Hon. Chief Ogbuefi Ozomgbachi V. Mr. Dennis Amadi & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The two appeals have a common source. Their fountain head was the suit No.FHC/ABJ/CS/1026/2014 brought on the originating summons by the Appellant herein against the three Respondents (as defendants) in each of the two appeals. It is therefore right that the two appeals be taken together, especially as the issues for determination in the two appeals are almost identical.
The Appellant, as the plaintiff, sought the Federal High Court to determine the following three(3) questions and sought nine (9) reliefs, namely:
- QUESTION FOR DETERMINATION
a. Having regard to the Subsisting judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 BARR. ORJI CHINENYE GODWIN & ORS v. PEOPLES DEMOCRATIC PARTY & 4 ORS, the Ward Congress held by the 2nd Defendant in Udi and Ezeagu LGAs in Enugu State remain the only valid and authentic Ward Congress for the purpose of conducting Primary Election for the selection/nomination of the PDP candidate for the Udi and Ezeagu Federal Constituency.
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Whether the selection/nomination of the 2nd Defendants candidates for the office of Member Federal House of Representatives in the forthcoming General Election can be conducted except by the Ad hoc delegates elected/selected at the Ward Congress held on 1st November, 2014 in Udi and Ezeagu LGA as per the subsisting Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 aforesaid.
c. Whether the Plaintiff having been elected/nominated by the approved and authentic delegates at the primary election held on 6th December, 2014 for the selection/election of the PDP candidate for Udi and Ezeagu Federal Constituency for the forthcoming General Elections, his name ought to be submitted to the 3rd Defendant as the PDP candidate for the election to the offence of the Member Federal House of Representatives for Udi and Ezeagu Federal Constituency.
- UPON THE DETERMINATION OF THE FOLLOWING (SIC-FOREGOING) QUESTIONS, THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS:
i. A DECLARATION that by the subsisting final judgment suit No.FHC/ABJ/CS/816/2014, the Ward Congress held by the 2nd Defendant for the Udi and Ezeagu LGA on 1st November, 2014 for the purpose of electing the Ad hoc delegates for the conduct of the
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Primary Election for Udi and Ezeagu Federal Constituency is valid, authentic and only legitimate Ward Congress for the conduct of primary election in Udi and Ezeagu Federal Constituency.
ii. A DECLARATION that the Ad hoc delegates elected/selected at the Ward Congress held on 1st November 2014 by the 2nd Defendant as per the subsisting Judgment in suit No.FHC/ABJ/CS/816/2014 are the only valid and legitimate delegates under the PDP Constitution and electoral Guidelines 2014 for the purpose of electing/selection/nominating the PDP candidate for the election to the office of Member House of Representatives for Udi and Ezeagu Federal Constituency.
iii. A DECLARATION that the primary election conducted by the delegates elected at the Ward Congress referred to above and which said primary election was conducted on 6th December, 2014 is valid, legitimate and subsisting.
iv. A DECLARATION that the plaintiff having been elected/selected/nominated as the winner of the primary election conducted on 6th December, 2014 is the duly selected/elected candidate of the 2nd Defendant whose names and particulars should be submitted to the 3rd Defendant under the Electoral Act, 2010, as amended.
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AN ORDER OF INJUNCTION restraining the 2nd Defendant by itself, its officers, servants, privies or any organ whatsoever from submitting any other name save the names/particulars of the plaintiff as the 2nd Defendant’s candidate for Udi and Ezeagu Federal Constituency (election to the office of Member, Federal House of Representatives, Udi and Ezeagu Federal Constituency).
vi. AN ORDER OF INJUNCTION restraining the 1st Defendant or any other person acting for and in his behalf from interfering with the Plaintiff’s right as the elected PDP candidate for Udi and Ezeagu Federal Constituency for the forthcoming 2015 General elections.
vii. AN ORDER OF INJUNCTION restraining the 1st Defendant by himself or his privies, servants or otherwise howsoever from parading himself as the 2nd Defendant’s candidate for Udi and Ezeagu Federal Constituency and or from presenting himself to any person or authority including the 2nd and 3rd Defendants as being the 2nd Defendant’s candidate for the Udi and Ezeagu Federal Constituency.
viii. AN ORDER OF INJUNCTION restraining the 3rd Defendant from accepting the name
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of the 1st Defendant or any other person save the plaintiff as the duly selected/elected PDP candidate for Udi and Ezeagu Federal Constituency for the purpose of election of Member of the Federal House of Representatives in the forthcoming 2015 General Election.
ix. And for such further and or other orders as the Honourable Court may deem fit to make in the circumstances.
