All Progressives Congress v. Ugonna Iroakazi (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court sitting at Umuahia, delivered on the 20th day of January 2023 by M. G. Umar, J. (hereafter referred to synonymously as ‘the trial Judge’/ ‘lower court’), in favour of the 1st respondent, as applicant before the court. Aggrieved, the appellants filed a seven ground notice of appeal on 1st February, 2023.

Facts of the case:

The case of the 1st respondent, who was the applicant in the originating summons filed by him at the lower court, is that he was the candidate of the 1st appellant for the Umuahia Central State Constituency in Abia State, at the direct primary election of the 1st respondent held on 26th May 2022 and duly monitored by INEC, the 3rd respondent, wherein he emerged victorious.

He was issued with INEC Forms, which he filled and returned to the 1st appellant to be forwarded to the 3rd respondent (INEC).

To his utmost shock, it was the name of the 2nd respondent, Mr. Kenneth Adighibe, that was forwarded and uploaded to the 3rd respondent’s portal on the 15th day of July, 2023.

Consequently, he filed an originating summons seeking the following declaratory reliefs:

A declaration by virtue of sections 29(1), (3) and 84 of the Electoral Act, 2022, and the 4th respondent’s report on the APC Governorship and State Assembly Primaries for Abia State dated the 31st day of May, 2022, the acceptance and publication of the name of the 3rd respondent by the 4th respondent as the candidate of the 1st respondent for the Umuahia Central State Constituency in the 2023 general election on the 21st day of July, 2022 are unlawful, null and void and no effect.

A declaration that the surreptitious dropping, change and/or replacement of the name applicant as duly nominated candidate of the 1st respondent for the Umuahia Central State Constituency in the 2023 general election with that of the 3rd respondent and uploading of the name of the 3rd respondent by the 1st respondent on the portal of the 4th respondent on the 15th day July, 2022 and the publication of the 3rd respondent’s name by the 4th respondent on the 21st day July, 2022 are unlawful and a contravention of sections 29(1), (3) and 84 of the Electoral Act, 2022.

An Order directing the 1st and 2nd respondents to forward the name and personal particulars of the applicant to the 4th respondent forthwith as the 1st respondent’s duly nominated candidate for the Umuahia Central State Constituency in the 2023 general election.

An order directing the 4th respondent to substitute the name of the 3rd respondent earlier forwarded to it by the 1st and 2nd respondents with name of the applicant and to also publish the applicant’s name as the duly nominated candidate of the 1st defendant for Umuahia Central State Constituency in the 2023 general election forthwith either with or without the 1st and 2nd respondents forwarding the applicant’s name to the 4th respondent.

And for any further order(s) as this honorable court may deem fit to make in the circumstances.

The case of the appellants, however, is that the primary election conducted by the 1st appellant for the Umuahia North State Constituency in Abia State was an indirect primary election from which the 2nd respondent emerged as the winner and his name forwarded to the 3rd respondent.

Upon being served with the originating summons, the appellants and the 2nd respondent filed preliminary objections challenging the competence of the action. The lower court, in its judgment, ruled on the preliminary objections and dismissed them. It proceeded to the consideration of the substantive suit and found in favour of the 1st respondent, granting the reliefs sought by him. Aggrieved, the appellants filed the instant appeal to this court on 01/02/2023.

Preliminary objection:

The 1st respondent filed a notice of preliminary objection on 23/2/2023 challenging the competence of this appeal on the following grounds:

This appeal as presently constituted is incompetent as there is no competent records that can in law ground same.The records was not compiled and transmitted in compliance with the mandatory provisions of paragraph 9 of the Election Judicial Proceedings Practice Directions, 2022 (EJPPD).

The records did not comply with the provisions of order 8 rule 7(b) of the Court of Appeal Rules, 2021 in that no schedule of fees paid for the notice of appeal was so endorsed on the records as mandatorily required by law.

There is no competent appellant’s brief of argument that can ground this appeal.

The appellant’s brief of argument filed on 16/2/2023 did not comply with the mandatory provisions of paragraph 11(b) of the Election Judicial Proceedings Practice Directions, 2022.

In his argument on the notice of preliminary objection embodied in the 1st respondent’s brief of argument, learned 1st respondent’s counsel distilled a sole issue for determination, to wit:

“Whether the appeal as presently constituted is competent?”

It is the contention of learned counsel to the 1st respondent that the record of appeal in this suit was compiled and transmitted to this court by the appellants through their counsel, contrary to the provisions of paragraph 9 of the Election Judicial Proceedings Practice Directions, 2022, which provides that it is the registrar of the lower court who is to do so and not the appellant. Also, that the record of appeal did not comply with the provisions of order 8 rule 7(b) of the Court of Appeal Rules, 2021 in that no schedule of fees paid for the notice of appeal was endorsed on the records as mandatorily required by law.

