Barrister Franc Fagah Utoo V. All Progressives Congress & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

This appeal is against the judgment of the Court of Appeal, Abuja Division in appeal No. CA/A/128/2016 delivered on 9th December, 2016 in which the Court dismissed the appeal of appellant against the judgment of the High Court of the Federal Capital Territory in suit No. CV/932/2015 delivered on the 15th day of December, 2015 dismissing the case of the plaintiff, now appellant before this Court. The instant appeal is therefore a further appeal by the appellant.

The facts of the case include the following:

On the 27th day of January, 2015, appellant, as plaintiff instituted an action vide an originating summons against the respondents in which he called for the determination of the following questions:-

1. WHETHER the 1st Defendant acted in accordance with Sections 31 (1) & 87 (4) (c) (ii) of the Electoral Act, 2010 (as amended) to have forwarded the name of the 2nd Defendant to the 3rd Defendant as candidate in the forthcoming 2015 general election in Makurdi/Guma Federal Constituency of Benue State when the 2nd Defendant neither

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participated nor emerged as winner of the primary election conducted on the 7th day of December, 2014 in Makurdi.

2. WHETHER having regard to Section 31(2) of the Electoral Act 2010 (as amended) the 2nd defendant who did not take part in the Makurdi/Guma Federal Constituency primary election of the 1st defendant held at the Haf Haven hotel premises on the 7th of December 2014 complied with the requirement of the law regarding the information and affidavit of personal particulars submitted to the 3rd defendant when he was not the one who stood and won the primary election.
3. WHETHER having regard to Sections 31 (1) and (5), 87 (4) (c) (ii) (7) (9) & (10) of the Electoral Act, 2010 (as amended), the 1st Defendant was right to have failed, refused and or neglected to submit to the 3rd Defendant the name of the Plaintiff who participated in the primary election and was declared winner and candidate of the 1st defendant, All Progressives Congress (APC) for the forthcoming 2015 general election for the Makurdi/Guma Federal constituency of Benue State.
4. WHETHER having regard to the provision of the 1999 Constitution of the Federal Republic of Nigeria (as

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amended) and the Electoral Act, 2010 (as amended) the 1st defendant having screened and cleared the plaintiff to participate in the 1st Defendant’s House of Representatives primary election and the plaintiff having participated and won the said primary election and the report of the National Assembly primaries Elections Appeal Committee of the 1st Defendant, affirming the Plaintiff as the winner of the primary election and the candidate of the 1st Defendant, the 1st Defendant had any discretion to have refused to submit the name of the plaintiff as the candidate of the 1st Defendant for the 2015 general election of Makurdi/Guma Federal Constituency of Benue State to the 3rd Defendant.

5. If the question in 4 above is answered in the negative especially against the 1st Defendant, WHETHER the plaintiff is not entitled to be accorded all the rights of a nominated candidate of the 1st Defendant for the forthcoming 2015 general election into the House of Representatives to represent Makurdi/Guma Federal Constituency of Benue State.

The plaintiff claimed the following reliefs:

1. A DECLARATION that it is mandatory for the 1st

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defendant to forward the name of the plaintiff who won the primary election conducted by the 1st defendant in the Makurdi/Guma Federal Constituency of Benue State on the 7th of December, 2014 to the 3rd Defendant in accordance with the Electoral Act 2010 (as amended).

2. A DECLARATION that the purported selection and submission of the name of the 2nd Defendant who did not participate in the 1st defendants primary election as its candidate for the forthcoming 2015 general election into the National Assembly for Makurdi/Guma Federal Constituency of Benue State to INEC is unlawful, unconstitutional, null and void and of no effect whatsoever.
3. A DECLARATION that the Plaintiff who participated and won the party primary election and was declared the candidate of the 1st Defendant is the authentic, rightful and lawful candidate of the 1st Defendant in the 2015 general election of Makurdi/Guma Federal Constituency of Benue State.
4. A DECLARATION that the 1st Defendant cannot by arbitrary fiat or through any illegal or unlawful means adopt and submit the name of the 2nd Defendant to the 3rd defendant as its House of Representatives candidate

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for the 2015 general election for Makurdi/Guma Federal Constituency of Benue State.

