Idu Godwin Emeka V. Hon. Lynda Chuba-ikpeazu & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 25th December, 2015 which dismissed the appeal filed by the appellant and affirmed the judgment of the trial Federal High Court which granted all the reliefs sought by the 1st Respondent who was the plaintiff therein.

STATEMENT OF FACTS RELEVANT TO THIS APPEAL

The 2nd Respondent submitted the name of the 1st Respondent to the 3rd Respondent on the 18th day of December, 2014 alongside other candidates in Anambra State as its nominated candidate for election to the membership of the House of Representatives for member representing Onitsha North/South Federal Constituency of Anambra State. The 1st Respondent also submitted the name of the appellant to the 3rd Respondent as its candidate for the said Federal Constituency. The 3rd Respondent published the list and particulars of the candidates submitted but the name and particulars of the 1st Respondent was not published.

Consequent upon the above, on the 18th day of March, 2015, the 1st Respondent as plaintiff caused an Originating Summons to be issued against the present 2nd – 4th Respondents as 1st – 3rd

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Defendants respectively. The present Appellant applied and joined in the suit by order of Court as 4th Defendant. The reliefs sought in the Originating summons are:-

1. DECLARATION that having regard to Section 31 (2)(j), 50 of the Constitution of People’s Democratic Party (PDP), Sections 31 (1) (2), 33 of the Electoral Act, 2010 (as amended) 222(c) Constitution of the Federal Republic of Nigeria, Article 25 (X11) of the Electoral Guidelines for Primary Elections, 2014 of People’s Democratic Party:

(i). No officer of the 1st Defendant after 1st Defendant had forwarded to the 2nd Defendant, the list of its nominated candidates for the 2015 General Election for the House of representatives Election which included the name of the Plaintiff, can lawfully withdraw only the name of the plaintiff and substitute her with another.

(ii). The decision of the 3rd Defendant (National Working Committee) acting on behalf of the National Executive Committee after full review of reports of the Primary election for the candidate of 1st Defendant for the Onitsha North/South Federal Constituency for the 2015 General Election to the effect that the Plaintiff is the

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candidate who emerged, is final and binding on all aspirants, officers and organs of the 1st Defendant.

(iii). The 2nd Defendant cannot accept and Publish any other name after having received the Nomination forms and INEC form CF.001 (Affidavit in support of Personal particulars) of all the 1st Defendant’s candidates including the plaintiff.

2. Declaration that having regard to the categorical pronouncement of the 1st Defendant through its National Chairman AHMADU ADAMU MUAZU. CO in 1st Defendants letter Ref. PDP/DOM/GF1/495 dated December 15, 2014 to wit:-
3. We hereby notify you that only the candidates approved by the National Executive Committee (through the National Working Committee) of our party are legally authorized to stand elections in the 2015 general election.”

(i) The 1st Defendant cannot lawfully sponsor a candidate other than the plaintiff whose nomination was confirmed and approved by the 3rd Defendant, the National Working Committee of the 1st Defendant in its meeting of Wednesday, 17th December, 2014.

(ii). The 2nd Defendant cannot lawfully accept and publish any person as the

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1st Defendants candidate for the Onitsha North/South Federal Constituency in the 2015 General Election, other than the Plaintiff whose name was approved by the National Working Committee of the Defendant in its meaning of 17th December, 2014, as the Candidate for Constituency .

3. Mandatory injunction Compelling the 2nd Defendant to publish the Plaintiff’s name, deal with, recognize and maintain the plaintiff as the Candidate of the 1st Defendant for the Onitsha North/South Federal Constituency of Anambra State.”

The facts and exhibits in support of the Plaintiffs Originating Summons are contained in the Affidavit deposed to by the Plaintiff. (See pages 8 – 294 of Vol.1 of the record). The 3rd Respondent filed a counter – affidavit to the Originating Summons (See pages 308 – 309) by which material facts were deposed and placed before the trial Court.

The trial Court evaluated all the facts in the various affidavits filed by respective parties as well as the documents before it and came to a conclusion that the 1st Respondents case had merit. The Court therefore granted all the reliefs sought and having regard to the fact

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that election in respect of the Constituency had been conducted, made a consequential order amongst others that the 3rd Respondent shall issue certificate of Return for the Constituency to the 1st Respondent.

Aggrieved by the judgment of the Federal High Court, the appellant lodged an appeal at the Court below. The appeal was heard and dismissed on the ground that the purported appellants brief did not bear the stamp and seal of the person who signed it and also on the further ground that the 1st Respondent established that she was improperly substituted by the 2nd and 4th Respondents as the candidate for Onitsha North/South Federal Constituency for the 2015 General Election.

