ought to have declined jurisdiction to entertain the fresh issue. On the nature of the Court of Appeal’s jurisdiction, he referred to: Star Paper Mill Ltd. & Anor. Vs. Adetunji & Ors. (2009) 13 NWLR (Pt. 1159) 647: (2009) LPELR – 3113 (SC) @ 18 E; Ajomale Vs. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 296: (1991) LPELR-305(SC) @ 7-8 F-D.

He submitted further that the fresh issue was not tied to any of the grounds of appeal or cross appeal nor a respondent’s notice and ought to have been struck out. He referred to: Garba & ors. vs The State (2000) LPELR – 1306 (SC) 6 C – E; Drexel Energy & Natural Resources Ltd. & Ors. Vs. Trans International Bank Ltd. & Ors. (2008) LPELR – 962 (SC) @ 18-19 E-B.

Conversely, learned counsel also argued that the appellant’s right to fair hearing was breached because the lower Court failed to consider the submissions canvassed

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in his brief in reaction to the fresh issue raised by the 1st respondent. He submitted that in resolving the fresh issue in its judgment, the lower Court failed to review or make any reference to the appellant’s arguments at pages 1179 – 1182 of the record, particularly as regards his contention that the Court had no jurisdiction to entertain the fresh issue and that Exhibit E, which purported to reverse the decision of the NWC, was worthless, being undated and unsigned. Relying on the cases of Otapo Vs. Sunmonu (2011) All FWLR (pt. 576) 419 @ 461 and Uzuda vs. Ebijah (2009) 15 NWLR (pt. 1163) 1 @ 22 A – C, he submitted that failure to afford a party a fair hearing in a cause or matter is fatal and would result in any decision reached therein being set aside.

He also submitted that the lower Court acted in error when it failed to give effect to Exhibit GN7E, wherein the 2nd respondent’s Primaries Appeal Committee recommended that the appellant be considered as the party’s candidate in view of the 1st respondent’s non-compliance with the Party’s Guidelines. He submitted that the two reasons given by the lower Court, to wit: that the

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1st respondent was not given a fair hearing by the 2nd respondent and that in any event, the decision of the committee had been reversed by Exhibit E, were not tenable. He submitted that the Court lacked jurisdiction to have entertained the fresh issue ab initio and that Exhibit E was worthless for being unsigned.

On the need for parties to accord a level playing field to every candidate participating in its primaries, he referred to the decision of this Court in: SC. 733/2016: Mato Vs Hembe delivered on 23/6/2017, now reported in (2017) 6 SC (Pt. VI) 161). He noted that the 1st respondent did not appeal against the recommendation in Exhibit GN7E. He submitted that though undated and unsigned, the lower Court placed reliance on Exhibit E on the ground that it was certified by the 2nd respondent’s Legal Officer. He submitted that the 2nd respondent is a private organization not a public officer and therefore the certification of a document by any of its members cannot cure any defect therein. He also noted that by the provision of paragraph 12.4. of the 2nd Respondent’s Constitution (Exhibit GN10), the Legal officer of the party is not a member of the NWC and lacks the power to

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sign any of its minutes or extracts. He submitted that Exhibit GN7E ought to have been given its full force and effect, especially as the 1st respondent did not appeal against it. He referred to the views expressed by their Lordships, Onnoghen, CJN and Eko, JSC in Mato vs. Hember (supra) @ 216 – 217 Lines 5 -5 and 222 Lines 9 – 20.

In answer to the above submission, learned counsel for the 1st respondent submitted that from the provisions of Section 240 of the Constitution, it is evident that the National Assembly has the Constitutional authority or power to enact laws by which the jurisdiction of the Court of Appeal may be determined. He submitted that in exercise of its judicial powers, it enacted the Court of Appeal Act, 2010 (as amended), which by Section 15 thereof confers on the Court of Appeal, inter alia, full jurisdiction over the whole proceedings before it as if the proceedings had been instituted at the Court of Appeal as a Court of first instance and authority to re-hear the case in whole or in part. He submitted that it was in recognition of this power, that the 1st respondent filed an application seeking

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leave to raise the issue of the breach of his fundamental right for the first time in the Court of Appeal. He noted that the appellant did not oppose the application. He submitted that the fresh issue was properly raised having regard to the provisions of Section 15 of the Court of Appeal Act and Order 4 Rules 3 – 4 of the Court of Appeal Rules 2016. Relying on these provisions, he submitted that learned counsel for the appellant was wrong when he argued that the fresh issue ought to have arisen from a cross appeal or respondent’s notice.

With regard to learned counsel’s contention that his submissions in respect of the fresh issue were not considered, he referred to page 1331 paragraphs 1 – 3 and 1332 paragraph 2 of the record for the findings of the Court on Exhibit GN7E and Exhibit E. He submitted further that paradoxically, while learned counsel argued that his submissions in respect of Exhibit E were not considered, he went on at pages 10 – 13 of his brief to demonstrate how the Court considered his submissions but rejected his reasoning. He submitted that the reasoning of Eko, JSC, in Mato’s case (supra) does not support the appellant’s case.

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He noted that in Mato’s case, Hembe did not challenge the finding of the domestic tribunal of his party whereas, in the present case, it was not only challenged, the decision was set aside. He referred to Exhibit E.

He submitted that the 2nd respondent’s Legal Officer need not be a member of the NWC to be competent to certify an extract of the minutes of its meeting. He submitted that the counter affidavit jointly filed by the 1st and 2nd respondent at the trial Court alleging that Exhibit GN7E is a fraud was not challenged by the appellant. He noted that in Mato’s case there was no counter affidavit challenging the positive averments in the appellant’s affidavit. He submitted that while there was evidence in Mato’s case of efforts made to hear the 1st respondent’s side of the story, there was no evidence in the instant case to show that there was any attempt to get him to respond to the allegations or complaints against him. He maintained that there was a clear breach of the 1st respondent’s right to fair hearing in the circumstance.

Learned counsel for the 2nd respondent addressed this issue as Issue 3. He largely repeated the submissions of learned counsel for the 1st respondent.

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In paragraph 5.03 of his brief he conceded that the 2nd respondent’s Appeal Committee failed to adhere strictly to the rules of natural justice by failing to serve the 1st respondent with the appellant’s petition and by failing to invite him to respond thereto. He conceded that Exhibit GN7D and GN7E were in breach of the 1st respondent’s right to fair hearing. He submitted that the lower Court was right in holding that Mato’s case is distinguishable from the facts of the instant case, as in Mato’s case this Court found that there was no breach of the 1st respondent’s right to fair hearing. He submitted that by Exhibit E, the NWC of the 2nd respondent reversed the decision of the Appeal committee and upheld the 1st respondent’s candidature. He submitted that since, by paragraph 16 (d) of the 2nd respondent’s constitution the decision of the NWC is final, it would not be correct to say, as asserted by learned counsel for the appellant, that the NWC approved his candidature.

Learned counsel for the 3rd respondent did not address this issue in his brief.

In reply on points of law to the 2nd respondent’s submissions, learned counsel for the appellant argued

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that since learned counsel did not join issues on his issues 1, 2 and 3, the 2nd respondent is deemed to have conceded the arguments therein. I must say immediately that learned counsel is mistaken here, as the 2nd respondent’s issue 3 covers the appellant’s issue 1 – 4. While I agree with learned counsel for the appellant that learned counsel for the 3rd respondent did not address the submissions in respect of Issue 1, it is trite that INEC, being the electoral umpire is generally expected to be a neutral party in an electoral contest. Therefore, its failure to address some of the issues canvassed in the appellant’s brief cannot, without more, translate into victory for the appellant.