5. AN ORDER directing the 1st Defendant to take all steps, actions, including forwarding or submitting the name of the Plaintiff to the 3rd Defendant as its candidate for Makurdi/Guma Federal Constituency of Benue State who got the highest number of votes at the 1st defendant’s House of Representatives primary election held on the 7th day of December, 2014 in respect of the 2015 forthcoming general election into the National Assembly and to allow the Plaintiff to contest the forthcoming 2015 general election on the platform of the 1st Defendant.
6. AN ORDER directing the 3rd Defendant to publish by displaying or causing to be displayed at the relevant office (s) of the 3rd Defendant and on its website, the name and address of the Plaintiff pursuant to Section 34 of the Electoral Act 2010 (as amended).
7. AN ORDER directing the defendants to recognize, accept and deal with the Plaintiff as the candidate of the 1st Defendant in the Makurdi/Guma Federal Constituency of Benue State having emerged as the winner of the 1st defendant’s primary election held on the 7th

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December, 2014 in accordance with the Electoral Act, 2010 (as amended).

8. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant from recognizing, presenting, campaigning for, or in other way, dealing with the 2nd Defendant as its candidate for the Makurdi/Guma Federal Constituency of Benue State in respect of the forthcoming 2015 general election to the National Assembly.
9. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from parading himself as the 1st Defendant’s candidate in respect of the forthcoming 2015 general election in the Makurdi/Guma Federal Constituency of Benue State.”

The case of the appellant as can be gleaned from the record include the following:

Appellant who is a member of the 1st respondent purchased an expression of interest, a nomination form of the 1st respondent to contest the primary election for the selection of a candidate of 1st respondent for the Federal House of Representatives for the Makurdi/Guma Federal Constituency of Benue State; that he was duly screened, participated and won the said primary election; that the other aspirant who

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contested the election with him is C. TERHIDE UTAN who came second; that the election was witnessed by the 3rd respondent who issued a report, Exhibit D; the result was declared in public though no certificate of return was issued to appellant by the 1st respondent’s Chairman of Primary Election panel which compelled appellant to report to the Appeal Committee of the 1st respondent; that the said Committee affirmed the victory of appellant at the primary election as evidenced in Exhibit ‘E’, that the 2nd respondent did not participate in the election but was later purportedly imposed as the 1st respondent’s candidate for the said Federal Constituency election.

It is also the case of appellant that the learned trial Judge dismissed the case of appellant despite the glaring facts as contained in Exhibits ‘D’ and ‘E’, amongst others, by holding, inter alia, that one BULUAN PETERS T, a total stranger to the primary election, was the one who scored the highest number of votes. The appeal before the lower Court was therefore as a result of the dissatisfaction of appellant with the said decision of the trial Judge which appeal, as noted earlier in this judgment was dismissed.

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On the other hand, the case of the 1st respondent is that about four aspirants, including appellant and 2nd respondent, contested its primary election for nomination of a candidate for the election into the Constituency of the Federal House of Representatives in question, which nomination was won by one BULUAN PETERS who subsequently withdrew his candidacy and was duly substituted by 1st respondent with 2nd respondent who was 2nd at the said primary election.

As stated earlier in this judgment, the matter was heard and the case of appellant was dismissed resulting in an appeal to the lower Court which was also dismissed.

The issues identified for the determination of this appeal in the appellant brief filed on 15/3/17 by learned Senior Counsel for appellant, OKON N. EFUT ESQ, SAN are as follows:-

1. Whether the failure of the learned Justices of the Court of Appeal to appreciate the real issues in controversy led to a perverse decision which occasioned a miscarriage of justice (Distilled from ground 1).
2. Whether the learned Justices of the Court of Appeal were right when they discountenance the INEC report (Exhibit D)

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on the ground that it was not properly certified in accordance with the mandatory provisions of Section 104 (1) of the Evidence Act, 2011. (Distilled from ground 2).