Dissatisfied with the decision of the Court of Appeal, the appellant herein initiated this appeal by virtue of a notice of Appeal dated and filed on 22nd February, 2016. The appellant also filed another Notice of Appeal on 17th March, 2016 and on 29th September, 2016 he was granted leave by the Court to appeal on the grounds stated in the said subsequent notice of Appeal. For the hearing of this appeal, the appellant has now filed a brief of argument based on the Notice of

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Appeal on 17th Mach, 2016.

In accordance with the Rules of Court, briefs were filed and exchanged by the parties.

The amended appellants brief of argument was filed on 23/5/16 and deemed filed on the 29/9/16. A reply brief to the 1st respondent’s brief of argument was also filed by the appellant on 13/12/2016 and deemed as properly filed on the 14/12/16. The two briefs were settled by the chambers of Paul Erokoro and Co.

The 1st Respondent’s brief of argument was also settled by Dr. Onyechi Ikpeozu, SAN. It was filed 25/11/2016 and deemed filed on 14/12/16 .

On behalf of the 3rd Respondent, a brief of argument was filed on 28/10/16 and settled by T. M. Inuwo Esq.

There are no briefs filed on behalf of the 2nd and 4th Respondents.

On the 14th December, 2016 when the appeal was fixed for hearing, the learned senior counsel Mr. Paul Erokoro. SAN on behalf of the appellant adopted and relied on their briefs of argument and urged that the appeal be allowed. The learned senior counsel Mr. Onyechi lkpeazu, SAN representing the 1st respondent also adopted and relied on their brief of argument and urged in the first place, to allow

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the preliminary objections raised or in the alternative, dismiss the appeal as incompetent.

On behalf of the 3rd respondent further, their learned counsel Mr. T.M. Inuwa also adopted and relied on their brief of argument. In seeking for a dismissal of the appeal the counsel urges before us that the concurrent findings of the two lower Courts should not be disturbed.

I will seek to say at this point that Mr. Echizona Etiaba as counsel who represented the 2nd and 4th respondents applied to withdraw formally the 2nd and 4th respondents brief of argument filed 9/12/2016.

Consequent upon the application, the learned senior counsel Mr. Paul Erokoro SAN applied also to withdraw the appellants reply brief to the said 2nd and 4th respondent’s brief. The brief filed 9/12/2016 and the reply brief deemed filed 14/12/16 are both withdrawn without an objection and struck out respectively.

The amended notice of Appeal filed 13/12/16 was deemed filed 14/12/16. From the 25 grounds of appeal filed, the two issue distilled by the appellant are as follows:-

1). Whether upon a proper construction of Rule 10(1) of Rules of Professional Conduct and

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Order 10 Rule 1 of the Court of Appeal Rules,2011, the Court of Appeal was not in error when it held that the appellants brief was incompetent. (Distilled from grounds 1, 2 and 3).

2). Whether the Court of Appeal was not in error when it held that the 1st Respondent was the candidate of the 2nd Respondent for the Onitsha North/South Federal Constituency in the House of Representatives election of 28th March, 2015 and not the appellant (Distilled from grounds 4, 5, 6, 7, 8, 9. 10, 11, 12, 13, 14,15, 16, 17, 18 19, 20, 21, 22, 23, and 25).

Without having to waste any time, I seek to state straight away that the appellant did not formulate any issue from ground 24 of the grounds of appeal. Same is hereby struck out. See the case of Ajibulu v. Ajayi (2014) 2 NWLR (pt. 1392) 283 at 494. See also lyaho v. Effiong (2007) 11 NWLR (Pt. 1044) 31 at 49.

The two issues formulated by the appellant are adopted by the 1st respondent. On behalf of the 3rd respondent however, issue 2 only was adopted to the exclusion of the 1st issue.

As a preliminary point to the main appeal, the 1st respondent on the 25/11/2016 filed a notice of preliminary

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objection to the hearing of this appeal wherein he prays the Court as follows:-

“TAKE NOTICE that the 1st Respondent shall contend as a preliminary objection that this appeal is incompetent and ought to be struck out for the reason that in the NOTICE OF APPEAL dated and filed on 17th March, 2016 at pages 978 to 999 of the record, it was not indicated who among the three (3) names above the words “Appellants solicitors” at page 999 that signed the Notice of Appeal.

There are four grounds predicating the application as follows:-

1). At page 999 of the Supplementary Record of Appeal, though there are three (3) names above the words “Appellant’s solicitors” there is no indication which one of them signed the signature on the document.

2). Though there is a stamp and seal on the document, that alone is no indication as to who signed the document as in the present case, the appellants brief at 647 discloses a seal which bears the name .A. IZINYON SAN, but the document was not in fact signed by the learned senior counsel.

3) The appearance of stamp and seal of a legal practitioner without more is not proof that the

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document was signed by he whose stamps and seal was affixed.