Ex Facie, reliefs V – IX are merely consequential upon the grant of the main declaratory Reliefs I – IV. And the centre of reliefs I – IV is the validity, existence and subsistence, in law, of the judgment of the Federal High Court in the suit No. FCH/ABJ/CS/816/2014.
The trial Federal High Court (Coram: O. E. Abang, J), upon hearing the parties on the Originating Summons, entered judgment for the Appellant as the plaintiff. The main bastion of its decision was that the Peoples Democratic Party (PDP) Appeal Panel had, in Exhibit 12, affirmed that the Appellant, as the plaintiff, duly “won the only primary election conducted by the Peoples Democratic Party in Udi/Ezeagu Federal Constituency on 6th December, 2014″. The learned trial Judge whose attention was drawn to the Court
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of Appeal decision in appeal No.CA/A/28/20I5: PDP v. BARR. ORJI GODWIN & ORS, which not only set aside the decision of Ademola, J in suit No. FHC/ABJ/CS/816 /2014 but also struck out the entire suit held; (at page 1573 – 4 of the Record) on the status of the suit No. FHC/ABJ/CS/816/2014 viz-a-viz appeal No.CA/A/28/2015, that:
The basis for setting aside the judgment was that this Court per Ademola, J. had no jurisdiction in entertaining the said suit. The fact still remains that those delegates were elected at the Peoples Democratics Ward Congresses held at (sic) Enusu State on 1st November, 2014. This was the position of the Court of Appeal in Appeal No. CA/A/177/15: PDP & ORS v. ASADU judgment of the Court of Appeal dated 1st July, 2015, wherein it was held at p.33 of the said judgment thus:
The judgment of the said Federal High Court was set aside in Appeal No: CA/A/28/2015. That notwithstanding the decision of the appellate Court had nothing to do with regard genuity or otherwise of the delegate list.
I have not even seen any problem here. From the pronouncement of the Court of Appeal, their Lordships of the
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Court of Appeal have not set aside the people’s Democratic Party Ward Congress delegates’ list obtained in the ward congress election of the Peoples Democratic Party on 1st November 2014. People’s Democratic Party, the 2nd Defendant herein, did not produce any ratified or harmonised list before this Court that it claimed existed at the time of the primary election. Therefore, the list of delegate used by the 2nd Defendant in election of 6th December, 2014, subsist and it was rightly used to elect the Plaintiff as the Peoples Democratic Party candidate for 2015 general election in Udi/Ezeagu Federal Constituency.
The 1st and 2nd Respondent, respectively the 1st and 2nd Defendant at the trial Court, appealed against the decision to the Court of Appeal (hereinafter called the Lower Court”). The 1st Respondent’s appeal was CA/A/355A/2016; while the 2nd Respondent’s appeal was CA/A/355/2016. The Lower Court in its reserved judgment delivered on 15th February, 2017, observed at page 2316 of the Record –
One of the bones of contention between the parties is the approved delegates qualified to vote at the congress. Appellant contended (that) the approved Delegates are the
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tree delegates elected from each ward in the constituency plus statutory delegates selected in accordance with the Party’s Guidelines.
The 1st Respondent (the present Appellant) took the rigid position and insisted that the only delegates that were qualified to vote at the special congress aforesaid are those on the list of delegates sanctioned by the Federal High Court in FHC/ABJ/CS/816/2014 per Ademola, J. The Appellant’s position is that the judgment of Ademola J., did not sanction the delegates contained in his judgment as the only delegates that will vote at the special congress to nominate PDP flag bearer for House of Representatives election for Udi/Ezeagu Constituency.
