Orhena Adugu Gbileve V Mrs. Ngunan Addingi (2014)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKAAHS, J.S.C.

The appellants in this appeal are the 1st and 3rd Defendants respectively in the Originating Summons filed before the Federal High Court Abuja in Suit No. FHC/ABJ/CS/201/2011 on 14/2/2011 wherein the 1st respondent (as Plaintiff) raised five (5) questions for determination and sought for seven (7) reliefs based on section 153 of the 1999 Constitution (as amended), Section 87 of the Electoral Act, 2010 and the 1st Defendant’s (2nd Appellant’s) Guidelines for Nomination of candidates. On 3rd March, 2011, the suit was transferred by B. B. Aliyu J to the Federal High Court Makurdi and re-numbered FHC/MKD/CS/24/2011. The gist of the action was predicated on the claim by the 1st Respondent (Plaintiff) that after the party primaries she emerged the winner but the 1st appellant was declared the winner as the candidate to contest the election for the Buruku constituency in the Benue State House of Assembly slated for 6th April, 2011 on the platform of the Action Congress of Nigeria.

The questions which the Plaintiff submitted for determination are:-

1. Considering the clear provisions of the Electoral Act 2010 and the fact that the 1st Defendant conducted its Primary Election in Benue State on the 12th January, 2011 for the purpose of nominating its House of Assembly Buruku constituency candidate slated for 14th April, 2011 and announced its result, whether it is not mandatory for the 1st Defendant to nominate its House of Assembly Buruku constituency candidate for the April 2011 on the basis of the said Primary Election.
2. Having regard to the provisions of section 153 of the Constitution of the Federal Republic of Nigeria 1993 as amended and all other provisions of the same Constitution setting out the powers and functions of the 2nd Defendant, and section 87 of the Electoral Act 2011 mandating all political parties 1o conduct Primary Elections and the recent circular of the 2nd Defendant dated 27th January 2011 directing all the parties to comply with section 87 of the Electoral Act 2010, whether it is not mandatory for the 1st Defendant to nominate the Plaintiff as its House of Assembly candidate for Buruku constituency of Benue State held on 14th April 2011
3. Considering the express provisions of section 87 of the Election (sic) Act 2010 and the timetable of activities for the 2011 General Elections, whether the 1st Defendant can submit the name of the 3rd Defendant as its candidate for the House of Assembly General Election of Buruku Constituency; the 3rd defendant not being the winner of the House of Assembly Primary Election of Buruku Constituency of Benue State held on the 12th January 2011 which election was monitored and supervised by the officials of the 2nd Defendant
4. Having regards to the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended and the Electoral Act 2010, whether the 1st Defendant having screened and cleared the plaintiff to participate in the 1st defendant’s House of Assembly primary election for Buruku constituency of Benue State held on the 12th January 2011 and having contested and won the said Primary Election, whether the 1st Defendant can refuse to submit the name of the Plaintiff as the House of Assembly candidate of the 1st Defendant for the April General Elections into the Bukuru constituency of Benue State.
5. Having regard to section 87 of the Electoral Act 2010 and the Primary Election conducted in Benue State by the 1st Defendant, whether it is within the powers of the Board of Trustees of the 1st Defendant to submit the name of the 3rd Defendant to the 2nd Defendant as the 1st Defendant’s House of Assembly Candidate of Buruku Constituency of Benue State for the General Elections slated for 6th April, 2011, the 2nd Defendant not having won the January 12th, 2011 Primary Election of Buruku Constituency of Benue State monitored and supervised by the officials of the 2nd Defendants.