4). A Notice of Appeal which is not shown to have been signed by an identified legal Practitioner is incompetent.

The argument in respect of the Notice of Preliminary objection was embedded in the 1st respondent’s brief of argument vide Paragraphs 3.01- 3.01.5 at pages 2 and 3.

In response to the objection is the appellants reply brief contained in his un-paginated reply to the 1st Respondent’s brief at Paragraphs 1, 2, 3, 4. 5 and 6 shown at the first two pages and concluded at the top of the 3rd page therein.

I have taken note of the two alternative preliminary objections raised by the 1st respondent.

In my opinion, the nature of same should not operate so as to hinder the hearing of this appeal on its merit. This I consider as paramount and should be given prominence.

In other words, the preliminary objections are all discountenanced and I hereby proceed to determine the merit of the appeal which I will consider issue 2 as sufficient for its disposal.

ISSUE 2

Whether the Court of Appeal was not in error when it held that the 1st respondent was the

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candidate of the 2nd respondent for the Onitsha North/South Federal Constituency seat in the House of Representatives election of 28th March 2015 and not the appellant.

It is the submission on behalf of the appellant that from 1st respondents pleadings, the onus is on her to prove each and every one of the following facts that:-

1) She won the primaries.

2) The dispute that arose from the primaries was resolved in her favour by the National Working Committee (NWC) of the PDP.

3) Her name was Submitted to INEC by the PDP as its candidate.

4) It was the Federal High Court that ordered INEC to publish a name different from hers.

5) The person whose name was thus published emerged from a primary election conducted by a State faction of the PDP.

6) The order of the Federal High Court was subsequently set aside by the Court of Appeal.

7) At some point during this saga, PDP or some other person withdrew her name from INEC and substituted another name as the candidate of the party.

The learned senior counsel for the appellant, while considering the totality of the 1st respondents case submitted vehemently that

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the lower Court was quite wrong to have held that substitution of names had been proved in this case as the Court in effect failed to follow the standard of proof prescribed by this Court in Agbakoba V. INEC (2008) 12 SC (Pt. 111) 171.

It is the submission of senior counsel further that the lower Court was equally wrong when it held at pages 921 922 of the record that the appellant had admitted in his brief that this case concerned substitution of names under Section 33 of the Electoral Act 2010 (as amended); that the appellant never made that admission. Counsel submits further that the Court of Appeal confused “submission of name” with “substitution of name.”

It is the submission of counsel further that by taking the totality of the appellants brief in the lower Court and his 1st issue as well as his counter affidavit at the trial Court, it is clear that the appellant disputed the 1st respondents allegation that her name was substituted with another; that the lower Court went against established principles of law on how admissions are to be proved especially the rule in Titiloye V. Olupo (1991) 9 – 10 SC page 120 at 146.<br< p=””

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It is the counsel’s submission also that the 1st respondent failed to prove any of the 7 (seven) issues thrown up by her originating summons, let alone proving all. It is unfortunate, counsel argued that the Court of Appeal failed to appreciate this, but rather held that the 1st respondent had discharged the onus of proof in the case. By holding as it did, that the lower Court failed to follow binding precedents of this Court, especially the rule in Odofin & Ors V. Mogaji & Ors (1978) IV SCC 275 at 277.

It is the submission of counsel again that the two lower Courts failed to put the evidence of both sides on an imaginary scale to see which carried more weight; that if the lower Court had done so, it would never have come to the conclusion that the evidence of the 1st respondent ”preponderated better than that of the appellant”, and would never have decided that the appellants name was substituted for the 1st respondent.

It is submitted further by the counsel that the lower Court greatly erred again when it proceeded without determining who between the appellant and the 1st respondent actually won the 2nd respondent’s primary

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election, and held that the 1st respondent was the candidate of the 2nd respondent at the election into the House of Representatives.

Considering the facts of this case and the law applicable, counsel submits that a case of substitution of candidates was not made out as the 1st respondent who alleged substitution failed to:-

(a) Prove that she won the primary election;

b) Prove that her name was ever submitted by PDP to INEC and later withdrawn and substituted with another;

c) Prove who substituted her name and when and how it was substituted.

The learned counsel repeatedly holds the lower Court in grave error which occasioned a miscarriage of justice against the appellant when it held that the case before it (lower Court) was not a case under Section 87(9) but a case under Sections 31, 33, 35 and 36 of the Electoral Act.

The further error by the lower Court, counsel opined, is grossly manifested when it invoked the provisions of Section 167(d) of the Evidence Act, 2011 against the 2nd and 4th respondents and dismissed the appellants appeal.

The learned senior counsel holds the decision of the lower Court as perverse,

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having been reached in defiance of the evidence on record and the law applicable thereto.