It is counsel’s further contention that the appellants’ brief of arguments did not comply with the mandatory provisions of paragraphs 11(b) of the Election Judicial Proceedings Practice Directions, 2022, as it was not concluded with a numbered summary of reasons upon which the argument is founded, citing the cases of Audu v. Marja Gideon (2014) 39 WRN 141; (2014) LPELR – 24190 (CA), INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473, Ajayi v. Akinbibami (2012) 6 NWLR (Pt. 1297) 480. He submitted, in conclusion, that contrary to order 7 rule 3 of the Court of Appeal Rules, 2021 which provides against vague grounds of appeal, ground 3 of the notice of appeal is vague and does not arise from the judgment of the trial court. The said ground and the attendant Issue four (4) formulated therefrom, are thus incompetent and should be struck out.In response, the appellants’ counsel, in an “appellant’s response to the 1st respondent’s preliminary objection and reply brief”, filed on 03/03/2023, contended that the record of appeal and the appellant’s brief of argument are competent, as an appellant can through his counsel compile and transmit the record of appeal, more so as the record of appeal in the extant case was duly certified by the registrar of the court in line with the provisions of the law. He argued that the appellant paid for the compilation and service of the records and all other necessary fees. If the registrar or staff of the court failed to include the schedule of fees, it is an administrative lapse on the side of the court’s staff, which cannot be visited on the appellant.

On the lack of inclusion of numbered summary of reasons in the appellant’s brief, counsel argued that it is a mere technicality. Gone are the days, he said, when courts are moved by technicalities at the sacrifice of substantial justice. He cited the cases of Goodwill Company Ltd. v. Calabar Cement Company Ltd (in Liquidation) & Ors. (2010) 16 WRN 108; (2009) LPELR-8351(CA), Aigbobahi & Ors. v. Aifuwa & Ors. (2006) 21 WRN 1; (2006) LPELR-267(SC) and urged that the preliminary objection be dismissed for being frivolous and lacking in merit.

Resolution:

The 1st respondent has contended that the record of appeal was compiled and transmitted to this court by the appellant through his counsel contrary to the provisions of Paragraph 9 of the Election Judicial Proceedings Practice Directions, 2022.

Paragraph 9 of the Election Judicial Proceedings Practice Directions, 2022 provides as follows:

“The Secretary of the Tribunal or Registrar of the lower court shall, within the period of not more than ten (10) days of the receipt of the notice of appeal, cause to be compiled and served on all the parties, the record of appeal.”

The important requirement from this Practice Direction is that the record of appeal should be transmitted within ten (10) days of the notice of appeal and which has been done in this case. In addition, the record was duly certified by the registrar of the lower court, as pointed out by the appellants’ counsel. This objection by the 1st respondent’s counsel thus goes to no issue, I hold. The 1st respondent’s counsel also complains that as the appellants’ brief of arguments was not concluded with a numbered summary of reasons upon which the argument is founded, it should be struck out. While I agree that the conclusion of the appellants’ brief of arguments does not contain a numbered summary of the reasons upon which the argument is founded, the otherwise proper brief which lucidly sets out the issues for determination and legal arguments, concluding with the reliefs sought from the court, will not be invalidated for the absence of a numbered summary in the concluding paragraph. The cases cited by the 1st respondent’s counsel of Audu v. Marja Gideon, INEC v. Nnaji and Ajayi v. Akinbobami (supra) are not apposite, I hold. While Audu v. Marja Gideon (supra) turns on the wrongful signing of a brief of argument, the cases of Ajayi v. Akinbibami and INEC v. Musa (supra) are on the consequence of failure to file briefs of argument within the time provided by the rules.

The 1st respondent has again contended that there is no endorsement of the schedule of fees paid for the notice of appeal filed. This is however not correct, as the notice of appeal contained at pages 366 – 371 show the fees paid by the appellant.

Counsel again challenges the competence of the grounds of appeal filed. The essence of grounds of appeal, I hold, is to give sufficient notice to the adverse party of the nature of the appellant’s complaint that such adverse party will be confronted with in court. Once a ground of appeal gives the respondent the necessary notice of the grudges the appellant has against the decision on appeal, the ground is valid and competent. See Ogboru v. Okowa (2017) 11 WRN 1; (2016)11 NWLR (Pt. 1522) 84 at 111, paragraphs E – G per M.D Muhammad JSC, Achonu v Okuwobi (2017) 28 WRN 48, (2017) 14 NWLR (Pt. 1584) 142 at 171-172 para F-C per Galinje JSC.