Resolution of Issue 1

Jurisdiction is the authority or power of a Court to adjudicate over a cause or matter brought before it for resolution or to take cognizance of matters presented in a formal way for its decision. A Court of law, being a creation of the Constitution or of a statute can only exercise the jurisdiction conferred on it by the law that created it. See: National Bank & Anor. Vs. Shoyoye (1977) 5 SC (Reprint) 110; Mobil Production Nig. Ltd. Vs.

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L.A.S.E.P.A. & Ors. (2002) 14 SCM 167 @ 179: Obasanjo Vs Yusuf (2004) 9 NWLR (Pt. 877) 144; Achonu Vs. Okuwobi (2017) 14 NWLR (Pt. 1584) 142 @ 171. Jurisdiction is so fundamental that any proceeding conducted without it is a nullity and liable to be set aside, no matter how well conducted. See: Madukolu Vs. Nkemdilim (1962) 2 SCLR 341; (1962) 2 ALL NLR 587 @ 594; Skenconsult (Nig). Ltd. Vs Ukey (1981) 1 S.C. 6 @ 52; Inakoju Vs. Adeleke (2007) 4 NWLR (Pt. 1025) 427 @ 588 F. It is because of the futility of proceedings conducted without jurisdiction that the issue may be raised at any stage of the proceedings, in any manner and even for the first time on appeal before the apex Court.

The issue raised in this appeal is whether the lower Court had the requisite jurisdiction to grant leave to the 1st respondent to raise the issue of breach of his fundamental rights by the 2nd respondent for the first time in the appeal before it. It is contended that the fresh issue amounts to an appeal against the decision of the National Assembly Primary Election Appeal Committee of the 2nd Respondent, which the lower Court has no jurisdiction to

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entertain having regard to the provisions of Section 240 of the 1999 Constitution.

Section 240 of the 1999 Constitution, as amended provides:

“240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the Federal High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a Court martial or other tribunal as may be prescribed by an Act of the National Assembly.”

The appeal before the lower Court arose from the decision of the Federal High Court, Makurdi Division. It therefore had jurisdiction to entertain it. Section 15 of the Court of Appeal Act, Cap. C36 Laws of the Federation of Nigeria (LFN) 2004, as amended, confers general powers on Court of Appeal in the exercise of its appellate jurisdiction. It provides:

“15. The Court of appeal may, from time to time, make any order necessary for determining the real

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question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal think fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part. Or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”

Thus, from the highlighted portion of Section 15 above, the question arises as to whether the Federal High Court

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would have had jurisdiction to entertain the complaint that the 2nd respondent breached the 1st respondent’s Constitutional right to fair hearing when it failed to notify him of the petition against him or ask for his response in respect thereof. I am of the considered view that the Court would have been eminently qualified to entertain it having regard to the averments in paragraphs 17, 18, 19, 20, 21 and 23 of the 1st and 2nd respondent’s counter affidavit.

Ordinarily, an appeal can only be determined based on the grounds of appeal contained in the notice of appeal, which must be a complaint arising from the judgment appealed against. However, an appellate Court, upon proper application, has the jurisdiction to grant leave to a party to raise a fresh issue before it for the first time that was not raised in the Court or Courts below where the fresh issue involves substantial points of law, substantive or procedural. Such discretion will be exercised in favour of the applicant where all the facts required to determine the issue are before the Court and no further evidence would be required to reach a decision on the matter. It will also be

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exercised where the Court is satisfied that it would meet the justice of the case. In paragraphs 3 (b) and (c) and 4 of the affidavit in support of the motion filed on 21/9/17 at pages 1053 – 1054 of the record, it was averred on behalf of the 1st respondent as follows:

“3. (b) in the said suit No. FHC/MKD/CS/11/2015, the appellant conspicuously and extensively, pleaded and or deposed to the fact as contained in paragraphs 17, 18, 19, 20, 21 and 23 of his counter affidavit to the Originating Summons contained on pages 478 – 486 of the printed record that he was not informed of any complaint or petition against his victory at the party primary election on the 10/12/14, till he was served with the suit of the plaintiff/appellant on the 17/02/2015.

(c) The appellant did not deny or contravene the applicant’s said averments as contained in paragraphs 17, 18, 19, 20, 21 and 23 of his counter affidavit of 21/04/2015 contained on pages 478 – 486 of the printed record.

4. That the respondent will not be prejudiced by the grant of this application.”

At the hearing of the application on 25/9/2017, the application was unopposed and was accordingly granted by the Court.

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In paragraphs 1.3.8.1 to 1.3.10 of his reply brief to the 1st and 2nd respondents’ brief at pages 1179 to 1183 of the record, the appellant fully responded to the fresh issue raised. Having acquiesced in the procedure adopted by the Court, it is too late for the appellant to complain. It is also within the 1st respondent’s right to ask the Court to look into any of the processes before it to determine whether or not his right to fair hearing was breached by the 2nd respondent. The facts relating thereto were already before the Court as deposed to in paragraphs 17, 18, 19, 20, 21 and 23 of his counter affidavit.

I have considered the argument of learned counsel for the appellant that his submissions in opposition to the fresh issue raised were not considered by the lower Court. I have examined the judgment of the lower Court, particularly at pages 1331 to 1332 of the record. The Court addressed the substance of the appellant’s response to the fresh issue, which was that the 1st respondent did not appeal against the decision of the Appeal Committee and that relying on the decision of this Court in Mato Vs. Hember (supra), the

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decision of the Appeal Committee was binding on him. Having already granted the application to argue a fresh issue, which was not opposed, the Court had no jurisdiction to sit on appeal over its decision. The substance of learned counsel’s arguments was considered. Indeed, at page 11 paragraph 7.03 of his brief, as observed by learned counsel for the 1st respondent, his argument was that the reasons given by the Court for not applying the decision of this Court in Mato vs. Hember (supra), were not tenable. The appellant therefore has not suffered any miscarriage of justice. I shall come back to Exhibits GN7E and Exhibit E later in the judgment. This issue is accordingly resolved against the appellant.

Issue 2

Whether the Learned Justices of the Court of Appeal were right when they upheld the judgment of the trial Court to the effect that the 1st respondent was competent to contest the election and having scored the highest number of votes casts at the primaries, was eligible to have his name sent to the 3rd respondent as the candidate for the 2nd respondent in the general election.

This issue covers the appellant’s issues 5, 6, 7, 8, 9 and 11,

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the 2nd respondent’s Issue 1 and the 3rd respondent’s Issue 3.

Learned counsel for the appellant argued that in affirming the judgment of the trial Court on the 1st respondent’s qualification to participate in the primary election conducted on 10/12/14, the lower Court considered extraneous matters and disregarded the overwhelming credible and weighty evidence proffered by the appellant. He submitted that in the circumstance the judgment is perverse and cannot be allowed to stand. He submitted that the appellant’s complaint was that the 2nd respondent was bound to comply strictly with the provisions of its Guidelines in the conduct of its primary elections. He referred toUzodinma Vs. Izunaso (No. 2) (2011) 17 NWLR (1275) 30 @ 60 E; CPC VS. LADO (2011) 14 NWLR (PT. 1266) 40 @ 91 – 92 D-G. In paragraph 8.11 of his brief, learned counsel set out the qualification requirements to contest elective positions, as contained in Exhibit GN2 at pages 26 – 42 of the record.