In finality, the senior counsel on behalf of the appellant urges this Court in conclusion to allow this appeal, set aside the judgment of the lower Court, as well as the orders contained therein the judgment, and uphold the nomination of the appellant as 2nd respondent’s candidate and return him to his seat as a member of the House of Representatives representing Onitsha North/south Federal Constituency of Anambra State. A further order for his immediate swearing-in by the Speaker of the House of Representatives was also advocated.

In response to the foregoing submission, the learned senior counsel for the 1st respondent ascribes a complete misconception of the facts of this case by the appellant which counsel argues is borne out by a total failure to appreciate the nature of the case presented by the 1st respondent.

In a nutshell, the 1st respondent’s case is that the appellant has no business to do in the case at hand right from its inception. It is counsel’s submission further that the appellant was not sued by the 1st respondent in the first place

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Rather that the appellant applied unilaterally and was joined; that even upon the joinder of the appellant, the 1st respondent did not amend her reliefs and questions for determination in order to present a case against the appellant.

It is the submission of senior counsel further that the propriety or otherwise of this resort by the 1st respondent is not before the Court as no issue was taken by the appellant on this at all stages of the proceedings; that the 1st respondent on her part, saw no need to alter the reliefs or questions as the case presented by her was strictly a case of unlawful substitution by the two (2) culprits, namely the 2nd and 4th respondents herein.

The learned counsel implored the Court to make a comprehensive analysis of the originating summons taken out before the trial Federal High Court and also the reliefs sought thereof. The counsel submits as ironical that the appellant against whom no case was presented and who come into the case with no claim of his own, could convert the case before the Court from a case of unlawful substitution to a case of who as between the appellant and the 1st respondent won the primary

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election which was not the case presented.

The learned counsel further argues that the right of appeal which avails to a party, must however be circumscribed within the precincts of the questions and reliefs in the case. This, the learned counsel maintains because it is the claim of the plaintiff which defines the issues Presented and on which pronouncements of the Court may be made.

The learned counsel submits further that the two lower Courts duly considered the depositions of the parties as well as the admissible documents placed before them in line with the case presented for determination, before arriving at the severe conclusion that the 1st respondent was entitled to the reliefs sought.

The 3rd respondent’s counsel in his brief of argument aligned himself with the submission advanced on behalf of the 1st respondent. It is the contention of the learned counsel that the two lower Courts found merit in the originating Summons and therefore granted the reliefs sought by the 1st respondent including the consequential reliefs.

The learned counsel submits finally that the 3rd respondent does not intend to fault the concurrent findings of

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the two lower Courts which were based on the materials placed before the Courts.

RESOLUTION OF THE ISSUE

This appeal is hinged on whether the lower Court was right in endorsing the trial Court’s decision wherein it granted the reliefs in favour of the 1st respondent having regard to the evidence before the Court.

The law is well established that it is the plaintiffs case that determines the cause of action filed in Court. In order to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons,and the averments in the statement of claim. See Ossai V. Wakwah (2006) 4 NWLR (Pt. 969) 208 at 229. Diapianlong v. Dariy (2007) 8 NWLR (Pt. 1036) 332; Ejiro V. Idris (2006) 4 NWLR (Pt. 971) 538 at 560 – 561.

In an action commenced by originating summons as it is the case at hand, the processes to be examined are the reliefs sought and the affidavit in support of the originating summons.

It is pertinent to say emphatically that in the case now before us, the 1st respondent herein as plaintiff at the Federal High Court Abuja, sought the determination of two questions specifically against the 2nd

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4th respondents who were the 1st 3rd defendants respectively and sought for a number of reliefs which are all reproduced earlier in the course of this judgment.

On his own volition, the appellant applied to be joined to the suit as 4th defendant. Consequent upon the hearing of the arguments from the parties, the Court delivered its judgment and granted all the reliefs sought by the plaintiff (now 1st respondent) on the originating summons and further made other ancillary orders. Consequently, the 4th defendant/appellant was ordered to vacate his seat in the Federal House of Representatives and the Certificate of Return issued to him was cancelled accordingly. The 2nd defendant now 3rd respondent herein was ordered to issue a Certificate of Return to the plaintiff/1st respondent and the Speaker of the House of Representative and the Clerk of the National Assembly were ordered to swear in the 1st respondent as the Honourable member of the Federal House of Representatives representing Onitsha North/South Constituency forthwith.

On appeal to the Court below, same was dismissed on the merit and the trial Court’s judgment was affirmed.

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Hence the appeal now before us which borders on the propriety of the lower Court in affirming the judgment of the trial Federal High Court.

In other words, the appeal is hinged on whether or not the learned trial judge rightly granted the reliefs in favour of the 1st respondent having regard to the evidence before the Court.