Also, courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Bad or defective particulars in a ground of appeal will thus not necessarily render the ground itself incompetent. This position is shaped by the contemporary shift from technicalities to substantial justice. See Omisore v. Aregbesola (2015) 44 WRN 1; (2015) 15 NWLR (Pt. 1482) 1 at 257 para B-H; (2015) All FWLR (Pt. 813) 1673 at 1713 – 1714, paragraphs H – E per Nweze, JSC.

The grounds of appeal complained of, with their attendant particulars, give sufficient notice of the complaint of the appellant, I hold. The grounds, I also hold, derive from the judgment of the lower court. I further hold that the issues for determination arise from the grounds of appeal.

I consequently dismiss the preliminary objection of the 1st respondent as being devoid of merit.

The 1st respondent has also filed a motion, dated 20/2/23, seeking for the following:

“An Order amending the records of appeal prepared and transmitted in this appeal No: CA/OW/55/2023 – APC & Anor. v. Ugonna Iroakazi & 2 Ors by the appellants by striking out the following process and court proceedings to wit:

The process or court proceedings smuggled into the said records of appeal which were not part of the proceedings in the suit No: FHC/UM/CS/142/2022 – Ugonna Iroakazi v. APC & 3 Ors before the Federal High Court, Umuahia as contained immediately after page 396 of the said records of appeal – un-paginated (2 pages) of court proceedings of 25/11/2022 in suit No: FHC/UM/CS/135/2022 – Anyim Eke Jonah v. APC & 3 Ors. in line with the affidavit of Ugonna Iroakazi challenging the records of appeal filed at the lower court with respect to this appeal No: CA/OW/ 55/2023.”

The grounds upon which the application is brought are as follow:

That the records of appeal prepared and transmitted in this appeal No: CA/OW/55/2023 is (sic) not proper in law.

That a process or court proceedings that do not form part of the proceedings in the case leading to this appeal was prepared and included in the records of appeal in this appeal No: CA/OW/ 55/2023.

That the 1st respondent/applicant upon receiving the said records of appeal immediately challenged same by his affidavit filed at the lower court.

That this application is necessary to correct the said records of appeal so that no party will be prejudiced thereby in the circumstances of the case.

It is patent from the affidavit in support of this application, deposed to by the 1st respondent and from counsel’s written address in support, that the bone of contention are two pages at the back of the record of appeal in respect of proceedings in suit No. FHC/UM/CS/135/2022 in Anyim Eke Jonah v APC & Ors. It is clear that the addition of these pages is clearly inadvertence in compilation, as the pages were not numbered, like the other pages in the record of appeal. This case is also unconnected to this appeal. It is therefore an error in compilation, I hold.

It was not necessary for the 1st respondent to have filed a motion to amend the record. counsel ought simply have drawn the court’s attention to this obvious error in compilation and asked the court to discountenance the same. I accordingly shall discountenance these two unnumbered pages, having been obviously inserted into the record of appeal in error.

The 1st respondent’s motion is accordingly dismissed.

I now proceed to the substantive appeal.

Main appeal:

Briefs of argument/issues for determination

The appellant’s brief of arguments, settled by Dr. O. E. Enwere, Esq. and filed on 16th February, 2023, distilled Four (4) issues for the court’s determination, to wit:

Whether the learned trial Judge was wrong when he held that the 1st respondent conducted direct primary election for Umuahia Central State Constituency.

Whether the burden of proof lies on the 3rd respondent who sought declaratory reliefs before the trial court to succeed on the strength of his case and not rely on the weakness of the case of the appellants.

Who between the 2nd respondent and the 1st respondent won the primary election of the 1st respondent for Umuahia Central State Constituency of Abia State.

The 1st respondent’s brief of arguments, settled by Akachi Onyeneke, Esq. and filed on 23rd February 2023, distilled two issues for determination, namely:

Whether the trial court denied the appellant any fair hearing/trial in coming to its decision in the matter.

Whether the trial court was right in entering judgment in favour of the 3rd respondent and granting him his reliefs as sought in the circumstances of the case.

The appellant’s reply brief was filed on 03/03/2023.

The 2nd and 3rd respondents filed no briefs of argument.

In determining this appeal, I shall adopt the issues for determination distilled by the 1st respondent, being more succinct. Under this issue, the issues for determination formulated by the appellants shall be accommodated.

The issues are thus:

Whether the appellant was denied fair hearing by the trial court?

Whether the trial court was right to enter judgment in favour of the 1st respondent?

The 1st issue for determination, is:

Whether the appellant was denied fair hearing by the trial court?

