3PLR – HOPE UZODINMA V. SENATOR OSITA B. IZUNASO & ORS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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HOPE UZODINMA
V.
SENATOR OSITA B. IZUNASO & ORS
IN THE COURT OF APPEAL OF NIGERIA
ON TUESDAY, THE 5TH DAY OF APRIL, 2011
CA/A/51/2011 (2)
3PLR/2011/46 (CA)
BEFORE THEIR LORDSHIPS
MOHAMMED LAWAL GARBA, JSC
JIMI OLUKAYODE BADA, JSC
REGINA OBIAGELI NWODO, JSC
BETWEEN
HOPE UZODINMA – Appellants
AND
(1) SENATOR OSITA B. IZUNASO
(2) PEOPLES DEMOCRATIC PARTY
(3) INDEPENDENT NATIONAL ELECTORAL COMMISSION – Respondents
REPRESENTATION
MR PAUL EROKORO SAN with him are G. Esegine, C. Onyemaizu, U. Nwosu, G. Orimoloye and B. Omosun – For Appellant
AND
MR P.I.N. IKWUETO SAN and CHIEF SOLO AKUMA SAN with them are Mrs. O. Menakaya, I. D. Ogugua, P. O. Nwankwo, C. K. Alabi and I. L. Umudu
CHIEF OLUSOLA OKE [with him is B. Abdul-azeez] – for the 2nd Respondent
- M. LIMAN [with him are Y. D. Dangana, T. N. Akosor I. Shuaibu and D. E. Daniel] – for the 3rd Respondent – For Respondent
MAIN ISSUES
ELECTORAL MATTERS – CONDUCT OF INTRA-PARTY PRIMARY ELECTIONS:- Conduct of intra-party primary elections – Need for same to be in accordance with rules as stated in the party’s electoral guidelines – Non-compliance thereto – Burden of proof – On whom lies
CONSTITUTIONAL LAW – FAIR HEARING:- The right to fair hearing as guaranteed under the provisions of Section 36 of the 1999 Constitution – Whether applicable to intra-party nomination elections
PRACTICE AND PROCEDURE – ACTION – WAIVER:- The concept of Waiver – How established
PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION:- Whether issues for determination – Need for same to arise from grounds of appeal
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Nature and essence of – How determined – Duty of court to look at plaintiff’s statement of claim in resolving the question
PRACTICE AND PROCEDURE – COURT – JURISDICTION:- Mere filing of a case – Whether confers jurisdiction on court
PRACTICE AND PROCEDURE – COURT – MISCARRIAGE OF JUSTICE:- When miscarriage of justice is deemed to have arisen
PRACTICE AND PROCEDURE – EVIDENCE – CONFLICTING EVIDENCE:- How resolved – Whether it is in every case of conflict in evidence that oral evidence is resorted to
PRACTICE AND PROCEDURE – EVIDENCE – EVALUATION OF EVIDENCE:- Evaluation of evidence – Whether is primarily the duty of the trial judge – Attitude of appellate court to invitation to interfere therewith
PRACTICE AND PROCEDURE – PLEADINGS – COUNTER-AFFIDAVIT:- Where a party fails to file a reply to a counter-affidavit – Legal effect
PRACTICE AND PROCEDURE – SERVICE OF COURT PROCESSES:- Object of service of court processes – Implication for fair hearing
MAIN JUDGMENT
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This Appeal NO:-CA/A/51/2011 was consolidated with Appeal NO:- CA/A/51A/2011 by the order of this Court made on the 28th day of March 2011. The said Appeals are against the Judgment of the Federal High Court Abuja delivered on the 28th day of January 2011.
Briefly, the facts of the case are that the 1st Respondent who was the Plaintiff at the lower Court commenced this action by Originating Summons filed on 11/1/2011. The Originating Summons was later amended on 24/1/2011. (See Pages 192 – 195 of the Record of Appeal).
The Appellant in response to the Amended Originating Summons filed among others a Counter-Affidavit and written address in opposition to the action. There was also a Notice of Preliminary Objection filed on behalf of the Appellant.
At the conclusion of trial, the learned trial Judge entered Judgment in favour of the 1st Respondent who was the Plaintiff at the lower Court. All the reliefs sought in the Amended Originating Summons were granted.
The Appellant was dissatisfied with the said Judgment and he appealed to this Court.
The learned Senior Counsel for the Appellant stated that he filed two Notices of Appeal, one on 31/1/2011 and the other on 9/2/2011. He relied on the two Notices of Appeal initially but he later applied to rely on the Notice of Appeal filed on 9/2/2011. In the circumstance the Notice of Appeal filed on 31/1/2011 is hereby struck out.
The Notice of Appeal filed on 9/2/2011 on behalf of the Appellant is made up of ten grounds.
The learned Counsel for the Appellant formulated three issues for determination out of the ten Grounds of Appeal. The issues are set out as follows:-
“(a) Whether there was any proof before the trial Court that the Appellant was served the originating processes so as to activate the Jurisdiction of the Court.
(b) Whether the failure of the learned trial Judge to properly evaluate evidence and pronounce on all the issues raised by the Appellant was a breach of fair hearing occasioning a miscarriage of Justice.
