Peoples Democratic Party (PDP) V. Obasi Uba Ekeagbara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A. 

This is an appeal against the judgment of the Federal High Court Abuja, (the Lower Court) in Suit No. FHC/ABJ/CS/1086/2014, delivered on the 27th of June, 2016, by OKON ABANG, J. The 1st €¢and 2nd respondents (who were the Plaintiffs) at the Lower Court instituted the suit against the appellant and the 3rd and 4h respondents (who were the defendants) by an originating summons filed on the 22nd of December 2014 which was amended on the 12th of February, 2015. The 1st, 2nd and 4th respondents were members of the 3rd appellant.

The appellant conducted its primary election on the 8th of December 2014 as provided by Section 87(4) B(i)(ii) of the Electoral Act 2010 (amended) and its Constitution. At the conclusion of the primary election, the 4th respondent was declared as the elected candidate, while Dr. Sampson Uchechukwu Ogah came 2nd. The 4th respondent then completed and signed INEC FORM CF.001 containing facts, information and documents which were submitted to the 4th respondent by the appellant as its candidate for the Governorship election which was conducted on the 11th of April, 2015 for Abia State.

The 1st and 2nd respondents were dissatisfied with the election of the 4th respondent, hence they instituted the suit at the Lower Court on the 22nd of December, 2014 by an originating summons, which was later amended. After the hearing of the suit, the learned trial Judge delivered his judgment on the 2ih of June, 2016, granting the reliefs sought by the 1st and 2nd respondents. Peeved and piqued by the decision of the Lower Court, the appellant filed a Notice of appeal, on the 28th of June 2016. Another Notice of appeal was filed on the 19th of July, 2016. However, the appeal has been argued on the Notice of appeal filed on the 19th of July, 2016.

The appellant filed its brief of argument dated 20th and filed on the 21st of July 2016, wherein eight (8) issues have been distilled from the Notice and grounds of appeal, on page 2 thereof. The eight (8) issues are thus:

(1). Whether the trial Judge was wrong when he assumed jurisdiction to adjudicate on the suit when the initiating Originating Summons was not signed in any manner known to law. Ground XXXII.

(2). Whether the trial Judge was wrong in assuming jurisdiction to adjudicate over the suit when the 1st and 2nd Respondents had no cause of action as at the date the suit was initiated. Grounds I, II, II and IV.

(3) Whether the trial Judge was wrong in granting the reliefs sought in the amended Originating summons founded on questions 1 and 2 which were outside the ambit of section 31 (5) and (6) of the Electoral Act, 2010 ( as amended). Grounds V, XXIV & XXV.

(4). Whether the trial Judge was wrong when he held that the issue was whether 4th Respondent paid his taxes as and when due and was thus disqualified to participate in the Appellant’s primary election. Grounds VI, VII, VIII, X, XI, XII and XXII.

(5). Whether the trial Judge was wrong when he held that the suit had nothing to do with forgery or making of false document under the criminal law. Grounds IX and XXX.

(6). Whether the trial Judge was wrong when he placed on the defence to prove that the information provided in Form CF001 and the attached documents were correct, true and genuine. Grounds XIII and XIV.

(7). Whether the trial Jude was wrong when he held that the 4th Respondent who was sponsored by the appellant was not qualified to contest the election on the platform of the Appellant having given false information on the matter of payment of his taxes.

Grounds XV,XVI, XVII, XVIII, XIX, XX, XXI, XXVI, XXVII, and XXVIII.

(8). Whether the trial Judge was wrong when he granted the reliefs sought in the Originating Summons. Ground XXIII and XXIX.

The 1st and 2nd respondents filed their brief of argument on the 2nd of August, 2016, wherein on page 4, three (3) issues have been distilled from the grounds of the Notice of appeal. They are thus:

1. Whether having regards€¢ to the facts and circumstance of the case, the trial Court was right in determining the matter on the amended Originating Summons of the 1st and 2nd Respondents and holding that the 4th Respondent gave false information in INEC Form CF.001 duly filled and signed by him contrary to Section 31 (5)(6) of the Electoral Act which makes him disqualified.

(Encompassing Grounds 1, 2, 3, 4, 6, 11, 13,14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 28, 32)

2. Whether the trial Court was right in disqualifying the 4th Respondent and granting the reliefs sought by the 1st and 2nd Respondents having regards to the facts and circumstances of the case. (Encompassing Grounds 5, 8, 12, 23, 24, 25, 29 and 31)
3. Whether having regards to the facts and circumstances of the case the trial Court was right in its findings that the action was based on the submission of false information and not forgery.

(Encompassing Grounds 7, 9, 10, 30)

The 3rd and 4th respondents did not file brief of argument. A Reply brief was filed by the appellant on the 4th of August, 2016.

In the resolution of issues contained in the briefs of argument, an appellate Court is not under a regimental duty to accept the issues formulated by the parties. An appellate Court can formulate issues for determination and as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. Okoro v. State (1988) 5 NWLR (Pt. 94) P.255; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 390) P. 379.