He submitted that the appellant exhibited documents to show that he met all the requirements while there was no evidence to show that the 1st respondent paid any of the prescribed fees or that he was issued with a clearance

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certificate. He submitted that despite the finding of the Appeal Committee that the 1st respondent did not show evidence of clearance from the screening committee at the time of the election and despite its recommendation that he (appellant) be considered as the candidate of the party for the Kwande/Ushongo Federal Constituency, the 2nd respondent still went ahead and submitted the 1st respondent’s name.

He urged this Court to examine and evaluate Exhibits GN7A, GN7B, GN7C and GN7E along with the entire evidence led in the matter and to hold that the 1st respondent was not qualified to contest the primary election having failed to comply with the laid down pre-conditions. He submitted, relying on the case of Benmax Vs. Austin Motor Co. Ltd. (1955) 1 ALLER 326, that since the evidence in the base is documentary, this Court is in as good a position as the trial Court, to evaluate same and form its opinion thereon. He also cited: Gaji Vs. Paye (2003) 8 NWLR (Pt. 823) 583 @ 611 B – F.

Learned counsel argued that one of the vital planks of his petition was that the 1st respondent did not pay for his nomination form as at the date of the election.

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He submitted that the lower Court was wrong to rely on Exhibit B2, the teller exhibited by the 1st respondent, which did not show the date of payment, serial number or stamp of the receiving branch. He argued that it was not open to the Court to contend, as it did, that the defect on the teller was attributable to the cashier at the bank. He submitted that Exhibit B2 was unsigned and undated and therefore worthless. He relied on: Omega Bank Nig. Plc. Vs. O.B. C. Ltd. (2005) 1 SCNJ 150. He submitted further that failure of the appellant to file a further and better affidavit to challenge the 1st respondent’s Exhibit A, B2, B3, C1 and C2, was not a sufficient reason for the lower Court to place reliance on the documents as unchallenged. He submitted that since the parties had joined issue on whether or not the 1st respondent purchased the nomination form, the Court was entitled to use the documentary evidence relied upon by either side to resolve the conflict.

Referring to paragraph 6 of the Guidelines, he submitted that production of a bank teller and payment advice slip showing evidence of payment for the nomination form are

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mandatory for the collection of the nomination form. He relied on Mato Vs. Hember (supra) in support of his contention that once a statute or law provides a method for doing a thing, only that method shall be adopted and failure to comply with the stipulated method renders the exercise a nullity. He argued that the lower Court ought to have held that the 1st respondent was not qualified to contest the election. He submitted that it was not for the lower Court to speculate that the 1st respondent could not have collected, completed and submitted his nomination form if he had not presented his payment advice to the 2nd respondent. He referred to: Ladoja vs. Ajimobi (supra) (2016) LPELR – 40658 (SC) @ 102 C-F; Akpabio & ors vs. The State (1994) 7 NWLR (pt. 395) 365; (1994) LPELR – 369 (SC) @ 52 – 53 C.A.

He submitted that the appellant’s contention was that the 2nd respondent acted in connivance with the 1st respondent to breach its Guidelines and therefore the lower Court was wrong when it treated the 2nd respondent as a neutral party. He referred to Mato Vs. Hember (supra) per Kekere-Ekun, JSC on the need for parties to comply with their own electoral guidelines.

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Referring to Exhibits GN7H and GN7 (INEC Forms CF001 and EC4B (v)), he submitted that the lower Court erred when it held that the appellant was not issued any INEC forms as the duly nominated candidate of the 2nd respondent. He submitted that this is a clear case where this Court ought to interfere with the concurrent findings of the two lower Courts, which in his view, are perverse. He relied on: Karimu vs. The State (1999) LPELR – 1668 (SC) @ 5-6 G – A; Ezeudu vs. Obiagwu (1986) LPELR – 1213 (SC) @ 15 C – D; Uwah vs. Akpabio (2014) ALL FWLR (pt. 898) B – D.

Responding to the above submissions, learned counsel for the 1st respondent submitted that by virtue of Section 133 (1) and (2) of the Evidence Act, the initial burden of proving the allegations made against the 1st respondent was on the appellant. He submitted that as regards the alleged failure to show his clearance certificate at the primary election venue, the appellant relied on Exhibits GN7A and GN7B, the depositions of Alhaji Mukaila Inakakana (said to be a member of the election committee) and Kasada Mukhtar (secretary to the committee) respectively. He submitted that in opposition, the 1st respondent averred

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and relied on the deposition of Michael Awange (Chairman of the election committee) at page 469 of the record and Moses Kwav (a member of the committee), at page 466 of the record, who averred that the committee did not ask aspirants to show their clearance certificates.

He referred to the finding of the trial Court at page 883 of the record to the effect that there was nothing in the Electoral Act or the 2nd respondent’s Guidelines that requires a candidate to bring his screening certificate to the venue of the primaries. He also referred to the reasoning of the Court below for affirming the trial Court’s finding at pages 1325 – 1327 of the record. He submitted that by paragraph 14 of his affidavit in support of the Originating Summons, the appellant averred that the 1st respondent was among the contestants whose names were called out by the election committee for the primary election. He submitted that his name would not have been called if it had not been submitted to the committee by the 2nd respondent and that the 2nd respondent would not have submitted his name if he had not been cleared by the screening committee. He submitted that the Election

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Committee had no jurisdiction to sit on appeal over the screening done by the Screening Committee.

On the alleged failure to pay the nomination fee, learned counsel submitted that the burden was on the appellant to prove same. He referred to paragraph 12 of the 1st respondent’s counter affidavit wherein it was averred that the appellant was neither a bank nor financial institution to which the fee was paid nor a member of the 2nd respondent’s Screening Committee and therefore he was not in a position to contend that the requisite fees were not paid. He submitted that the 1st respondent had no burden to prove that he paid the fees. That the burden was on the appellant who made the assertion, which he failed to prove. He referred to:PDP Vs. INEC (2014) 9 SCNJ 29.

He submitted that the appellant failed to controvert Exhibits A, B1, B2, B3, C1 and C2 attached to paragraphs 6 and 7 of the 1st respondent’s counter affidavit as proof of payment for the expression of interest and nomination forms. He referred to the concurrent findings of the two lower Courts at pages 883 and 1328 – 1329 respectively,

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accepting the exhibits as evidence of payment of the prescribed fees. He urged this Court not to disturb the concurrent findings. He submitted that the 1st respondent’s Exhibits B1 and B2 show compliance with paragraph 6 of the Guidelines with the payment of N200, 000.00 as expression of interest fee and N2,000,000.00 as nomination fee.

On the issue of screening certificate, he submitted that the appellant failed to challenge the 1st respondent’s averments in paragraphs 5 and 8 of his counter affidavit and Exhibits A (clearance certificate) and D (Screening Committee’s handwritten list of screened aspirants) attached thereto in his further and better affidavit. He submitted that since the appellant in Annexture 3 attached to Exhibit GNTD (referred to in paragraph 24 of his supporting affidavit), acknowledged the fact that the 1st respondent was screened, the onus was on him to prove that despite the screening, he was disqualified (refers to paragraphs 11 and 12 (f) of the Guidelines) or that he (appellant) appealed against the screening exercise to the Screening Appeal Committee, as provided for in paragraph 13 (b) of the Guidelines. He submitted that the appellant

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failed to adduce the minimum evidence required to shift the burden to the 1st respondent.