(c) Whether it was appropriate for the 1st Respondent to have commenced this action by Originating Summons when issues and facts were disputed and contentious.”
The learned Senior Counsel for the 1st Respondent adopted the 3 issues for determination formulated in the Appellant’s brief of argument.
At the hearing, the learned Senior Counsel for the Appellant referred to the Appellant’s brief filed on 17/3/2011 while the Reply brief of argument was filed on 25/3/2011.
He adopted the two briefs of argument as his argument in this Appeal.
He relied on the case of:–Agbahomovo v. Eduyegbe (1999) 3 NWLR Part 607 Page 390, in support of paragraph 2.19 on Page 9 of the Appellant’s Reply brief of argument.
He finally urged that the appeal be allowed and remit the case to the lower Court for hearing and determination by another Judge. On the alternative he urged this Court to allow the Appeal and dismiss the case at the lower Court.
On the other hand the learned Senior Counsel for the 1st Respondent referred to the 1st Respondent’s brief of argument filed on 22/3/2011.
He adopted the said brief as his argument in urging this Court to dismiss this appeal. He also referred to the additional list of authorities filed on 28/3/2011. He relied on cases No. 1, 2 and 3 in describing what a Reply Brief should be.
He stated that this Appeal is in respect of interpretation of documents on pages 381 – 984 of the record of appeal.
He urged that this Appeal be dismissed.
The learned Counsel for the 2nd Respondent did not file any brief of argument. He conceded the Appeal.
The learned Counsel for the 3rd Respondent left the issue under consideration for the Court to determine. He did not file any brief of argument.
ISSUE A
“Whether there was any proof before the trial Court that the Appellant was served the Originating Process so as to activate the Jurisdiction of the Court.”
The learned Senior Counsel for the Appellant submitted that the Originating Summons ought to have been served on the Appellant personally. He referred to:-Order 6 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009.
He stated that the Appellant entered a conditional appearance at the commencement of the case at the lower Court.
As a result of non-service of the Originating Process, the Appellant’s Counsel experienced difficulty in preparing a defence to the suit at the lower Court and he therefore applied for a Certified True Copy of the Originating Summons on the 26/1/2011.
Learned Senior Counsel referred to Page 45 of the 2nd Supplementary Record of Appeal which showed that the Court Bailiff, one Junaidu Mohammed deposed to an affidavit of service that he served the Motion on Notice and written address on one Tagbo Obidiaso.
He also stated that the said Tagbo Obidiaso was not representing the Appellant.
He relied on the following cases:-
-Jim Daniels vs. Insight Engineering Co. Ltd (2003) 10 NWLR Part 775 Page 247 Paragraph B – D;
-Alhaji J. A. Odutola vs. Inspector Kayode (1994) 2 NWLR Part 324 Page 15 Paragraph E ratio 2.
Learned Senior Counsel reiterated that the learned trial Judge did not have any proof of service of the Originating Summons on the Appellant before him when he proceeded to assume Jurisdiction and determined the matter at the trial Court. He submitted that failure to effect service of an Originating Process as directed by the rules of the Federal High Court which governed the trial Court is a defect which goes to the root of the trial and thus rendered the entire proceedings of the Court a nullity.
He relied on the case of:-National Bank of Nigeria Ltd v. Guthrine (Nig) Ltd & another (1993) 3 NWLR Part 284 at 643.
He went further in his submission that Jurisdiction of a Court to adjudicate on a matter can be raised on appeal even for the first time at the Supreme Court.
He relied on the case of:-
-Usman Danfodio University v. Thompson Organisation Ltd (2001) 15 NWLR Part 736 Page 305.
He concluded that the trial Judge lacked Jurisdiction when he proceeded to assume Jurisdiction and entertained the suit.
The learned Senior Counsel for the 1st Respondent referred to Page 45 of the Supplementary Record of Appeal 2 which showed that Motion on Notice and Written Address were served on one Tagbo Obidiaso at No. 4 Donau Crescent, Off Amazon Street, Maitama Abuja (which is the Appellant’s residence).
He also referred to the Counter-Affidavit at Page 378 of the Record of Appeal where the Appellant admitted that he was aware of this suit and that he obtained a copy of the process on his own from the Court Registry about 3.00 p.m. on 24/2/2011.
He went further in his submission that the Appellant was fully aware of the processes in this suit before he took steps to react to the suit. He relied on the following cases:-
– Ajibola v. Sogeke (2003) 9 NWLR Part 826 Page 494 at 524 Paragraph B;
– Nwaogwugwu v. President of F.R.N. & Others (2007) All FWLR Part 389 Page 1327 at 1355 Paragraph B.
He went further that the issue of non-service was raised in an earlier application for Stay of Execution and this Court conclusively determined the issue, therefore this Court should not re-open the issue again. He relied on the following cases:–Aro v. Fabolude (1983) All NLR Page 67 at 78; -Lawal vs. Dawodu & another (1972) All NLR Page 707 at 719.
He concluded that the issue of none service raised by the Appellant is unfounded and he urged that the issue be resolved against the Appellant.
In his reply brief of argument, the learned Senior Counsel for the Appellant referred to Order 6 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009 and submitted that personal service on the Appellant is required.