Furthermore, in the interest of Justice, and for a just determination of an appeal, an appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issue(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the appellant’s brief of argument or that of the respondent in the determination of an appeal. See AIB Ltd v. IDS Ltd (2012) 17 NWLR (Pt.1328) P. 1 @ 31 and Sha (Jnr) v. Kwan (2008) 8 NWLR (Pt. 670) P. 685. That a Court can also frame or formulate issues for determination in an appeal has support in the case of Peterside v. Fabara (2013) 6 (Pt. 1349) P 156 @ 172, where it was held that an issue for determination may be framed by the appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal. It must not be the issues as formulated by the appellant that the appellate Court must rely on for its consideration and determination of the appeal before it. Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) P. 373; Momodu v. Momoh (1991) 1 NWLR (Pt. 169) P. 608; Unity Bank of Nigeria v. Bouari (2008) 7 NWLR (Pt. 1086) 372; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) P. 379; Latunde v. Lajinfin (1989) 3 NWLR (Pt. 108) P. 177. The eight (8) issues contained in the appellant’s and those contained in the 1st and 2nd respondents’ briefs of argument are interwoven, intertwined and dovetailing such that one set of issues cannot be resolved without delving into the other set of issues. For this reason the issues contained in the two (2) briefs of argument and that are hereunder compressed and restructured thus:

ISSUES FOR RESOLUTION

(i). Whether the trial Judge was wrong when he assumed jurisdiction to adjudicate on the suit when the initiating Originating Summons was not signed in any manner known to law. Ground XXXII.

(ii). Whether the trial Judge was wrong in assuming jurisdiction to adjudicate over the suit when the 1st and 2nd Respondents had no cause of action as at the date the suit was initiated. Grounds 1, II, II and IV.

(iii). Whether the trial Judge was wrong when he placed on the defence burden to prove that the information provided in Form CF001 and the attached documents were correct, true and genuine. Grounds XIII and XIV.

(iv). Whether the trial Judge was wrong when he granted the reliefs sought in the Originating Summons. Ground XXIII and XXIX.

The issues enumerated supra, would be taken and resolved in the following order 1, 2, 3 and 4.

ISSUE 1

Whether the learned trial Judge of Lower Court was not wrong when he assumed jurisdiction to adjudicate on the Suit No. FHC/ ABJ/CS/1086/2014 when the initiating originating summons were not signed as required by law? On this issue, Dr. Ikpeazu SAN, of learned Senior counsel, who settled the brief of argument of the appellant, referred to pages 3-5 thereof, specifically page 5, and pointed out that the originating summons was taken out by Max Ozoaka Esq., Osim U. Jones Esq., and Prosper Ukachukwu Esq., of Excellex Solicitors & Barristers. That none of the said solicitors and Barristers appended a signature, mark, stamp or any sign on the originating summons. Senior counsel contended that the signature of counsel who prepared the originating summons and applied for its issuance must be appended on the process as required by Order 3 Rule 12 (2) & (3) of the Federal High Court Rules, 2009. Senior counsel cited and relied on the case of SLB Consortuim Ltd v. NNPC (2001) 9 NWLR (Pt. 1252) P. 317, wherein Order 26 Rule 4 (3) of the Federal High Court (Civil Procedure) Rules, 2000 was interpreted and applied. That it was held in that case that non-signing of the originating summons by counsel as required by the above provision of Order 3 rule 12(3) of the Federal High Court (Civil Procedure) Rules would divest a Court the jurisdiction to adjudicate such suit.

Senior counsel specifically referred to the manner an original Court process is to be singed as spelt out by Rhode-Vivour, J.S.C. That where a Court process has not been signed as provided for by Order 1 rule 12(2) (3) of the Federal High Court, Rules, such process is incompetent, of no legal effect. Learned Senior counsel cited several authorities to buttress his submissions supra, among which are Faro Bottling Co. Ltd v. Osuji (2002) (Pt. 748) P. 311; Olagbenro v. Olayiwola (2014) 17 NWLR P. 313, Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 137’5) P. 466 and Odukwe v. Achebe (2008) 1 NWLR (Pt. 1067) P. 40. Concluding, Senior counsel did urge that this issue be resolved in favour of the appellant.

Dr. Izinyon SAN, of learned Senior counsel contended that an examination of the originating summons on pages 5 and 565 of Vol.1 of the record of appeal clearly shows that same was signed on the left hand side of page 5 of the record, next to the names of counsel appearing thereon. That all the requirements stated in the case of SLB Consortium Ltd v. NNPC cited by counsel to the appellant have been complied with or satisfied, therefore not in support of the argument canvassed by counsel to the qppellant. In conclusion, Senior counsel did urge that the issue be resolved against the appellant. Order 3 rules 12(2) and (3) of the Federal High Court Rules, 2009, provides as follows:

“12(2) A plaintiff or the plaintiff’s legal practitioner shall on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.

“(3) Each copy shall be signed by the legal practitioner or by a plaintiff where the plaintiff sues in person and shall be certified after verification by the Registrar as being a true copy of the original process€.

Section 2(1) of the Legal Practitioners Act provides thus:

“2(1) subject to the provisions of this Act; a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll€.

Section 24 of the Legal Practitioner’s Act further provides that:

“24 in this Act; unless the con Justice otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say-

‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.