Learned counsel observed that the findings of the Appeal Committee in Exhibit GN7E do not tally with the complaints made in Exhibit GN7D. He also referred to the 1st respondent’s averment in his counter affidavit that he was not aware of the petition until he was served with the Originating Summons. He submitted that contrary to Exhibit GN7E, there is no requirement in the party’s Guidelines for the presentation of screening or tax clearance certificates at the venue of the election. He submitted that dismissal or termination of appointment is also not a disqualifying factor. He submitted further that in any event, the Electoral Appeal Committee has no power to look into complaints arising from the screening exercise, as the party Guidelines provide for a Screening Appeal Committee to deal with such complaints.

He submitted that by the content of Exhibit E exhibited to the 1st respondent’s counter affidavit, the NWC of the 2nd respondent reversed the decision of the Appeal Committee and upheld the primary election result, which returned him as the winner.

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He submitted that Exhibit E, being an extract of the minutes of the NWC meeting was duly certified by the 2nd respondent’s legal officer and that there is no legal requirement that the officer must be a member of NWC before he/she could certify the document. He distinguished the facts of Matos case from this case and submitted that in that case there was no document like Exhibit E.

He urged the Court to take a closer look at Exhibits GN7D and GN7J, which show that not only was the 1st respondent not invited to respond to Exhibit GN7D, the appellant’s complaint was made to the Appeal Committee on 13/12/14 and the Committee sat on the same 13/12/14 whereas on the face of Exhibit GN7D it is indicated that the complaint was formally received by the committee on 14/12/2014. He submitted that this shows the Committee sat and reached a decision even before it had formally received the complaint. He submitted that the lower Court was right when it held that Exhibit GN7E was of no moment, having breached the 1st respondent’s right to fair hearing and that in any event, by Exhibit E, the 2nd respondent had set aside the recommendation in Exhibit GN7E.

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On the appellant’s contention regarding being issued with INEC forms, learned counsel stated that as at 18/12/2014, the 1st respondent’s name had been submitted to INEC (refers to Exhibit GN9A) and that pursuant to Section 33 of the Electoral Act, a political party is not allowed to change or substitute its candidate whose name has been submitted except in the case of death or withdrawal by the candidate. He submitted that the appellant failed to adduce any evidence to show that the 1st respondent was in breach of any of the qualification requirements set out in paragraph 3 of Exhibit GN2. He urged the Court to resolve the issue against the appellant.

Apart from conceding that the 1st respondent’s right to fair hearing was breached by its failure to serve a copy of Exhibit GN7D on him and its failure to invite him to react to the complaints therein, learned counsel for the 2nd respondent made similar submissions to those made on behalf of the 1st respondent. There is no need to repeat them.

Learned counsel for the 3rd respondent submitted that the appellant’s complaints in the Originating Summons are in respect of the pre-primary issues, which border on

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the selection and nomination of candidates for election. He submitted that these are within the domestic affairs of political parties and outside the jurisdiction of the Court to entertain. He referred to: Onuoha Vs. Okafor (1983) SCNLR 224; Dalhatu Vs Turaki (2003) 15 NWLR (Pt. 843) 310, which was the position before the subsequent amendments to the Electoral Act in 2006 and 2010. He submitted that the jurisdiction conferred on the Court by Section 87 (9) of the Electoral Act 2010 as amended, which slightly watered down the previous total non-interference stance of the Courts, is for the determination of complaints arising from the actual conduct of party primaries. He referred to: PDP Vs. Sylva (2012) 13 NWLR (PT. 1316) 85 @ 125 C – E; APGA vs. Anyanwu (2014) 7 NWLR (PT. 1407) 437; Ukachukwu vs. PDP (2014) 17 NWLR (pt. 1435) 134; SC.256/2016: Joe Odey Agi, SAN vs. PDP & Ors. delivered on 9th December 2016 per Ogunbiyi, JSC at Page 51, now reported in (2017) 17 NWLR (pt. 1595) 386. He submitted that since the appellant himself was seeking to be declared the winner of the primary election, it was clear that he had

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no complaint about the actual conduct of the said primary. He submitted that in the circumstance, he had taken himself outside the purview of Section 87 (9) of the Electoral Act. He submitted that the two lower Courts were right when they held that there were no material contradictions in the affidavit and documentary evidence before the trial Court on the material facts in issue to warrant the need to call for oral evidence. He urged the Court to resolve this issue against the appellant.

In reply on points of law to the submissions on behalf of the 2nd respondent, learned counsel for the appellant submitted that parties must be consistent in the case they present to the Court. He submitted that having issued Exhibit GN7E recommending the disqualification of the 1st respondent, the 2nd respondent is estopped from contending otherwise before this Court. He submitted further that Exhibit GN7E amounts to an admission against interest by the 2nd respondent. He referred to:Jinadu Vs. Esurombi Aro & Anor. (2009) LPELR- 1614 (SC) @ 41 – 42 F – B.

In response to the submission on behalf of the 3rd respondent that the trial Court lacked jurisdiction to

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entertain the suit, as it is a pre-primary issue not covered by Section 87 (9) of the Electoral Act, he submitted that the section entitles a party to maintain a suit where he complains of failure of a political party to adhere to its constitution and Guidelines and/or any provisions of the Electoral Act. He referred to: Ugwu Vs. PDP (2015) LPELR – 24352 (SC) @ 34-35 C – B. He submitted that election is a process involving the entire range of activities from screening, nomination, accreditation, voting, collation to recording results in the relevant forms and declaration of results and that all the components must be fully observed. He submitted that if any aspect is compromised the end result would not be an election in the eye of the law. He relied on Ogboru Vs. Uduaghan (2011) 2 NWLR (pt. 1232) 539 @ 589 – 590. He submitted that since the 2nd respondent’s Guidelines have provided a method for conducting the primaries and conditions precedent to be fulfilled, where the method is not employed, the election must be set aside for being a nullity. Other submissions are a re-submission of arguments already made in the appellant’s brief. This is not the function of a reply brief. The submissions are accordingly discountenanced.

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Resolution of Issue 2

The first question to consider in resolving this issue is: on whom does the burden of proof lie Section 133 (1) and (2) of the Evidence Act 2011 provides:

133 (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to presumptions that may arise on the pleadings.

(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with.

The meaning of “burden of proof” was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 @ 353 D – H, as follows:

“…the phrase “burden of proof in civil cases has two distinct and frequently confused meanings. This comprises, firstly, of the burden of proof as a matter

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of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case and, secondly, the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates. As Aniagolu, JSC explained the issue in Felix O. Osawaru Vs. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145, “In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff …, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.”

Thus, the general rule is that he who asserts must prove. The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie case is made out, the burden shifts to the defence to adduce counter evidence to sustain their defence. Where an allegation is made, positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him.

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See also: Plateau State of Nig. & Anor. Vs A.G. Federation & Anor. (2006) 3 NWLR (Pt. 967) 345 @ 417 D – F; Imana Vs Robinson (1979) 3 – 4 SC (Reprint) 1. However, the evidential burden of proving particular facts may shift throughout the proceedings. See: Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246; Okoye vs. Nwankwo (2014) 15 NWLR (pt. 1429) 93; Odukwe vs. Ogunbiyi (supra).

Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory reliefs calls for the exercise of the Court’s discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour. See: Williams Vs. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 @ 152; Ogolo vs. Ogolo (2003) 18 NWLR (pt. 852) 494; Okoye vs. Nwankwo (supra).

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Reliefs 1 – 5 of the appellant’s Originating Summons, reproduced earlier in this judgment, are declaratory. Reliefs 6 – 11 are ancillary to the declaratory reliefs. The burden was therefore on the appellant to satisfy the Court that he was entitled to those reliefs, notwithstanding any perceived weakness of the defence.

It is settled law that the selection and nomination of candidates for elective office is the sole preserve of the political parties and the Courts would not usually interfere in their domestic affairs. See: P.D.P. Vs. Sylva (2012) 13 NWLR (Pt.1315) 85 @ 146 A – E; Gwede Vs. INEC (2014) 18 NWLR (Pt.1438) 56 @ 148 – 149 H: Onuoha Vs Okafor (1983) 2 SCNLR 244. However, as rightly submitted by learned counsel for the appellant and as reiterated by this Court in the recent case of Mato Vs. Hember (supra), political parties must adhere strictly to the provisions of their Constitutions and electoral guidelines in the process.

Section 87 (4) of the Electoral Act 2010, as amended, provides for the procedure to be followed where a party adopts the system of indirect primaries for the selection of its candidates.

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By virtue of Section 87 (9) of the Act, the Federal High Court, State High Courts and the High Court of the Federal Capital Territory have been imbued with limited jurisdiction to entertain the complaint of an aspirant who contends that any of the provisions of the Electoral Act and/or the guidelines of his political party have not been complied with in the selection or nomination of a candidate of the party. The complainant must be an aspirant who participated in the disputed election. See: PDP Vs Sylva (2012) (supra) @ 141 E-F; 148 C-D; Lado Vs CPC (2011) 18 NWLR (Pt.1279) 698; Emenike Vs. PDP (2012) 12 NWLR (Pt.1315) 556.

The appellant herein averred in his affidavit in support of the Originating Summons and particularly in paragraph 41 thereof, that he participated in the primary election conducted on 10/12/2014 and came second with 110 votes. He exhibited relevant documents in proof of this assertion. He was therefore an aspirant qualified to complain about non-compliance with the provisions of the 2nd respondent’s Guidelines in the selection of its candidate for the Kwande/Ushongo Federal Constituency of Benue State in the National Assembly elections slated for

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14th February 2015. Contrary to the submission of learned counsel for the 3rd respondent, the appellant’s claim falls squarely within the confines of Section 87 (9) of the Electoral Act.

Exhibit GN2 at pages 26 – 42 of the record, is the 2nd respondent’s “2014 Guidelines for the Nomination of Candidates for Public Office”, referred to as the Guidelines. Paragraph 3 thereof provides for the qualification of aspirants for any public office as follows:

“3. The Partys Constitution prescribes that members name in the register of Members and evidence of Membership shall be the prima facie evidence of valid registration as a member. Hence the first requirement is that any aspirant on the platform of the party shall have complied with this provision. In addition, the aspirant shall:

– Be a Nigerian citizen.

– Be a registered member of the Party in the ward of his or her choice.

– Pay the prescribed fees.

– Not be a member of any other political party or hold any political office in any Government not controlled by the party.”

The appellant’s main grouse is that the 1st respondent failed to pay any of the prescribed fees and

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was therefore ineligible to contest the election. The burden was thus on the appellant to prove his assertion. A careful perusal of the supporting affidavit, exhibits and submissions of counsel show that the aspect of the process complained of is the screening process. He pleaded as follows in paragraphs 14 – 18 and 20 of his supporting affidavit at pages 9 – 10 of the record:

“14. That on the day of the primary election the electoral panel called out the names of the aspirants which included the 1st Respondent as the contestants for the primary election for Kwande/Ushongo Federal Constituency and asked all the aspirants to show their clearance certificates as evidence of eligibility to contest the primary election.

15. That we all complied with the directive except the 1st defendant and Bar. George Uchi who did not have a certificate from the screening committee.
16. That I know as a fact that by paragraph 3 and 4 (A5 and B) of Exhibit GN2 that anybody who failed, refused and or neglected to appear and/or not fully cleared by the screening committee is automatically disqualified.
17. That I immediately objected to the name of the

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1st defendant and Barrister George Uchi as aspirants on the ground that the 1st defendant and Barr. George Uchi were not qualified to contest the primary election by the reason of the fact that he Barrister Benjamin Wayo the 1st defendant did not pay for the nomination fee and does not have evidence from any of the designated banks that he paid the nomination fee to be eligible for the primary election as well as George Uchi.

18. That I also objected to Barrister Benjamin Wayos inclusion as an aspirant on the ground that he was not issued with the clearance certificate by the screening and selection committee of the party as evidence of his eligibility to stand for the primary election.
19. That the Primary Election Committee agreed with my objection but advised that I should forward my complaint to the appropriate appeal committee after the primary election.

In paragraphs 3 – 11 of the joint counter affidavit of the 1st and 2nd respondents, deposed to by the 1st respondent, at pages 478 – 480 of the record, the 1st respondent denied the appellant’s allegations and relied on the annexed Exhibits A, B1, B2, B3, C1, C2 and D to show that he paid

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the necessary fees and met all the requirements. He averred thus:

3. Paragraph 14 is true only to the extent that, the Primary Election Committee called out the names of the aspirants which included my name as a contestant for the primary election for Kwande/Ushongo Federal Constituency. At no time throughout the said election, did the primary committee demand for the clearance certificates of aspirants, or even ask the aspirants to show their clearance certificates before they would participate in the said primary election.
4. I was not asked by the primary election committee or any of its members to show to them my Screening Certificate at any time throughout the process of the primary election, which I won with a landslide victory.
5. That at the venue of the primary election. Adikpo township stadium, had my clearance certificate issued to me on the 20/11/2014, but did not show same to the primary election committee, or anybody either before, during or after the said primary election because nobody demanded for it. The said screening certificate is attached hereto and marked as Exhibit ‘A’.

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That I purchased both the Expression of Interest Form and the Nomination Form of the 2nd Defendant. The Deposit Slip of Eco Bank Plc and First Bank evidencing payments for the said forms are attached hereto and marked as Exhibit B1 and B2 respectively, while the receipt evidencing payment for processing fees is attached and marked as Exhibit B3.

7. The Expression of Interest Form and Nomination Form sold between October and November, 2014 by the 2nd Defendant which I purchased from the 2nd Defendant and filled and submitted to the 2nd Defendant, before my screening are attached hereto and marked as Exhibits C1 and C2, respectively.
8. I was screened by the Primary Election Committee of the 2nd Defendant, in Makurdi on the 26/11/2014. The handwritten list of the aspirants screened on the 26/11/2014 and 27/11/2014 by the said Screening Committee is attached hereto and marked as Exhibit ‘D’.
9. I was screened on the 26/11/2014, while the Plaintiff was screened on the 27/11/2014.
10. I know that, the 2nd Defendant’s Guidelines (Exhibit GN2 attached to Plaintiffs Supporting Affidavit) does not require any aspirant to produce his screening certificate at the venue of the

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primary election, as only screened and cleared candidates are permitted to contest on that day.