He stated that the Appellant went by himself to the Registry of the trial Court and collected Amended Originating Summons and the Motion on Notice for Injunction.
He contended that the originating process having been amended was not meant for service.
He relied on the case of:-Okonkwo v. Okonkwo (1998) 10 NWLR Part 571 at Page 554 in particular at 569 – 571 Paragraphs H – C.
He finally urged this Court to discountenance the 1st Respondent’s submissions on the issue of service of the Originating Summons. The contention of the Appellant is that he was not served with the Originating Summons and that the learned trial Judge did not have any proof of service of the Originating Summons on the Appellant before him when he proceeded to assume Jurisdiction and determined the matter.
It is settled that the mere filing of a case before a Court does not confer Jurisdiction on that Court unless and until the adverse party is served and he becomes aware of the pendency of the case filed against him.
The failure to serve the adverse party is fundamental and goes to the competence of the Court to adjudicate on the matter.
See the following cases:-Alhaji J. A. Odutola V. Inspector Kayode (Supra); -National Bank of Nigeria Ltd vs. Guthrine Nig. Ltd & Another (Supra);-Jim Daniels vs. Insight Engineering Co. Ltd (Supra).
In this case under consideration, there is evidence of service of the Motion on Notice and Written Address on one Tagbo Obidiaso at No. 4 Donau Crescent, Off Amazon Street Maitama Abuja. Counsel for both parties also referred to the further affidavit of service deposed to by Junadu Mohammed, Bailiff of the Federal High Court which showed that on the 24/1/2011 at No. 4 Donasu Crescent, Off Amazon Street Maitama, Abuja that the Appellant directed one Tagbo Obidiaso a legal Practitioner to accept Court process on his behalf.
And in compliance with the directive of the Appellant the said Tagbo Obidiaso collected all the processes in this Suit including the Originating Summons, Motion on Notice and hearing Notice.
Apart from the affidavit of service of the Bailiff of the Federal High Court, Abuja the Appellant stated in paragraph 61C of his Counter-Affidavit on page 378 of the Record that he was aware of this Suit and obtained a copy of the processes on his own from the Court Registry at about 3.30 p.m. on 24/1/2011.
In my humble view, the object of all types of service of Court Processes, whether personal or substituted is to give notice to the other party on whom service is to be effected of the case he is going to meet in order to enable him prepare his defence.
The admission that the Appellant was aware of the Suit and that he obtained a copy of processes on his own from the Court Registry at about 3.30 p.m. on 24/1/2011 has knocked out the bottom of the Appellant’s contention on the issue of service.
See Ajibola v. Sogeke (Supra).
Furthermore, it is on record that learned Senior Counsel for the Appellant responded to the issue raised in the Originating Summons and he did not at anytime raise the issue of non-service before the lower Court, rather he participated in the proceedings. In the circumstance, he is deemed to have waived any issue of service as he is fully aware of the processes.
See: – Ariori & Others vs. Elemo & Others (1983) 14 NSCC Page 1 at 8 where the Supreme Court reiterated that:-
“The concept of waiver presupposes that the person who is to enjoy a benefit or who has the choice of two benefits, is fully aware of the benefits and has earlier neglected to exercise his rights to the benefit or where he has a choice of two, he decides to take one but not both.”Consequent upon the foregoing this Issue No. A is resolved in favour of the 1st Respondent and against the Appellant.
ISSUE B
Whether the failure of the learned trial Judge to properly evaluate evidence and pronounce on all the issues raised by the Appellant was a breach of fair hearing occasioning a miscarriage of Justice.
The learned Senior Counsel for the Appellant contended that the learned trial Judge did not evaluate the evidence placed before him.
He referred to Page 579 lines 10 – 12 of the Record of Appeal and submitted that there is no evidence on record where Counsel for the Appellant admitted that the Appellant was disqualified. He referred to Paragraph 6(a-f) of the Appellant’s Counter-Affidavit in opposition to the 1st Respondent’s Amended Originating Summons at Page 377 of the record and Exhibits A and B attached to the Counter-Affidavit at Pages 380 and 385 respectively.
He submitted that since the trial Court failed to evaluate Exhibits “B” and “C” attached to the Appellant’s Counter-Affidavit, it has denied the Appellant fair hearing thus occasioning a miscarriage of Justice.
He relied on the cases of:-Oba Adebanjo Mafimisebi vs. Prince Macaulay Eluwa (2007) 2 NWLR Part 1018 Page 433 Paragraph F – H; -Adebisi v. Ekwelor (1993) 6 NWLR Part 302 Page 643; -Adeyeri II v. Afanela (1995) 5 NWLR Part 397 Page 512.
He went further that this matter was predicated on the Amended Originating Summons dated 24/1/2011 at the lower Court and that the 1st Respondent relied on Electoral Guidelines for Primary Election 2010 of the Peoples Democratic Party which he claimed was not exhibited.
He went further that assuming but not conceding that the said document i.e. Electoral Guidelines for Primary Election 2010 of the PDP was exhibited and was in evidence that it would not have been helpful to the case of the 1st Respondent.
He referred to Article 27(iii) of the Electoral Guidelines.