A Court process, whether Writ of Summons or Notice of appeal, or Statement of Claim or Statement of Defence must be signed by a named and identifiable Legal Practitioner. Any Court process not signed by a named and identifiable Legal Practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per RHODES-VIVOUR J.S.C, has had spelt out how it is to be signed in the case of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P.317 @ 27, thus:

€œOnce it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e. the Legal Practitioners Act).~ All the processes filed in Court are to be signed as follows:

First, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the Law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad’~

In Mekiye & Anor. V. Tajudeen & Ors. (2012) 15 NWLR (Pt.1323) P. 315 @ 338, this Court enunciated that:

€œAny person signing process on behalf of a Principal partner in Chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case, the identity of the signatory was not disclosed on the face of the process, rather, it was sought to be explained in an affidavit of status after an objection to the process was raised€

Furthermore, in Adeneye v. Yaro (2013) 3 NWLR (Pt.1340) P.625 @ 63, Ogunbiyi, JCA (as she then was) said:

”It is significant to emphasize the clear intention of Section 2(1) of the Legal Practitioners Act; 1990 wherein the expected signatory must be a person qualified to practice “as a Barrister and€¢ Solicitor if and only if, his name is on the€. The said section should be read along with section 24 of the same Act which defines the nature of the personality anticipated by section 2(1). An unknown person cannot qualify under the said provision, more so where a mere signature cannot give any information for purpose of specific identity. In other words, the stating clearly of the name of the counsel who signed the proposed notice of appeal is crucial with the document being an originating process. The scribed as it is in the case at hand, is not sufficient€. (Underlining mine)

At this juncture, I think, it is pertinent to have recourse to the printed record of appeal to scrutinize the originating processes in respect of Suit No. FHC/ ABJ/CS/1086/2014 which was instituted before the Lower Court. An originating summons was taken out on behalf of the 1st and 2nd respondents (who were the plaintiffs) by counsel, Max Ozoaka Esq. & ors). It is on pages 3 to 5 of Vol. 1 of the printed record of appeal. ~ The Originating Summons on pages 3-5 of the record of appeal Vol. 1 was amended and filed on the 12th of February 2015.

On page 5 of the record of appeal Vol.1, at the left side, there is an indication that some counsel purportedly signed the Originating Summons. The name of “Max Ozoaka Esq; Osimu Jones Esq., and Prosper Ukachukwu Esq., of Excellex Solicitors & Barristers have been stated as the persons who took out the originating summons. The question is who among the three persons signed the originating summons. Is it the 1st person named Max Ozoaka Esq., or the 2nd person Osim U. Jones Esq., or the 3rd person, Prosper Ukachukwu Esq or all of them? By the decision in SLB Contortuim Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) .P. 137 @ 727, the counsel who sign a Court process must be identified or identifiable, ascertained or ascertainable. Once it cannot be said who signed the process, it is incurably bad.

The originating summons was amended on the 12th of February, 2015. It is on pages 563 to 565 of Vol.I of the record of appeal. Beneath the signature the names of Max Ozoaka Esq, with Osim U. Jones Esq, Prosper Ukachukwu Esq., and Judith Obiora-flo (Mrs) Esq, have been listed as counsel taking out the originating summons. Again who among them signed the Amended originating writ of summons. Can it be said that a specific particular counsel signed it? The manner of signing a Court process has been clearly spelt out by the Supreme Court in the case of SLB Contortuim Ltd v. NNPC supra. That it must be signed by a known or identified or ascertainable counsel. In respect of the Amended originating summons which purportedly amended the originating summons on page 5 of the record of Appeal Vol.l, it cannot be ascertained who of the three (3) counsel€¢ signed it. That an originating Court process such as Notice of

Appeal, writ of summons, originating summons or statement of claim, among others; must be signed by an identified or known legal practitioner has been enunciated in the case of PMB Ltd v. NDIC (2011) 12 NWLR (Pt. 1261) P. 253 @ 262 where Mshelia, J.C.A had this to say:

€œA notice of appeal is an originating process which activates the jurisdiction of this Court. Since appellant’s counsel decided to sign the notice of appeal on behalf of the appellant, he owes a duty to his client to do so properly. With the position taken by the Supreme Court in Okafor v. Nweke (supra) that processes must be signed by a legal practitioner known to law, the identity of the person who signed the notice of appeal on behalf of appellant’s counsel is not irrelevant as contended by respondent’s counsel The relevance of the disclosure of the identity is to assist the Court to confirm that the person who signed the document is a Legal Practitioner. It is my firm view therefore that the non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of appellant’s counsel is not a mere irregularity as contented by respondent’s counsel but a fundamental error. The notice if appeal under consideration is in the circumstance, fundamentally defective and is liable to be struck-out. Failure to properly initiate an appeal is beyond mere technicality. Since there is no valid notice of appeal to activate the jurisdiction of this Court to determine the appeal on merit, same would be struck out for being incompetent.”

In Adeneye v. Yaro (2013) 3 NWLR (Pt.1342) P. 685 @ 633, Jauro J.C.A cited and relied on the then unreported case of Onward Enterprises Ltd v. Olam International Ltd & Ors. Appeal No. CA/L/365/2008, where Mukhtar J.C.A, expressed the view on page 9 of the ruling that:

“Name of signatory is therefore necessary to fulfill the requirement of valid and legally recognizable signature. Even common sense dictates that signature is only identifiable by the name of the signatory. A Court initiating process like notice of appeal must therefore be signed by appending the name of the signatory in the absence of which it will be impossible to ascertain who the signatory is much less being a legal practitioner€¢ whose name could be traceable to the roll of legal practitioners in Nigeria.