It is submitted on behalf of the appellant that the 1st respondent failed woefully to discharge the evidential burden of proof placed on her by law. This, the senior counsel for the appellant contends especially where the suit is declaratory in nature and the appellant bears the burden of Proof and not relying on the weakness of the defence.

The law is also trite that the required standard of proof in civil cases is generally placed on the preponderance of evidence or balance of Probabilities The duty is on the Plaintiff to adduce evidence in support of his Pleadings. See Okechukwu V. A-G Rivers State (2012) 6 NWLR (Pt. 1295) 53 and Purification Technique (Nig) Ltd V. Jubril (2012) 18 NWLR (Pt. 1331) 109.

In the case at hand, Paragraphs 10, 17,18, 19, 20 and 21 of the affidavit in support of the originating summons at

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pages 9-11 of the record deposed to by the plaintiff/1st respondent herself are very crucial to the cause of action and I deem it necessary to reproduce same as follows:-

“10. The names of all the successful candidates were duly embodied in a list produced by the 1st defendant which was attached to the Nomination Form and the INEC Form CF001 (Affidavit in support of personal particulars) of all the candidates for the various Federal Constituencies of Anambra State. My name was in the list forwarded to the 2nd defendant together with the Nomination Forms of all the successful candidates.

17. That National Working Committee minutes and extracts are categorical that it was I who was duly nominated as the candidate for the Onitsha North/South Federal Constituency of Anambra State.
18. The 2nd defendant received my name from the 1st defendant as evidenced by the list attached to the INEC Form CF.001 of the candidates for the 1st defendant for the Federal Constituencies in Anambra State. (emphasis supplied)
19. Despite the foregoing, the 2nd defendant deliberately acceded to the withdrawal of my name as a candidate of the 1st defendant when it

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knew that it had no right to do so.

20. I applied to the 2nd defendant through my lawyers vide a letter dated 10th February, 2015 for a copy of my INEC Form CF.001 submitted to the 2nd defendant and was issued a certified true copy of same which also embodies the list of candidates containing my name.
21. Hereto delivered and marked Exhibits are the following:-

(i) Constitution of the 1st defendant as Exhibit 1.

(ii) Guidelines of the 1st defendant for 2014 primaries as Exhibit 2.

(iii) Party Membership Card of the plaintiff as Exhibit 3.

(iv) Receipt for expression of Interest Form and copy of Nomination Form as Exhibits 4 and 5.

(v) Result of the Primary Election as Exhibit 6.

(vi) INEC Form CF001 for other candidates as Exhibit D7 to D16.

(vii) My INEC Form CF001 as Exhibit D17.

(viii) Application for a certified true copy of my INEC FORM CF.001 dated 10th February, 2015 as Exhibit D17A.

(ix) 1st defendants letter Ref. PDP/DOM/GFI/495 dated December 2014 as Exhibit 8.

(x) Minutes of the 395th meeting of the 3rd defendant on 17th December, 2014 as Exhibit 9.

Specific reference should in

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particular be made to Paragraph 18 of the affidavit supra wherein the 1st respondent contends that the 2nd respondent herein forwarded her name to the 3rd respondent (INEC) in a list which embodied names of other candidates to which was attached the Nomination Forms and INEC Forms CF001 (affidavit in support of personal particulars) of all the candidates of the 2nd respondent for the other Federal Constituencies of Anambra State.

It was later, in her consternation upon the discovery that her name was omitted from the list published by INEC that she (1st respondent) by a letter dated 15/12/2014, thereupon applied to the 3rd respondent who isued her with copies of forms CF001 (Exhibits D7 -D16) for all candidates from Anambra State and contained her own Form CF002 (Exhibit D17) which was submitted to the 3rd respondent by the 2nd respondent.

At pages 926, 927, 928 and 929, the lower court in its comprehensive judgment is very apt in capturing extensively the true picture of the state of events that pertains to this case. The reproduction of their Lordships judgment is very pertinent and this is what they said:-

“The learned senior counsel for the appellant has contended that the only proof

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of ratification of the 1st respondent’s candidature by the 2nd respondent is the minutes of 395th meeting of the 4th respondent wherein the 1st respondent was purportedly ratified. He argued strenuously that the 1st respondent woefully failed to prove her assertion in that the extract of the minutes as Exhibit 1, to the contrary contained the name of the appellant as the candidate adopted and ratified by the 4th respondent.

It is instructive to note that on the same date the suit was filed; the trial Court granted the prayers of the 1st respondent’s ex-parte application which included : –

1. That an Order is hereby made directing the Secretary of the 1st defendant who is also a member of the 3rd defendant to produce vide affidavit evidence the minutes of the 395th meeting of the 1st defendant held on Wednesday, 17th December 2014 or the relevant portion thereof dealing with approval of candidates for the 2015 national Assembly Election in Anambra State.