Appellants’ submissions:

The appellants argued this issue under issue 4 as formulated by learned counsel. Citing cases on the importance of fair hearing, learned counsel contended that the appellants were not afforded this right, complaining that the lower court did not evaluate the appellants’ case but peremptorily rejected the same, without resolving the issues raised by the appellants and hastily granted the reliefs of the 1st respondent, not affording the appellants a fair hearing. Justice, he said, was manifestly perverted.

1st respondent’s submissions:

Learned counsel submitted that Rule 4(4) of the Federal High Court (Pre-Election) Practice Directions, 2022 (Practice Directions) and Order 48 Rule 4 and appendix 2(38) of the Federal High Court (Civil Procedure) Rules, 2019 provides that the filing of the appellant’s counter affidavit and written address must be done within 10 days of the service of the originating summons on the appellant but that in the instant suit, the appellants failed to do so, thus the appellants’ processes were rightly struck out by the lower court. Having been struck out, the lower court rightly did not rely on them. He cited the case of Umuokoro v. N.P.A. (1995) 9 NWLR (Pt. 418) at 245.

51015202530354045Counsel further submitted that the appellants were given ample opportunity to file their processes within time and to defend the claims made against them but that they failed to utilize the same and can thus not turn around to claim that their right to fair hearing has been breached. He cited the cases of A-G., Rivers State v. Ude (2006) 4 WRN 86; (2007) All FWLR (Pt. 347) 598 at 613 – 614, Newswatch Communications Ltd v. Atta (2006) 34 WRN 1; (2006) 4 S.C 114 at 128 – 129.

Resolution:

The lower court, in its judgment, at pages 360 – 361 of the record of appeal, noted:

“The appellants were served with the originating summons on the 29th august, 2022 but that they filed their counter affidavit and written address on the 25th November, 2022 while the 3rd defendant was served on the 11th October, 2022 and he filed his counter-affidavit on the 24th October, 2022. From the date of service of the originating summons on the 1st, 2nd and 3rd defendants to the date of filing their counter-affidavit and written address in opposition to the originating summons were more than 10 days and the 1st, 2nd and 3rd defendants did not seek for leave of this court to do same.

Practice directions are meant to be enforced because they have the force of law and their breach attract (sic) sanctions. See the case of Unilag v. Aigoro (1984) 11 S.C 159.

The use of the word shall in order 4 rule 4 connotes command and is mandatory, failure of which attract sanction……Therefore the counter-affidavit and the written address filed by the 1st, 2nd and 3rd defendants are of no moment and are hereby struck out”

Paragraph 4(4) of the Federal Republic of Nigeria Federal High Court of Nigeria (Pre-Election) Practice Directions, 2022, is quite explicit with regard to the time line for filing of counter-affidavit to the originating summons.

It provides as follows:

“A respondent served with an originating summons shall within 10 (ten) days of such service, file in the registry of this court, a counter-affidavit and a written address, which may include any preliminary objection raised in the action”.

It is well settled that where the provisions of a statute are garbed with the word “shall”, it connotes a command, making it imperative for the provision to be obeyed. See Corporate Ideal Insurance Ltd. v. Ajaokuta Steel Co. Ltd (2014) 28 WRN 39; (2014) 7 NWLR (Pt. 1405) 165 at 193 paragraphs D – E per Okoro, JSC, Agip (Nigeria) Ltd v. Agip Petroleum International (2010) 5 NWLR (Pt. 1187) 348 at 419 para F-H per Adekeye, JSC.

Indeed, paragraph 1 (2) (2) of the said Practice Directions states:

“This Practice Direction shall apply notwithstanding the provisions of the Federal High Court (Civil Procedure) Rules, 2019.”

Election, including pre-election cases are sui generis, with their own rules and which must be applied strictly, I hold. Timelines are thus strictly observed.

This court in the unreported decision in appeal No. CA/OW/335/ 2022 Hon. Kingsley Echendu v Hon. Ozurigbo Ugonna & Ors, delivered on 3rd day of November, 2022, per Rita Nosakhare Pemu, JCA with respect to a further affidavit filed after the period stipulated in the Practice Directions, held:

“….the 1st cross-respondent’s further affidavit having been filed out of the time stipulated by the extant rules of court, filed about 8 (eight) days after the three days period stipulated in the Practice Direction, same was filed out of time and the time cannot be extended. The court below was wrong to have held that extension of time within which to file process such as a further affidavit in the substantive suit in election matters is contemplated under the extant Federal High Court (Pre-Election) Practice Directions, 2022. In pre-election matters time is of the essence. It cannot be extended for whatever reason.”