11. At no time throughout the duration of the said primary election, at the Adikpo Township Stadium, and thereafter, did the Plaintiff object to my name, or that of Barrister George Uchi from contesting as aspirants for any reason whatsoever to my knowledge.

Paragraphs 4A (5), 4B, 6 and 12.1 of the Guidelines provide:

“4. Qualifications:

A (5) Only aspirants fully cleared by the Party shall be eligible to stand election at the Party’s Primaries.

4B. Violations of any of there Guidelines shall attract automatic disqualification.

6. Nomination Form

Consequent upon the aspirant complying with provisions of the Partys Constitution, he shall complete nomination forms specifically provided for the office being sought after having paid the prescribed Expression of Interest and Nomination Fees.

All payments should be made in full directly to the designated bank accounts of the All Progressives Congress as follows:… (4 Banks with account numbers listed)

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House of Representatives

Expression of Interest – N 200,000.00

Nomination – N2,000,000.00

The fee shall be paid through accredited banks and the tellers and payment advise (sic) slip shall be evidence of payment and will be required for the collection of forms.

12. Screening Committee

The Screening Committee established by the Party shall be responsible for all activities in respect of the Party’s screening process and ensure compliance with the Reguirements and Guidelines as provided below. The Committee’s decision shall, however, be subjected to review by the Screening Appeal Committee and final decision of the NWC (acting on behalf of NEC).

Responsibilities of the Screening Committee

a. It shall be the duty and responsibility of the Screening Committee to carry out a Comprehensive, Due Diligence of all documents, materials and statements submitted to the Party by aspirants.

b. The Screening Committee shall also carry out Verification of all Certificates, Documents, Claims and other supporting materials submitted by all aspirants (in support of their qualification for meeting the Constitutional Requirements, Electoral Act Provisions, the Party Constitution and further

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Guidelines issued by the Party in conformity with all eligibility provisions).

c. The Screening Committee shall carry out its duties and responsibilities fairly and justly without fear or favour.

d. The screening exercise shall be mandatory for all aspirants without exception.

e. The Committee shall ensure that all aspirants comply with all stipulated requirements.

f. The decisions of the Screening Committee shall be conveyed in writing, stating the grounds for disqualification (if any), Reports of the screening exercise shall be made available to the relevant State and the National Secretariat.

(Emphasis mine)

Paragraph 13A (2) provides for a 5-man National Assembly/State House of Assembly Screening Appeal Committee for each State to hear and determine appeals arising from the Screening Committee.

I have taken the pains to reproduce in detail the relevant provisions of the Guidelines to show the pivotal role played by the Screening Committee with regard to clearing candidates to participate in the election. The Screening Committee is a door through which every aspirant must pass before he is certified eligible to contest.

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It is also clear from the provisions that the Screening Committee is required to go through all documents presented with a fine tooth comb. The Guidelines also provide for a Screening Appeal Committee for any aspirant who is dissatisfied with the decision of the Screening Committee.

In paragraph 14 of his affidavit in support, the appellant averred that the 1st respondent failed to show his clearance certificate at the venue of the primary election and on this basis contended that the failure to show his clearance certificate amounts to non-compliance with the Guidelines and warrants disqualification. He also contended that the 1st respondent did not have a clearance certificate because he did not pay the required fees for the Expression of Interest and Nomination forms. The 1st respondent admitted in his counter affidavit that he did not produce his clearance certificate at the venue because no demand was made for it. He however exhibited it as Exhibit A. He also exhibited a bank teller from Ecobank Plc. (Exhibit B1) showing payment of N200,000.00 for Expression of Interest form and one from First Bank Plc. Showing payment of N2,000,000.00 for the Nomination form.

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The learned trial Judge held, inter alia, at pages 883 – 884 of the record as follows:

“The complaint of the applicant is that the 1st respondent was not screened to contest the primaries and did not show his clearance certificate at the venue of the primaries.

I have seen a copy of the screening certificate of the 1st respondent. I have also noted that the 1st respondent admitted not having or showing his screening certificate at the venue of the primaries. I have also noted that it was not alleged that the certificate exhibit (sic) by the 1st respondent is a fake. There is nowhere in the Electoral Act or party Guidelines that requires a candidate to bring his screening certificate to the venue of the primaries. It is expected that the officers who are to conduct the primaries should be aware of who the candidates are. Nowhere has it been shown that the party officially questioned the presence of the 1st respondent at the party primaries.

I have seen the bank teller from Ecobank, First Bank and receipt of payment from the APC for expression of interest processing, etc paid by the 1st respondent

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as required by the Guidelines.

… On the whole the 1st respondent is a competent person to contest the election. And having scored the highest number of votes cast at the primaries is eligible to have his name sent to the 3rd respondent as the candidate of the 2nd respondent for inclusion on its list of candidates for the Kwande/Ushongo Federal Constituency.”

The lower Court affirmed the finding of the trial Court on the following grounds:

i. That Exhibits GN7A and GN7B, depositions of Alhaji Inakakana (said to be a member of the National Assembly Primary Committee) and Kasada Mukhtar (secretary of the Primary Election Committee) respectively, relied upon by the appellant, to the effect that the 1st respondent failed to produce his clearance certificate when asked to do so at the venue of the primary, were of no evidential value because (a) from Exhibit GN7C (the report of the National Assemblies Primaries Committee) Inakakana was not shown to be a member of the Committee that conducted the primary election under review (see page 1325 of the record) and (b) that the depositions in Exhibits GN7A and GN7B (as to requirement to produce clearance certificate at the

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venue of the primary) is contrary to the 2nd Respondents Guidelines (page 1327 of the record).

ii. That by paragraph 12 of the Guidelines, the responsibility of screening aspirants is that of the screening committee and not of the election committee. That by the said paragraph 12, the State and National Secretariats are made aware of those cleared by the screening committee and the need to ask for a screening certificate at venue of the primary election does not arise – there is no such requirement in the Guidelines.

iii. That by paragraph 15 (d) of the Guidelines, the duties of the Electoral Committee include verification/accreditation of delegates but not of aspirants (page 1326 of the record).

iv. That the depositions of Awanga and Kwav at pages 469 and 466 of the record to the effect that the 2nd respondent had released the names of the contestants cleared to contest and that they did not ask the contestants to produce their clearance certificates, are in line with the Guidelines.

(See pages 1325 – 1329 of the record).

Having critically examined Exhibit GN2, I am in complete agreement with the two lower Courts that there is

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no requirement in the 2nd respondent’s Guidelines that aspirants shall produce their clearance certificates at the venue of the primary. As rightly observed by both Courts, once the Election Committee has received the list of cleared aspirants from the Screening Committee, it has no further role to play in that regard. It is presumed that the Screening Committee has fully scrutinized every document presented to it before clearing an aspirant. If there is any Complaint regarding the outcome of the screening exercise, the Guidelines make specific provisions for seeking redress before a Screening Appeal Committee.

Thus, from the Guidelines themselves, the Election Committee has no business determining whether the aspirants presented for the primary are in possession of clearance certificates or not. The submission of their names to the Committee is prima facie proof that they met all the requirements. I am also in agreement with the lower Court when it held at pages 1328 – 1329 of the record that the appellant did not allege that the screening certificate, Exhibit A, attached to the 1st respondent’s counter affidavit, issued by the 2nd respondent on 28/11/2014,

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was fake. I also agree with the Court that it is not the appellant’s place to complain about Exhibit B2 (the teller from Ecobank Plc.), which was not issued in his favour. Neither the 2nd respondent nor the issuing bank was shown to have questioned its authenticity.