It was contended that it was one Festus Keyamo who was not an aspirant who was said to have written a Petition on behalf of Orlu Progressive Indigenes to the National Chairman of the Party and made allegations which were not among the grounds specified in the Party Guidelines and 1999 Constitution of the Federal Republic for Nigeria for disqualifying an aspirant.
He submitted that the Appellant was not given fair hearing at the lower Court.
He relied on the following cases:-Ika Local Government Area vs. Augustine Mba (2007) 12 NWLR Part 1049 Page 704 Paragraphs A – C;- NEPA v. Arobieke (2006) 7 NWLR Part 979 Page 245;-Fagbule vs. Rodrigues (2002) 7 NWLR Part 765 Page 188;-Ariori vs. Elemo (1983) 1 S. C. Page 1.
He finally urged this Court to resolve this issue in favour of the Appellant.
The learned Senior Counsel for the 1st Respondent stated that the case of the 1st Respondent is that the Appellant was not qualified to participate in the Primary Election held on 8/1/2011 having been disqualified by the Screening Appeal Panel of the 2nd Respondent.
He went further that the Appellant annexed the letter dated 5/1/2011 written on his behalf and instruction to the National Chairman of the PDP in his Counter-Affidavit to the Motion on Notice and the Originating Summons.
The learned Senior Counsel for 1st Respondent referred to the Counter-Affidavit to the Plaintiff’s Amended Originating Summons where the Appellant alleged that: –
“The 2nd Defendant’s National Working Committee considered the Plaintiff’s protest and found as a matter of fact that the Petition written by the Plaintiff was false and that the 1st Defendant was given no opportunity to be heard before his clearance to contest the primary elections was purportedly withdrawn.”
He submitted that the National Working Committee of the 2nd Respondent did not meet to consider Appellant’s protest and clear him as provided in the Electoral Guidelines.
In the Appellant’s Reply Brief of Argument, the learned Senior Counsel referred to the Report of the Appeal Panel on Pages 383 – 384 of the Record of Appeal.
The reason given by the Appeal Panel Report for not clearing the Appellant was bankruptcy, armed robbery and obtaining by false pretences.
He submitted that a person accused of a criminal offence shall be presumed innocent. He relied on Section 36(5) of the 1999 Constitution and the case of:-Garba vs. University of Maiduguri (1986) NSCC Page 245.
The 1st Respondent’s case as plaintiff before the trial court was that the Appellant was not qualified to participate in the primary election held on 8/1/2011 having been disqualified by the Screening Appeal Panel of the 2nd Respondent.
The letter written on behalf and on the instruction of the Appellant to the National Chairman of the PDP dated 5/1/2011 was attached to the Counter-Affidavit to the Motion on Notice and the Originating Summons, (See Pages 381 and 382 of the Record of Appeal).
Part of the said letter reads:-
“…at about 4.00 p.m. today the 5th day of January, 2011 information went round that our client has been disqualified… The panel without a hearing or opportunity of hearing … condemned and damnified (sic) him by disqualifying him.”
There is also the Report of the Screening Appeal Panel which unequivocally disqualified the Appellant by setting aside his earlier clearance and in place thereof issued a certificate of non-clearance. This was attached to the processes filed before the trial Court. (See page 383 to 384 of the Record of Appeal).
The question which the trial Court should answer is whether after the disqualification of the 1st Defendant (i.e. Appellant in this Court) the Appellant cleared by the National Working Committee of PDP thus was overruling the decision of the Appeal Panel.
The Learned trial Judge rightly in my view referred to Article 27 (xii) of the PDP Electoral Guidelines for primaries which states that:-
“Notwithstanding the provisions of these guidelines and the other rules or regulation laid down by the Party, the decision of the National Working Committee NWC shall be final and binding on all aspirants, officers and organs of the party in respect of the Primary Elections to the National Assembly on the platform of the Party.”
The Learned trial Judge noted as follows:-
“The pertinent question is did the NWC meet and take the decision reversing the finding of the Appeal Panel. I have seen a minute on Exhibit PDP I which is an appeal to PDP Chairman by the 1st Defendant’s Solicitor directing that the 1st Defendant be issued with certificate of clearance.”
The documents referred to above were before the lower court as shown earlier in this Judgment.
The next question which the trial Court resolved was –
“Did the National Working Committee of the 2nd Respondent meet, consider the Appellant’s protest and cleared him as provided in the Electoral Guidelines?
The Learned trial Judge rightly resolved the question when he held that:-
“Neither Chief Oke nor Mr. Paul Erokoro SAN is able to show that the NWC took a decision on the matter. The minutes on the 1st Defendant’s solicitor’s letter cannot satisfy the requirements of Section 27 (xii) of the Guidelines.”
It is also pertinent to note that neither the Appellant nor the 2nd Respondent challenged the assertion in the 1st Respondent’s counter-affidavit filed against the Notice of Preliminary Objection that “the letter dated 5th January, 2011 and referred to in the 1st Defendant’s counter-affidavit was not signed nor minuted by the then National Chairman of PDP Dr Okwesilieze Nwodo.”
Consequent upon the foregoing, it is my view that the said Counter-Affidavit remain unchallenged and uncontroverted because where facts in respect of anything deposed to in a counter-affidavit or further counter- affidavit are not met or addressed by the other party in a further and better affidavit, the proper conclusion to reach is that the facts stated in the counter-affidavit or further affidavit remain unchallenged.