(Emphasis Supplied).

Exhibit 1 is the purported compliance with the said Order by 2nd and 4th respondents. An examination of

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Exhibit 1 shows clearly that it is not the minutes of the said 395th meeting that was produced. Rather, it is what is termed “extract” of the said minutes that was attached as Exhibit 1. A perusal of the alleged extract at pages 513-515 of the record of appeal shows without any equivocation whatsoever that what was produced is far from being the minutes or “the relevant portion thereof” as ordered by the Court. Neither can it be regarded as an “extract” of the said minutes as claimed by the appellant. “Extract” is defined as (1) “A portion or segment, as of a writing. (2) Scots law ESTREAT.’ See Blacks Law Dictionary 8th Edition at Page 623. The meaning of the word “extract” is more illuminated from the definition of ESTREAT at Page 391 of the same dictionary which states-

“A copy or duplicate of some original writing or record, esp. of a fine or amercement imposed by a Court, extracted from the record: and certified to one who is authorized and required to collect it.”

The 6th Edition of Black’s Law Dictionary (Centennial Edition) is more pictorial about the meaning of the word “EXTRACT’. It defines it as-

“A portion or segment of writing.”<br< p=””

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The intendment of an ‘extract” of minutes of a meeting in my view presupposes the culling out the relevant excerpts of the minutes of the meeting in its original form. It means something extricated from the main body. The word, “portion” is defined by Oxford Advanced Learner’s Dictionary (7th Edition) as ‘one part of something larger.” A relevant portion of the document of minutes of a meeting cannot admit of the supply of another document which does not form part of it. The document titled ‘EXTRACT’ did not meet the requirement of the Order of Court. It is neither “the minutes” nor “a portion thereof”- In the circumstances of this case, the ratification of the candidate by the 4th respondent can only be proved by production of the minutes or a portion of it. The concomitant effect is that neither the minutes nor portion of it was produced as ordered by Court. The purport of Section 167(d) of the Evidence Act is that where one party to a suit withholds evidence, if made available, would be against that person. See (1) Amgbore V. Sylva (2009) 1 NWLR (Pt. 1121) 1 at 63, paras. B-E; Olusanya V. Osinleye (2013) 12 NWLR (Pt. 1367) 148 at 164; Aliyu V. State

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(2013) 12 NWLR (Pt. 1368) 403 at 426: State V. Azeeez (2008) 14 NWLR (Pt. 1108) 439 at 492, paras. C-D.

It is pertinent to emphasize that the said minutes of the meeting of the 2nd and 4th respondents dealing with the ratification of a candidate for the election is central and crucial to the just determination of this case, which minutes are under the custody of the 2nd and 4th respondents. The denial of the 2nd respondent in its affidavit of the deposition of the 1st respondent that she was not the one that was sponsored by the party is irrelevant in view of intendment of Section 149(d) now Section 167(d) of the Evidence Act. Reliance on the case of Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1 is of no assistance to the appellant for the facts are distinguishable from the instant case.”

In the case of Buhari V. Obasanjo for instance at pages 198-199 Belgore, JSC (as he then was) said:-

“In notice to produce procedure, it is supposed that the person asking for the document knows of the contents, perhaps has a copy of it. If the person to produce fails to produce it, the secondary evidence of it can be admitted in evidence. Chief John Ukpa of the

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ANPP, if he actually wrote the letter of protest in question, he could bring the copy of it for admission. Either the letter did not exist or it existed but Chief John Ukpa refused to bring its copy. If he brought the copy, the presumption can as well be that the contents would not have supported the case of the appellant.”

In the instant case, the 1st respondent herein was not in a position to produce the secondary evidence of the minutes of the 4th respondent which can only be in the custody of the 4th respondent and probably copies with participants at the meeting.

In other words, the 1st respondent was not a participant at the said meeting. Therefore, the contention by the learned senior counsel for the appellant that the proof of ratification of the 1st respondent’s candidature by the 2nd respondent was the minutes of 395th meeting of the 4th respondent is greatly misplaced. There can be no question of extract of any minutes expected from the 1st respondent. The presumption of Section 167(d) of the Evidence Act cannot be applied against the 1st respondent in this situation. The section will rather operate in her favour.

Again and contrary

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to the submission by the senior counsel for the appellant further, the two lower Courts could not be faulted when they invoked the provisions of Section 167(d) of the Evidence Act against the 4th respondent ipso facto, the 2nd respondent.

Consequently, the effect of the foregoing is that the 1st respondent proved the assertion in her affidavit in support of the originating summons that indeed, it was her name that was forwarded by the 2nd respondent to the 3rd respondent as the candidate ratified by the 2nd respondent for the membership of the House of Representatives for member representing Onitsha North/South Federal Constituency of Anambra state. The denial made by the 2nd respondent is of no consequence therefore. It is not out of place, I hold, that Section 167(d) of the Evidence Act was put in place.