The Lower Court, upon its analysis of the judgment of Ademola, J, in the suit No. FHC/ABJ/CS/816/2014, found that Ademola, J., did not in the judgment at page 2320 of the Record, state that the three ad hoc delegates elected at the Ward Congress on 1st November, 2014, “were imbued or clothed with special favour to alone vote at the special congress to nominate” the PDP candidate for the House of Representatives for UDI/EZEAGU Federal Constituency for
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the 2015 general election; that “they cannot under any guise claim to be the anointed delegates who will all alone nominate the candidate of PDP for UDI/EZEAGU (Federal) Constituency”, and that “the judgment of Hon. Justice Ademola did not decide any such thing beyond mere declaratory judgment that those delegates who were parties in FHC/ABJ/CS/816/2014 were the 3 Ad hoc Delegates elected from Ward Special Congress of PDP on 1/11/2014 and no more”‘ At page 2321 of the Record the Lower Court further held that “the dement (i.e FHC/ABJ/CS/816/2016) so much relied upon the 1st Respondent (the present Appellant herein) is quite unhelpful to his cause and suit. At page 2327 of the Record, the Lower Court further held, quite poignantly, that the judgment of Ademola, J., in FHC/ABJ/CS/816/2014 “which is the fountain of resort for the 1st Respondent (the present Appellant’s) case has been set aside by this Court in the appeal No. CA/A/28/2015” and that the suit of the 1st Respondent (FHC/ABJ/CS/816/2014) had been “submerged and rendered impotent”, its fountain having collapsed and brought to its terminal end. The Lower Court on this issue and others allowed the appeal of the 1st
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and 2nd Respondents herein, who were the appellants before it. It is this judgment that agitated the Appellant herein to lodge his two appeals No: SC.292/2017 and SC.293/2017 in this Court.
In the two appeals, Appellant’s issues 3 (SC.292/2017) and 5 (SC.293/2017) are ipssima verba, to wit:
Whether the Court of Appeal was right in holding that its judgment in CA/A/28/2015 in PDP & ORS v BARR. ORJI CHINENYE GODWIN & ORS removed the basis for the questions for determination and reliefs sought in the Originating Summons.
I shall come anon to this issue. Before then, let me consider the preliminary objections of Dr. Ikpeazu, SAN, of counsel to the 2nd and 1st Respondents, respectively, in the appeals SC.292/2017 and SC.293/2017. The learned senior counsel’s objection to grounds 4, 5, 6, 8 and 10 in appeal No. SC.292/2017 and grounds 6, 7, 9, 10 and 12 is predicated on the grounds, each, “challenging the decision of the Court of Appeal overruling the findings of fact made by the trial Judge are grounds of fact/mixed law and fact”. Grounds 4, 5, 6, 8 and 10 in appeal No.SC.292/2017 are identical with grounds 6, 7, 9, 10 and in the appeal
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No.293/2017. The five grounds, shorn of their particulars, are herein below reproduced, viz:
- The learned Justices of the Court of Appeal erred in law when they held that the Appellant had participated in an illegal and unauthorized primary election to nominate PDP candidate for Udi/Ezeagu Federal Constituency on 6th December, 2014, and thereby occasioned a miscarriage of justice.
(Ground 4 in SC.292/2017; Ground 5 in SC.293/2017)
The ground, though ingenuously labelled as an error of law, is a complaint that the Lower Court erred in its finding of fact that “the Appellant participated in illegal and unauthorised primary election to nominate PDP candidate for Udi/Ezeagu Federal Constituency.”
II. The learned Justices of the Court of Appeal erred in law when they held as follows:
(a) Exhibit 10 attached to the affidavit in support of the Originating Summons, which the 1st respondent said is the authentic result of the primary election and which shows that he scored the highest votes, is contradicted by Exhibit DA 6 which is attached to the 2nd respondent’s counter affidavit of 16-2-2015 which shows that the 2nd respondent scored the highest.