She then sought for the following reliefs:-

1. A DECLARATION that having conducted a primary election in the Buruku constituency of Benue State on the 12th January, 2011, for the purpose of nominating the 1st Defendant’s candidate for the General Election slated for the 6th April, 2011, it is mandatory for the 1st Defendant to nominate the winner of the said Primary Election, as the party’s flag bearer for the purpose of participating and contesting in the Buruku Constituency of Benue State slated for 6th April 2011 in accordance with the Electoral Act 2010 and the 1st Defendant’s guidelines for the nomination of candidates.
2. A DECLARATION that the Plaintiff having scored the highest number of votes and declared winner by the electoral officer in the 12th January 2011 Primary Election of the 1st Defendant she is entitled to fly the 1st Defendant’s House of Assembly flag for Buruku Constituency for the 6th April Election in the General Election in Benue State in accordance with section 87 of the Election (sic) Act, 2010.
3. A DECLARATION that the refusal of the 1st Defendant to submit the name of the Plaintiff to the 2nd Defendant as the 1st Defendant’s flag bearer for the General Election into the Makurdi South Constituency House of Assembly in Benue State slated for the 6th April, 2011 after winning the Primary Election is contrary to the provisions of the Electoral Act, 2010 and the 1st Defendant guidelines for nomination of candidates.
4. A DECLARATION that it is illegal, unlawful and contrary to both the Electoral Act 2010 and the 1st Defendant’s guideline for the 1st Defendant to submit the name of the 3rd Defendant to the 2nd Defendant as the House of Assembly candidate for Buruku constituency of Benue State in the General Election slated for 6th April 2011 after the Plaintiff emerged as the winner of the House of Assembly Election Primaries of Buruku Constituency of Benue State conducted by the 1st Defendant to pick its House of Assembly candidate for the said election.
5. AN ORDER of injunction restraining the 2nd Defendant either by itself, officers or agents, privies, staff or through any person or persons howsoever from recognising, accepting or dealing with the 3rd Defendant as flag bearer of the 1st Defendant in the April 6th 2011 General Election having not emerged in accordance with the Electoral Act, 2010.
6. AN ORDER directing the Defendants particularly the 2nd Defendant to recognise, accept, and deal with the Plaintiff as the flag bearer of the 1st Defendant in the Burulu House of Assembly constituency of Benue State slated for 6th April 2011 having emerged as the winner of the 1st Defendant’s Primary Election held on the 12th day of January 2011 in accordance with the Electoral Act 2010.
7. AN ORDER directing the 1st Defendant to submit the name of the Plaintiff who got the highest number of votes at the 1st Defendant’s House of Assembly Primary Election for Buruku constituency of Benue State to the 2nd Defendant as the validly nominated candidate to represent the 1st Defendant at the April 6th 2011 General Election.

The trial court resolved the matter based on the affidavit and documentary evidence before it. That court after making a finding as to the victory of the 1st Respondent in the primaries found for the 1st Respondent and answered the questions formulated for determination in favour of the 1st Respondent and granted all the reliefs sought. It specifically made orders for the return of the 1st Respondent’s name as the lawful aspirant of the 2nd appellant to be nominated as candidate of the Action Congress of Nigeria in the April General Election 2011 for Buruku House of Assembly seat and to be issued the certificate of return by the 2nd respondent, the 2nd Appellant having emerged successful in the general elections. The judgment was delivered on 9/6/2011.

Following this judgment the Appellants who were dissatisfied appealed to the Court of Appeal, Makurdi. The appeal was dismissed on 16/3/2012 and the judgment of the trial court affirmed. The appellants have further appealed in the Notice of Appeal dated 5th June, 2012 containing 8 grounds. The appellants filed an amended brief of argument on 12/9/2013. The 1st respondent’s brief was filed on 20/6/2012 while the 2nd respondent’s brief was filed on 21/11/2012. All the briefs were deemed duly filed on 4/11/2013, the date the appeal was heard.