3. Whether the Court of Appeal was correct in discrediting Exhibit E, the Appeal Committee Report, based on a minor discrepancy in the Appellant’s name (Distilled from ground 3).
4. Whether the Court of Appeal was right in affirming the Decision of the trial Court declining to strike out the 1st respondent’s counter affidavit which violated fundamental requirements of Section 115(4) of the Evidence Act. (Distilled from ground 4).
5. Whether the learned Justices of the Court of Appeal were right when they raised, considered and relied on fresh issues based on fresh grounds different from grounds and reasoning upon which the trial Court based its judgments’ (Distilled from ground 5).

At this stage, it is necessary to state that learned Senior Counsel for the 2nd respondent S.T HON ESQ, SAN filed a notice of preliminary objection on the 12th day of October, 2017 which had been argued in the 2nd respondent’s brief of argument deemed filed on the 24th day of January, 2018.

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The objections are as follows:

1. That the instant Notice of Appeal is hinged on concurrent judgments of the High Court of the Federal Capital Territory, Abuja delivered on 15th December, 2015 and the Court of Appeal delivered on 9th December, 2016.
2. That by Section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; Section 27(1) (4) of the Supreme Court Act, 2004 and Order 2 Rule 32 of the Supreme Court Rules, leave of Court is essential to appeal against the concurrent judgments, more so as a look at the Grounds of Appeal and their particulars reveal issues of mixed law and facts.
3. That the Appellant failed to secure any leave before filing his Notice of Appeal on 6th January, 2017.
4. That this Honourable Court lacks the jurisdiction to entertain this appeal.”

Since the objection challenges the competence of the appeal and therefore the jurisdiction of this Court to entertain same, it becomes a peripheral matter which has to be determined one way or the other before proceeding any further in the consideration of the merit of the issues calling for the determination of the appeal, if need be.

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In arguing the objection, learned senior counsel referred to the provisions of Section 233 (2) (f) of the Constitution of the Federal Republic of Nigeria, 1999, as altered and submitted that a right of appeal exists only by statute and that the circumstances in which this Court can hear an appeal against the decision of the Court of Appeal either as of right or by leave of Court are clearly stated; that an appellant can only appeal as of right when his grounds of appeal are solely on issues of law but where the grounds of appeal are on issues of fact or mixed law and fact, an appellant needs the leave of either the Court of Appeal or of the Supreme Court; that a look at the grounds of appeal in this appeal reveals that they are not on questions of law alone but on question of mixed law and facts which makes it necessary for appellant to seek and obtain leave before filing the appeal – relying on Section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, (hereinafter referred to as the 1999 Constitution as amended); that the Court of Appeal, in the appeal, affirmed the findings of fact of

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the Court of first instance for which leave is required to appeal against, learned Senior Counsel cited and relied on the case of Ojemen vs Momodu(1983) 3 SC 173 at 211 -212; Ikeachu vs Nwankpa (1967) NML 224 and Amadi vs Okoli (1977) 7 S.C at 58 in urging the Court to strike out the Notice and Grounds of Appeal and dismiss the appeal.

In response to the arguments of learned Senior Counsel for appellant, in the reply brief filed on 19/12/17 and deemed filed on 24/1/18 submitted that the grounds of objection are misconceived as the grounds of appeal raise issues of law alone for which appeal lies as of right – relying on Section 233 (2) (a) of the 1999 Constitution as amended. Learned Senior Counsel stated that the criteria for distinguishing a ground of law from that of mixed law and fact have been settled in the case of Njemanze vs Njemanze (2013) 8 NWLR (pt. 1356) 376 at 393 – 395 as well as the case of Akinyemi vs Odua Investment Co. Ltd (2012) 17 NWLR (Pt.1329) 209 at 231 – 232 and urged the Court to dismiss the preliminary objection for lack of merit.