In People’s Democratic Part y (PDP) v. INEC (2015) 2 WRN 1; (2014) 17 NWLR (Pt. 1437) 525 at 553 – 554 paragraphs G – C, His Lordship Okoro, JSC, reading the leading judgment, held:

“It has been stated in quite a number of decisions in this court that election matters are sui generis and as such must be conducted strictly in compliance with the rules guiding them…the Practice Directions has prescribed time within which each party is to comply with the processes leading to the hearing of the appeal. It is thus my view that in the circumstance such as this, no party is allowed to default and then turn around to plead the Interpretation Act….. Any action done outside the period prescribed is, to say the least, a nullity.

The use of the word “shall” in paragraph 6 of the Practice Directions, makes it mandatory. No party or this court has any discretion in the matter.”

For infraction of the time lines stipulated in paragraph 6 of the Practice Directions before them, the Supreme Court held:

“On the whole, I hold that the brief of the 26th respondent filed on 27th August, 2014, having been filed in flagrant disobedience to paragraph 6 of the Practice Directions is incompetent and is hereby struck out. The preliminary objection is thus upheld”

The lower court, having rightly struck out the counter-affidavit of the appellant and the Written Address in support could thus not entertain any arguments or contentions of counsel, the bottom having been knocked out of their case.

As held by the Supreme Court in Newswatch Communications Ltd. v. Attah (2006) 34 WRN 1; (2004) 12 NWLR (Pt. 993) 144 at 179 paragraphs B – D per Oguntade, JSC:

“A party who has been afforded the opportunity to put across his defence and who fails to take advantage of such opportunity cannot later turn round to complain that he was denied a right to fair hearing.”

See also Bill Construction Co. Ltd v. Imani & Sons Ltd (2007) 7 WRN 152; (2006) 19 NWLR (Pt. 1013) 1 at 14, paragraphs D – E per Onnoghen, JSC (as he then was).

The appellants, having been given an opportunity to present their defence, yet having failed to do so within the time provided in the Practice Directions, cannot be heard to complain that their right to fair hearing had been breached, I hold. I thus resolve the 1st issue for determination against the appellants.

The 2nd issue for determination, is:

Whether the trial court was right to enter judgment in favour of the 1st respondent?

Appellants’ submissions:

It is the contention of learned counsel to the appellants that the lower court erroneously held in favour of the 1st respondent, in that the 1st appellant had adopted the indirect mode of primary elections in the whole of Abia state but the 1st and 3rd respondents had alleged that the direct mode of primary election was adopted by the 1st appellant. They had, however, woefully failed to produce the necessary evidence to back up this claim. This issue, he said, had been laid to rest by the Court of Appeal in the unreported case of High Chief Ikechi Emenike v. Dr. Uchechukwu Sampson Ogah & 2 Ors (appeal No: CA/AB/CV/1258/2022), and affirmed by the Supreme Court in the cases of Dr. Sampson Uchechukwu Ogah v. All Progressive Congress & 4 Ors (appeal No: SC/CV/20/2023), Dr Sampson Uchechukwu Ogah v. High Chief Ikechi Emenike & 4 Ors. (appeal No: SC/CV/21/2023) where it was held that the 1st appellant had adopted the indirect mode of primary election in Abia State.

Appellants’ counsel also submitted that the 1st respondent failed to prove his case before the lower court, having failed to provide cogent and sufficient evidence that he is entitled to the judgment entered in his favour; more so, as he had sought for declaratory reliefs before the lower court, thereby placing the burden of proof on him to succeed on the strength of his own case and not on the weakness of the appellants’ case. He cited the cases of Emenike v. PDP (2012) 48 WRN 1; (2012) 12 NWLR (Pt. 1315) 556 at 591 para H per Fabiyi, JSC, Dumez Nig Ltd v. Nwakhoba (2009) 9 WRN 1; (2008) 18 NWLR (Pt. 1119) 361 at 373-374 para H-C.

Counsel further alleged that the 1st respondent bore four different names as shown by the record of appeal viz; “Ugonna Iroakazi”, “Iroakazi Nwosu Ugona”, “Ugona Iroakazi-Nwosu Uzoma”, “Ugonna Iroakasi” which manifest contradictions ought not to be condoned, as the law does not permit a litigant to change his colour “like a chameleon”, citing the case of PDP & Ors. v. Degi-Eremienyo & Ors. (2020) 29 WRN 38; (2021) 9 NWLR (Pt. 1781) 274 per Eko, JSC. He submitted, in addition, that the trial court lacked the jurisdiction to hear the matter in the first place as it was wrongly commenced by means of an Originating Summons instead of by a writ of summons, as the facts of the case were contentious, citing Sani v. Kogi State House of Assembly (2021) 24 WRN 1; (2019) 4 NWLR (Pt. 1661) 172 at 184, paragraphs B – D. In determining who is the validly nominated candidate of a political party, it is the political party that is to decide and not the other way round, he also argued, citing the case of Akpabio Godswill Obot v. APC SC/CV/1459/ 2022 (Unreported).