By the definition of signature in the Black’s Law Dictionary as noted above, the mere typing of name on a process does not satisfy the requirement of signature. The person signing is required to write his name in longhand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling falls short of. I am not saying the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner. I am therefore unable to agree with the learned senior counsel for the appellant’s submission that the signature of an unnamed signatory satisfied the requirement of signature by a legal practitioner. Any attempt to detect the unnamed signatory will tantamount to converting the Court into a forensic laboratory. ”

The name of who among the 3 counsel who signed the originating summons on page 5 and page 565 of the record of appeal Vol.l, cannot be ascertained. It is not the duty of the Court to do so. The name of the counsel who signed the originating summons, the Amended originating summons must be certain, and not in doubt as to who signed it.

Where an originating process initiating a suit has been found to be incompetent, a Court of law would not have the jurisdiction to adjudicate on it; for an invalid originating process cannot initiate a suit in a Court of law. In Kida v. Ogunmola (2006) ALL FWLR (Pt.327) P. 402 @ 412 Mohammed J.S.C. enunciated that:

“The validity of the originating processes in a proceeding €¢ before a Court is fundamental, as the competence of the proceedings is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”

A Court of law can only be competent and having jurisdiction to adjudicate a matter before it where the following conditions have been fulfilled or satisfied.

(a) The Court is properly constituted as regards number and qualification of the members of the bench;

(b) The subject matter of the action is within the jurisdiction of the Court; and

(c) The case before the Court is initiated by due process of law, or that the condition precedent to the exercise of jurisdiction is complied with. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

Suit No. FHC/ ABJ/CS/1086/2014 has not been initiated or commenced by a competent originating process as required by law, for the Amended originating summons which purportedly amended the originating summons were not signed by a known and ascertainable counsel as enunciated in the cases of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) P. 317 @ 327; Mekiye & Anor v. Tajudeen & Ors (2012) 15 NWLR (Pt. 1323) P. 315 @ 338 and Adenye v. Yaro (2013) 3 NWLR (Pt. 1340) P. 625 @ 630. Based on the principles of law enunciated supra, the Lower Court had no jurisdiction in adjudicating Suit No. FHC/ABJ/CS/1086/2014 for it was not initiated or commenced by a valid and competent originating summons. The judgment of the Lower Court in the said Suit No. FHC/ ABJ/CS/1086/2014, delivered on the 2ih of June 2016, has been delivered without jurisdiction. Same is therefore a nullity, and is liable to be set aside. I so make the order. I resolve issue 1 in favour of the appellant.

ISSUE 2

Whether a cause of action had accrued on the 22nd of December, 2014 when the 1st and 2nd respondents instituted Suit No. FHC/ ABJ/CS/1086/2014 against the appellant, 3rd and 4th respondents? The appellant’s brief of argument was settled by Dr. Ikpeazu SAN.

On this issue Dr. Ikpeazu SAN, of learned counsel who settled the appellants’ brief of arguments made copious and extensive submissions on the issue of whether there was cause of action which had accrued as at 22nd of December, 2014, when the 1st and 2nd respondents initiated or commenced Suit No. FHC/ABJ/CS/1086/2014, at the Lower Court. Senior counsel buttressed his submission by a litany of decided authorities that cause of action had not accrue as at 22/12/14 because the appellant and the 4th respondent submitted FORM CF.001 to the 3rd respondent on the 26/12/16, not on the 8/12/16 as contended. That the cause of action could not have accrued or arisen on the 8th of December, 2014, the date of the primary election by the 3rd respondent. Senior counsel therefore did urge that issue 2 be resolved in favour of the appellant, that is there was no cause of action as at 22/12/2016 when the 1st and 2nd respondents commenced Suit No. FHC/ABJ/CS/1086/2014 at the Lower Court. That being so, the said suit cannot be competent in law. That if there was no competent suit, the Lower Court had no jurisdiction to have adjudicated the matter. Senior counsel concluded by urging this Court to resolve the issue in favour of the appellant, and consequently hold that the judgment of the Lower Court having been delivered without jurisdiction is null and void, same to be struck out.

For the 1st and 2nd respondents, Dr. Izinyon SAN, of learned Senior counsel, made extensive submissions, citing a plethora of authorities to buttress his submissions that cause of action accrued on the 8/12/14 when the 4th respondent submitted documents to the appellant after he was declared the winner of the primary election which was later submitted to the 3rd respondent pursuant to the provisions of section 31 (1) (2) and (3) of the Electoral Act, 2010. In conclusion, Senior counsel did urge that the issue under consideration be resolved in favour of the 1st and 2nd respondents.

What is cause of action? In Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) P. 50 @ 131, cause of action has been defined as the entire set of circumstances giving rise to enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements:

(a) The wrong act of the defendant which gives the plaintiff his cause of complaint; and

(b) The consequent damages.

Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) (1988) 3 NWLR (Pt.32) 257; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598.

A cause of action is a set of facts, distinct from the evidence averred in the statement of claim, which the plaintiff must prove to support his right to the judgment of the Court. In other words, a cause of action consists of every fact, which the plaintiff must prove, if traversed, in order to support his claim for judgment C.B.N v. Manesport S.A. (1987)1 NWLR (Pt.18) 669; Egbue v. Araka (1988) 3 NWLR (Pt.84) 598; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 18) 669.

The accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajito (1988) 3 NWLR (Pt. 30) P. I; Egbue v. Araka (1988) 3 NWLR Pt. 84 P. 598; Bello v. A. G. Oyo State (1986) 5 NWLR (pt. 18) P. 669 and Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. 50 @ 131.

In determining when the cause of action arose or accrued for the purpose of initiating Suit No.FHC/ ABJ/CS/1086/14, the affidavit filed in ‘support of the Suit is germane. In paragraphs 4(a) to (k) the 1st and 2nd respondents as plaintiffs deposed to the holding of the Primary Election of the Peoples Democratic Party (PDP) 3rd respondent. From the depositions in the aforesaid paragraphs of the affidavit in support of the suit filed by the 1st and 2nd respondents, when considered together with the documents contained in INEC FORM CF 001 which the appellant submitted to INEC, 4th respondent on 26/12/14, it is evident that the cause of action arose or accrued on 26/12/16, the date FORM CF 001 was submitted to INEC, 4th respondent, not on 8/12/16 when the appellant submitted same to the P.D.P for purpose of holding primary election. This view is supported by the decision in the case of Ojukwu v. Yaradua (2008) 12 N-WLR (Pt.1150) P. 50 @ 131, where it is stated that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See also Adimora v. Ajifo (1988) 3 NWLR (Pt. 30) P. 1 and Egbue v. Araka (1988) 3 NWLR (Pt. 840) P. 598. The provisions of section 31(1), (2) and (3) of the Electoral Act, 2010 throw more light or reveals when the cause of action ought to accrued or arisen. Section 31 (1), (2) and (3) of the Electoral Act provides:

“31. (1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Ace 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 reject or 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 fulfilled 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 the election.”

It is after the Electoral Commission has acted, by publishing the names of the candidates in the Constituency under sub section 7 of section 31 of the Electoral Act, that any person may apply under subsection 4 of the Act for a copy of the documents submitted by a candidate. Thereafter, if the person who has applied and obtained a copy of the documents submitted by the candidate finds that the documents so submitted contain false information, then he can approach a Court of law seeking for the disqualification of the candidate. All the foregoing acts cannot take place before the submission of the documents on the 26/12/16 to INEC, therefore, the cause of action accrued on that date. It is in view of the foregoing that the institution of the Suit No. FHC/ABJ/CS/1086/14 on the 22nd of December, 2011 by the 1st and 2nd respondents was earlier than the accrual of the cause of action. The law is trite, any action initiated or instituted before the accrual of the cause of action, cannot be valid. For there cannot be a competent action before the accrual of cause of action. Therefore, the suit filed by the 1st and 2nd respondents on the 22/12/14 before the submissions of FORM CF 001 to INEC on 26/12/14, cannot be competent. Where an action or suit is initiated or commenced without cause of action, it is incompetent, and liable to be struck out. The case of Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1150) P. SO @ 132 is very instructive. It was held that where and when a Court comes to the conclusion that a plaintiff has no cause of action, the Court can strike out the action. The Lower Court, if it had considered whether there was cause of action disclosed as at 22/12/14 when Suit No. FHC/ ABJ/CS/1086/14 was commenced by the 1st and 2nd respondents, it would have realized that there was no cause of action to have sustained the suit filed by the 1st respondent and 2nd respondent. It would have then struck out same for being CA/A/406A/2016 incompetent. Having found that the Suit No.FHC/ABJ/CS/1086/14, instituted at the Lower Court is incompetent by reason of having been instituted without the accrual of cause of action, I do hereby make an order striking out the suit.

Consequently, having struck out Suit No.FHC/ABJ/CS/1086/14, the entire proceedings including the judgment of that Court are but a nullity, same can be struck out for there is nothing it can stand on. Eso J.S.C, (of blessed memory) in the cases of Skenconsult (Nig) Ltd & Ors v. Ukey 1981 S.C P. 1 @ 9 cited and relied on the case of Macfoy v. UAC Ltd 1962. A.C. 152, where Denning J, said:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

(Underlining mine)

I resolve Issue 2 in favour of the appellant.

ISSUE 3

Whether the learned trial judge was wrong when he placed on the defence the burden of proof that the information provided in FORM CF 001 and the attached documents were correct, true and genuine? Dr. Ikpeazu SAN, of learned Senior counsel to the appellant submitted that the learned trial judge was in error when he held that the appellant had the burden to prove that the information contained in FORM CF 001 are not false., On payment of tax,

Senior counsel cited and relied on the case of Ukachukwu v. P.D.P (2014) 17 NWLR (Pt. 1435) P. 134@ 186 and submitted that what must be proved have been enumerated by the court when there is dispute on what tax to pay and when to pay. That without an assessment of tax and notice thereof served, one cannot be said not to have paid tax. The case of Ikuoma v. Ige (1992) 4 NWLR (Pt. 236) P. 511 cited and relied on.