It is very important, at this stage to remind us of the facts of the case earlier stated in this judgment as grounding the

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respective contentions of the parties to the dispute. Clearly both parties presented different versions of the event surrounding the nomination of a candidate of the APC at the primary election of the party for the general election in question. Also not disputed is that the learned trial Court preferred the version of the facts (case) presented by the 1st defendant/respondent to that of the plaintiff/appellant and that the relevant facts, as so found by the trial Court were duly affirmed by the Court of Appeal following an appeal by the present appellant, thereby making the judgment on the said facts concurrent findings. It is also clear that by learned senior Counsel for appellant insisting that the grounds of appeal in the instant appeal are on law alone thereby requiring no leave of Court, he conceded that if the grounds of appeal challenge the concurrent findings of facts by the lower Courts, the leave of either the lower Court or of this Court is needed as provided for under Section 233(3) of the 1999 Constitution as amended. The question then is which of the contentions of learned Senior Counsel is correct.

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To answer the question, it is necessary to look at the grounds of appeal and their particulars.

The grounds are contained at pages 926 – 931 of the record of appeal and they complain thus:-

GROUNDS OF APPEAL:

GROUND 1

MISDIRECTION:

The learned Justices of the Court of Appeal misdirected themselves when they misconstrued the real issues in controversy as follows:-

The facts of the case as succinctly encapsulated in the 1st respondent’s brief or argument are that the appellant and 3 others contested the 1st respondent’s primary election conducted on the 7th of December, 2014 for Makurdi/Guma Federal Constituency of Benue State. After the said election, one Bulan Peters P. won by polling the highest number of valid votes cast at the election while the 2nd respondent herein came second while the appellant came last with a total of 31 votes The appellant’s contention before the lower Court was that the 1st respondent did not comply with the extent laws and guidelines in substituting the candidature of the said Bulan Peters P. with that of the 2nd respondent relying on Section 85 and 86 of the Electoral Act, 2010 (as amended).

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PARTICULARS OF MISDIRECTION

1. The real issue in controversy from the facts and evidence before the Court revolved around, who participated in the primary election of 7th December, 2014, who emerged and was declared winner, and whose name ought to have been submitted to INEC as the partys candidate for the Makurdi/Guma Federal Constituency of Benue State.
2. The learned Justices of the Court of Appeal did not properly and fully appreciate the real issues in controversy.
3. The learned Justices of the Court of Appeal allowed the ancillary issue of substitution of candidate to overshadow the main issue of who emerged and was declared winner of the primary election, as between the appellant and the 2nd respondent.
4. The failure to appreciate the real issue in controversy led to a wrong decision, which ignored the appellant’s contention that a person who did not participate in the primary election (the 2nd respondent) had his name submitted as candidate.
5. The appellant’s case was based on violations of Sections 31(1), (2) and (5) 87(4) (c) (ii), (7), (9) and (10) of the Electoral Act which deals with submission of the name of

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the winner of the primary election to the 3rd respondent; and not on Sections 85 and 86 of the Electoral Act which deals with Notice of convention and congress, and monitoring of political parties.

GROUND 2

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law when they held:-

It is also apparent from the evidence placed in the affidavit in support of the originating summons that Exhibit D and E were the decisive documents. However, the trial Court did not place any premium on the said documents but instead relied on the documents presented by the 1st respondent in arriving at the decision. I have also examined the contents of both Exhibits D and E which are the report of the 3rd respondent as regards the outcome of the primary election in question as well as the report of the National Assembly Appeal Committee in respect of the appellants petition. Exhibit D is without any doubt a public document requiring certification in accordance with Section 104(1) of the Evidence Act, 2011. On the face of Exhibit D no proper

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certification was made and thereby breaching the mandatory provisions of Section 104(1) of the Evidence Act.