He urged the court to set aside the judgment of the lower court, being perverse, as the trial judge had shut its eyes to the evidence of the appellants and only considered the weak evidence of the 1st respondent. A dispassionate review of the evidence before the lower court will reveal that it was the appellant who won the primary election of the 1st respondent for the Umuahia Central State Constituency in Abia State and not the 3rd respondent.

1st respondent’s submissions:

Counsel submitted that the trial court carried out its primary duty and properly evaluated and appraised the evidence presented by the 1st respondent in finding in his favour and in granting all the reliefs sought in the originating summons as required by law. He argued that the 1st respondent’s case was unchallenged at the trial court, as the processes of the appellants along with that of the 2nd respondent were properly struck out by the trial court. The law is trite, he submitted, that where there is no evidence given in defense of a case, only little is required of the court in the evaluation of evidence, citing Cappa and D’ Alberto Ltd v. Deji Akintilo (2003) LPELR-829(SC), Zenith Bank Plc. v. Nacoil International Limited (2017) LPELR-49973(CA).

Counsel argued that that the arguments raised by the appellants in issues 1 – 3 of their brief of arguments are of no moment, there being no evidence put forward by the appellants that can ground same, as the trial court, in coming to its decision, could not have relied on the non-existent evidence of the appellants against the credible and uncontroverted evidence put forward by the 1st respondent. A review of the evidence put forward by the 1st respondent shows that he had sufficiently proved his case. The trial court was thus right in believing his case and in entering judgment in his favour.

On the contention of appellants’ counsel that the courts had decided that what was carried out by the 1st appellant was the indirect mode of primary election, the 1st respondent counsel submitted that the unreported decisions cited by the appellants do not apply to the facts of this present case as they pertain to the Governorship primary. However, the Supreme Court in Appeal No: SC/CV/1626/2022 – Hon. EmekaAtuma v. Hon. Samuel Ifeanyi Onuigbo & Ors., (Unreported) judgment delivered on 27/1/2023 held that the 1st appellant adopted the direct system of primaries for the 2023 general election in Abia State including the Umuahia Central State Constituency affirming the decision of this honorable court in appeal No: CA/OW/404/2022 – Hon. Samuel Ifeanyi Onuigbo v. APC & 2 Ors. (Unreported) delivered on 30/11/2022.

Resolution:

I shall discountenance arguments by the appellants’ counsel on differences in names of the 1st respondent, as this is not borne out in any of the grounds of appeal filed by the appellants and is not an issue that was raised at the lower court. Any issue or contention not considered and pronounced on by the trial court cannot be raised on appeal, without the leave of court having been obtained, I hold. See Idufueko v. Pfizer Products Ltd. (2014) 41 WRN 1; (2014) 12 NWLR (Pt. 1420) 96 at 122, paragraph A, per Galadima, JSC, Obi v Uzoewulu (2021) 27 WRN 1; (2021) 8 NWLR (Pt. 1778) 352 at 377 paragraphs G – C per Aboki, JSC.

The lower court, in giving judgment in favour of the 1st respondent held:

“Going by the affidavit evidence of the plaintiff, I am satisfied that the plaintiff has made out a case on the strength of the affidavit evidence adduced and the documentary evidence provided. I hereby enter judgment for the Plaintiff as per the originating summons and the reliefs claimed”

In order to determine if the lower court was justified in so holding, it is necessary to consider the affidavit of the 1st respondent.

From the affidavit in support of the originating summons of the 1st respondent at pages 2 – 10 of the record of appeal, it is deposed that the 1st appellant, via its National Working Committee (NWC), in line with its Constitution and guidelines, approved the adoption of the direct mode of primary elections for the nomination of candidates into the various elective offices in some states, inclusive of Abia State. This was as a result of the inability of the Abia State Chapter of the 1st appellant to conduct congresses for the election of delegates to enable the conduct of indirect primaries. In compliance with the directive from the 1st appellant, which was communicated to the 3rd respondent and the State Chapter of the party, the direct mode of primary election was adopted on 25/5/2022 at which he was elected as the successful candidate, having earlier been screened by the party and filled an Expression of Interest and Nomination Form. At the election, monitored by the 3rd respondent, the 2nd respondent and others also contested; he scored 3,090 votes out of 3,367 valid votes cast and was declared the winner, while the 2nd respondent scored only 12 votes. Upon submission of the said result, he was issued by the 1st appellant with the necessary INEC forms, including INEC Form EC9 and EC13E, which he completed and returned, to be uploaded by the 3rd respondent to their portal, only for the name of the 2nd respondent to be uploaded.