(Ground 7 in SC.293/2017)
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The ground queries the factual basis for the findings of fact on which the Court of Appeal reversed the learned trial Judge’s judgment. It is not an error of law.
III. The learned Justices of the Court of Appeal erred in law when they held as follows:
Exhibit 10 which is the pivot upon which the Lower Court’s judgment is based is thus moribund and of no evidential value. Exhibit 10 cannot be said to be authentic and is not even capable of conferring on the 1st Respondent the right to be 2nd Respondent’s candidate because it is a product of unlawful or illegal primary. The Appellant has every reason or cause to assert that Exhibit 10 is concocted.
(Ground 5 in SC.292/2017)
The ground deals with the factual basis of the findings of fact made by the Court of Appeal for reversing the judgment of the learned trial Judge. It is not an error of law.
IV.(a) The learned Justices of the Court of Appeal erred in law when they held as follows:
All the documentary evidence and facts on oath showed the 1st Respondent did not participate in any Primary election conducted or organised by its National Executive Council.
(Ground 6 in SC.292/2017)
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The ground complains clearly about the finding of fact by the Lower Court that “all the documentary evidence and facts on oath showed (that) the 1st Respondent did not participate in any primary election conducted or organised by “the National Executive Council of the PDP. It is not a complaint founded on any error of law.
(b) The learned Justices of the Court of Appeal erred in law when they held that the 2nd Respondent is the winner of the primary election of the 1st Respondent on 6th December, 2014.
(Ground 8 in SC.292/2017 and Ground 9 in SC.293/2017)
The complaint in this ground is against the finding of fact “that the 2nd Respondent is the winner of the primary election of the 1st Respondents on 6th December, 2014. The particulars of error adumbrating that from the totality of evidence, this Appellant won the primary election and that the Lower Court did not consider the relevant facts disclosed by the affidavits in support of the Originating Summons makes indubitable that the ground is one of facts, and not of law.
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The Learned Justices of the Court of Appeal wrongly evaluated the affidavit and the documentary evidence placed before the trial Court by the Parties.
(Ground 10 of SC.292/2017 and Ground 12 of SC.293/2017)
Proper or improper evaluation of evidential materials before a Court comes to a decision that one set of facts has been established, and the other set not established falls within the domain of facts. The complaint in this ground, from the particulars of error, is that some facts favourable to the Appellant were disregarded or not considered even if the complaint is not squarely on facts, it definitely would be of mixed law and facts.I have read the Appellants Reply Briefs particularly replies to Dr. Ikpeazu’s objections to the aforesaid grounds of appeal. The Appellant’s counsel does not seem to think or consider that Dr. Ikpeazu’s objections are material. He joined no issues with him in the Reply Briefs on the incompetency of the aforesaid grounds. Even if he did, the situation will not materially change. I agree with Dr. Ikpeazu, SAN, of counsel to the 2nd Respondent in the appeal No. SC.292/2017 and 1st Respondent in the appeal No. SC.293/2077 that the
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grounds of appeal in respect of which he objected to are incompetent. They, not being grounds involving questions of law alone, require leave first sought and obtained before their filing in this Court. Leave of Court first sought and obtained is what validates those grounds of appeal (on facts or mixed law and facts) and issues raised therefrom. The said grounds of appeal and the issues raised therefrom are incompetent without leave first sought and obtained. That is the effect of Section 233(3) of the 1999 Constitution, as amended. The following cases aptly demonstrate what I am saying: KTP LTD v. G & H (NIG) LTD (2005) 13 NWLR (Pt.943) 680 (SC); OJEMEN v. MOMODU (1983) 1 SCNLR 188 at 205; MAIGORO v. GARBA (1999) 10 NWLR (Pt.624) 555 at 568; EKUNOLA v. CBN (2013) 15 NWLR (Pt.1377) 224 at 260.
Appellant’s issues 2 and 4 (Appeal No. SC.292/2017) and 4 (Appeal No. SC.293/2017 affected by the foregoing and being incompetent are hereby struck out like the grounds of appeal from which they were raised.