PARTICULARS OF ERROR

1. The Court of Appeal agreed with the Appellant that Exhibits “D” and “E” were the decisive documents, yet it failed to properly consider and evaluate the contents of the said decisive documents by reason of no proper certification.
2. Exhibit “D” (the INEC report) was properly certified, and fully complied with the provisions of Section 104(1) of the Evidence Act.
3. The learned Justices of the Court of Appeal did not state which requirement of Section 104(1) of the Evidence Act was not met or fulfilled in relation to certification of public documents.
4. Having found that Exhibits “D” and “E” were the decisive documents, the Court of Appeal ought to have relied on their contents to determine the main issue of who emerged as winner of the primary election.

GROUND 3

MISDIRECTION

The learned Justices of the Court of Appeal misdirected themselves when they discredited Exhibit “E”, the Appeal Committee Report by magnifying a minor discrepancy in the Appellant’s name to hold as follows:-

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“The question is on whose favour was the certificate being issued based on “E” between Hon. Franc Fagah Utoo or Ban. Frank Utor A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then summersault during the trial and that was exactly the case of the appellant.”

PARTICULARS OF MISDIRECTION

1. The minor discrepancy in Appellant’s name did not mislead the Court, and the parties knew that the name referred to the same person (the appellant).
2. The true identity of the Appellant was never in doubt, neither was it in dispute between the parties.
3. The Court of Appeal sacrificed substantial justice on the altar of technical justice by exaggerating that the Appellant was not consistent in stating his case.
4. From the numerous documents or exhibits placed before the Court below, it was clear that the contents of Exhibit “E” were referable to the Appellant, and nobody else.
5. In his pleadings and at the trial, the Appellant was consistent in presenting his case and proving it with cogent evidence.

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GROUND 4

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law when they failed to strike out the 1st respondent’s counter affidavit even after they had reached the conclusion and held as follows:- In the instant case, the 1st respondents counter affidavit was deposed by Olufemi Olawuyi Abayomi, a counsel in the firm of counsel to the 1st respondent. The source of the deponent’s information is nowhere disclosed in the said counter affidavit. In other words, the trial Court was kept in the dark as to which information was derived from his personal knowledge or which was not, not to talk of the source of information.”

PARTICULARS OF ERROR

The 1st respondents counter affidavit as a whole contained information derived from a source other than the deponent’s personal knowledge.

2. The time, place of such information as well as the circumstances forming the basis of the deponents belief were nowhere stated.
3. The counter affidavit violated the fundamental requirements of Section 115(4) of the Evidence Act.
4. The counter affidavit with the attached Exhibits APC 1 – 9, as held by the Court below, “failed to meet the litmus

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test of cogency and admissibility” and ought to have been declared incompetent and struck out.

5. The fact that appellant’s counsel relied on an incompetent and inadmissible counter affidavit with a view to discredit it as self-defeating, cannot of its own render it compliant with Section 115(4) of the Evidence Act.
6. Parties or counsel cannot by consent or agreement waive compliance with the mandatory requirements of the Evidence Act.
7. The Appellant’s counsel relied on the averments contained in the counter affidavit and the documents attached, to show that they are facts and documents derived from a source other than the deponent, as paragraphs (iv), (ix) & (xx) of the counter affidavit are couched in the 2nd person (the “1st respondent”) instead of the 1st person “I” as mandatorily required in an affidavit.

GROUND 5

ERROR IN LAW

The learned Justices of the Court of Appeal erred in law when they raised, considered and relied on fresh issues based on fresh grounds, different from the grounds upon which the trial Court based its judgment.

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PARTICULARS OF ERROR

1. The issues of improper certification of Exhibit D and the inconsistency of Exhibit E where not made an issue of the trial Court, yet the Court of Appeal made them as issue.
2. The issue of appellant’s reliance on the incompetent counter affidavit of the 1st respondent was neither raised nor considered by the trial Court, yet the Court below raised on that ground in giving judgment.
3. The Respondents filed no respondent’s notice of intention to rely on grounds outside those upon which the trial Court’s judgment was based.
4. There was no leave of Court sought and obtained to raise and argue fresh issues on appeal.
5. The grounds upon which the trial Court gave judgment against the Appellant are different from the grounds relied upon by the Court of Appeal in affirming the trial Court’s judgment.”