See the following cases:-Ondo State vs. A.G. Ekiti State (2011) 17 NWLR Part 748 Page 706 at 749-750;-F.B.N. Plc v. Ndarake & Sons Nig Ltd. (2009) 15 NWLR Part 1164 Page 406 at 414 to 415;-Ex-Parte Adesina (1996) 4 NWLR Part 42 Page 254 at 261-262. My conclusion on this issue is that the trial Judge properly evaluated the evidence, he did not deny the Appellant his right to fair hearing in that it was the evidence submitted by the Appellant and 2nd Respondent that the trial Judge relied upon in arriving at the conclusion that the Appellant was not cleared to contest the said primaries and he stand disqualified.
This Issue B is also resolved in favour of the 1st Respondent and against the Appellant.
ISSUE C
Whether it was appropriate for the 1st Respondent to have commenced this action by Originating Summons when issues and facts were disputed and contentious.
Learned Senior Counsel for the Appellant referred to Order 3 Rules (6) & (7) of the Federal High Court (Civil Procedure) Rules 2009.
He stated that it is only actions that are not hostile or disputed that can be commenced by Originating Summons.
It was contended that Electoral Guidelines for Primary Election 2010 of the Peoples Democratic Party was never exhibited with the Amended Originating Summons. But alternatively, assuming without conceding that the Electoral Guideline for PDP Primary Election was before the trial court, he then submitted that the facts in the affidavit are disputed and hostile and will require parties to call oral evidence for its resolution.
The Learned Senior Counsel for the Appellant referred to paragraph 7 (f, g and h) of the 1st Respondent’s affidavit in support of the Originating Summons and Paragraphs 6(a) to (k) of the counter-affidavit of the Appellant (who was the 1st respondent at the trial Court).
He then submitted that there is a serious dispute of facts concerning the principal issues to be determined in the suit.
He relied on the following cases:- Oloyo v. Alegbe (1983) 2 SCNLR page 67 paragraph B-D;- Ossai v. Wakwah (2006) 4 NWLR Part 969 page 208 at 228 Paragraphs A-D.;- Ajagungbade v. Adeyelu II (2001) 16 NWLR part 738 Page 126 at 197 Paragraph G-H.;- Inakoju vs. Adeleke (2007) 4 NWLR Part 1025 at Page 423.
He also referred to Order 3 Rule 8 of the High Court Civil Procedure Rules.
He submitted that this action ought to have been commenced by Writ of Summons considering the hostile nature of the facts as provided by Order 3 Rule (2) of the Federal High Court Rules 2009.
He relied on the case of:-Olaniyan v. Oyewole (2008) All FWLR Part 399 Page 503.
He finally urged that this appeal be allowed and set aside the Judgment of the trial Court delivered on 28/1/2011.
In his response, the Learned Senior Counsel for the 1st Respondent submitted that upon a careful examination of the Originating Summons in this suit, vis-a-vis the radical question which the Learned trial Court was called upon to determine, it is beyond doubt that the simple and straight issue revolves around the meaning and effect of Article 27 (v) and (xii) of the PDP Electoral Guidelines.
Undoubtedly he stated that the determination and or construction of the above referred Article 27 (v) and (xii) of the PDP Electoral Guidelines fall squarely within the contemplation of the law concerning the use of Originating Summons.
He referred to the following cases:-Ossai vs. Wakwah (Supra); -National Bank of Nigeria Ltd. & another v. Alakija & another (1978) 9-10 S.C. Page 59 at 71.;-Agbakoba vs. INEC (2008) 18 NWLR Part 1119 Page 489 at 530 Paragraph E-F.
It was also submitted by Learned Senior Counsel for the 1st Respondent that neither issue for determination nor any argument in the Appellant’s brief of argument in connection with:
Ground 3
Ground 5
Ground 6
Ground 7
Ground 8 and
Ground 10 in the Notice of Appeal filed on 9/2/2011.
He submitted that where no issue is formulated from a Ground of Appeal it is deemed abandoned and ought to be struck out.
He relied on the following cases:-
-Pacers Multi-Dynamic Ltd v. Dumang Sisters (2000) 3 NWLR Part 648 Page 241;
-Epe Local Government v. Keshinro (2009) FWLR part 473 page 1275 at 1285 paragraph B;
-Onuoha v. Nwabueze (2001) 48 WRN Page 84 at 91.
In his reply brief of argument the Learned Counsel for the Appellant reiterated the view earlier canvassed in the Appellant’s brief of argument and he urged that the Appeal be allowed.
It trite that it is the plaintiff’s claim that determines the jurisdiction of the Court. See the following cases:-
-Adeyemi vs. Opeyori (1976) 9-10 S.C. Page 31
-Okonma vs. Nwaegbu (1992) 2 NWLR Part 225 Page 622
The issue before this court is in respect of interpretation of documents referred to by Learned Counsel for the Parties.
The following facts are not in dispute:-
(a) That the Senatorial Primary Election conducted on 8/1/2011 was governed and regulated by the PDP Electoral Guidelines.