In proof of his assertions, he exhibited his Membership Form of the 1st appellant, exhibit A1. Also submitted by him, as exhibit A2 is a “Report on the Inability of All Progressive Congress (APC) to conduct Congresses in Abia State”, signed by one Ayogu Obinna Luke, Deputy Director, HOD.

The letter stated thus:

“report on the inability of the All Progressive Congress (APC) to conduct congresses in Abia State.”

Contrary to the requirement of the Electoral Act, 2022, which requires any political party that wants to use indirect primary election to produce candidates, for any elective position in 2023, to conduct congresses through which delegates who will participate in indirect primary elections shall be elected, the All Progressive Congress (APC) in Abia State was not able to conduct congresses.

Notices were not given to INEC in Abia State and congresses were not conducted by the party.

Consequently, there were no delegates of various categories (ward L.G.A. State and National) in Abia State for purpose of using indirect Primary elections. INEC Abia State did not send list of National delegates to Electoral and party monitoring department (EPM) Abuja when it was requested because there was none.

Secondly, and also consequent on the absence of delegates lists in Abia State, the National Chairman and National Secretary directed that Direct primary mode of election be adopted for all primary election in Abia State. See the attached photocopy of the directive.

All legitimate primary election in Abia State was done through Direct Primaries which were appropriately monitored by INEC.

Sgd

Ayogu Obinna Luke

Deputy Director

HOD

EPM, Abia”

Also exhibited as exhibit A3, is a letter from the 1st appellant and signed by the 2nd appellant in which it was stated as follows:

“ALL PROGRESSIVES CONGRESS

25th May, 2022

APC/NHDO/INEC/19/022/61

The Chairman,

Independent National Electoral Commission (INEC)

Zambezi Crescent,

Maitama – Abuja

Dear Sir,

Attention: Director, EPM

ADOPTING OF DIRECT MODE OF PRIMARY ELECTIONS FOR ABIA, BENUE AND OSUN STATES

Further to our earlier letter referenced APC/HNDO/INEC/19/ 022/54 and dated 19th May, 2022, we want to inform your Commission of the decision of the National Working Committee (NWC) of our Party having involved the powers vested on it by the National Executive Committee (NEC) to adopt DIRECT MODE OF FRIMARIES for the nomination of candidates of the Party into various elective offices for the following states: (Abia, Benue and Osun States).

This is in furtherance to the Party Constitution as amended (2022) and Section 84(4) (b) (c) of the Electoral Act, 2022 (as amended) which provides the option of Direct Primaries in respect of nomination of candidates.

Above is for your information and necessary action, please.

While we hope for your favourable cooperation, please accept the assurances of our esteemed regards.

Yours faithfully,

For: Progressive Congress (APC)

SGD SGD

H.E (sec.) Dr. Abdullahi Adamu Sen. Iyiola Omisore, Ph. D, fnse. Con

National Chairman National Secretary”

Also exhibited as exhibit A4 is a letter from the 1st appellant, signed by Sen, Iyiola Omisore, National Secretary, dated 25/5/2022 addressed to:

“The Chairman, All Progressives Congress (APC), Abia State Chapter, headed “Notification of Adoption of Direct Primary Election for Abia State”.

The letter stated:

“The National Working Committee (NWC) of our great Party, having invoked the powers vested on it by the National Executive Committee (NEC) has adopted the Direct Mode of Primaries for the nomination of candidates of the Party into various elective offices for Abia State at the Umuahia Township Stadium.

It is in furtherance to the Party Constitution as amended (2022) and section 84(4) (b) and (c) of the Electoral Act 2022 (as amended) which provides the option of Direct Primaries in respect of nomination of candidates,

Above is for your information and strict compliance (sic).

Please accept the assurances of our esteemed regards”

Further attached is exhibit A6, the 1st appellant’s “Result Sheet, Primary Election 2022, State House of Assembly”, showing five candidates, out of which the 1st respondent scored the highest, with 3,090 votes out of the total of 3367 votes cast, with the 2nd respondent scoring the lowest with only 12 votes.

Again attached to the Originating Summons as exhibit E7 is a “Report on the All Progressives Congress (APC) State House of Assembly Primaries in Abia State held on 26th May, 2022” signed by the 3rd respondent, showing the winners of the 24 (twenty-four) House of Assembly Constituencies in Abia State. Reflected as No. 16 for Umuahia Central Constituency is the 1st respondent.