The confirmation holds secure especially when reference is made to the fact that the 3rd respondent, who is the appropriate body in law to receive the list of sponsored candidates for election did not deny that the 2nd respondent forwarded the name of the 1st respondent. It is on record, rather that the 3rd respondent was categorical that it

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received the list of candidates for the election, which included the 1st respondent. Paragraphs 4 and 5 of the counter-affidavit of the 3rd respondent to the originating summons are evident as proof as follows:-

“4. I know that the 1st defendant submitted the Forms CF001 (affidavit in support of personal particulars of persons seeking election to the office/membership of House of Representatives) of the candidates it intended to sponsor for the election to the Membership of the National Assembly in respect of Anambra State to the 2nd defendant including that of the plaintiff for Onitsha North/South Federal Constituency of Anambra State

5. I know all the forms CF001 submitted to the 2nd defendant by the 1st defendant in respect of its candidates in Anambra State had forms CF002 (submission of Names of candidates by a political party) attached thereto including that of the plaintiff .” (Emphasis supplied).

Exhibit 17A at Page 290 of the record, is a certified true copy of application made by the 1st respondent to 3rd respondent (INEC) for a-

“Copy of INEC Form CF.001 submitted to the 2nd defendant and was issued a certified true copy of same which also embodies the list

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of candidates containing my name.”

(Reference Paragraph 20 of the affidavit in support of the originating summon at Page 10 of the record of appeal reproduced supra).

It is also instructive to note that Exhibit D17A has the acknowledgement stamp of the 3rd respondent. Exhibits D7 to D17 are the documents the 3rd respondent forwarded to the 1st respondent in response to her application.

I agree with the lower Court when it held therefore that the concerted effort made by the appellant to impugn the authenticity of Exhibits D7 – D17 as having not been signed is in the circumstance futile. This is firmly established when regard is had to Paragraph (m) of the 2nd respondent’s counter affidavit at page 399 of the record of appeal in reaction to the 1st respondent, wherein it only addressed Exhibit 6, D17 and 9 but not D7 to D16 when it deposed thus:-

“(m) Exhibit 6, D17 and 9 are worthless pieces of paper prepared by the Plaintiff in anticipation of proceedings.”

From the foregoing, it is reasonable to say that the 2nd respondent, which is enjoined by law to forward the forms CF001 and the list of candidates sponsored by the party, had no

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justification to complain about the list forwarded. This is because the record had shown that the list attached to Form CF001 contained the name of the 1st respondent as N0.4. Therefore, the said documents are deemed to be admitted by the 2nd respondent as those it sent to the commission (INEC).

It is even more intriguing that with copious reference made to the depositions of Paragraphs 4 and 5 of the 3rd respondent’s counter affidavit (reproduced earlier in the course of this judgment) same is an admission also of the averments of Paragraphs 18, 19, 20 and 21 of the 1st respondent’s affidavit. Undoubtedly it serves also as an evidence given in support of the case of the 1st respondent, to the effect that her name was indeed forwarded to the 3rd respondent. The assertion was by that means admitted by the 3rd respondent.

I wish to say at this juncture further that, while the 3rd respondent was emphatic in its response on the 1st respondent at Paragraphs 4 and 5 of its counter affidavit, the same cannot be said in respect of the appellant. In other words, the 3rd respondent did not indicate that the appellants Form CF002 was accompanied by

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Form CF001 deposed to by all other candidates of the Electoral Act, 2nd respondent.

On the question of Section 31 of the Electoral Act, 2010, I wish to state that Subsections (1) and (2) of same do not envisage sending Form CF002 alone. The reproduction of the sub-sections will give a clear explanation of the point:-

“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 the Party proposes to sponsor at the elections, provided that the commission shall not disqualify candidate(s) for any reason whatsoever

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 Federal Capital Territory, indicating that he has all the constitutional requirements for election into that office.”

The contention held by the appellant therefore that Exhibits D – D17 are in admissible is not tenable having regard to the fact that they are not the original documents, but certified true copies

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sent to the 1st respondent in her request for the documents. The law does not require the certification or signing of a certified true copy of a document. See Ahmed V. CBN (2013) 11 NWLR (Pt. 1365) 352 at 373 Per Onnoghen, JSC (as he then was).

By a combined reading of Sub-sections (1) and (2) of Section 31 of the Electoral Act, 2010, the submission of the particulars of a candidate sponsored by a Party must be accompanied by the list of the candidates proposed for sponsorship by the party for the elections. Thus, Forms CF002 as well as Form CF001 of all the candidates and documents “shall” be forwarded by 2nd respondent to 3rd respondent.