(b) The Appellant was disqualified by the National Assembly Appeal Panel from participating in the Senatorial Primary Election.
(c) The Appellant through his solicitors petitioned the National Chairman of the PDP against the disqualification to contest the Senatorial Primary Election.
It is on record that the Appellant filed a counter-affidavit in opposition to the Originating Summons but the law is firmly established that where there is enough documentary evidence outside the conflicting evidence, the court can make use of the documentary evidence in resolving the issue before it. And there will be no need to resort to any oral evidence in such circumstances. See the case of:-Lijadu vs. Lijadu (1991) 1 NWLR Part 169 Page 627 at 649.
In the final analysis it is my view that it was appropriate for the 1st Respondent to have commenced the action by Originating Summons.
This Issue C is also resolved in favour of the 1st Respondent and against the Appellant.
Since there is no issue for determination nor any argument in the Appellant’s brief in respect of grounds 3, 5, 6, 7, 8 and 10 in the Notice of Appeal filed on 9/2/2011, the said grounds are deemed abandoned and they are hereby struck out.
With the resolution of the three issues for determination in this appeal against the Appellant and in favour of the 1st Respondent, this Appeal is hereby dismissed. The Judgment of trial Court delivered on 28/1/2011 is hereby affirmed.
There shall be no order as to cost.
JIMI OLUKAYODE BADA, J.C.A.:
This Appeal No CA/A/51A/2011 was consolidated with Appeal No CA/A/51/2011. The Appeals are against the Judgment of the Federal High Court, Abuja delivered on the 28th day of January 2011.
Briefly, the facts of the case are that the 1st Respondent who was the Plaintiff at the lower court commenced this action by Originating Summons on 11/1/2011. The Originating Summons was later amended. (See pages 192-195 of the Record of Appeal).
The Appellant in response to the Originating Summons filed a Counter-Affidavit. The parties filed, exchanged and adopted their respective written addresses. Judgment was delivered in favour of the 1st Respondent who was the plaintiff at the lower court.
The Appellant who was dissatisfied with the said Judgment now appealed to this court.
The Learned Counsel for the Appellant formulated three issues for determination, the issues are set before the court as follows:-
“(1) Given the facts of this case the Provisions of the Nigerian Constitution 1999 as amended, the Appellant’s Constitution and Electoral Guidelines, was the lower Court right in upholding the decision of the Appellant’s National Assembly Election Appeal Committee cancelling the Provisional clearance issued to the 2nd Respondent?
(2) Whether the 1st Respondent who did not score the highest votes at the primary election and was nominated by the Appellant in line with Section 31 (1) of the Electoral Act 2010 was rightly declared Appellant’s candidate for Imo West Senatorial District.
(3) Whether the 1st Respondent adduced credible and sufficient evidence before the Trial Court to entitle him to the reliefs sought.”
The learned Counsel for the 1st Respondent stated that the real issues for determination in this appeal are:-
(a) Whether the Learned Trial Judge rightly determined the issue before it and is consistent with the evidence adduced by the parties.
(b) The 1st Respondent will however adopt and respond to the issue for determination formulated by the Appellant.
(c) The 1st Respondent will respectfully contend at the hearing of this appeal that issues 1 & 2 in the Appellant’s issues for determination are grossly incompetent.
I have carefully examined the issues formulated for determination by learned Counsel for the Parties in this Appeal. Issue No 1 by the Appellant is different from the case presented by the Appellant who was 2nd Defendant before the trial Court. In fact the Appellant introduced new issues not canvassed before the lower Court. The Appellant cannot set up a fresh case on appeal. See the following cases:-Akinyanju v. University of Ilorin 7 others (2005) 7 NWLR Part 923 Page 87 at 113 paragraphs E-H.;- Ajide vs. Kelani (1985) 2 NWLR Part 12 Page 248;-Horizon Fibres Nig Plc vs. M. V. BACCO Liner & 1 other (2002) 8 NWLR Part 769 Page 466 at 489.
As for Issue No 2 formulated on behalf of the Appellant, it is my view that it is incompetent because Ground 2 upon which it is based has no particulars.
This is contrary to the provisions of Order 6 Rule 2 (2) of the Court of Appeal Rules 2007.
See the following cases:-
-Aniekwe vs. Okereke (1996) 6 NWLR Part 452 Page 60 at 71 Paragraph E.
-Ogbuli vs. Ogbuli (2008) All FWRL Part 401 Page 953 at 963-964.
-Lucas Pharmaceutical Chemist Ltd vs. Roche Nig Ltd (1995) 1 NWLR Part 369 Page 28 at 35-36.
In view of the foregoing Issues Nos. 1 & 2 formulated by the Appellant are hereby discountenanced.
I am now left with Issue No 3 in the Appellant’s brief of argument and issue A in the 1st Respondent’s brief of Argument. However it is my view that Issue No 3 formulated in the Appellant’s brief of argument would settle the issues in controversy between the parties.
ISSUE NO 3
Whether the 1st Respondent adduced credible and sufficient evidence before the trial court to entitle him to the reliefs sought.
The Learned Counsel for the Appellant submitted that where the plaintiff claims declaratory reliefs as in this case, the burden lies on him to lead credible evidence to establish his entitlement to the declarations sought. He is not entitled to rely on the weakness in the case of the Defendants.