Learned appellants’ counsel has however argued that the lower court erroneously held in favour of the 1st respondent’s election, when the facts were that the 1st appellant had adopted the indirect mode of primary elections in the whole of Abia State and not the direct mode of primary election at which the 1st appellant was elected. He alleged that the 1st respondent failed to produce the necessary evidence to back up this claim. He cited the unreported decision of this court in APC v. Dr. Uchechukwu Ogah CA/ABJ/1257/2022 and of the Supreme Court in Ogah v. Emenike SC/CV/21/2023.

However, not only are those cases in respect of Governorship primaries, there was contention in those appeals between the validity of the primaries and which of them, in the words of His Lordship Tijjani Abubakar, JSC in SC/CV/21/2023 had “the blessing of the appropriate organ of the 2nd respondent (APC)”.

In the instant case, the 1st respondent had proved to the satisfaction of the court, with documentary evidence, the directive of the party authorizing the primaries which he participated in and won.

Each case, I hold, is authority for what it decides. A judgment must always be read in the light of the facts on which the case was decided. The doctrine cannot be applied, willy nilly, across the board with little regard to the facts of the case before the court. See Obioma v State (2020) 3 NWLR (Pt. 1710) 45 at 61, paragraphs D – G per Kekere-Ekun, JSC, Nigeria Agip Oil Company Ltd v. Nkweke (2016) 37 WRN 1; (2016) 7 NWLR (Pt. 1512) 588 at 624 paragraphs A – B per Nweze, JSC.The appellants’ counsel has rightly submitted that the plaintiff seeking declaratory reliefs must succeed on the strength of his case and not on the weakness of the defence. However, as submitted by the 1st respondent’s counsel, where the plaintiff has adduced admissible evidence which is satisfactory in the context of the case, and none is available from the defendant, the case will be decided upon a minimum of proof. This makes the burden lighter. See Adeleke v. Iyanda (2001) 28 WRN 1; (2001) 13 NWLR (Pt. 729) 1 at 23 – 24, paragraphs H – A per Uwaifo, JSC, Marketing Co. Ltd. (2000) 9 NWLR (Pt. 671) 44 at 52, paragraph H per Aderemi, JCA (as he then was), Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27 at 41 – 42, Para H-A per Onu, JSC.

In the words of Tobim, JSC in Cappa & DAlberto Ltd. v. Akintilo (2003) 27 WRN 1; (2003) 9 NWLR (Pt. 824) 49 at 72 paragraph A:

“….where evidence in contradiction of a claim is not given, the burden of evaluation of evidence on the part of a court, trial or appellate, is less.”

Notwithstanding the light burden placed on him, the 1st respondent has given cogent facts in support of his claim, which satisfied the trial Judge. I have no reason to fault the trial Judge’s decision. Not only is there no evidence from the other side, the 1st respondent, I have held, gave cogent facts sufficient to persuade the judge in his favour.

The appellants’ counsel has contended that the 1st respondent should have filed a writ of Summons; the facts being contested. However, paragraph 4(1) of the Federal High Court (Pre-Election) Practice Directions, 2022 is quite clear that:

“Every pre-election matter shall be commenced by an Originating Summons as specified in Forms 3, 4 or 5 of appendix 6 of the Federal High Court (Civil Procedure) Rules, with such variation as circumstances may require.”

Paragraph 4(2) thereunder stipulates the documents to accompany the originating summons.

As has been stated by me above, pre-election matters are sui generis with specific stipulations as to form and time lines. They are to be obeyed.

In any event, this submission is now academic, as there is no longer any contention on facts, the counter affidavit of the appellant having been struck out by the lower court.

In the instant case, by the facts presented before the lower court and in the absence of any to the contrary or of any effective challenge to the affidavit evidence of the 1st respondent, there is nothing to show any infraction by the 1st respondent of the Electoral Act in the conduct of the elections on the day in question, I hold.

Each case, as I have held above, is authority for what it decides and must not be stretched beyond the facts before that court. In any event, there being no facts to counter those deposed to by the 1st respondent on the propriety of the direct primaries in which he was elected, the trial Judge rightly entered judgment in his favour, I hold.

In the instant case, by the facts presented before the lower court and in the absence of any to the contrary or of any effective challenge to the affidavit evidence of the 1st respondent, there is nothing to show any infraction by the 1st respondent of the Electoral Act in the conduct of the elections on the day in question, I hold. I again resolve the 2nd issue for determination against the appellant.

Having so done, this appeal, I hold, has no merit and is dismissed. The ruling and judgment of the lower court are accordingly affirmed.

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Other Citation: (2023) 18 E-WRN / 03 (CA)