On the effect of wrong placement or misplacement of the burden of proof on a party in civil litigation, counsel contended that it leads to miscarriage of Justice. Several decided authorities, cited to buttress the submission supra. It has been further contended that where the reliefs sought are declaratory in nature there can be no burden of proof on the defence or the appellate as the case may be. The case of Nyesom v.

Peterside (2016) 7 NWLR (Pt. 1512) P. 452 @ 535 cited in aid. Concluding, Senior counsel did urge that this issue be resolved in favour of the appellant.

Dr. Izinyon SAN, of learned counsel to the 1st and 2nd respondents, who settled their brief of argument, submitted that the issue of burden of proof regarding the submission of false information under section 31 of the Electoral Act (amended) has been settled by the decision of the courts in such cases as Rimi v. INEC; Ikuonla v. Ige and Sandy v. Hotogua. That the submissions of counsel to the appellant on burden of proof have been misconceived in view of the decision in Ekeagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) P.411. That the true and correct position of the law is that the burden of proof in respect of not submitting false information is on the person who submitted it, in this case the 4th respondent. The 4th respondent who submitted the document with FORM CF 001 to the 3rd respondent had the burden to prove same as not false. That the affidavit of Mr. J. C. Okoji; being contradictory only worsen the defence of the 4th respondent that he did €¢ not supply false information to the 3rd respondent in FORM CF 001.

On payment of tax correctly, it has been submitted that the 4th respondent had the duty to present all the required tax receipts and clearance certificates to prove that he paid tax correctly and timely. The case of Babandubu v. Waziri (1998) LRECN 233 @ 238 & 239 cited to reinforce the submission supra.

By the provisions of section 133(2) of the Evidence Act, 2011, 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 any presumption that may arise on the pleadings. If such party adduces evidence which ought reasonably to satisfy the Court that the fact sought 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. Thus, in civil cases, the onus of proof is not as fixed on a plaintiff as it is -on the prosecution in criminal . cases. It continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered before the court. Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; A. G. Lagos State v. Purification Tech. (Nig) Ltd (2003) 16 NWLR (Pt. 845) 1; F.A.T.B Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) 35.

In the case of (Mrs) Orji v. Justiceiles Mills (Nig) Ltd (2009) 18 NWLR (Pt. 1173) P. 467 @ 489, the Apex Court, TOBI J.S.C, lucidly expounded the provisions of section 133(2) of the Evidence Act, 2011, thus:

“By the section, the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given . in the case. Thereafter, the second burden goes to the adverse party by virtue of subsection (2). And so the burden changes places almost like a chameleon or the weather cock in climatology until all the issues in the pleadings have been dealt with.”

In Dana Impex Ltd v. Aderotoye (2006) 3 NWLR (Pt. 966) P. 78 @ 102, it has been enunciated that:

“Although the onus of proof in civil cases shifts depending on the nature of evidence produces by the parties, the initial duty is always on the plaintiff to prove or establish his case. Thus the popular maxim that, he who asserts must prove. In other words where an allegation is made by a party, whether affirmative or negative, the burden of proving that allegation rests squarely on the party who made it.”

In Okechukwu & Sons v. Ndah 1967 NWLR (Pt. 368), it was enunciated that section 133(1) of the then Evidence Act, (which are impari materia~ with the extent Evidence Act, provides for the burden of proof in civil cases when it held that:

“The law is elementary that the burden of proof of any issue rests before evidence is gone into upon the party esserting the affirmative of the issue:, but after all the evidence have been completed the burden rests on the party against whom the Court at the time in question would give judgment, if no further evidence was adduced.”

The evidential principle of who asserts must prove has been applied by the Courts in the adjudicating process. It has never been altered nor abrogated. This is what the Apex court said in Famfa Oil Ltd v. A. G. Federation (2003) 18 NWLR (Pt. 852) P. 453.

“The evidential principle of who asserts must prove has stayed with us for long that it is too late now to change it.”

On the burden of proving that false information has not been given in FORM CF 001 to the 3rd respondent by the 4th respondent, I am of the view the provisions of sections 131-135 of the Evidence Act 2011 are still valid and remain the position of the law of evidence. I am in agreement with Dr. Ikpeazu SAN, of learned counsel to the appellant that the case of Ekeagbare & Ors v. Dr. Ikpeazu (2016) 4 NWLR (Pt.1503) P. 411 has not really altered or changed the position of the provisions of the sections 131-135 of the Evidence Act, 2011 on the burden of proof; for, that was not the decision of the Supreme Court. Therefore, I am of the view that what was decided by that case can not apply to this case on who had the burden of proof on the assertion that the 4th respondent submitted document, FORM CF. 001 to the 3rd respondent on the 26/12/14, as the candidate representing the appellant at the Governorship election for Abia State conducted on the 11th of April, 2015.