He relied on the following cases:-
-Bello vs. Emeka (1981) 1 SC Page 101
-Adeniyi vs. Adenji (1972) 4 S.C. Page 10
-Onu vs. Agu (1996) 5 NWLR Part 451 Page 652 at 662-663.
-Onagoruwa v. JAMB (2001) 10 NWLR Part 722 Page 742 at 754 Paragraph F-G ratio 6.
He went further that the fact presented before the court were that:-
(i) an appeal was lodged to the National Working Committee by the 2nd Respondent against the decision of the Screening Appeal Committee.
(ii) the National Legal Adviser who is a member of the National Working Committee informed the deponent that the Committee “after a calm consideration of the Appeal Panel Report as well as the Petition upon which the disqualification was predicated, the National Working Committee came to the conclusion that the disqualification of the 1st Defendant was without valid ground and accordingly cleared the first Defendant winner for the Primary Election.”
It was contended on behalf of the Appellant that the trial court was wrong when it held among others that the 1st Defendant stands disqualified.
Learned Counsel for the Appellant submitted that the clearance certificate at page 380 of the record is a direct evidence that the National Working Committee overruled the Appeal Panel.
He went further that there is no law or rule which says that the decision of a political party can only be established through minutes of meeting.
It was also stated that the 1st Respondent despite his knowledge of the report participated in the primary elections without protest.
He submitted that the 1st Respondent waived his right to rely on report by participating.
He relied on Section 151 of the Evidence Act and the case of:–Yusuf vs. Dada (1990) 4 NWLR Part 146 Page 657 at 681.
He went further that the Appellant’s Electoral Guidelines was not made available to the court.
He relied on Olagbemiro v. Ajagungbade III (1990) 3 NWLR Part 136 Page 37 at 63.
He finally urged that this issue be resolved in favour of the Appellant.
On the other hand the Learned Counsel for the 1st Respondent referred to Exhibit PDP I i.e. the Letter of Appeal dated 5/1/2011. He went further that on the strength of the letter dated 5/1/2011 and the minute thereon being relied upon by the Appellant and the 2nd Respondent, the learned trial Court was entitled to determine the issues on the basis of the documents before it as against bare assertions in the Counter-Affidavit filed by the Appellant and the 2nd Respondent.
He relied on the following cases:-
-Fashanu vs. Adekoya (1994) 6 S.C. Page 84.
-Kimdey v. Military Governor of Gongola State (1988) 2 NWLR Part 77 Page 445.
-Etim v. Obot & Others (2010) 12 NWLR Part 1207 at 108 at 157 Paragraphs D.
In this case the Appellant and the 2nd Respondent insisted that the N.W.C. met, considered the appeal/letter dated 5/1/2011 acted thereon and thereafter cleared the 2nd Respondent. But there is no evidence that the National Working Committee cleared the 2nd Respondent.
The learned trial Judge was therefore right when he resolved the issue thus:-
“Neither Chief Oke nor Paul Erokoro SAN is able to show that the NWC took a decision on the matter. The minutes on the 1st Defendant’s Solicitors letter cannot satisfy the requirements of Section 27(xii) of the Guidelines.”
It was also contended by the Appellant that after the amendment effected on the Originating Summons the Electoral Guidelines was no longer a document before the court. Contrary to the above view, by paragraphs 7(a) and (b) of the affidavit in support of the Amended Originating Summons, the Electoral Guidelines was specifically referred to as an Exhibit in the suit.
In the circumstance the Electoral Guidelines was properly before the trial Court. The trial Court was therefore perfectly entitled to refer to and rely on same in resolving issues before it.
See the following cases:-
-South East Newspaper Corporation v. Aniwara (1975) 9-11 S.C. Page 55;
-Nwosu v. Imo State Environmental Sanitation Authority (1990)2 NWLR Part 135 Page 688 at 735 Paragraph B.
Consequent upon the foregoing it is my view that the 1st Respondent adduced credible and sufficient evidence before the trial court to entitle him to Judgment.
This issue is therefore resolved in favour of the 1st Respondent.
In the final analysis, having discountenanced Issues No. 1 and 2 formulated on behalf of the Appellant coupled with the fact that Issue 3 was resolved in favour of the 1st Respondent, it is my view that this appeal lacks merit and it is accordingly dismissed. The Judgment of the trial Court delivered on the 28th day of January, 2011 is hereby affirmed.
There shall be no order to costs.
MOHAMMED LAWAL GARBA, J.C.A.:
My learned brother BADA JCA had availed me of a draft of the lead judgment delivered in these consolidated appeals.
His lordship has comprehensively considered the germane issues submitted by the parties for determination in the appeals in line with the position of the law on them. All the views expressed in the lead judgments are the same with mine and for all the reasons so lucidly set out there, I too dismiss the appeals No. CA/A/51/2011 and CA/A/51A/2011 for lacking in merit. I do not wish to say more than that I abide with all the consequential orders made in the two judgments.
REGINA OBIAGELI NWODO, J.C.A.:
I have been privileged to read in draft the judgment of my learned brother BADA, JCA, just delivered. I agree with the reasoning contained therein and the conclusion arrived thereat.