At page 1330 of the record, the lower Court held:

“It is clear that the tellers and payment advice slip are to serve as evidence of payment and are required for collection of forms and nothing more. In paragraph 7 of his counter affidavit (page 479 of the record) the 1st respondent deposed that he purchased, filled and submitted the expression of interest form and nomination form to the 2nd respondent before the screening. This was not countered by the appellant and it is deemed admitted. The 1st respondent could not have filled and submitted the forms if he had not collected them from the 2nd respondent. He could not have collected them if he did not show his teller and pay advice to the 2nd respondent. The contention of appellant in respect of payment advice stands on slippery ground and crashes to the ground.”

This finding, in my considered view cannot be faulted.

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The Court was entitled to draw such inferences from the facts before it. See Section 167 of the Evidence Act, 2011. The appellant’s contention is that the 1st respondent did not comply with conditions precedent to his being cleared to contest the primary election. As stated earlier in this judgment, the burden was on him to prove his assertion. In light of Exhibit A, the clearance certificate issued to the 1st respondent by the 2nd respondent, which has not been shown to have been fraudulently obtained, the appellant’s argument cannot hold water. It was rightly rejected by both Courts.

The appellant relies on Exhibit GN7E for his contention that in line with the decision of this Court in Mato vs. Hember (supra), the 1st respondent is bound by the finding and recommendation of the Appeal committee since he did not appeal against it. With due respect to learned counsel, the facts of Mato’s case are distinguishable from the present case. The issue of lack of fair hearing or failure to intimate the respondent with details of the complaint against him did not arise. The report of the National Assembly Primaries Appeal committee is reproduced at pages 210 –

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213 of the law report (2017 SC (Pt. VI) 161). Under the heading “Investigation” in paragraph (i), it is stated:

“(i) Several attempts to have Hon. Herman Hember defend himself were abortive as he did not appear before the Committee.”

This is very different from the instant case where it is clearly seen from Exhibit GN7E that no attempt was made to invite the 1st respondent to respond to the allegations and complaints against him. Exhibit GN7D is the appellant’s petition to the Appeal committee dated 13/12/2014. It was neither copied to the 1st respondent nor Barr. George Uchi, who were the subjects of the complaint. The endorsement at the top left corner indicates that it was officially received on 14/12/2014. However, in paragraph 5 (ii) of Exhibit GN7J (appellant’s petition to the 3rd respondent) dated 30/12/2014, he stated thus:

“Being dissatisfied with the result of the primary election I petitioned and appeared before the National Assembly Primaries Appeal Committee on 13th December 2014.”

(Emphasis mine)

This statement accords with the 1st respondent’s contention that the appellant’s complaint was made to the

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Appeal Committee and dealt with on the same day even before it was officially received. Moreover, although the appellant filed a further and better affidavit in support of the Originating Summons on 5/5/2015 after being served with the 1st and 2nd respondents’ counter affidavit sworn to on 21/4/2015, he did not challenge the averments in paragraphs 17, 18, 19, 20, 21, 23 and 24 of the said counter affidavit wherein it was averred that the 1st respondent was neither served with the appellant’s petition nor invited to appear before the Appeal Committee. It is elementary that where a person who ought to be served with a process is not so served the proceedings or any order made therein will be null and void. See: Societe Generale Bank Nig. Ltd. Vs. Adewunmi (2003) 10 NWLR (Pt.829) 526; Skenconsult (Nig.) Ltd. & Anor. Vs. Ukey (1981) 1 SC 6 @ 27; Leedo Presidential Hotel Ltd. vs B.O.N. Ltd. (1998) 10 NWLR (Pt. 570) 353 @ 381B.

An investigative body exercising quasi-judicial functions like the 2nd respondent’s Appeal Committee, is bound to observe the rules of natural justice, which includes the right of the person who would be affected by its decision

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to be notified of the complaint against him and to be given an opportunity to be heard in his defence and to cross-examine witnesses, if necessary. See: Baba Vs Nigerian Civil Aviation Training Centre, Zaria & Anor. (1991) 5 NWLR (pt. 192) 388; Hart Vs. Military Governor of Rivers State & Ors. (1976) 11 SC (Reprint) 109; Gyang & Anor. Vs C.O.P. Lagos State & Ors. (2014) 3 NWLR (Pt.1395) 547.

Contrary to the submission of learned counsel for the appellant, the 1st respondent could not be bound by a decision arising from proceedings affecting him in which he was not given the opportunity of being heard. I agree with the Court below that the 1st respondent could not have appealed against a decision he was not aware of and therefore the appellant’s contention in this regard and his reliance on Mato’s case (supra) is not apposite.

I also agree with the Court below that Exhibit E, being an extract from the minutes of the “National working committee Decisions on the National/State Assembly Committee Report relating to the Appeal Committee report for Kwande/Ushongo Federal Constituency”, duly certified by the 2nd respondent’s Legal Officer as being an authentic

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extract of the original, was properly considered by the Court and relied upon. By Exhibit E, the recommendation of the Appeal committee was reversed by the NWC of the 2nd respondent, whose decision, by the provisions of the Guidelines earlier referred to, is final. The submission of the 1st respondents name to the 3rd respondent as the 2nd respondent’s candidate corroborates Exhibit E.

Whether or not the appellant was given INEC forms by the 2nd respondent, in my respectful view, is neither here nor there. The fact established by the evidence before the Court, and indeed the reason for initiating the suit in the first place, is that it was the name of the 1st respondent that was submitted to the 3rd respondent as the 2nd respondents candidate. Having failed to prove that the 1st respondent was in breach of any of the 2nd respondent’s guidelines for qualification to contest the primary election, the appellant’s suit on this ground was bound to fail, as rightly held by the two lower Courts. This issue is accordingly resolved against the appellant.

Issue 3

Whether the Court of Appeal was right when it held

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that Section 31 (5) & (6) of the Electoral Act, 2010 (as amended) can only be invoked against a candidate who gives false information in the relevant affidavit or a document submitted by him and the same relates to any of the qualifying or disqualifying factors in Section 65 (1) and 66 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the appellant failed to prove the criminal allegation of forgery and perjury against the 1st respondent.

This issue covers the appellant’s Issue 10, 2nd respondent’s Issue 2 and 3rd respondent’s Issues 1 and 2.

It is contended on behalf of the appellant that the 1st respondent’s probationary employment as a Magistrate Grade II was terminated by a letter from the Benue State Judicial Service Commission dated 4/9/1997 with Ref. No. JSC/SEC/P/1192/1/39 (refers to Exhibit GN9B2 at page 301 of the record). Learned counsel submitted that by the said Exhibit GN9B2 the reason for the termination of his employment was due to incessant complaints against him bordering on financial impropriety and on the ground that he was of doubtful integrity. He contended that in a bid to avoid this information coming to the knowledge of

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his political constituents, he suppressed Exhibit GN9B2 when completing his INEC form CF001 (Exhibit GN9A) and instead falsified and attached thereto Exhibit GN9B3 with ref. no. JSC/CEC/P/1192/40 of same date. Exhibit GN9B3 is a form, which in paragraph 6 (i) states: “Termination of officer’s appointment approved with immediate effect,” and contains an alteration of the word “appointment” replaced with the word “termination”. He contended that he falsified his letter of appointment and passed it off as his termination letter.