The main or principal reliefs sought by the 1st and 2nd respondents are declaratory in nature. See the 1st and 2nd reliefs sought by the 1st and 2nd respondents on page 564 of Vol.1 of the record of appeal. Where the reliefs sought are declaratory in nature, the burden of proof cannot be on the defence, rather, it is placed on the plaintiff. See Nyesom v. Peterside (2016) 7 NWLR (Pt. 152) P. 452 @ 535, where it was held thus:

“Both the Tribunal and the court below made much of the fact witnesses called by the Appellant were discredited under cross-examination and therefore their evidence was unreliable, which therefore gave further impetus to the case of the 1st and 2nd respondents. It will be recalled that the 1st and 2’d Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission.”

(Emphasis supplied)

As to the payment of tax, whether the 4th respondent did pay tax correctly and or properly or not, and on who the burden of proof lies, the decision of the Supreme Court in Ukachukwu v. P.D.P (2014) 17 €¢ NWLR (Pt. 1435) P. 134 @ 186, is an answer. The Apex Court held that:

“The Courts have in the cases of Lanto v. Wowo (supra) and Ikumola v. Ige (supra) laid out conditions for proof of tax where that is a requirement. That is proof of failure to pay tax as and when due:

(a) That the person earned a taxable income during the period in question.

(b) That there was a proper assessment of tax covering that period

(c) That notice of assessment was served on the person to pay his tax and he faulted; and

(d) That the person failed to pay tax assessed within two months after the service of notice of assessment.€

Ubaezonu J.C.A, in the case of Ikuomola v. Ige (1992) 4 NWLR (Pt. 236) P. 511 @ 526 clearly stated how to prove or disprove the payment of tax by an individual thus:

“The main thrust in the appeal is the vexed question of payment of tax ”as and when due” there is evidence in this appeal however that 1st respondent paid 1998 tax on 9/11/88 and 16/11/89. It is however not disclosed in any page of the record of proceedings when he was severed with assessment Notice or Notice for payment of tax in accordance with section 65 of the income Tax Law of Lagos State Cap 85 Volume 3 Laws of the federation and Lagos 1958 or if any such notice was served on him at all The period of two months within which he should pay his tax as provided by the statute starts running from the service of the said notice. If no notice of assessment is served, no tax is due or payable. I would even go Further to say that there should be a notice calling for a return of income on tax payer before he should be served with a notice of assessment.”

There are no evidence on the record of appeal that the conditions or requirements enumerated in the case of Ukachukwu v. P.D.P, supra was satisfied or fulfilled to warrant the conclusion that the 4th respondent did not pay tax correctly or properly, therefore the documents he submitted together with FORM CF 001 to the 3rd respondent contained false information.

It is worthy of note that the provisions of section 31 of the Election Act, in its entirety did not contain how the false information is to be proved and by whom to be proved. The provisions of sections 131-135 of the Evidence Act, 2011, therefore, remain the only applicable law burden of proof in civil proceedings before the court of law; for now. How is misplacement of burden of proof occasioned? In Gilson Ass. Ltd v. Association of Local Gov’t of Nigeria (ALGON) (2011) LPELR-4197, €¢this court is said:

“Now to misplace the onus or burden of proof in a case by a Court is to require a party on whom the law does not impose the duty or responsibility of adducing or calling evidence in proof of a particular fact which needed to be proved in the case, to provide or call such evidence. If either by the rules of pleadings, presumptions or specific provision of law of evidence, facts do not require proof by a party asserting them, then it would amount to misplacing the burden or onus of proof for a court to require proof if the facts by that party since no such burden or onus exists in Jaw on him. Such a misplacement of burden or onus of proof would therefore be wrongful in law and if relied on by a trial court in its determination of a case then depending on the peculiarities of the case, its decision cannot and should not stand on the ground that it is erroneous in law.”

The learned trial judge of the Lower Court held that the appellant had the burden of proving that he did not give false information in the document FORM CF 001, which he submitted to the 3rd respondent on the 26/12/14 as the candidate representing the appellant at the Gubernatorial Election of 2015. I am in agreement with learned Senior Counsel to the appellant that it was an error to have done so. What is the effect of misplacing the burden of proof on the wrong party in a civil proceedings? In Akinwumi v. Sodio (1997) 8 NWLR Pt. 516 P. 277 @ 291, the Supreme Court held that:

“Where a Court misplaces the onus of proof on the wrong party thus erroneously shifting the burden placed by Jaw under Section 136 of the Evidence Act; Cap 22 Laws of the Federation, then the judgment ought to be set aside.”

Issue 3 is hereby resolved in favour of the appellant.

ISSUE 4

Whether the learned trial Judge was wrong when he granted the reliefs sought in the originating summons? Dr. Ikpeazu SAN, of learned Senior counsel, in the briefs of argument, submitted that the 1st and 2nd respondents who were not aspirants, but were merely delegates at the primary election conducted by the 3rd respondent cannot claim any right for a person who is not a party to the suit at the Lower Court. That the learned trial Judge was not right when he held that the office of the governor of Abia State shall enure to a person who came 2nd of the primary election conducted by the 3rd respondent. Since the 2nd person who came 2nd at the primary election was not a party to the suit at the Lower Court. Senior counsel pointed out that a Court of law cannot take a decision in favour of any person who is not a party before it. The case of Nnaemeka v. Chukwuogor (Nig) Ltd (2007) 5 NWLR (Pt. 1026) P. 60 @ 78 cited to buttress the submissions supra.