In the amended appellants’ brief the appellants formulated three issues for determination namely:-

1. Whether the lower court was correct to have affirmed the jurisdiction of the trial court to entertain 1st Respondent’s suit (Grounds 6 & 7)
2. Having regards to the facts and evidence adduced in this case couple (sic) with the applicable law, did the 1st Respondent prove her case to be entitled to judgment as decided by the trial court and affirmed by the lower court (Grounds 1, 5 & 8)
3. Whether the lower court acted correctly in agreeing with the trial court when it failed or refused to order pleadings and/or take oral evidence to resolve the obvious material conflicts in the competing affidavits and counter affidavit of the parties before proceeding to judgment against the appellants. (Grounds 2).

In her brief, the 1st respondent presented the following two issues for determination:-

1. Whether the learned Justices of the Court of Appeal were right in upholding the jurisdiction of the Federal High Court.
2. Whether the learned Justices of the Court of Appeal were right in holding that the trial court had properly evaluated the evidence adduced before the court both affidavit and documentary evidence in the light of the pleadings before it in the lower court before arriving at its findings and conclusion and affirming the judgment of the lower court.

The 2nd appellant framed three issues for determination as follows:-

1. Whether the lower court was right to have affirmed the jurisdiction of the trial court (Grounds 6 and 7)
2. Whether having regard to the evidence before the court, the Court of Appeal was wrong when it upheld the decision of the trial court that 1st respondent won the primary election conducted by the 2nd Defendant (Grounds 1, 2 and 4).
3. Whether having regard to the nature of the case as well as its subject matter, the appellants suffered any miscarriage of justice when the learned trial Judge abridged the time for parties to file necessary papers in defence of the case (Grounds 3).

Before counsel for the parties adopted their briefs and made oral submissions, learned counsel for the appellants applied orally to substitute the name of the 2nd appellant because of the merger of the Action Congress of Nigeria (ACN) with Congress for Progressive Change (CPC) and other parties to form the ALL Progressive Congress (APC). The application was granted and the 2nd Appellant became “All Progressive Congress (APC)”.

The arguments advanced by learned counsel for the appellants on the issues of jurisdiction, proof and deciding the case by originating summons instead of pleadings and calling of oral evidence may be summarised as follows:-

1. That since the principal claims in reliefs 1, 2, 3, 4 and 7 are against the 2nd appellant which is not an agency of the Federal Government and it is only the ancillary reliefs in claims 5 and 6 that affected the 2nd respondent, the lower court was in error to have affirmed the jurisdiction of the Federal High Court to entertain the action of the 1st respondent since a court cannot hear and determine ancillary claims if it has no jurisdiction to entertain the main claim.
2. That for the 1st respondent to succeed in her claim and be granted any of the reliefs sought, she was bound to plead and produce the scores of the aspirants at the said primary election and also plead and prove that she had a simple majority of the total votes cast in more than half of the wards within the Buruku State Constituency over and above any other aspirant.
3. In view of the fact that the proceedings were hostile in nature and the parties had alleged divergent facts in their affidavits, the only way in which the conflicts could be resolved was by adducing oral evidence.

The 1st respondent sought to distinguish the arguments put forward by the appellants that the trial court lacked jurisdiction to hear and determine the nomination of candidates by political parties on the premise that the relief sought is whether there was a breach of the provision of the Electoral Act and since jurisdiction is determined by the relief sought, the trial court was right in assuming jurisdiction.

The 1st respondent’s counsel submitted on the issue of the court assuming jurisdiction that the reliefs are predicated on the non compliance with the Electoral Act or Party Guidelines; consequently the court’s jurisdiction can be invoked. It was further submitted that since the 1st respondent sought an injunctive relief against the 2nd respondent which is envisaged by section 251(i) (r) of the Constitution, he could institute the action in the Federal High Court.

Turning to the issue of the conflict in the affidavits filed and the need to resolve the conflicts through oral evidence, learned counsel argued that there was no conflict in the affidavits filed. He said that what the appellants filed was affidavit evidence which was directed at distinct set of facts and did not controvert the facts which 1st respondent deposed to in her affidavit.