Now, I come back to the issue: Whether the Court of Appeal was right in holding that its judgment in appeal No. CA/A/28/2015: PDP & ORS v. BARR. CHINENYE GODWIN
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& ORS, removed the basis for the questions for determination and the reliefs sought in the originating summons. At the heart of this issue is the question whether the Lower Court properly construed the questions for determination raised, and the reliefs sought by the appellant in his Originating Summons at the trial Court. In otherwords, did the Lower Court properly interpret the Originating Summons in the light of the questions for determination and the Reliefs sought by the Appellant at the trial Court when it held that, the judgment of the Court of Appeal in CA/A/28/2015 which set aside the judgment of the trial Court in the suit No.FHC/ABJ/CS/816/2014 and struck out the suit in its entirety, had submerged, collapsed and rendered impotent or brought to its terminal end the cause and the suit of the Appellant, as the plaintiff at the trial Court With all deference to Chief Uche, SAN, it is not correct, as he did submit, that the “gravamen of the questions and reliefs sought by the Appellant in his Originating Summons was mainly complaints against the failure of the 2nd Respondent to honour the decision of the recognized electorate who
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voted in their majority in favour of the Appellant in the primary election in issue”. The learned senior counsel was clearly wrong in his submission that “he is the winner of the only primary election conducted for Udi/Ezeagu Federal constituency for the ticket of the 2nd Respondent and for the Court to compel the 2nd Respondent to be bound by the result of the primary election”.
The law is settled that a party must be consistent in the case he presents at the trial Court and the appellate Court his appeal being a continuation of the case at the trial Court. He is not permitted “to chop and change his case from one stage to another in the litigation progress” if I may borrow the phrase from Abiru, JCA in ALHAJI IBRAHIM SHEKA v. ALHAJI UMARU BASHARI (2013) LPELR – 21403 (CA). A party is therefore not permitted to do a total volte – face at the appeal Court from his case at the trial Court. He must be consistent from trial Court to the last stage of the appeal. The following cases demonstrably deprecate that practice, that is: AWUSE v. ODILI (2003) 16 NSCQR 218; AGBASO v. OHAKIM 7 EPR 420; OSUJI v. EKEOCHA 39 NSCQR 523 at 555; OLUFEAGBA v. ABDUR-RAHEEM (2009) 40
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NSCQR 684; PACERS v. DANCING SISTER (2012) 1 SCNJ 1 at 6; ADEOSUN v. EKITI STATE (2012) 1 SCNJ 260. He is not allowed to maintain on appeal a different case from the case he pursued at the trial Court: ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2005) 16 NWLR (Pt. 1006); EMMANUEL v. GOMEZ (2009) 7 NWLR (pt. 1139) 1.
I earlier reproduced in this judgment the three (3) questions for determination posed by the Appellant in his Originating Summons at the trial Court and the nine (9) reliefs he sought of the trial Court in the said Originating Summons. The Appellant, as evinced from paragraphs 2.03 in his Briefs of Argument in both appeals, initiated his suit via the Originating Summons on the fact that –
After declaring the Appellant winner of the primaries, certain persons came to the venue and in an unruly manner sought to repeat the process with another list of delegates, specifically with respect to ad-hoc delegates, which delegates constitute over 90% of the voting power. The “new” list of delegates were not the product of the ward congress earlier held which produced the delegates that participated and voted overwhelmingly in favour of the appellant
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which occasioned his return by the Returning officer. The attempt was resisted by the voters present and the security personnel had to disperse the crowd. The Appellant however was informed later that it was the name of the 2nd Respondent (in SC.293/2017 and 1st Respondent in SC.292/2017) that would be submitted as the candidate of the PDP.