On the decisions in the case of Obi v. INEC (2007) 11 NWLR (Pt.1046) P. 645; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) P. 56; Gbilive v. Addingi (2014) 16 NWLR (Pt. 1433) P. 394; Odedo v. INEC (2008) 17 NWLR (Pt. 1117) P. 554, Senior counsel did submit that the principles of law enunciated in the aforementioned cases cannot be applicable to the instant case, in that in most of the cases, an elected candidate at the primary election was involved, having his name submitted to INEC, but later withdrawn. Concluding, Senior counsel urged the Court to €¢find and hold that the granting of the reliefs sought by the 1st and 2nd respondents was improper and outside the ambit of section 31(5) and (6) of the Electoral Act, 2010 (amended); and that the issue be resolved in favour of the appellant.

Dr. Izinyon SAN, of learned Senior counsel, referred to the case of Ekeagbara v. Ipeazu (supra) and submitted that the principal reliefs sought could be separated from the other reliefs which are consequential to the success of the case of the 1st and 2nd respondent at the Lower Court. That they flow from the granting of the principal reliefs. Counsel contended that by section 31(1) of the Electoral Act, 2010, the Lower Court was right in granting the reliefs sought in the originating summons. That the judgment of the Lower Court is in rem, which applies or affects any person(s) other than those who were parties at the Lower Court. That the 1st and 2nd respondents and or any other person(s) can claim benefits or interest in the judgment of the Lower Court which was in rem, therefore, the reliefs granted which favoured the person who scored the 2nd highest vote at the primary election, was proper in law. The cases of Ogboru v. Uduaghan (2011) 17 NWLR (Pt. 1277) P. 727 @ 764; Akpalugo v. Adeshonye (1996) 10 NWLR (pt. 426) P. 77 and Olaniyan v. Fatoki (2003) 13 NWLR (Pt. 873) P. 273, among others, were cited and relied on to buttress the submissions supra. That the decision in Agbaje v. INEC (2016) 4 NWLR (Pt. 150) P. 151 @ 166 is the correct position of the law on the granting of reliefs in cases where the dispute involved or centered on the conduct of primary elections where candidates to represent a political party are elected for the various elections to occupy a particular office or representation in the State House of Assembly or the National assembly, as the case may be. In conclusion, learned Senior counsel urged that this issue be resolved in favour of the 1st and 2nd respondents.

The 1st and 2nd reliefs sought by the 1st and 2nd respondents by the originating summons at the Lower Court are declaratory in nature. Same cannot be granted unless proved by credible and reliable evidence. See Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) P. 452 @ 535, where it was held that:

“Both the Tribunal and the Court below made much of the fact that witnesses called by the Appellant were discredited under cross-examination and therefore their evidence was unreliable, which therefore gave further impetus to the case of the 1st and 2nd Respondents. It will be recalled that the 1st and 2nd Respondents sought declaratory reliefs before the Tribunal. The law is that where a party seeks declaratory beliefs, the burden is on him to succeed on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission€. (Emphasis supplied).

The 1st and 2nd respondents were not parties to the Suit No.FHC/ABJ/CS/1086/2014, before the Lower Court. They did not participate in the primary election conducted by the 3rd respondent on 8/12/16. They do not therefore have interest in the outcome of the suit at the Lower Court. A person who is not a party to a suit nor represented in the suit cannot be vested with interest in the outcome of that suit. A Court of law cannot decide any matter in favour of person(s) who are not parties before it. See Nnaeinaka v. Chukwuogor (Nig) Ltd (2002) 5 NWLR (Pt. 1026) P. 60 @ 78, where Ngwata, JCA (as then he was), held that:

“Both the respondent and the Court below appear to have been concerned by the need to protect the right of those the Court called , innocent third parties. With due respect the third parties, innocent or otherwise, not being parties to the proceedings cannot have exparte order made in their favour. They are not parties either directly or by representation. See PEENOK INVESTMENTS LTD V. HOTEL PRESIDNETIAL LTD. (1982) 12 SC 1. In so far as the Court below based its order on the need to protect the interest of those who are strangers to the proceedings, the order is gratuitous and made without jurisdiction.

If a court cannot grant a party before it a relief not asked for then there can be no basis for a Court making order in favour of a non party to the proceedings who necessarily bas not asked for any relief. See Bank of the North Ltd & Anor. V. Aliyu (1999) 7 NWLR (Part 612) 622; Ogbe v. Esi:(1943) 9 WACA 76; Ekpenyong v. Nyong (1975) 2 SC 71 and Oyediran v. Amoo (1970) 1 NLR 313€.

In view of the foregoing, the Lower Court was not right in granting an order to a person who was not a party to the suit before it. I resolved this issue in favour of the appellant. Having resolved all the four (4) issues in favour of the appellant, the appeal succeeds. The judgment of the Lower Court delivered on the 27th of June 2016, in Suit No. FHC/ABJCS/1086/2014, is hereby set aside. The appellant is entitled to cost assessed at N100,000.00 against the 1st and 2nd Respondents. Same is awarded. The 3rd and 4th respondents having not filed brief of argument are not entitled to costs.

---

Other Citations: (2016)LCN/8980(CA)