From the above grounds of appeal, it is clear that grounds 1 and 3 complain of misdirection as to facts while grounds 2, 4 and 5 are couched as grounds of error in law. However, upon a close examination of the said grounds 2, 4 and 5 of the grounds of appeal together with their particulars, it becomes very clear that they are grounds of mixed law and

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facts. The complaints in grounds 2 and 5 together with their particulars challenge the decision of the lower Courts based on none evaluation of Exhibits “D” and “E” or the source of information contained in the affidavit of the 1st respondent as particularized under grounds 4 and 5 supra. It is worthy of note that both appellant and 1st respondent, and in fact, all the parties relied on the affidavit of 1st respondent as well as the documents exhibited thereto to contest the Originating Summons at the lower Courts.

It is settled law that misdirection is an error made by a Judge in instructing the jury upon a trial of a cause. However, in a legal system such as ours in which the Judge plays the roles or functions of both the jury and Judge, a misdirection occurs when the Judge misconceives the issue, whether of facts or law, or summarizes the evidence inadequately or incorrectly. In this situation, the misdirection may take the form of a positive act or mere non-direction – see Chidiak vs. Laguda (1964) NMLR 123 at 125; Nwadike vs Ibekwe (1987) 4 NWLR (Pt 67) 718 AT 744.

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The issues before the lower Court, as submitted by learned senior counsel for appellant in the appellant brief, which were resolved by that Court are as follows:

2.01 Whether the learned trial Judge was right to reach a determination or conclusion as to who emerged the primary of 7th December, 2014 without considering the INEC report (Exhibit “D”) evidencing the conduct and outcome of the said primary election. (Distilled from Grounds 1, 2 and 5)

2.02 Whether the learned trial Judge was right to have relied on the evidence of the 1st respondent to arrive at the conclusion that it was Bulaun Peter T. who won the primary election when such evidence was self defeating and produce in violation of Section 115(4) of the Evidence Act. (Distilled from Ground 3)

2.03 Whether the purported substitution of Bulaun Peter T. for the 2nd respondent met the requirements of Section 31 and 35 of the Electoral Act, 2010 (as amended) and whether the 2nd respondent was the right candidate to contest Makurdi/Guma Federal Constituency primary election of 7th December, 2014 (Distilled from Ground 4.” – See pages 706 – 713 of the record of appeal.

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From the above, it is very clear that the issues are of facts and/or mixed law and facts.

Section 233(3) of the 1999 Constitution as amended provides as follows:

“Subject to the provisions of Subsection (2) of this section an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or Supreme Court.”

On the guiding principle in determining whether a ground of appeal is that of law, facts or mixed law and facts, this Court in Ogbechie vs. Onochie (1986) 3 S.C. 54, per ESO, JSC stated as follows:

There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case if would be question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”

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It should be noted that learned Senior counsel for appellant complained before the lower Court that the trial Court failed to evaluate Exhibit D which made the lower Court to proceed to evaluate it and made its findings on same which has given rise to ground 2 of the grounds of appeal for which leave of Court is required as the ground is on the finding of facts by that Court – see Ogbechie vs. Onochie supra.

In conclusion, I am of the considered view that the preliminary objection has merit and is consequently sustained. Appellant haven appealed on facts and/or mixed law and facts needed the leave of either the lower Court or of this Court before filing the notice of appeal or even after filing same which appellant failed to do.

In the circumstance, the notice of appeal filed on 6th January, 2017 is incompetent and is hereby struck out and the appeal dismissed.

Parties to bear their respective costs.

Appeal dismissed.

SC.93/2017