It is the contention of the learned senior Counsel for the Appellant that the court below abandoned his primary role of evaluating evidence before him and based his judgment on extraneous evidence contrary to the principle of fair hearing as enshrined and S36(1) of the constitution of the Federal Republic of Nigeria 1999. He contends further that the Court below came to erroneous conclusion that the Appellant was disqualified because it did not consider evidence in favour of the Appellant, he referred to paragraph 6 (a – f) of the Appellant’s Counter-Affidavit and the exhibited exhibits A and B to the Counter-Affidavit and submitted that since the trial Court failed to evaluate exhibits B and C attached to the Appellants’ Counter-Affidavit it has denied the Appellant fair hearing thus occasioning a miscarriage of justice. The right to fair hearing is enshrined under S.36(1) of the Constitution of the Federal Republic of Nigeria 1999. This provision affords all parties that appear before the Courts or Tribunals in this Country the right to be given a reasonable opportunity to present their respective cases. It is a Constitutional duty and an obligation on each Court of law.
Any Proceeding in which any party have been denied a fair hearing in line with the provisions of S36 (1) of the Constitution have been held to be void and an exercise in futility. See Olatunbosun v. N.I.S.E.R.C (1988) 3 NWLR (Pt.856) 134. In the instant Appeal, the Appellant presented his case by filing a Counter-Affidavit exhibiting documents. Thus he was given the opportunity to present his version and he did by filing the Counter-Affidavit. The question of consideration of the affidavit evidence and documents relates to the issue of the trial Courts’ appraisal of evidence. The doctrine of fair hearing, in recent times has been raised by lawyers as legal strategy to digress from the live issues. The fair hearing provision is not a casual principle of law but a fundamental constitutional provision available to a party who was not heard in a case or was not given the opportunity to be heard.
The question of evaluation of evidence is essentially that of the trial judge and where he has unquestionably evaluated evidence and justifiably appraised the facts it is not the business of the appellate court to interfere.
In this appeal the trial court considered exhibit B as reflected in the record of appeal contrary to the submission of the learned Senior Counsel for the appellant. In respect of exhibit A and C exhibited in the Counter-Affidavit. It is obvious from the judgment this exhibits were also considered under the decision of the screening panel in relation to question whether the appellant was cleared by the National Working Committee. From the record, it is clear that the trial court relied and considered the documentary evidence submitted by the appellant and the 2nd respondent, before it arrived at its final decision.
The trial Court had the right to look at all the documents in the Courts file and the Court properly construed the provisions of the Electoral Guidelines for Primary Elections 2010 as it relates to the parties. The principle of a trial Court referring and relying on documents in the Courts file to arrive at a decision is well settled. See Nwanosike v. Udosen (1993) 4 NWLR (Pt.290) Pg 684. The electoral guidelines were referred to as an exhibit in the Originating Summons and the learned trial Judge rightly referred and relied on same. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt.135) pg 688.
South East Newspapers Corporation v. Anwara (1975) 9-11 SC 55.
Therefore, I have no reason to interfere with the decision of the trial Court in relation to the provision of Article 27 (xii) of the Electoral Guidelines. The evidence before the Court was duly appraised and did not occasion miscarriage of justice.
Miscarriage of justice arises when what is done is not in accordance with the law.
See Adigun v. A.G. Oyo State (1987) 1 NWLR (pt.53) 678. Adebayo V. A – G Ogun State (2008) 7 NWLR (Pt.1085) SC 201. Consequently, I hold that the trial Court did not rely on extraneous matter to arrive at its decision and thus the decision is not perverse nor did it occasion any miscarriage of justice. For the above reasons and the fuller reason in the lead judgment, I hold that this appeal is devoid of merit and is hereby dismissed. I affirm the decision of the trial Court delivered on 28/01/11, I make no order as to cost.
REGINA OBIAGELI NWODO, J.C.A:
I have read the lead judgment of my learned brother BADA, JCA, I agree with the reasoning and conclusion that issues 1 and 2 formulated by learned counsel for the appellant be discountenanced. It is trite that issues distilled for determination in any Appeal must arise from the Ground of Appeal. It is the contention of the learned Counsel for the Appellant that the clearance certificate at page 380 of the record is direct evidence that the National Working Committee overruled the appeal panel. From the judgment the trial court relied on the electoral guidelines for primaries to hold that there was no evidence that the National Working Committee conferred with the powers to take a final decision in respect of clearance had a meeting and pronounced on the issue.
Where a party produces the electoral guidelines for the conduct of its primary elections and therein prescribed the procedure to follow before an aspirant will participate in the primary election, the party is enjoined to observe the procedure if subscribed to unless it is contrary to the principle of justice as enshrined in the Constitution. When a party claims the procedure in the guideline has not been followed the onus falls on the same party to show non-compliance before it will shift to the adverse party to show observance. In the instance Appeal, the totality of the evidence presented before the Court did not show when the National Working Committee took a final decision on issue of clearance. This onus was not discharged.
There is no reason to interfere with the decision of the Court below.
For the forgoing and the fuller reason in the lead judgment I dismiss this Appeal and abide by the consequential order in the lead judgment.