On a careful review and analysis of the evidence on the record of appeal before us, I can safely say that, while the 1st respondent had met with all the requirements relating her documentation which are in the custody of INEC, the same cannot be said of the appellant.

On the allegation of a seeming conflict on the affidavits of the parties, this, I hold is a mere perception by the appellant and which is instantly resolved when regard is had to the authentic documents presented on behalf of the 1st respondent.

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While the 1st respondent produced certified true copies of her documents from the custody of INEC, those presented by the appellant did not emanate from the custody of 3rd respondent (INEC). The Principle of resolution of affidavit conflict through certified documentation is well entrenched by this Court in the case of Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489 at 539 (Para E-G) thus:-

“The fact a partys set of documents as against the ones of his opponent present a disorderly nature by lying ex facie should not be a ground of alleging conflicting facts in the documentary exhibit of the parties to necessitate taking oral evidence to resolve it. Even though a factual issue as submitted by 2nd and 3rd respondent, it could be resolved by authentic documents before the Court of which there are a number of them here as I will show later on and not only by calling oral evidence. See Shitta-Bey’s case (supra). More Importantly, it is settled that oral evidence cannot be allowed to add to or subtract from or alter or contradict a written document. See Section 132(a) of the Evidence Act. Nubia v. Attorney-General, Rivers State (1999) 3 NWLR (Pt. 593)

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82: B.O.N. Ltd. V. Akintoye (1999) 12 NWLR (Pt. 631) 392; U B.N. Plc V. Ozigi (1994) 3 NWLR (Pt. 333) 385: and Koiki V. Magnusson (l999) 8 NWLR (Pt. 615) 492.”

On the credible nature of the 1st respondents evidence, reference can be made to the case of Agbi V Ogbeh (2006) 11 NWLR (Pt. 990) 65 at 116 per Musdapher, JSC (as he then was) wherein his lordship gave a sound description of what amounts to credible evidence which must be:-

“Worthy of belief, —- must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstances.”

At page 941 of the record of appeal, the lower Court rightly restated the position held by the trial Court that the 1st respondent did establish her improper substitution by the 2nd and 4th respondents. This was where the trial Court did impugn the authenticity of the appellants form CF001 and said:

“Related to the above also is the fact that the 1st defendant’s Exhibit 10 (to its further counter affidavit) which purports to be the form CF001 of the 4th defendant bears a strange signature different from the signature appended by the 4th defendant in

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the 4th defendant’s Exhibit G2 and G3.”

The foregoing position was affirmed by the lower Court at pages 942 – 943 of the record of appeal in the following terms wherein Akomolafe – Wilson (JCA) in the lead judgment said:-

“I am therefore of the view that by the pleading and totality of evidence before the trial Court, the 1st respondent discharged the burden of proof placed on her in law. She established sufficient evidence in proof of improper substitution of the 1st respondent by the 1st and 4th respondents. She was therefore entitled to the reliefs sought in the originating summons.”

This finding cannot be faulted and I so hold.

The law is trite and well established that Declaratory actions in civil matters require proof on the balance of probabilities or on the preponderance of evidence. This Court has established this principle firmly in the case of Onisaodu & Anor V. Elewuju and Anor (2006) 13 NWLR (pt. 998) 517 at 527 – 528.

Furthermore and as rightly submitted by the counsel for the 1st and 3rd respondents respectively, the appeal at hand is against the concurrent findings of facts by the Federal High Court and the Court of

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Appeal.

The law is well established that concurrent findings of the Courts below will not be disturbed ordinarily except where they are tainted with miscarriage of justice or shown to be perverse.

The appellant in this appeal has not shown or advances any cogent reason at all why the concurrent findings should be disturbed. Plethora of authorities are well established in support of this point. See the decision of this Court in the case of Yaki V. Bagudu (2015) 18 NWLR (Pt. 149) 288. See also the cases of:- Igwego V. Ezeugo (1992) 6 NWLR (Pt. 249) 561, Mago Chikwendu V. Mbamah (1980) 3 5C 31; Ojomu V. Ajao (1983) 9 SC 22, 53: Lokoyi V. Olojo (1983) 8 SC 61, 68; Onobruchere & Anor V. Esegine & Anor (1986) 1 NWLR (Pt. 19) 799 and Kazeem V. Mosaku (2007) 17 NWLR (Pt. 1064) 523 at 536.

This appeal from all indications is a mere exploration and a game of chance lacking in dire merit. Same is hereby dismissed by me while the judgment of the Court of Appeal which affirmed that of the trial Court is also affirmed.

There shall be no order as to costs.

On the totality of this appeal, it is hereby dismissed with no order as to costs.

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SC.149/2016