He submitted that the false information given by the 1st respondent brought an aspect of his complaint in the originating summons under Section 31 (5) of the Electoral Act and that the 1st respondent ought to have been disqualified. He submitted that the lower Court erred in failing to hold that Exhibit GN9B3 was a forgery notwithstanding the glaring dissimilarity between Exhibit GN9B3 and Exhibit GN9B2. He submitted that the appellant exhibited several documents, including the judgment of the Court of Appeal upholding the termination of the 1st respondent’s employment to prove that the 1st respondent sought to mislead by relying on

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Exhibit GN9B3 instead of Exhibit GN9B2. He contended that, in holding that the reason for the termination of the 1st respondent’s employment was immaterial, the lower Court misconceived the appellant’s complaint, which is that he made false statements on oath.

He submitted that the facts of this case are distinguishable from the case of Agi vs. PDP (supra) because in Agi’s case, the main consideration was paragraph 14 (b) of the People’s Democratic Party’s (PDPs) guidelines. He submitted that Section 31 (5) of the Electoral Act entitles anyone who has reasonable grounds to believe that any information given in an affidavit by an aspirant is false, to approach the Court. He submitted that Section 31 (5) and (6) merely complements Section 65 (1) (b) of the 1999 Constitution.

He contended that Section 65 (2) of the Constitution links qualification to seek election into the National Assembly to membership of a political party and sponsorship by that party. He submitted that the sponsorship envisaged is sponsorship that must have emanated from a properly conducted primary election that satisfies the provisions of

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the Constitution, the Electoral Act 2010, as amended, and the guidelines of the political party in question. He submitted that the completion and submission of Form CF001 completes the nomination process and therefore an aspirant who makes any false declaration must be deemed to have failed the eligibility test to be presented as a candidate of a political party. He urged this Court to find and hold that Section 31 (6) of the Electoral Act could properly be invoked to disqualify the 1st respondent.

Learned counsel for the 1st respondent, in reply, submitted that the appellant made allegations of forgery and perjury, which he was bound to prove beyond reasonable doubt, as required by Section 135 (1) and (2) of the Evidence Act 2011. On the burden of proof of a criminal allegation in civil proceedings, he referred to: Maihaja vs. Gaidam (2017) LPELR – 42474 (SC) 35 – 36 E. He referred to Exhibit F attached to the 1st and 2nd respondents’ counter affidavit at page 556 of the record, which is a certified true copy of the appellant’s Exhibit GN9B3. He referred to paragraphs 29, 30 and 31 of the counter affidavit, particularly paragraph 31, wherein the 1st respondent

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averred that both Exhibit GN9B2 and GN9B3 were addressed to him and that his letter of offer of appointment is quite different from his termination letter.

Learned counsel urged the Court to compare Exhibit GN9B3 alleged to be an appointment letter altered to read termination with the 1st respondent’s letter of probationary appointment at page 714 of the record. He submitted that it is not possible for Exhibit F (or GN9B3) to precede the appointment letter at page 714 of the record. He submitted that since the 1st respondent was on probation, what was issued to him on 4/9/1997 was a notification of termination and not a notification of employment. He urged this Court to uphold the findings of the lower Court at pages 1315 – 1316 and 1340 – 1341 of the record to the effect that the appellant failed to prove that the 1st respondent falsified any document.

He also urged the Court to uphold the finding of the lower Court that even if the 1st respondent was found to have given false information, he would not be liable to be disqualified because termination of employment is not a ground for disqualification under the 1999 Constitution.

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He referred to the recent decision of this Court in Joe Odey Agi vs. PDP & Ors. (supra) @ 455 – 456 F – A.

Again, learned counsel for the 2nd and 3rd respondents made similar submissions as those made on behalf of the 1st respondent. It would serve no useful purpose to repeat them.

Resolution of Issue 3

The resolution of this issue, in my humble view, depends on whether the termination of employment of an aspirant, for whatever reason, is one of the grounds for disqualifying a candidate from contesting for a particular office. This is because it is the appellant’s contention that his complaint falls squarely within Section 31 (5) & (6) of the Electoral Act 2010, as amended. I deem it appropriate to set out the provisions of Section 31 (1) to (6) of the Act, which are germane to this issue.

“31(1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates that the Party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.

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(2) The list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the Federal High Court, High Court of a State or FCT, indicating that he has met all the Constitutional requirements for election into that office.

(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest.

(4) Any person may apply to the Commission for a copy of the nomination form, affidavit and any other document submitted by a candidate at an election and the Commission shall, upon payment of a prescribed fee, issue such person with a certified copy of the document within 14 days.

(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the

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information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

(Emphasis mine)

Contrary to the contention of learned counsel for the appellant that this provision applies to primary elections, it is evident from Sub-paragraph (1) of Section 31 that the provisions are activated after primaries have been concluded and at the stage when political parties submit the names of candidates who scaled through the primaries and whose names are being submitted as candidates for the general elections. INEC Form CF001 is issued to candidates who won their party’s primaries. By Section 31 (2), the documents submitted and affidavit deposed to are to show that the candidate has fulfilled all the Constitutional requirements for election into that office.

Thus, Section 31 (2) is not at large. The information required is in respect of the constitutional requirement for the office the candidate is vying for. The publication of the personal particulars of a candidate in the constituency where he intends to contest the election pursuant to Sub-

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Section (3) and the right of any person to apply for copies of the nomination forms, affidavit and any other document submitted pursuant to Subsection (4), is to provide an avenue for challenging the person’s candidature where he does not meet the Constitutional requirements for the office he is seeking. This is where Subsection (5) comes in. The information that may be complained about must be with reference to Sub-section (2).

This Court in Agi vs. PDP (supra) at 455 B – C and G, held per Ogunbiyi, JSC:

“The Constitution takes precedence over all other laws. Therefore, where there is a matter of alleged falsification of a document or rendering of a false statement as alleged in this case, it must relate to the qualifying or disqualifying factor by virtue of the Constitution of the Federal Republic of Nigeria.

….. Section 31 of the Electoral Act did not by any stretch of imagination create new grounds of disqualification or non-qualification.”

This authority is fully applicable in the instant appeal.

Section 65 (1) of the 1999 Constitution provides:

65 (1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election

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as a member of-

(b) the House of Representatives, if he is a citizen of Nigeria and has attained the age of thirty years.

Section 66 (a) to (i) sets out the factors that will disqualify a candidate from contesting election into the senate or House of Representatives. These disqualifying factors are also contained in paragraph 2 of Exhibit GN2 (2nd respondent’s Guidelines). Dismissal or Termination of employment is not one of those factors. All the submissions of learned counsel in respect of Exhibits GN9B2 and GN9B3 are therefore of no moment. The two lower Courts were therefore right when they held that even if it was established that the 1st respondent gave false information (not so found) it would not be a ground for disqualifying him, as termination of employment is not a disqualifying factor under Section 65 (1) and 66 of the Constitution. This issue must therefore be resolved against the appellant.

I am not persuaded that the concurring decisions of the two lower Courts are perverse. The reasoning and conclusions are fully in accord with the evidence on record. In conclusion, I find this appeal devoid of any merit. It is hereby dismissed.

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The judgment of the lower Court is accordingly affirmed. The parties shall bear their respective costs in the appeal.

Appeal dismissed.

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SC.1093/2017