This summary of facts from the supporting affidavit provides the ulterior purpose for the Appellant’s suit on the Originating Summons, the aim of which was to discredit and invalidate the delegate list used in the rival or competing subsequent election from which Dennis Amadi (1st and 2nd Respondent respectively in SC.292/2017 and SC.293/2017) emerged as the duly nominated candidate of the PDP for Udi/Ezeagu Federal Constituency. The suit, the subject of the two appeals was contrived by the Appellant to give primacy or supercessionary superiority to the delegate list on which he was allegedly elected that informed his suit. It is apparent from the questions for determination and Reliefs (a) – (d) that they are structured or erected on the validity or subsistence of the judgment in the suit No.FHC/ABJ/CS/816/2014
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that purportedly sanctioned, validated and authenticated the delegates list on which he was allegedly elected as the PDP candidate for Udi/Ezeagu Federal Constituency on 6th December, 2014.
The further dismembering of the Appellant’s reliefs and the supporting affidavit evidence in the Originating Summons suggests, unequivocally that –
l. The two primary elections were conducted on 6th December, 2014 to nominate the PDP candidate for Udi/Ezeagu Federal Constituency. That is; the one conducted on the authority of the subsistence of the Judgment of the Federal High Court in suit No.FHC/ABJ/CS/816/2014 from which the Appellant emerged as the candidate, and the other; and
II. The Appellant, as the plaintiff, from the questions for determination and the reliefs sought the trial Court to declare against Mr. Dennis Amadi and the PDP that no body, except himself, could be validly elected or returned as the PDP candidate for Udi/Ezeagu Federal Constituency without the participation of the delegates specifically sanctioned or approved in the judgment in the suit No.FHC/ABJ/CS/816/2014, and that those were the delegates entitled to vote, elect and
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return the PDP candidate for the said Federal Constituency.
I agree with the respondents’ counsel, particularly Dr. Ikpeazu, SAN, that the basis for the suit, the subject of this appeal, was the judgment of the Federal High Court in the suit no SC. FHC/ABJ/CS/816/2014. The three (3) Questions for determination and the four (4) declaratory reliefs were squarely mounted on that decision of the Federal High Court in the suit No.FHC/ABJ/CS/816/2014, which purportedly approved the delegates who the Appellant claimed, elected him. It follow therefore with the Court of Appeal decision in appeal No.CA/A/28/2018 that set aside the decision and struck out the suit in its entirety, that the suit No. FHC/ABJ/CS/816/2014 and the judgment therein had totally obliterated the foundation of the questions for determination and the reliefs sought in the instant suit, the subject of this appeal. The Court of Appeal, in my firm view, was right in holding that the judgment in the suit No.HC/ABJ/CS/816/2014 was “the sole basis of the questions raised for the determination and the reliefs claimed by the Appellant in his suit No.FHC/ABJ/CS/1026/2014
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commenced on 15th December, 2014; and that the decision of the Court of Appeal in CA/A/28/2015 setting aside the said judgment of the Federal High Court in the suit No. FHC/ABJ/CS/816/2014 had “removed the basis for the questions for determination and the reliefs claimed” in the Originating Summons No.FHC/ABJ/CS/1026/2014. I further agree with the learned Justice of the Court of Appeal that the platform on which the case No. FHC/ABJ/CS/1026/2014 “was foisted and projected having been removed, the said case had nothing to stand on and therefore was bound to collapse and it collapsed”. It is both logical and commonsensical that when the basis of a claim or suit fails and ceases to exist, the suit or the claim itself becomes baseless and must fail.
Chief Uche, SAN, had very ingenuously raised a prevaricatory artifice to reverse out of the case of the Appellant’s case at the trial. I must say, metaphorically, that his “Carmel could not, and would not, pass through the eye of the needle”. He was quite ingenuous. The facts however are resolute against him. The truth, like the turtle shell, remains resolutely not malleable and untwistable.
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Since this issue resolves the appeal against the Appellant, I find no further use considering the other issues. The two appeals have no substance. They are accordingly dismissed.
The Respondents have suffered costs in both appeals which the Appellant has to bear in order to have them indemnified. Accordingly, costs at N1,000,000.00 are hereby awarded, in each appeal, in favour of each Respondent to be paid by the Appellant. Appeals dismissed.
SC.292/2017 (CONSOLIDATED)
